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PETITIONER: SHRI MANDIR SITA RAMJI

       Vs.

RESPONDENT: LT. GOVERNOR OF DELHI & ORS.

DATE OF JUDGMENT06/08/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ)

CITATION:  1974 AIR 1868            1975 SCR  (1) 597  1975 SCC  (4) 298  CITATOR INFO :  R          1976 SC2095  (26)

ACT: Land Acquisition Act (1 of 1894) s. 5A--Opportunity of being heard to the objector to notification under s. 4--Should  be given by the Collector and not by appropriate Government.

HEADNOTE: The Delhi Administration issued a notification under s. 4 of the  Land Acquisition Act, 1894, stating that  certain  land was  needed  for a public  purpose.   The  appellant-Society filed  an  objection  under s. 5A that a part  of  the  land belonged  to  a  religious  trust.   The  Land   Acquisition Collector  then called for a report, but later, without  any consciousness of his having done so, submitted his report to the  Delhi  Administration stating that  the  appellant  had raised  an  objection and the decision may  be  taken  after inspection  of the site.  The Delhi Administration  did  not give any hearing to the appellant but issued the declaration under  s.  6 including the land with respect  to  which  the appellant filed objection. The appellant challenged the s. 6-notification and a  Single Judge  of  the  High  Court  quashed  it.   On  appeal,  the Divisional  Bench came to the conclusion that the  appellant should  have  been given an opportunity of being  heard  and directing the Delhi Administration to give an opportunity of being heard to the appellants adjourned the disposal of  the appeal. The  first  respondent thereafter heard  the  appellant  and rejected  its objection.  The Divisional Bench then took  up the  appeal and dismissed the writ petition holding that  it was not necessary that the Land Acquisition Collector should have heard the appellant under s. 5A. Allowing  the  appeal  to  this  Court,  and  quashing   the declaration under s. 6, HELD  : (1) The power to hear the objection under S.  5A  is that of the Collector and not of the appropriate Government; and the duty of affording such opportunity of being heard by the Collector under the section is mandatory.  Therefore,  a decision  by  the  Government on  the  objection,  when  the Collector  afforded  no opportunity of being heard,  to  the objector, would not be proper.[599D-E]

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(2)Merely  because  the  Government  may  not  accept  the Collector’s  recommendation,  it could not be said  that  he need  not  make  his  recommendation and  leave  it  to  the Government  to  decide  the  matter.   The  fact  that   the Collector  is not the authority to decide on  the  objection does  not exonerate him from his duty to hear  the  objector and make his recommendation. [599E-F] (3)The  Divisional  Bench of the High Court was  wrong  in holding  that the objection was only a question of  law  and that  therefore  the  Collector could decline  to  make  his report and leave it to the appropriate government to  decide the  question.  The objection raised is a mixed question  of law and fact and the Land Acquisition Collector should  have inquired into it and his failure to do so would show that he declined  to  exercise his jurisdiction under  the  section. When a procedure is prescribed by the legislature, it is not for the Court to substitute a different one according to its notions of justice. [600C-E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1726  of 1972. From  the Judgment and Order dated the 9th May, 1972 of  the Delhi  High Court at New Delhi in Letters Patent Appeal  No. 377 of 1971. J.   K. jain and T. V. S. Narasimhachari, for the appellant. L.   N. Sinha, Solicitor General of India, S. N. Prasad, and R.N. Sachthey, for the respondents No. 1-3. 598 The Judgment of the Court was delivered by MATHEW,  J.-The appellant filed a writ petition  before  the High  Court  of  Delhi for  quashing  a  notification  dated November 7, 1968, issued under s. 6 of the Land  Acquisition Act, 1894 (hereinafter called the ’Act’).  A learned  Single Judge  of the Court quashed the notification mainly  on  the ground   that  the  Land  Acquisition  Collector   gave   no opportunity  to the appellant of being heard in  respect  of the objections filed under s. 5A of the Act.  The respondent (Lt.   Governor  of  Delhi) filed a  Letters  Patent  Appeal before  a  Division Bench.  The Division Bench  allowed  the appeal.  This appeal, by certificate, has been filed against that judgment. The Delhi Administration issued a notification under s. 4 of the  Act  on November 13, 1959 stating that  land  measuring about  34070  acres was needed for a  public  purpose.   The notification  specifically excluded from its  purview  "land under  graveyards, tombs, shrines and the land  attached  to religious institutions and wakf property".  The appellant, a society  registered under the Societies Registration Act  21 of  1960,  filed  an objection under s. 5A  of  the  Act  in respect  of 324 bighas of land in village Karkar Duma.   The objection  was  that  the land in  question  belonged  to  a religious  trust viz., Mandir Sita Ramji, and  was  exempted from  the  purview  of  the  notification.   The   Collector submitted   his  report  on  the  objection  to  the   Delhi Administration on August 18, 1962 and thereafter on November 7,  1968,  the Delhi Administration issued  the  declaration under s. 6 of the Act including the land in respect of which Mandir Sita Ramji had filed objection under s.    5A of  the Act. The  objection  filed  by  the  appellant  before  the  Land Acquisition Collector was not traceable in the office of the Land  Acquisition  Collector.   But on the  date  fixed  for

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hearing  viz.,  July 27, 1962, a copy of the  objection  was found  in  the  records on which  there  was  the  following endorsement: 63 V. Karkar Duma. "Please report if this property is that of Shri Mandir  Sita Ramji,  a  charitable  institution and is  exempt  from  the notification." The Land Acquisition Collector, without any further hearing, and  without  any consciousness of his having called  for  a report,  submitted his report dated August 18, 1962  and  in that  report he stated that an objection was  received  from Shri Mandir Sita Ramji.  There is no mention in that  report that he received any report in pursuance to his order on the copy of the objection petition or that any personal or other kind of enquiry was made in respect of the land in  question subsequent to July 27, 1962.  In that report, the Collector, after  noting the lands and houses in respect of which  Shri Mandir  Sita Ramji had filed objections, made the  following report: "  Decision may kindly be taken after the inspection of the site".  599 Thereafter,   it   is   common  ground,   that   the   Delhi Administration  did  not  give a hearing  to  the  appellant before  publishing the declaration.  It was on the basis  of these  circumstances that the learned Single Judge  and  the Division Bench came to the conclusion that the appellant was given no opportunity of being heard under s. 5A of the Act. When  the  appeal came up for hearing  before  the  Division Bench, the Division Bench felt that an opportunity of  being heard  should  have been given to the appellant and  so  the Bench   directed  the  Delhi  Administration  to  give   the appellant an opportunity of being heard on the objection and send  its  report.   The appellant was  heard  and  the  Lt. Governor,  by his order dated April 27, 1972,  rejected  the objection.   Thereafter, the appeal was again taken  up  for hearing  and the Division Bench came to the conclusion  that it  was  not necessary that the Land  Acquisition  Collector should  have heard the appellant under s. 5A and that  there was no substance in the contention of the appellant that the land  in  question was attached to a  religious  institution and,  therefore, allowed the appeal and dismissed  the  writ petition. The  learned Single Judge allowed the writ petition  on  the basis  that the appellant had no opportunity of being  heard by  the Collector under s. 5A.  The duty to afford  such  an opportunity  is mandatory.  A decision by the Government  on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper.  The power to hear the objection under s. 5A is that the Collector  and not of the appropriate Government.  It is no doubt true that the recommendation of the Land Acquisition Collector is  not binding on the Government.  The Government may choose either to  accept  the  recommendation or to  reject  it;  but  the requirement of the section is that when a person’s  property is proposed to be acquired, he must be given an  opportunity to show cause against it.  Merely because the Government may not  choose  to  accept  the  recommendation  of  the   Land Acquisition Collector, even when he makes one, it cannot  be said  that  he Reed not make the recommendation at  all  but leave  it to the Government to decide the matter.  In  other words,  the fact that the Collector is not the authority  to decide the objection does not exonerate him from his duty to hear   the   objector  on  the  objection   and   make   the recommendation.

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The  objection in substance was that the lands  in  question were attached to a religious institution and were therefore, immune from being acquired under the notification.  That was how the Land Acquisition Collector understood the objection. The objection raised a mixed question of law and fact and it was  because of that the Collector called for a report.   To say,  as  the Division Bench has done,  that  the  objection raised only a question of law and, therefore, the  Collector could decline to make the recommendation and leave it to the appropriate  Government  to decide the question  is  neither here  nor  there, in as much as the High  Court  itself  has stated that the question whether the land is attached to the religious  institution  would  depend  upon  resolution   of questions of fact.  The Division Bench said: 600 "Thus it is the manner of the utilisation of land which will determine whether it was ’attached to’ or not in the present case.   In as much as nothing has been shown that  the  land was   utilised  for  the  purpose  of  the  temple  or   the institution  or that its income was so utilised, it must  be held  that the mere contiguity of the land to the temple  of Shri   Hanuman   or  its  ownership  by   Shree   Sita   Ram Bhandar/Mandir Sita Ramji at Pilani would not make the  land in question ’attached to’ any one of these." If  this  is  so,  it is difficult  to  understand  why  the objection raised only a question of law which could be  left to  the decision of the appropriate Government  without  the recommendation  by  the  Collector.  As we  have  said,  the objection  was  that  the lands belonged  to  the  religious institution  and  would  come  within  the  purview  of  the exempted class of lands in the notification.  In  substance, this  was an objection that the lands were attached  to  the religious institution.  As the objection raised questions of fact,  the Land Acquisition Collector should  have  enquired into  them  and  should  have  made  his  recommendation  as provided  in  s. 5A.  The failure of  the  Land  Acquisition Collector  to  inquire into the objection after  giving  the appellant  an opportunity of being heard would show that  he declined to exercise his jurisdiction under the section.  As we said, the fact that the ultimate decision has to be  made by  the State Government did not relieve the Collector  from his  statutory duty to enquire into the objection  and  make the recommendation.  We see no reason why the Division Bench should  have departed from the procedure prescribed  by  the statute.   The  observance  of the procedure  laid  down  by statute  before  depriving  a  person  of  his  property  is necessary to generate the feeling that rule of law  prevails in  this  country.  When a procedure is  prescribed  by  the legislature,  it  is  not  for the  court  to  substitute  a different one according to its notion of justice.  When  the legislature  has  spoken,  the judges cannot  afford  to  be wiser. We quash the declaration published under s. 6 of the Act and direct  the Land Acquisition Collector to enquire  into  the objection  after giving an opportunity to the  appellant  of being  heard  and make the necessary recommendation  to  the appropriate  Government.   The appropriate  Government  will proceed  further  in  the  light  of  its  decision  on  the recommendation.   We  set aside the order  of  the  Division Bench and allow the appeal but make no order as to costs. V. P. S.                  Appeal allowed 601