BHIMANDAS AMBWANI (D) THR. LRS.versusDELHI POWER COMPANY LIMITED & ORS.

                         [2013] 1 S.C.R. 996


A            BHIMANDAS AMBWANI (D) THR. LRS.
                               v.
           DELHI POWER COMPANY LIMITED & ORS.
              (Civil Appeal Nos. 204-205 of 2004)
                        FEBRUARY 12, 2013
B
      [DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.]

         Land Acquistion Act, 1894 - ss.4 and 6 - Successive
   Notifications under s.41 Declarations under s.6- Effect- Held:
C The effect would be that earlier notification/declaration stands
   obliterated/ superseded and in such a fact-situation, it would
   not be permissible for either of the parties to make any
   reference to the said notifications/ declarations which stood
   superseded - On facts, s. 4 Notification dated 26. 3. 1983 and
D Declaration u/s.6 dated 13.5.1983 superseded all earlier
   notification/declaration - However, no proceedings were taken
   in pursuance of the said notification/declaration issued in the
   year 1983 and after commencement of the Amendment Act
    1987, the said notification/declaration made in the year 1983
E stood elapsed as no award had been made within the period
   stipulated under the Act - Thus, there can be no sanctity to
 · any of the acquisition proceedings initiated by the
   respondents so far as the suit land is concerned, though the
   appellants stood dispossessed from his land in pursuance of
F the Notification uls.4 dated 5.3.1963 -Appellants had been
   dispossessed without resorting to any valid law providing for
   acquisition of land, thus, entitled for restoration of possession
   of the land in dispute -However, considering the fact that
   possession of the land was taken over about half a century
G ago and a full-fledged residential colony of employees of
   DESU has been constructed on the said land, therefore, it
   would be difficult for respondent no. 1 to restore the possession
   - In such a fact-situation, the only option left out to the
   respondents is to make the award treating s. 4 notification as,

H                                996
   BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI                    997
          POWER COMPANY LIMITED

on this date, i.e. 12.2.2013 - Land Acquisition Collector            A
directed to make· award after hearing the parties within a period
of four months - Appellants at liberty to file a reference u/s. 18
of the Act and to pursue remedies available under the Act -
Appellants shall be entitled to all statutory benefits.
                                                                     B
    Bhutnath Chatterjee v. State of West Bengal & Ors.
(1969) 3 SCC 675; Land Acquisition .Officer-cum-RDO,
Chevella Division, Ranga Reddy District v. A. Ramachandra
Reddy & Ors. AIR 2011 SC 662: 2011 (1) SCR 324;
Raghunath & Ors. v. State of Maharashtra & Ors. AIR 1988
SC 1615: 1988 (3) SCC 294; Hindustan Oil Mills Ltd. & Anr.           C
v. Special Deputy Collector (Land Acquisition) AIR 1990 SC
731: 1990 (1) SCC 59; Raipur Development Authority v.
Anupan Sahkari Griha Nirman Samiti & Ors. (2000) 4 SCC
357: 2000 (2) SCR 781 and Tukaram Kana Joshi & Ors. thr.
Power of Attorney Holder v. Maharashtra Industrial                   0
Development Corporation & Ors. (2013) 1 SCC. 353 - relied
on.

                      Case Law Reference:
     (1969)3 SCC675               relied on           Para 7         E

     2011 (1) SCR 324             relied on           Para 8
     1988 (3) sec 294              relied on          Para 8
     1990 (1) sec 59              relied on           Para 8         F
     2000 (2) SCR 781             relied on           Para 8
     (2013) 1 sec 353              relied on          para 10,11
    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.                 G
204-205 of 2004.
    From the Judgment & Order dated 22.03.2002 of the High
Court of Delhi at New Delhi in LPA No. 46 of 1983.

                              WITH                                   H
    998       SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A   C.A. No. 203 of 2004.

       Amit Sibal, Arvind Kumar, Purti Marwaha, Henna George,
  C.S. Chauhan, Anupam Lal Das, A. Ahlawat, Rani Chhabra,
  Vishnu 8. Saharya (for Saharya & Co.) for the appearing
B parties.

          The following Order of the Court was delivered

                               ORDER
c
    CIVIL APPEAL NOS. 204-205 OF 2004

         1.These appeals have been preferred against the
    impugned judgment and order dated 22.3.2002, passed by
    Delhi High Court in LPA No. 46 of 1983 and judgment and order
0
    dated 21.5.2002 passed in Review Application C.M. No.893
    of 2002 therein by way of which the appeal filed by the
    respondents against the judgment and order of the learned
    Single Judge dated 26.11.1982 had been allowed.

E
         2. Facts and circumstances giving rise to these appeals
    are that:-

          A. The appellants had been conferred title over the land in
  Khasra No.307 admeasuring 3 bighas and 3 biswas situate in
F the revenue estate of village Kilokri, Delhi and the Conveyance
  Deed for the same was registered on behalf of the President
  of India in favour of the appellant on 6.6.1962.

       A Notification under Section 4 of the Land Acquisition Act,
G 1894 (hereinafter referred to as the 'Act') was issued on
  5.3.1963 in respect of the land admeasuring 139 bighas and
  2 biswas including the aforesaid land of the appellants. A
  declaration under Section 6 of the Act was made in respect of
  the said land on 22.8.1963. The Land Acquisition Collector
H made the award under the Act on 29.11.1963. However, no
    BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI                 999
           POWER COMPANY LIMITED
award was made in respect of the land measuring 23 bighas           A
and 7 biswas including the suit land as it had been shown to
be the land of Central Government. However, the possession
of the land in respect of which the award was made and the
land transferred to the appellant was also taken and the Union
of India handed it over to Delhi Electric Supply Units (for short   B
'DESU') for the construction of staff quarters on 5.7.1966. The
appellants claimed to have been deprived of the land without
paying any compensation whatsoever, thus, there was a regular
correspondence by the appellants and in view thereof Section
4 Notification under the Act was issued on 7.10.1968 in respect     c
of the land admeasuring 31 bighas and 15 biswas including the
land in dispute. The said Notification under Section 4 was not
acted upon, but a supplementary award No. 1651-A dated
16.2.1974, was made in respect of the land in dispute, making
reference to Section 4 Notification dated 5.3.1963.
                                                                    D
      8. Aggrieved, Predecessor in interest of the appellants
filed Writ Petition No.307 of 1972 before Delhi High Court and
the said writ petition was disposed of vide judgment and order
dated 26.11.1982 making it clear that acquisition proceedings
emanating from Notification dated 5.3.1963 came to an end           E
rather stood superseded by second Notification dated
7.10.1968 and therefore, supplementary award No.1651-A
dated 16.2.1974 was illegal and without jurisdiction and thus,
the award was quashed. The respondents were directed to
handover the vacant possession of the suit property to the          F
appellants by 31.12.1983. However, liberty was given to the
State to issue a fresh Notification under Section 4 of the Act
within a period of one year and till then the possession could
be retained by the respondents.

    C. It was in view thereof, a Notification dated 26.3.1983       G
was issued under Section 4 of the Act in respect of the suit land
and in the meanwhile, the respondents preferred LPA No.46
of 1983 against the said judgment and order of the learned
Single Judge dated 26.11.1982.
                                                                    H
    1000     SUPREME COURT REPORTS               [2013) 1 S.C.R.

A        D. Declaration under Section 6 of the Act dated 30.5.1983
    was issued in respect of the suit land and the respondents did
    not complete the acquisition proceedings rather abandoned the
    same.

B       E. The Division Bench allowed the said LPA vide judgment
    and order dated 22.3.2002. Review Petition against the said
    LPA filed by the appellant was dismissed on 21.5.2002.

        Hence, these appeals.

c      3. Shri Arvind Kumar and Ms. Henna George, learned
  counsel appearing for the appellants have submitted that there
  had been 3 successive Notifications under Section 4 of the Act.
  Therefore, the second Notification superseded the first and the
  third Notification superseded the second notification. In
0 response to the first Section 4 Notification there was no award
  as the Land Acquisition Collector considered that the suit land
  belonged to the Central Government. The supplementary award
  was made subsequent to the second Section 4 Notification
  making reference to the first Section 4 Notification dated
E 5.3.1963 which had already elapsed. The learned Single Judge
  has rightly decided the issue and in pursuance of the same once
  the third Section 4 Notification was issued on 26.3.1983 and
  no further proceedings were taken, it also stood elapsed.
  Therefore, in law, there had been no proceedings regarding
  acquisition of the land in dispute. The respondent-authorities
F cannot be permitted to encroach upon the land of the appellants
  without resorting to the procedure prescribed by law. The
  Division Bench erred in reversing the judgment of the learned
  Single Judge under the misconception that there was a valid
  award in respect of the land in dispute as it could be made
G referable to Notification under Section 4 dated 7.10.1968 and
  therefore, the appeals deserve to be allowed.
       4. Per contra, Ms. Avnish Ahlawat, learned counsel
  appearing for the respondent no.1 and Shri Vishnu Saharya,
H learned counsel appearing for ODA have opposed the appeal
   BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI                1001
          POWER COMPANY LIMITED ·

contending that their land had been acquired by the Union of        A
Indict and handed over to the respondent no.1 after taking the
amount of compensation from it. Therefore, the said
respondent cannot be penalised at such a belated stage for
the reason that DESU has deposited a sum of Rs.10, 16,400/
- towards the price of land on 24.5.1966. The judgment of the       B
High Court does not require to be interfered with and thus, the
appeals are liable to be dismissed.

     5. We. have considered the rival submissions made by
learned counsel for the parties and perused the record.
                                                                    c
      6. There cannot be any dispute to the settled legal
proposition that successive Notifications under Section 4 or
successive Declarations under Section 6 of the Act can be
made, however, the effect of the same would be that e~rlier
notification/declaration stands obliterated/ superseded and in      D
such a fact-situation, it would not be permissible for either of
the parties to make any reference to the said notifications/
declarations which stood superseded.

     7. In Bhutnath Chatterjee v. State of West Bengal & Ors.,      E
(1969) 3 SCC 675, this Court held that where second Section
4 Notification has been issued, the market value is to be
determined in terms of the later notification for the reason that
there was an intention to supersede the previous notification
and if the Government did not choose to explain the reasons
                                                                    F
which persuaded it to issue the second notification, the court
is justified in inferring that it was intended to supersede the
earlier notification by the later notification.

    8. In Land Acquisition Officer-cum-RDO, Chevella
Division, Ranga Reddy District v. A Ramachandra Reddy &             G
Or5., AIR 2011 SC 662, while dealing with the same issue, this
Court held:

    '"' ..... the Government after considering the facts and
    circumstances, with a view to avoid further challenge,          H
     1002    SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A        issued a fresh notification dated 9.9.1993 (gazetted on
         19.11.1993) followed by final declaration dated, 16.2.1994.
         The State Government did not subsequently cancel/rescind/
         withdraw the notifications dated 9.9.1993 and 16.2.1994.
         The State Government had clearly abandoned the earlier
B        notifications dated 3.1.1990 and 10.1.1990 by issuing
         the subsequent notifications dated 9.91993 and
         16.2.1994. The appellant cannot therefore contend that the
         second preliminary notification is redundant or that first
         preliminary notification continues to hold good ..... "
c        (Emphasis added)

       (See also : Raghunath & Ors. v. State of Maharashtra &
  Ors., AIR 1988 SC 1615; Hindustan Oil Mills Ltd. & Anr. vs.
  Special Deputy Collector (Land Acquisition), AIR 1990 SC
  731; and Raipur Development Authority v. Anupan Sahkari
D Griha Nirman Samiti & Ors., (2000) 4 SCC 357).

          9. In view of the above, Section 4 Notification dated
    26.3.1983 and Declaration under Section 6 dated 13.5.1983
    superseded all earlier notification/declaration. However, no
E   proceedings were taken in pursuance of the said notification/
    declaration issued in the year 1983 and after commencement
    of the Amendment Act 1987, the said notification/declaration
    made in the year 1983 stood elapsed as no award had been
    made within the period stipulated under the Act. Thus, there can
F   be no sanctity to any of the acquisition proceedings initiated
    by the respondents so far as the suit land is concerned, though
    the appellants stood dispossessed from his land in pursuance
    of the Notification under Section 4 dated 5.3.1963. Thus, we
    have no hesitation in making a declaration that the appellants
G   had been dispossessed without resorting to any valid law
    providing for acquisition of land. The Court is shocked as the
    appellants had been dispossessed from the land during the
    period when right to property was a fundamental right under
    Articles 31A and 19 of the Constitution of India and
H   subsequently became a constitutional and human right under
    Article 300A.
  BHIMANDAS AMBWANI (D) THR. LRS. v. DELHI                     1003
         POWER COMPANY LIMITED

     10. This Court dealt with a similar case in Tukaram Kana           A
Joshi & Ors. thr. Power of Attorney Holder v. Maharashtra
Industrial Development Corporation & Ors., (2013) 1 SCC
353, and held :

    "...... There is a distinction, a ?true and concrete distinction,
                                                                        8
    between the principle of "eminent domain" and "police
    power'' of the State. Under certain circumstances, the
    police power of the State may be used temporarily, to take
    possession of property but the present case clearly shows
    that neither of the said powers have been exercised. A
    question then arises with respect to the authority or power         C
    under which the State entered upon the land. It is evident
    that the act of the State amounts to encroachment, in
    exercise of "absolute power'' which in common parlance
    is also called abuse of power or use of muscle power. To
    further clarify this position, it must be noted that the            D
    authorities have treated the land owner as a 'subject' of
    medieval India, but not as a 'citizen' under our constitution.

          xx                       xx                 xx
                                                                        E
          Depriving the appellants of their immovable
    properties, was a clear violation of Article 21 of the
    Constitution. In a welfare State, statutory authorities are
    bound, not only to pay adequate cqmpensation, but there
    is also a legal obligation upon them to rehabilitate such
    persons. The non-fulfillment of their obligations would             F
    tantamount to forcing the said uprooted persons to
    become vagabonds or to indulge in anti-national activities
    as such sentiments would be born in them on account of
    such ill-treatment. Therefore, it is not permissible for any
    welfare State to uproot a person and deprive him of his             G
    fundamental/constitutional/human rights, under the garb of
    industrial development.

         The appellants have been deprived of their legitimate
    dues for about half a century. In such a fact-situation, we         H
    1004     SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A       fail to understand for which class of citizens, the
        Constitution provides guarantees and rights in this regard
        and what is the exact percentage of the citizens of this
        country, to whom Constitutional/statutory benefits are
        accorded, in accordance with the law''.
B
       11. The instant case is squarely covered by the aforesaid
  judgment in Tukaram's case (supra) and thus, entitled for
  restoration of possession of the land in dispute. However,
  considering the fact that the possession of the land was taken
  over about half a century ago and stood completely developed
C as Ms. Ahlawat, learned counsel has submitted that a full-
  fledged residential colony of employees of DESU has been
  constructed thereon, therefore, it would be difficult for
  respondent no.1 to restore the possession.

D       12. In such a fact-situation, the only option left out to the
  respondents is to make the award treating Section 4
  notification as, on this date, i.e. 12.2.2013 and we direct the
  Land Acquisition Collector to make the award after hearing the
  parties within a period of four months from today. For that
E purpose, the parties are directed to appear before Land
  Acquisition Collector, Clo The Deputy Commissioner, South
  M.B. Road, Saket, New Delhi on 26.2.2013. The appellants are
  at liberty to file a reference under Section 18 of the Act and to
  pursue the remedies available to him under the Act. Needless
F to say that the appellants shall be entitled to all statutory
  benefits.

        13. With these directions, the appeals are allowed. The
    judgments impugned herein are set aside.

G C.A. No. 203/2004
         14. In view of the order passed in C.A. Nos. 204-205/2004,
    the appeal is dismissed.

    B.B.B.                                   Appeals disposed of.
H