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PETITIONER: DELHI ADMINISTRATION

       Vs.

RESPONDENT: GURDIP SINGH UBAN AND ORS.

DATE OF JUDGMENT:       20/08/1999

BENCH: Sujata Manohar, M.Jagannadha Rao

JUDGMENT:

     M.  JAGANNADHA RAO,J.

     Leave granted.

     These  two Civil Appeals have been filed by the  Delhi administration  against the judgment of the Delhi High Court in  C.W.P.   No.   920  of   1986  dated  17.12.1996.    The respondents  are the owners of an extent of about 2.50 acres in  Chattrapur village.  The notifications, in fact, covered land  of  an  extent  of about  50,000  Bighas  in  thirteen villages.   The Writ petition was allowed under the impugned judgment and the notifications were quashed.

     The  brief  facts  of  the   case  are  follows:   The Notification  under Section 4(1) of the Land Acquisition Act was issued on 25.11.1980 while the declaration under Section 6  was  published on 7.6.1985.  Initially,  the  declaration under  Section  6 was challenged in C.W.P.  No.1639 of  1985 and  76  other  writ petitions and were referred to  a  Full Bench of the Delhi High Court on a certain legal issue.  The Full  Bench  decided  the  point and upheld  the  Section  6 declaration.   The contention before the Full Bench was that the declaration under Section 6 was issued more than 3 years after  the Section 4(1) notification and was, therefore, bad in  law.   The  submission was that even though  there  were various  stay  orders in several Writ petitions by the  High Court  in  relation  to  the  operation  of  the  Section  6 declaration,  they were all individual orders passed in  the cases  of  various Writ petitioners and hence  these  orders could  not  be treated as amounting to a suspension  of  the entire  Section 6 declaration and hence the said declaration must  be struck down as time barred in respect of others who did  not  obtain  stay orders.  The Full Bench of  the  High Court  rejected the above contention holding that the scheme for  which  the land was acquired was an integrated one  and the  stay  orders  even  if  obtained  in  individual  cases necessarily  resulted in precluding any further  proceedings being  taken under the Section 6 declaration.  Excluding the time  covered by the stay orders, the Section 6  declaration must,  it  was held, be deemed to have been issued in  time. On  that reasoning, the notification under Section 4(1)  and

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Section  6 were declared valid by the Full Bench.  The other points  raised  by individual Writ petitioners, namely  that the  inquiry  under Section 5A was vitiated etc.,  were  not decided  by the Full Bench and for that purpose the  matters were  sent  back to a Division Bench.  The judgment  of  the Full  Bench dated 25.7.87 is reported in Balak Ram Gupta vs. Union  of  India  AIR 1987 Delhi 239.   Thereafter,  the  73 matters  were  listed before a Division Bench which  finally disposed  of  the  writ  petitions by  a  separate  judgment reported  as B.R.  Gupta Vs.  Union of India on 18.11.1988 ( 37 (1989) DLT 150).  The Writ petitions were allowed and the Section  6  declaration was quashed on the ground  that  the Section  5A inquiry was vitiated etc.  ( There is dispute as to  whether  the declaration was wholly quashed).  The  said judgment   was   not   appealed   against   by   the   Delhi Administration.   The  present  Writ petition was  filed  on 23.4.1986   for  quashing  the   same   notification   dated 25.11.1980  and  7.6.1985 issued under Sections 4(1) and  6. It  related to Khasra Nos.  704/1, 706/2, 706/3, 707/2, 714, 715/2, 909/2, 10/2 and 693.

     When  the  present Writ petition came up  for  hearing before  a Division Bench on 17.12.1996, the writ petitioners contended  that  by  the  judgment  of  the  Division  Bench rendered  in  B.R.  Gupta dated 18.11.88 - i.e.   after  the Full  Bench  judgment dated 25.7.87 - the entire  Section  6 declaration  stood  quashed and that even though these  writ petitioners  (  respondents in these Civil Appeals) had  not filed  any objections under Section 5A of the Act, they were entitled to rely upon the earlier Division Bench judgment of 18.11.88  and contend that the entire Section 6  declaration was  quashed.  This contention was accepted by the  Division Bench  under  the impugned judgment dated  17.12.1996.   The Division  Bench  held that the earlier judgment resulted  in the  entirety of the Section 6 declaration being quashed and was  a judgment in rem and hence the writ petitioners  could rely  on  that judgment even though they had not  filed  any objections  under Section 5A.  The result, according to  the appellants,  of Section 6 declaration being quashed would be that  the Section 4(1) notification would also lapse.  It is against the above judgment that the Delhi Administration has preferred these appeals.

     In   these  appeals,  the   learned  counsel  for  the appellant  Ms.   Geeta Luthra contended before us that in  a similar  appeal  preferred to this Court decided by a  three Judge  Bench  in  Abhey Ram and Ors.  Vs.   Union  of  India (J.T.1997(5)  SC  354),  in  respect of the  same  group  of notifications it was held that in the case of owners who had not  filed objections under Section 5A, they could not  take advantage  of  the  judgment  of   the  Division  Bench   in B.R.Gupta’s  case  dated 18.11.1988.  It was also held  that upon  a proper understanding of the judgment of the Division Bench  dated  18.11.1988,  it  could not be  held  that  the entirety  of the Section 6 notification stood quashed by the said  judgment.  The above contention of the learned counsel for  the  Delhi Administration was supported by the  learned senior  counsel  for  the Delhi Development  Authority,  Sri Ravinder Sethi.

     On  the  other  hand,  it was contended  by  Sri  P.N. Lekhi,  learned  senior  counsel for the  respondents  (Writ petitioners  ) that the Division Bench of the High Court  in its impugned judgment was right in holding that the Division Bench  in B.R.Gupta’ case, in its judgment dated 18.11.1988,

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had  quashed  the entire Section 6 declaration and this  was clear  from  the  language employed in that  judgment.   The appellant  could not be permitted to blow hot and cold  for, in  order to say that the Section 6 declaration was not time barred, the appellant had contended before the Full Bench in B.R.Gupta’s  case  that stay orders obtained by  some  would amount  to stay of the entire Section 6 declaration and that on  the same parity of reasoning, the subsequent judgment of the  Division Bench in B.R.  Gupta’s case must be deemed  to have  quashed the entirety of the Section 6 declaration.   A passage  in  the Full Bench judgment that  the  notification could not remain partially stayed or partially suspended was also  relied  upon.   Reference  was also  made  to  another judgment  of  this Court in Delhi Development Authority  Vs. Sudan Singh ( 1991 D.L.T.  602 (SC) = 1997(50 SCC 430) dated 20.9.91 where a two Judge Bench of this Court upheld another judgment of the High Court.  In that case, as in the present case before us, the High Court had allowed the Writ petition filed  by  Sudan  Singh who had contended  that  the  entire Section  6 declaration was quashed by the Division Bench  in B.R.   Gupta’s  case in the judgment dated 18.11.88.   Sudan Singh  did not also file objection under Section 5A.  It was argued  that in Abhey Ram’s case decided by the three  Judge Bench on 22.4.97, though Sudan Singh’s case was referred to, the   appropriate   paragraphs  were   not   noticed.    The appropriate  paragraphs  in the Division Bench  judgment  in B.R.  Gupta’s case dated 18.11.88 were also not noticed.  In yet  another case relating to one B.L.  Sharma, another writ petition, C.W.P.  2365/90 was allowed on 6.12.90 and special leave  petition  (C)  3604/92 was dismissed  by  this  Court following  the  judgment in Sudan Singh’s case.  It is  also contended  that  in the letter of the Joint Secretary  dated 31.3.1989,  the legal opinion obtained by the department was that the judgment of the Division Bench dated 18.11.88 would cover  cases where land was not taken possession of - as  in the  present  case.  It is accepted that the respondent  did not  file  objections under Section 5A but it is  said  that this was because he was an Army Officer who at that time was working in the forward areas.

     We  may  state that it is true that in  Sudan  Singh’s case  a  two  Judge Bench of this  Court  confirmed  another judgment  of the Delhi High Court wherein the High Court had allowed  the writ petition on the basis that the judgment of the  Division Bench dated 18.11.1988 had quashed the Section 6 declaration wholly.  It is also true that in Sudan Singh’s case  too  no  objections  were filed by  the  owners  under section  5A.   But, we are governed by the judgment  of  the three  Judge Bench in Abhey Ram’s case where the said  Bench not  only  referred  to  the effect of  the  Division  Bench judgment  of the High Court dated 18.11.88 but also referred to  the  judgment  of the two Judge Bench of this  Court  in Sudan  Singh’s case.  The three Judge Bench in Abhey Ram  is binding on us in preference to the judgment of two Judges in Sudan Singh.

     In  connection  with owners or persons interested  who have not filed objections under Section 5A, in principle, it must  be  accepted that they had no objection to  Section  4 notification operating in respect of their property.  On the other  hand, in respect of those who filed objections,  they might  have locus standi to contend that Section 5A  inquiry was  not  conducted  properly.    We,  therefore,  agree  in principle  with  the view of the three Judge Bench in  Abhey Ram’s  case  that whose who have not filed objections  under

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Section 5A, could not be allowed to contend that the Section 5A  inquiry  was  bad  and   that  consequently  Section   6 declaration  must be struck down and that then the section 4 notification would lapse.  If, therefore, no objections were filed   by   the  respondents,   logically  the  Section   6 declaration must be deemed to be in force so far as they are concerned.

     But  learned  senior  counsel   for  the   respondents contends  that  the  judgment of the  Division  Bench  dated 18.11.1988  in  B.R.   Gupta’s case had quashed  the  entire Section 5A proceedings and that even in case the respondents had  filed  objections,  the position would  not  have  been different.  We cannot accept this contention.  We are of the view  that  in  respect of those who did not object  to  the Section 4(1) notification by filing objections under Section 5A, the said notification must be treated as being in force. The  writ petitioners cannot be permitted to contend that in some other cases, the notification was quashed and that such quashing would also enure to their benefit.

     Then  coming  to  the effect of the  judgment  of  the Division  Bench dated 18.11.88 of the High Court, we are  of the  view that the three Judge Bench judgment in Abhey Ram’s case has interpreted or declared the effect of the said High Court  judgment dated 18.11.88.  That judgment is binding on us.   We cannot go by the two Judge Bench judgment in  Sudan Singh’s  case  because we are bound by the judgment  of  the three  Judge  Bench  in  Abhey  Ram’s  case.   Further,  the judgment  in Abhey Ram’s case takes notice of Sudan  Singh’s case  and  it cannot be contended that they have not  looked fully  into the judgment in Sudan Singh’s case or fully into the  judgment of the Division Bench of the High Court  dated 18.11.88  in B.R.Gupta’s case.  Nor is the dismissal of  the special  leave  petition  in B.L.Sharma’s case  a  precedent which  can  outweigh  Abhey Ram.  The opinion of  the  legal department  of Government or the Delhi Development Authority which  is relied upon - apart from not having binding force, cannot override Abhey Ram’s case.

     Reliance was then placed by the learned senior counsel for  the respondents on Oxford English School Vs.  Govt.  of Tamil  Nadu  ( 1995 (5) SCC 206) but it has no relevance  to the  question  before  us viz whether a  notification  under Section 6 can be upheld in respect of only some of the lands covered by it.  Also a three Judge Bench in N.  Narasimhaiah Vs.  State of Karnataka (1996 (3) SCC 88 ) has held that the said judgment has been rendered per incuriam.  So far as the other  contention  that the Government cannot blow  hot  and cold,  we  are of the view that the reasoning given  by  the Full Bench in its judgment dated 25.7.87 was confined to the question whether Section 6 declaration was time barred.  The Court held that as the scheme was an integrated one, stay of parts  of it precluded the authorities from going ahead with the  entire  section 6 declaration.  That  reasoning  cannot help  the  respondents to contend that the same thing  would apply  to  the quashing of the declaration by  the  Division Bench  in  its  judgment  dated  18.11.1988.   Quashing  the notification  in  the  cases of  individual  writ  petitions cannot  be  treated as quashing the whole of it.   That  was what  was held in Abhey Ram’s case.  The main points  raised before  us  are fully covered by the judgment of  the  three Judge Bench in Abhey Ram’s case.

     For  the  aforesaid reasons, these Civil  Appeals  are

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allowed  and the judgment of the High Court is set aside and the  Writ petition is dismissed.  There will be no order  as to costs.