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CASE NO.: Appeal (civil)  2254 of 2005

PETITIONER: Hindustan Petroleum Corpn. Ltd.                          

RESPONDENT: Darius Shapur Chenai & Ors.                                      

DATE OF JUDGMENT: 20/09/2005

BENCH: S.B. Sinha & C.K. Thakker

JUDGMENT: J U D G M E N T

W I T H  

CIVIL APPEAL NO. 2253 OF 2005

S.B. SINHA, J :

       Hindustan Petroleum Corporation Limited  was a tenant in the  premises in question wherefor an agreement of tenancy was entered into by  and between the father of the First Respondent and Caltex (India) Limited  for a period of ten years from 15.12.1965.  On or about 24.12.1974, another  deed of lease was executed by the mother of the Respondent No. 1 in favour  of  Caltex (India) Limited for a period of five years expiring on 31.7.1979.   On or about 30.12.1976, the Caltex (Acquisition of Shares of Caltex Oil  Refining (India) Limited and of the Undertakings in India of Caltex (India)  Limited) Ordinance, 1976 (which was replealed and replaced by  the Caltex  (Acquisition of Shares of Caltex Oil Refining (India) Limited and of the  Undertakings in India of Caltex (India) Limited) Act, 1977) was  promulgated whereby and whereunder  right, title and interest of Caltex  (India) Ltd. in relation to its undertakings in India stood transferred to and  vested in the Central Government.  The Central Government, however, in  exercise of its power conferred upon it under Section 9 of the said Act  directed that the said undertakings shall, instead of continuing to vest in the  Central Government, vest in Caltex Oil Refining (India) Ltd., a Govt.  company with effect from 30.12.1976.  Caltex Oil Refining (India) Ltd. was  later on amalgamated with the Appellant herein in terms of Sub-section 3 of  Section 7 of the said Act.  The Appellant herein, thus, was at the liberty to  renew the period of lease for a period of further five years with effect from  1.8.1979 on the same terms and conditions as contained in the deed of lease  dated 24.12.1974.  The Appellant herein exercised  its option of renewing  the lease with effect from 24.4.1979.  On the expiry of the said period, an  eviction proceeding was initiated by the First Respondent against the  Appellant by filing a suit which was marked as O.S. No. 737 of 1985.  The  said suit for eviction was decreed.  An appeal preferred thereagainst was  dismissed.  The Regional Manager of the Appellant herein thereafter sent a  requisition to the Special Deputy Collector for acquisition of the land for the  purpose of continuing the business wherefor a notification was published on  15.10.1985.  However, the said notification lapsed.  On or about 3.6.1989, a  fresh notification was issued under Section 4(1) of the Land Acquisition Act  (for short "the Act").  The First Respondent filed a detailed objection on 20th  July, 1989 contending that there existed no public purpose for acquisition of  the said land and in any event, other suitable lands are available therefor.   Upon giving an opportunity of hearing to the Respondents, the Collector is  said to have conducted an enquiry and submitted his  Report to the  Government on or about 28.8.1989.  A declaration thereafter was issued

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under Section 6 of the Act on 25.9.1989.  Questioning the said notification,  the First Respondent herein filed a writ petition in the High Court which was  marked as W.P. No. 16012 of 1989.  Although, the Deputy Collector and the  Appellant filed their counter affidavits in the said proceedings, no counter  affidavit was filed by the State of Andhra Pradesh.    

       A learned Single Judge of the High Court allowed the said writ  petition.  An appeal thereagainst was filed before this Court marked as Civil  Appeal No. 910 of 1998 and by an order dated 19.8.1998 the judgment of  the High Court was set aside and the matter was remitted to the High Court  on the ground that several other contentious issues have been raised.  The  parties were, however, granted liberty to file additional pleadings.  Pursuant  to or in furtherance of such liberty, the First Respondent herein raised  additional grounds by filing a Miscellaneous Application which was marked  as WPMP No. 27633 of 2003 contending  inter alia therein that there had  been a total non-application of mind on the part of the State Government  both before issuing the notification under Section 4(1) and the declaration  under Section 6 of the Act.  A counter-affidavit was filed by Respondent  Nos. 2 and 3 affirmed by one Shri B. Venkataiah, Special Deputy Collector,  Land Acquisition (General) both for himself as also the State in the said  Miscellaneous Application.   

       It is not in dispute that the High Court upon satisfying itself directed  the State to produce the records relating to the case.  An affidavit affirmed  by one Shri K.V. Rao was filed on 7th November, 2003 stating that the  records were not readily traceable in view of shifting of Industries and  Commerce Department within the premises of the Secretariat Buildings  twice in four years.  An apology was also tendered for non-production of  records.  By reason of the impugned judgment, the writ petition has been  allowed.  The Appellant being aggrieved thereby are before us.  We may,  however, notice that the Appellant herein had prayed for twelve weeks of  time to vacate the premises which was granted by an order dated 19th  December, 2003.

       Mr. K. Ramamoorthy, learned senior counsel appearing on behalf of  the Appellant and Mr. Anoop G. Chaudhari, learned senior counsel  appearing on behalf of the State inter alia raised the following contentions:

(i)     Having regard to the scheme of the Act if a public purpose is  established, the declaration made would be conclusive in terms of  Section 6(3) of the Act in respect of both the need and the public  purpose.   (ii)    In view of the provision contained in  Section 3(f)(iv) of the Act, the  Respondents could not contend that the purpose for which the  notification under Section 4(1) of the Act was issued, was not  public  purpose. (iii)   Once the owner of the land has been given an opportunity to file his  objections which were considered by the Collector; and if the  recommendation made by him is accepted by the Government, the  owner is not entitled to be afforded any further opportunity of hearing.   (iv)    It is not open to the owner of the land to challenge the proceedings on  the ground that the Government has not assgined reasons for rejecting  the objection. (v)     On the facts and circumstances of this case when the acquisition  proceedings have been done in accordance with law, the submission  on behalf of the Respondents that the same has been exercised for a  colourable exercise of power is not tenable in law. (vi)    Even if the acquisition has the effect of nullifying a decree passed by  a civil court, the same would not be a ground for quashing the  acquisition proceedings.

       Dr. Rajeev Dhavan, learned senior counsel appearing on behalf of the  First Respondent would, on the other hand, submit:  

(i)     Although the Act is an imperial legislation, it has essentially three

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broad components: (a)     The acquisition for a public purpose. (b)     Payment of compensation (c)     By taking appropriate due process both while determining  suitability for the public purpose and other acquisitory and  compensatory aspects.    (ii)    The purpose although may a public purpose within the meaning of  Section 3(2)(f) of the Act and a declaration is made under Section 6  thereof, it would not be correct to contend that the acquisition would  be beyond the pale of judicial review.  

(iii)   Since by reason of the provisions of the Act, the owner is deprived of  his right to property, the provisions thereof must be strictly construed. (iv)    Section 5-A of the Act being the heart of the Act gives the citizen to  avail of the only opportunity to make submissions both on the public  purpose and the suitability of the acquisition in respect of his land,  and, thus, being a valuable right which is akin to a fundamental right,  the procedures laid down therein must be strictly complied with. (v)     Section 5-A consists of two parts, viz., hearing of objections by the  Collector and decision of the Government on the objections on the  basis of the Collector’s Report and both the parts must be strictly  complied with. (vi)    Ideally, reasons are required to be assigned while passing an order  under Section 5-A of the Act but even if the same is not required to be  assigned, reasons for order must exist on the record. (vii)   There exists a difference between a subjective satisfaction clause,  where the Government has to be satisfied, and a dispositive clause,  where the Government has to decide on the basis of submissions made  to it.  In the latter case, there is an even stricter scrutiny to consider  whether a determination has been properly made after due  consideration.   (viii)  Where the Court feels that the appropriate scrutiny requires that  records be examined in land acquisition cases, such records must be  made available.

       The main question which fell for its consideration before the High  Court was whether the objections raised by the Appellant objecting to the  acquisition of land on various grounds have been considered by the  Government.

       It is not in dispute that Section 5-A of the Act confers a valuable right  in favour of a person whose lands are sought to be acquired.  Having regard  to the provisions contained in Article 300A of the Constitution of India, the  State in exercise of its power of ’eminent domain’ may interfere with the  right of property of a person by acquiring the same but the same must be for  a public purpose and reasonable compensation therefor must be paid.

       Indisputably, the definition of public purpose  is of wide amplitude  and takes within its sweep the acquisition of land for a corporation owned or  controlled by the State, as envisaged under Sub-clause (iv) of Clause (f) of  Section 3 of the Act.  But the same would not mean that the State is the sole  judge therefore and no judicial review shall lie.  [See Jilubhai Nanbhai  Khachar and Others vs. State of Gujarat and Another \026 (1995) Supp (1) SCC  596] .  

       The conclusiveness contained in Section 6 of the Act indisputably is  attached to a need as also the purpose and in this regard ordinarily, the  jurisdiction of the court is limited but it is equally true that when an  opportunity of being heard has expressly been conferred by a statute, the  same must scrupulously be complied with.   For the said purpose, Sections 4,  5-A and 6 of the Act must be read conjointly. The court  in a case, where  there has been total non-compliance or substantial non-compliance of the  provisions of Section 5-A of the Act, cannot fold its hands and refuse to  grant a relief to the writ petitioner.  Sub-section (3) of Section 6 of the Act  renders a declaration to be a conclusive evidence.  But when the decision

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making process itself is in question, the power of judicial review can be  exercised by the court in the event the order impugned suffers from well- known principles, viz., illegality, irrationality and procedural impropriety.   Moreover, when a statutory authority exercises such enormous power it must  be done in a fair and reasonable manner.   

       It is trite that hearing given to a person must be an effective one and  not a mere formality.  Formation of opinion as regard the public purpose as  also suitability thereof must be preceded by application of mind as regard  consideration of relevant factors and rejection of irrelevant ones.  The State  in its decision making process must not commit any misdirection in law.   It  is also not in dispute that Section 5-A of the Act confers a valuable  important right and having regard to the provisions contained in Article  300A of the Constitution of India  has been held to be akin to a fundamental  right.

       In State of Punjab and Another Vs. Gurdial Singh and Others [(1980)  2 SCC 471], it was held :

"\005Hearing him before depriving him is both reasonable  and pre-emptive of arbitrariness, and denial of this  administrative fairness is constitutional anathema except  for good reasons\005"

       This Court in Om Prakash and Another Vs. State of U.P. and Others  [(1998) 6 SCC 1] held, thus:

"21. Our attention was also invited by Shri Shanti  Bhushan, learned Senior Counsel for the appellants to a  decision of a two-Judge Bench of this Court in the case  of State of Punjab v. Gurdial Singh wherein Krishna  Iyer, J. dealing with the question of exercise of  emergency powers under Section 17 of the Act observed  in para 16 of the Report that save in real urgency where  public interest did not brook even the minimum time  needed to give a hearing, land acquisition authorities  should not, having regard to Articles 14 and 19, burke an  inquiry under Section 17 of the Act. Thus, according to  the aforesaid decision of this Court, inquiry under  Section 5-A is not merely statutory but also has a flavour  of fundamental rights under Articles 14 and 19 of the  Constitution though right to property has now no longer  remained a fundamental right, at least observation  regarding Article 14, vis-‘-vis, Section 5-A of the Land  Acquisition Act would remain apposite."

       The said decision has been cited with approval in Union of India and  Others Vs. Krishan Lal Arneja and Others [(2004) 8 SCC 453].

       Recently, this Court in Union of India and Others Vs. Mukesh Hans  [(2004) 8 SCC 14] observed:

"35. At this stage, it is relevant to notice that the limited  right given to an owner/person interested under Section  5-A of the Act to object to the acquisition proceedings is  not an empty formality and is a substantive right, which  can be taken away for good and valid reason and within  the limitations prescribed under Section 17(4) of the Act.  The object and importance of Section 5-A inquiry was  noticed by this Court in the case of Munshi Singh v.  Union of India wherein this Court held thus: (SCC p.          342, para 7) "7. Section 5-A embodies a very just and

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wholesome principle that a person whose property is  being or is intended to be acquired should have a  proper and reasonable opportunity of persuading the  authorities concerned that acquisition of the property  belonging to that person should not be made. ... The  legislature has, therefore, made complete provisions  for the persons interested to file objections against the  proposed acquisition and for the disposal of their  objections. It is only in cases of urgency that special  powers have been conferred on the appropriate  Government to dispense with the provisions of  Section 5-A:""

       Such an opportunity of being heard is necessary to be granted with a  view to show that the purpose for which the acquisition proceeding is sought  to be made is not a public purpose as also the suitability of land therefor.   [See Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others, (1992) 2  SCC 168, State of Tamil Nadu and Another Vs. A. Mohammed Yousef and  Others, (1991) 4 SCC 224, Bharat Singh and Others Vs. State of Haryana  and Others, (1988) 4 SCC 534 and Shri Farid Ahmed Abdul Samad and  Another Vs. The Municipal Corporation of the City of Ahmedabad and  Another, (1976) 3 SCC 719].

In Mohinder Singh Gill and Another Vs. The Chief Election  Commissioner, New Delhi and others [(1978) 1 SCC 405], this Court  observed:  

"43. Indeed, natural justice is a pervasive facet of secular  law where a spiritual touch enlivens legislation,  administration and adjudication, to make fairness a creed  of life. It has many colours and shades, many forms and  shapes and, save where valid law excludes it, applies  when people are affected by acts of authority. It is the  hone of healthy government, recognised from earliest  times and not a mystic testament of     judge-made law.  Indeed, from the legendary days of Adam \027 and of  Kautilya’s Arthasastra \027 the rule of law has had this  stamp of natural justice which makes it social justice. We  need not go into these deeps for the present except to  indicate that the roots of natural justice and its foliage are  noble and not new-fangled. Today its application must be  sustained by current legislation, case-law or other extant  principle, not the hoary chords of legend and history. Our  jurisprudence has sanctioned its prevalence even like the  Anglo-American system."

       Even a judicial review on facts in certain situations may be available.   In Cholan Roadways Ltd. Vs. G. Thirugnanasambandam [(2005) 3 SCC  241], this Court observed:

"34\005It is now well settled that a quasi-judicial authority  must pose unto itself a correct question so as to arrive at  a correct finding of fact. A wrong question posed leads to  a wrong answer. In this case, furthermore, the  misdirection in law committed by the Industrial Tribunal  was apparent insofar as it did not apply the principle of  res ipsa loquitur which was relevant for the purpose of  this case and, thus, failed to take into consideration a  relevant factor and furthermore took into consideration  an irrelevant fact not germane for determining the issue,  namely, that the passengers of the bus were mandatorily  required to be examined. The Industrial Tribunal further  failed to apply the correct standard of proof in relation to

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a domestic enquiry, which is "preponderance of  probability" and applied the standard of proof required  for a criminal trial. A case for judicial review was, thus,  clearly made out.

35. Errors of fact can also be a subject-matter of  judicial review. (See E. v. Secy. of State for the Home  Deptt.) Reference in this connection may also be made to  an interesting article by Paul P. Craig, Q.C. titled  "Judicial Review, Appeal and Factual Error" published in  2004 Public Law, p. 788."

       Section 5-A of the Act is in two parts.  Upon receipt of objections, the  Collector is required to make such further enquiry as he may think necessary  whereupon he must submit a report to the appropriate Government in respect  of the land which is the subject matter of notification under Section 4(1) of  the Act.  The said Report would also contain recommendations on the  objections filed by the owner of the land.  He is required to forward the  records of the proceedings held by him together with the report.  On receipt  of such a Report together with the records of the case, the Government is to  render a decision thereupon.  It is now well-settled in view of a catena of  decisions that the declaration made under Section 6 of the Act need not  contain any reason. [See Kalumiya  Karimmiya Vs. The State of Gujarat and  Others, (1977) 1 SCC 715 and Delhi Administration Vs. Gurdip Singh Uban  and Others, (2000) 7 SCC 296].

       However, considerations of the objections by the owner of the land  and the acceptance of the recommendations by the Government, it is trite,  must precede a proper application of mind on the part of the Government.     As and when a person aggrieved questions the decision making process, the  court in order to satisfy itself as to whether one or more grounds for judicial  review exists, may  call for the records whereupon such records must be  produced.  The writ petition was filed in the year 1989.  As noticed  hereinbefore, the said writ petition was allowed.  This Court, however,  interfered with the said order of the High Court and remitted the matter back  to it upon  giving an opportunity to the parties to raise additional pleadings.   

       Contention of Mr. Chaudhari to the effect that for long the additional  ground relating to non-application of mind on the part of the State had not  been raised and, thus, it might not be necessary for the State to file a  counter-affidavit does not appeal to us.  When a rule nisi was issued the  State was required to produce the records and file a counter-affidavit.  If it  did not file any counter-affidavit, it may, subject to just exceptions, be held  to have admitted the allegations made in the writ petition.  

       In view of the fact that the action required to be taken by the State  Government is distinct and different from the action required to be taken by  the Collector; when  the ultimate order is in question it was for the State to  satisfy the court about the validity thereof and for the said purpose the  counter-affidavit filed on behalf of a Collector cannot be held to be  sufficient compliance of the requirements of law.  The job of the Collector in  terms of Section 5-A would be over once he submits his report. The Land  Acquisition Collector would not know the contents of the proceedings  before the State and, therefore, he would be incompetent to affirm an  affidavit on its behalf.  

       Furthermore, the State is required to apply its mind not only on the  objections filed by the owner of the land but also on the Report which is  submitted by the Collector upon making other and further enquiries therefor  as also the recommendations made by him in that behalf.   The State  Government may further inquire into the matter, if any case is made out  therefore, for arriving at its own satisfaction that it is necessary to deprive a  citizen of his right to property.  It is in that situation production of records by  the State is necessary.     

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       In Gurdip Singh Uban (supra), whereupon Mr. Ramamoorthy placed  strong reliance, this Court observed:

"50. No reasons or other facts need be mentioned in the  Section 6 declaration on its face. If the satisfaction is  challenged in the court, the Government can show the  record upon which the Government acted and justify the  satisfaction expressed in the Section 6 declaration."

       It was, thus, for the State to justify its action by production of record  or otherwise.    

       The counter-affidavit filed on 30th October, 2003 was also affirmed by  a Special Deputy Collector.  A presumption having regard to the passage of  time can be raised that he was not the Collector who had made enquiry  under Section 5-A of the Act and given an opportunity of hearing to the  owner of the land.  It has not been averred by him as to who had authorized  him to affirm the affidavit on behalf of the State or how he was acquainted  with the fact of the matter.  In terms of the Rules of Executive Business, he  is not authorized to act on behalf of the State.  We have noticed  hereinbefore, that only when the High Court directed production of records a  Principal Secretary to the Government affirmed an affidavit wherein it was  not stated that the records are lost but it was merely stated that they were not  readily traceable.           The Court in a situation of this nature expects that the authorities of  the State would take due care and caution in preserving the records in  relation whereto a lis is pending before a court of law.

       The State was also a party in Civil Appeal No. 910 of 1998.  It is also  relevant to note that even at that point of time, the State did not choose to  prefer any appeal before this Court against the judgment and order passed by  a learned Single Judge of the High Court dated 27.3.1997.  The learned  counsel appearing on behalf of the Appellant herein accepted that the  satisfaction required to be arrived at is not a subjective one but based on  objective criteria.

       Submission of Mr. Chaudhary to the effect that the circumstances  pointed out in the counter-affidavit filed in WPMP No. 27633 of 2003  should be held to be substitute for the reasons which the State must be held  to have arrived at a decision, cannot be countenanced.  When an order is  passed by a statutory authority, the same must be supported either on the  reasons stated therein or the grounds available therefor in the record.  A  statutory authority cannot be permitted to support its order relying on or on  the basis of the statements made in the affidavit de’hors the order or for that  matter de’hors the records.          In  Commissioner of Police, Bombay vs. Gordhandas Bhanji [AIR  1952 SC 16], it is stated :

"\005We are clear that public orders, publicly made, in  exercise of a statutory authority cannot be construed in  the light of explanations subsequently given by the  officer making the order of what he meant, or of what  was in his mind; or what he intended to do.  Public  orders made by public authorities are meant to have  public effect and are intended to affect the actings and  conduct of those to whom they are addressed and must  be construed objectively with reference to the language  used in the order itself."  

       Yet again in Mohinder Singh Gill (supra), this Court observed  :

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"The second equally relevant matter is that when a  statutory functionary makes an order based on certain  grounds, its validity must be judged by the reasons so  mentioned and cannot be supplemented by fresh reasons  in the shape of affidavit or otherwise. Otherwise, an order  bad in the beginning may, by the time it comes to court  on account of a challenge, get validated by additional  grounds later brought out. We may here draw attention to  the observations of Bose, J. in Gordhandas Bhanji."

       Referring to Gordhandas Bhanji (supra),  it was further observed :

"Orders are not like old wine becoming better as they  grow older."

       [The said decisions have been followed by this Court in Bahadursinh  Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others [(2004) 2 SCC  65].

       Although assignment of reasons is the part of  principles of natural  justice, necessity thereof may be taken away by a statute either expressly or  by necessary implication.  A declaration contained in a notification issued  under Section 6 of the Act need not contain any reason but such a  notification must precede the decision of the appropriate Government.   When a decision is required to be taken after giving an opportunity of  hearing to a person who may suffer civil or evil consequences by reason  thereof,  the same would mean an effective hearing.   

       The Act is an expropriatory legislation.  This Court in State of  Madhya Pradesh and Ors. Vs. Vishnu Prasad Sharma and Ors. [1966 (3)  SCR 557] observed that in such a case the provisions of the statute should be  strictly construed as it deprives a person of his land without consent.  [See  also Khub Chand and Ors. Vs. State of Rajasthan and Ors., 1967 (1) SCR  120 and Collector of Central Excise, Ahmedabad vs. Orient Fabrics (P) Ltd.,   (2004) 1 SCC 597].

       There cannot, therefore, be any doubt that in a case of this nature  due  application of mind on the part of the statutory authority was imperative.

       It is not a case where this Court is required to go into the question of  malice either in fact or in law or the question of colourable exercise of  power by the State any other statutory authority.   

       In view of our findings aforementioned, it is not necessary for us to go  into the other questions  raised by the parties.

       For the reasons aforementioned, we are of the opinion that the  impugned judgment suffers from no legal infirmity.  These Appeals are,  therefore, dismissed.  No costs.