Supreme Court of India
GOJER BROTHERS PRIVATE LIMITEDversusTHE STATE OF WEST BENGAL AND OTHERS
- Citation
- 2013 INSC 791
- Decided
- 28 November 2013
- Disposal
- Appeal(s) allowed
- Bench
- G S SINGHVI
Holding
The acquisition proceedings were vitiated due to non‑application of mind under Section 5A(2), and the orders approving the acquisition are set aside.
Summary
Gojer Brothers Private Limited had leased land to a school which, after a prolonged eviction suit, continued to occupy the premises. The State of West Bengal issued a notification under Section 4(1) of the Land Acquisition Act, 1894 to acquire the land for the school, and the appellant filed objections under Section 5A(1). The Land Acquisition Collector held a hearing but merely overruled the objections and recommended acquisition, which the Joint Secretary approved, leading to a declaration under Section 6(1). The appellant contended that the Collector and the Government failed to apply their minds to the objections, violating the mandatory hearing requirement of Section 5A(2). The Supreme Court held that the non‑consideration of objections denied an effective hearing, that the High Court had impermissibly substituted itself for the Collector, and that the acquisition proceedings were therefore vitiated. Consequently, the orders of the Single Judge and the Division Bench were set aside, the acquisition declaration was deemed lapsed, and the school was directed to vacate the premises and seek an alternative site.
Issues considered
- The Land Acquisition Collector and the State Government complied with the procedural requirements of Section 5A(2) of the Land Acquisition Act, 1894, including giving an effective hearing and applying mind to objections.
- Whether the High Court erred by examining the merits of the objections and substituting itself for the Collector.
- The validity of the acquisition declaration issued under Section 6(1) in view of alleged procedural violations.
Legislation cited
- Contempt of Courts Act, 1971
- Land Acquisition Act, 1894s. 4(1), s. 5A(1), s. 5A(2), s. 6(1)
Subjects
Land acquisitionSection 5ANatural justiceAudi alteram partemEffective hearingDeclaration under Section 6Public purposeProcedural compliance
Judgment
[2013] 12 S.C.R. 489
GOJER BROTHERS PRIVATE LIMITED A
v.
THE STATE OF WEST BENGAL AND OTHERS
(Civil Appeal Nos. 10757-58 of 2013)
NOVEMBER 28, 2013
B
[G.S. SINGHVI AND C. NAGAPPAN, JJ.]
Land Acquisition Act, 1894:
s.5-A rlw s.4(1) and 6- Non-compliance of s. 5-A - Effect c
of - Land in question acquired at the instance of school, after
decree of eviction against school had been upheld by all
courts including Supreme Court - Objections of land-owner
summarily rejected - Writ petition dismissed by single Judge
- Division Bench of High Court going into merits of objections D
and rejecting the same - Held: Non-consideration of
objections filed uls 5A(1) has resulted in denial of effective
opportunity of hearing to appellant - The manner in which
the Jbint Secretary to the Government approved the
recommendation made by Land Acquisition Collector E
favouring acquisition of the property is reflective of total non-
application of mind by the competent authority - Division
Bench of High Court by going into merits of objections raised
by appellants, has substituted itself for Land Acquisition
Collector which was clearly impermissible - Judgments of F
single Judge and Division Bench of High Court are set aside
- Notification issued uls 4(1) would be deemed to have lapsed
with passage of time - Time allowed to Management to shift
the school at alternate site, and further directions issued.
The appellant had leased the land In question to one G
'KH', who set up a school thereon. The appellant filed a
title suit for eviction of 'KH' on the ground of breach of
condition of lease. During the pendency of the suit, 'KH'
constituted a trust for running the school and handed
489 H
490 SUPREME COURT REPORTS [2013] 12 S.C.R.
A over the management of the school to the trust. The suit
was decreed and the decree was consistently sustained
by appellate courts including the Supreme Court.
Thereafter, the management of the school approached
the State Government for acquisition of the land in
B question. The State Government issued a notification
dated 9.6.2005, u/s 4(1) of the Act. The appellant filed
objections dated 22.6.2005 u/s 5A(1) of the Act. The Land
Acquisition Collector recommended that the land be
acquired for the purpose of school. The Joint Secretary
c to the State Government approved the recommendation
and the State Government issued declaration u/s 6(1) of
the Act. The appellant challenged the notification issued
u/s 4(1) and the declaration issued u/s 6(1) in a writ
petition on the grounds that neither the Land Acquisition
0 Collector nor the State Government applied mind to the
objections filed u/s 5A(1) and the exercise undertaken in
terms of s.5A(2) read with s.6(1) was an eye wash. The
Single Judge dismissed the writ petitions. The Division
Bench of the High Court went into the merits of the
E objections and rejected the same.
Allowing the appeals, the Court
HELD: 1.1. The ambit and s1:ope of s.5A of the Land
Acquisition Act, 1894 has been considered by this Court
F in several judgments. If the report prepared by the Land
Acquisition Collector in the instant case is scrutinized in
the light of the principles laid down in the judgments of
this Court, the Single Judge and the Division Bench of
the High Court committed serious error by approving the
G acquisition proceedings ignoring that the report was
prepared in clear violation of mandate of s.5A and the
State Government mechanically accepted the report
leading to the issuance of declaration u/s 6(1). In the
original and supplementary objections filed by the
H appellant, it had claimed that the entire exercise of
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 491
WEST BENGAL
acquisition was vitiated due to malafides and colourable A
exercise of power. The history of litigation between the
parties was also cited by the appellant to substantiate its
plea that the acquisition proceedings were initiated only
after the management of the school lost legal battle up
to this Court. It was also pleaded that the acquisition was B
meant to bye-pass the direction given by this Court to the
management of the school to handover the possession
of the school. The Land Acquisition Collector did not deal
with any of the objections and summarily rejected the
same as if compliance of s.5A(2) was an empty formality. c
The State Government also did not apply mind and
mechanically approved the one line recommendation
macie by the Land Acquisition Collector. [para 17 and 22]
[504-B; 512-D-H; 513-A]
Surinder Singh Brar and others v. Union of India and D
others 2012 (12) SCR 1077 =2013 (1) SCC 403; Raghbir
Singh Sehrawat v. State of Haryana and others 2011 (14)
SCR 1113 = (2012) 1 SCC 792, Kamal Trading Private
Limited v. State of West Bengal 2011 (13) SCR 529 = (2012)
2 SCC 25, and Usha Stud and Agricultural Farms Private E
Limited and others v. State of Haryana and others (2013) 4
sec 210 - referred to.
1.2. Non-consideration of the objections filed uls
5A(1) has resulted in denial of effective opportunity of F
hearing to the appellant. The manner in which the Joint
Secretary to the Government approved the
recommendation made by the Land Acquisition Collector
favouring acquisition of the property is reflective of total
non-application of mind by the competent authority to the G
recommendation made by the Land Acquisition Collector
and the report prepared by him. [para 23] [513-B-C]
1.3. What the Division Bench of the High Court has
done is to substitute itself for the Land Acquisition
Collector, examined the objections raised by the appellant H
.492 SUPREME COURT REPORTS [2013] 12 S.C.R.
A on merits and concluded that no prejudice has been
caused on account of vlolatlon of the mandate of s.5A(2).
This was clearly Impermissible. Therefore, the Impugned
order cannot be sustained. The Impugned order as also
the one passed by the Slngle Judge In writ petition Nos.
B 1634 and 1931 of 2005 are set aside. [para 24·25] [513-C·E]
1.4. The notification Issued u/s 4(1) of the Act would
be deemed to have lapsed with the passage of time. [para
26] [513·F]
C Padma Sundara Rao (Dead) and others v. State of Tamil
Nadu 2002 (2) SCR 383 =(2002) 3 SCC 533 - followed.
1.5. Keeping In view the fact that about 900 students
are receiving education In the school, time allowed to the
0 management to shift the school at alternate site and
further directions are Issued. [para 29] [514-C]
Case Law Reference:
2012 (12) SCR 1077 referred to Para 13
E 2011 (13) SCR 529 referred to Para 17
(2013) 4 sec 210 referred to Para 17
2002 (2) SCR 383 followed para 26
F CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
10757-58 of 2013.
From the Judgment and order dated 19.06.2013 of the
High Court of Calcutta in APO No. 124 of 2012 in WP No. 1634
of 2005 and APO No. 126 of 2012 in WP No. 1931 of 2005.
G
Mukul Rohatgi, lndu Malhotra, Himanshu Shekhar, Abhijit
Guhary for the Appellants.
Gopal Subramanium, Soumya Ghosh, Maitrayee
Banerjee, Kunal Chatterji, Soumitra G. Chaudhuri, Shagun
H Matta, Mohit Paul for the Respondents.
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 493
WEST BENGAL
The Judgment of the Court was delivered by A
G.S. SINGHVI, J.1. Leave granted.
2. One of the questions which arises for consideration in
these appeals filed against order dated 19.06.2013 passed by
the Division Bench of the Calcutta High Court in A.P.O. No.126 B ·
of 2012 in Writ Petition No. 1931/2005 and A.P.O. No.124 of
2012 in Writ Petition No. 1634 of 2005 is whether the learned
Single Judge and the Division Bench of the High Court had
correctly appreciated the scope of Section 5A of the Land
Acquisition Act, 1894 (for short, 'the Act') and rightly rejected C
the appellant's challenge to the acquisition of land measuring
20 cottahs.
3. A portion of the land purchased by the appellant on
20.07 .1964 had been leased out on 26.5.1955 to Kuldeep D
Harbans Singh who set up a school, i.e., Central Model School.
After five years of purchasing the land, the appellants filed Title
Suit No. 100/69 for eviction of Kuldeep Harbans Singh on the·
ground of breach of the conditions of lease. During the
pendency of the suit, Kuldeep Harbans Singh constituted Guru E
Nanak Education Trust (for short, 'the trust') for running the
school and management of the school was handed over to the
trust.
4. The suit was decreed by District Judge, Alipore vide
judgment dated 8.5.1979. First Appeal No. 14/80 filed by the F
trust was dismissed on 28.2.1990 for non prosecution, but the
same was restored only to be dismissed on merits vide
judgment dated 15.9.1997. The special leave petition filed by
the trust was dismissed by this Court on 6.4.1998.
G
5. After dismissal of the first appeal, the appellant secured
possession of the property in possession of the trust but the.
same had to be restored in furtherance of order passed by the
High Court in Writ Petition No. 4394/1987 filed by the Guardian
H
494 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Association. That petition was finally dismissed on 18.6.1996.
6. In the meanwhile, four members of the Managing
Committee of the school filed Title Suit No. 59/1994 for grant
of a declaration that the decree passed in Title Suit No. 100/
B 1969 was legally unenforceable. We have been informed by
learned counsel for the parties that the said suit is still pending.
7. Having failed to convince the High Court and this Court
to overturn the decree of eviction, the management of the
school approached the State Government for the acquisition
C of 20 cottah, 6 chhatak, 23 sq. ft. of land total measuring 14, 738
sq. ft. Thereupon, Joint Secretary, School Education
Department, Government of West Bengal sent letter dated
12.5.2005 to the Land Acquisition Collector to proceed with the
acquisition of land specified in the schedule. That letter reads
D as under:
"Government of West Bengal
School Education Department
Secondary Branch
Bikash Bhavari, Salt Lake, Kol-91
E
No.580-SE(S)/7B-1/2005 Dated the 12th May, 2005
From: Shri S. Mahapatra,
Jt. Secretary to the Govt. of West Bengal.
F To The Land Acquisition Collector,
4, Bankshall Street, Kolkata-1.
Sub: Proposal for acquisition of 20 Cottah 6 Chhatak 23
sq. ft. of land comprised in premises No.220/2, AJC Boss
G Road, in ward no.64 of Kolkata Municipal Corporation, P.S.
Beniapukur, Kolkata - 700017 under Act I of Land
Acquisition Act, 1894.
Sir,
H I am directed to inform you that Governor is pleased
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 495
WEST BENGAL [G.S. SINGHVI, J.)
to accord approval for acquisition of the land mentioned A
in the schedule below for Model School, 22012, AJC Bose
Road, Kolkata - 700017 since 1955, under Act I of the
Land Acquisition Act, 1894.
Central Model School is a English Medium Co- B
educational Higher Secondary School running 1955. It was
recognized by the West Bengal Board of Secondary
Education, WB in the year 1963. 450 no. of students have
been reading in the school now. There is a long standing
dispute over ownership of the said land. This premises C
was requisitioned in the year 1967 and the possession
was handed over to the Secretary of the school in 1971.
The order of requisition was rescinded in the same year
and since then the school has been facing considerable
problem of existence. Now the authority of the school has
come up with a proposal of acquisition of aforesaid land D
for running the school with building facilities of playground
and sufficient open space. They have undertaken to bear
the amount of compensation as per rule leading to
acquisition of the entire land.
E
The School Education Dept. is of the view that in the
interest of students of the school, it is felt necessary to
acquire the land, his dept. also agrees to pay Rs.101- as
a token grant towards payment of compensation money
for such acquisition to make it a Govt. proposal in support F
of the school.
You are requested to please proceed with the
acquisition of the land mentioned below immediately with
the publication of notice u/s 4 and uls 6 and to hand over
formal possession to the Secretary, managing Committee G
of Central Model School on behalf of the Govt. in School
Education Dept., West Bengal.
H
496 SUPREME COURT REPORTS [2013] 12 S.C.R.
A The amount of compensation duly ascertained and
approved by Competent Authority may pleased be
communicated to the said school as well as the School
Education Dept. early to facilitate the necessary payment.
B
Sdl- 12.05.05
Joint Secretary
Land Schedule
Premises No. 220/2, AJC Bose Road, War No.64.
c Kolkata Municipal Corporation, P.s. Beniapukur,
Kolkata - 700017, Area: 20 Cottah 6 Chhatak 23 Sq.ft.
ln:A sketch map of the land proposed to be acquired."
(taken from the SLP paper book)
D
8. In furtherance of the direction given by the State
Government, notification dated 9.6.2005, which was published
in Kolkata Gazette Extraordinary dated 10.06.2005, was issued
under Section 4(1) of the Act. The appellant filed objections
E dated 22.6.2005 (8-1/2 typed sheets through their advocate)
under Section 5A(1) of the Act. The Land Acquisition Collector
issued notice dated 11.07.2005 under Section 5A(2} requiring
the appellant to appear on 20.07 .2005 for personal hearing. The
Land Acquisition Collector issued another notice dated
26.07.2005 and fixed the date of hearing as 29.07.2005, on
F which date the appellant filed additional objections consisting
of three pages.
9. The Land Acquisition Collector is shown to have
conducted hearing on 29.07.2005 and submitted report with
G the recommendation that the land mentioned in the notification
issued under Section 4(1) be acquired for the purpose of
school. The Joint Secretary to the State Government and 1st
Land Acquisition Collector approved the recommendation on
H
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 497
WEST BENGAL [G.S. SINGHVI, J.)
the same day, i.e., 29.7.200S. Thereafter, the State Government A
issued declaration under Section 6(1) of the Act, which was
published on 21.09.200S.
10. The appellant challenged Section 4(1) notification in
Writ Petition No. 1634 of 200S and the declaration issued under B
Section 6(1) in Writ Petition No. 1931 of 200S. One of the
grounds on which the appellant questioned the declaration was
that neither the Land Acquisition Collector nor the State
Government applied mind to the objections filed under Section
SA(1) and the exercise undertaken in terms of Section SA(2) C
read with Section 6(1) was an eye wash.
11. The learned Single Judge dismissed the writ petitions
by recording the following observations:
"The petitioners have apparently been given an opportunity D
of hearing under Section SA. Notices of hearing were
issued. The allegation that no report under Section SA had
been prepared is an after thought, not substantiated by the
materials on record. There is nothing in the writ petition to
show that the petitioners made any request to the Land E
Acquisition Collector to allow the petitioners inspection of
the report under Section SA of the Land Acquisition Act,
or to furnish the petitioners with a copy of the said report.
As held by the Supreme Court in K. Karim Miya vs. State
of Gujarat reported in AIR 1977 SC 497, unless there are F
weighty reasons, a report in a public enquiry under Section
SA should be made available to the persons who take part
in the enquiry. However, failure to furnish a copy of the
report of the enquiry under Section SA, and that too, in the
absence of any request or demand, cannot vitiate the G
enquiry, if it is otherwise, not open to any valid objection.
Under Section SA (2), a person interested in land can at
best endeavour to show that the declared purpose for
which land is sought to be acquired is not a public purpose, H
498 SUPREME COURT REPORTS [2013) 12 S.C.R.
A or alternatively, satisfy the Collector that the land proposed
to be acquired is not suitable for the purpose for which it
is proposed to be acquired. For example, where land is
proposed to be acquired for construction of a multi-
storeyed building to sub-serve a public purpose, persons
B interested may be able to convince the Collector that the
land is not suitable for construction of multi-storeyed
building, and should, therefore, not be acquired. Similarly,
persons interested in the land might be able to show that
the declared purpose of acquisition is not a public purpose,
c but a private purpose, which is not the case here, as
discussed above. The ultimate decision is, however, of the
appropriate government, which is final.
If acquisition is for a public purpose and the appropriate
government is of the view that the site proposed to be
D acquired is suitable for the p1Jblic purpose, objections of
the persons interested are of no consequence. The right,
if any, of persons interested, is to claim compensation in
accordance with law.
E An acquisition for public purpose should not, therefore, be
interfered with by Court in proceedings under Article 226
of the Constitution of India on the ground of any procedural
irregularity in compliance of Section 5A. The Court is only
to examine whether the land has been acquired for a
F public purpose. In this case, it is reiterated that the
acquisition is for a public purpose of running a school. The
school has been run at the said premises for decades.
This in itself shows that the said premises has, in the past,
sub-served and will continue to sub-serve the public
purpose of running a school. This Court is, therefore, not
G
inclined to interfere with the acquisition on the ground of
alleged non-compliance of Section 5A(2) ."
12. The Division Bench of the High Court summoned the
record of hearing conducted by the Land Acquisition Collector
H but did not deal with the laconic nature of recommendations
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 499
WEST BENGAL [GS. SINGHVI, J.]
made by him. Instead, it went into the merits of the objections A
and rejected the same by recording the following observations:
"We have examined on merits, the objection regarding
public purpose and we are satisfied that the purpose for
which acquisition had been made cannot be said to be a B
private one camouflaged as a public purpose actuated by
consideration of malice in the facts of the instant case. The
objections which were raised were purely legal on both the
counts as to the affect of the legal proceedings have been
dealt with by us and no other objection as to suitability etc. C
was raised.
The next submission raised by the learned senior Counsel
with respect to the appropriate Government using the word
"approved" while approving the proposal of the Land
Acquisition Officer it was bereft of reasons and no decision D
by-such Government for the purpose of section 5A(2) of the
Act, as such the decision of the Government suffered with
patent illegality, some reasons ought to be mentioned with
regard to the satisfaction but the same having not been
given in the instant case, the declaration under section 6 E
of the Act could not be said to be made in accordance with
law.
In our opinion, in the facts of the case it has to be seen
whether any prejudice has been caused by not writing
detailed order or there is any non-application of mind in that F
regard by appropriate government. The kind of objections
which were raised assumes significance so far as rejection
is concerned. A challenge to the existence of public
purpose merely on account of various litigations and over
reach of binding Court's order would not come in the way G
of exercise of sovereign power of eminent domain of the
State provided the exercise of such power was otherwise
for a public purpose under the Land Acquisition Act, as
held by the Apex Court in the case reported in State of
Andhra Pradesh vs. Gowadhan Lal (Supra). H
500 SUPREME COURT REPORTS [2013] 12 S.C.R.
A The question of legality of provisions of Section 5A has to
be seen from the facts of each case. The rule of reasons
is based upon the principles of natural justice and they
cannot be fitted in a straitjacket formula. The report of the
Land Acquisition Officer is clear and categorical in the
B instant case and while approving the report, the
appropriate Government was clearly satisfied as to the
objections which were raised and have been squarely
dealt with by the Land Acquisition Officer in accordance
with law. There were legal objections not factual ones and
c the same have been examined by us on merits in the instant
writ petition they were dealt with and no prejudice was
caused to the appellants in that regard by not passing a
detailed order by appropriate government. Thus, we find
that the submission to be bare legs.
D Learned Senior Counsel appearing for the appellants next
submitted that effective hearing had not been granted to
the appellants. Section 5A of the Land Acquisition Act,
1894 contemplates effective hearing and not formal
compliance. He has referred to the decision of the Hon'ble
E Supreme Court in Radhy Shyam (Dead) through LRs and
others vs. State of Uttar Pradesh and Ors., (2011) 5 SCC
553 in which Maneka Gandhi vs. Union of India has been
quoted where it has been laid down that the "audi alteram
partem" rule is intended to inject justice into the law and
F the Court must make every effort to salvage this cardinal
rule to the maximum extent permissible in a given case. It
is also held that "audi alteram partem" rule is not cast in a
rigid mould and judicial decisions establish that it may
suffer situational modifications. The core of it must,
G however, remain, namely, that the person affected must
have a reasonable opportunity of being heard and the
hearing must be a genuine hearing and not an empty
public relations exercise.
In the instant case, we find that the "audi alteram partem"
H
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 501
WEST BENGAL [G.S. SINGHVI, J.]
has been duly observed and it cannot be mechanically A
applied to a straitjacket formula as observed and it has to
meet the situational modifications. Considering the nature
of the case, we are of the considered opinion that the
observations made in the decision of Maneka Gandhi vs.
Union of India (supra) have not been violated in the instant B
case and they have been duly observed and the process
of reasons adopted by the Land Acquisition Officer
qualifies to the aforesaid requirement of "audi alteram
partem".
13. The Division Bench distinguished the judgment of this
c
Court in Surinder Singh Brar v. Union of India (2013) 1 SCC
403 by observing that factual situation in the cases before it is
altogether different.
14. We have heard Shri Mukul Rohatgi and Ms. lndu D
Malhotra, learned senior advocates for the appellant, Shri Gopal
Subramanium, learned senior counsel for respondent nos. 3
and 4, Shri Soumitra G. Chaudhuri, learned counsel for the
State of West Bengal and perused the record. We have also
gone through the record of acquisition, which was summoned E
vide order dated 25.7.2013.
15. Since the main ground on which the appellant has
assailed the impugned order relates to violation of Section
5A(2), i.e., non-application of mind by the Land Acquisition F
Collector and the State Gover~ment to the objections filed by
the appellant, it will be useful to notice the contents of report
dated 29.07.2005. The same reads as under:
"OBJECTION HEARING U/S 5A IN RESPECT OF
PREMISES NO. 220/2, A.J.C BOSE ROAD, KOLKATTA G
Received L.A. proposal along with plan for acquisition of
land with building comprising premises No. 220/2, A.J.C.
Bose Road, Kolkatta for public purpose namely for
accommodation of Central Model School from Joint H
502 SUPREME COURT REPORTS [2013) 12 S.C.R.
A Secretary School Education Dept., secondary Branch vide
their memo No. 580-s.e (s)/7B-1/2005 dated 12.5.2005
and the said proposal vetted by the Govt. in land and land
reforms dept. vide their memo No.1287-s.a./1 E-06/05
dated 17.05.2005.
B
After observing formalities PER was prepared on
9.6.2005.
Notification u/s 4 being No. 4-LA/D/2005/S.E. Dept. dated
9.6.2005 was published in the Calcutta gazettes on
c 10.6.05. The substance of notification in form 30 was
served to the interested persons. The substance of
notification was displaced and also published in two daily
newspaper in Asian Age and 10.06.2005 and Ganashakti
on 11.06.2005 on the spot on 15.06.2005. After that on
D receipt of notice on objection petition filed bythe Abhijit
Guha Roy, Advocate, on behalf of M/s. Gojet Brothers
Private Limited.
Notice U/s SA of the L.A. Act were served upon the
inserted persons including the receiver is fixing on
E
20.07.2005 and 29.07.2005 for hearing. But receiver
refused to accept the notice of hearing through the receiver
received the substance of notification in form 3D of the
L.A/ Act.
F On the date of hearing 29.07.2005 owners and Advocate
were present.
The contentions of their submissions were that the
acquisition procee9ings in respect of the premises in
G questions does not cover the public purpose and
acquisition proceedings is bad in law. They have submitted
two letters dated 22.06.05 and 29.07.05 issued by Abhijit
Guha Roy, Advocate, High Court addressed to the 1st
Land Acquisition Collector, Kolkata along with order of the
Hon'ble High Court and apex Court in connection with litle
H
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 503
WEST BENGAL [G.S. SINGHVI, J.]
suit matter between the parties. There is no stay and or A
any injunction restraining the Govt. for acquisition of the
premises for a public purpose.
Proposal for acquisition of land issued by the school
Education, secondary branch vetted by the land and Land B
reforms dept have been received in this office wherein it
appears that the school education Dept, Secondary branch
agreed to pay Rs.10/- as a token grant towards payment
of compensation money for such acquisition to make it a
Govt. proposal in support of the school. On the P.E.R. it C
was recommended to acquire the land as proposed by
Govt. for a public purpose.
No further objection from any corner has been received in
this office till date including the receiver.
D
Hence I overruled the objection filed by the parties and
recommend to proceed with acquisition for a public
purpose.
Submitted to the 1st L.A.C. for his kind approval. E
sd/- C.A. Rahim 29.07.05
LAND Acquisition Collector, Kolkata.
Approved
sd/- K.S. Bandyopadhyay F
29.07.2005
1st Land Acquisition Collectclr, Kolkata."
16. A reading of the report shows that in the first four
paragraphs, the Land Acquisition Collector recorded the facts
relating to the acquisition proceedings. In the sixth paragraph G
he briefly noted the objections of the appellant and recorded
his conclusion in the following words:
'Hence I overruled the objection filed by the parties and
H
504 SUPREME COURT REPORTS [2013] 12 S.C.R.
A recommend to proceed with acquisition for a public
purpose.'
17. The ambit and scope of Section 5A had been
considered in several judgments, but we do not consider it
necessary to burden this judgment by noticing various judicial
8
precedents and feel that it would be sufficient to take
cognizance of four recent judgments In Raghbir Singh Sehrawat
v. State of Haryana and others (2012) 1 sec 792, Kamal
Trading Private Limited v. State of West Bengal (2012) 2 SCC
C 25, Surinder Singh Brar and others v. Union of India and
others (supra) and Usha Stud and Agricultural Farms Private
Limited and others v. State of Haryana and others (2013) 4
sec 210.
18. In Raghbir Singh Sehrawat v. State of Haryana
D (supra), the Court referred to the earlier precedents on the
subject and culled out the following propositions:
"39. In this context, it Is necessary to remember that the
rules of natural justice have been ingrained In the scheme
E of Section 5-A with a view to ensure that before any person
Is deprived of his land by way of compulsory acquisition,
he must get an opportunity to oppose the decision of the
State Government and/or Its agencies/Instrumentalities to
acquire the particular parcel of land. At the hearing, the
F objector can make an effort to convince the Land
Acquisition Collector to make recommendation against the
acquisition of his land. He can also point out that the land
proposed to be acquired is not suitable for the purpose
specified in the notification issued under Section 4(1 ). Not
G only this, he can produce evidence to show that another
piece of land is available and the same can be utilised for
execution ·of the particular project or scheme.
40. Though it is neither possible nor desirable to make a
H list of the grounds on which the landowner can persuade
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 505
WEST BENGAL [GS. SINGHVI, J.]
the Collector to make recommendations against the A
proposed acquisition of land, but what is important is that
the Collector should give a fair opportunity of hearing to
land. Only thereafter, he should make recommendations
supported by brief reasons as to why the particular piece
of land should or should not be acquired and whether or B
not the plea put forward by the objector merits acceptance.
In other words, the recommendations made by the
Collector must reflect objective application of mind to the
objections filed by the landowners and other interested
persons." c
19. In Kamal Trading Private Limited (supra), this Court
considered the report prepared by the Land Acquisition
Collector, which Is substantially similar to report which was
challenged by the appellant before the High Court and held:
D
"14. It must be borne In mind that the proceedings under
the LA Act are based on the principle of eminent domain
and Section 5A is the only protection available to a person
whose lands are sought to be acquired. It is a minimal
safeguard afforded to him by law to protect himself from E
arbitrary acquisition by pointing out to the concerned
authority, Inter alia, that the Important ingredient namely
'public purpose' Is absent in the proposed acquisition or
the acquisition is mala fide. The LA Act being an ex-
proprietary legislation, its provisions will have to be strictly F
construed.
15. Hearing contemplated under Section 5A(2) is
necessary to enable the Collector to deal effectively with
the objections raised against the proposed acquisition and
make a report. The report of the Collector referred to in G
this provision is not an empty formality because it is
required to be placed before the appropriate Government
together with the Collector's recommendations and the
record of the case. It is only upon receipt of the said report
that the Government can take a final decision on the H
506 SUPREME COURT REPORTS [2013) 12 S.C.R.
A objections. It is pertinent to note that declaration under
Section 6 has to be made only after the appropriate
Government is satisfied on the consideration of the report,
if any, made by the Collector under Section 5A(2). As said
by this Court in Hindustan Petroleum Limited, the
B appropriate Government while issuing declaration under
Section 6 of the LA Act is required to apply its mind not
only to the objections filed by the owner of the land in
question, but also to the report which is submitted by the
Collector upon making such further inquiry thereon as he
c thinks necessary and also the recommendations made by
him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act makes a
declaration under Section 6 conclusive evidence that the
land is needed for a public purpose. Formation of opinion
D by the appropriate Government as regards the public
purpose must be preceded by application of mind as
regards consideration of relevant factors and rejection of
irrelevant ones. It is, therefore. that the hearing
contemplated under Section SA and the report made by
E the Land Acquisition Officer and his recommendations
assume importance. It is implicit in this provision that
before making declaration under Section 6 of the LA Act,
the State Government must have the benefit of a report
containing recommendations of the Collector submitted
F under Section 5A(2) of the LA Act. The recommendations
must indicate objective application uf mind."
20. In Surinder Singh Brar v. Union of India (supra), this
Court extensively considered the report prepared by the Land
G Acquisition Officer and the decision taken by the administration
of Union Territory of Chandigarh and observed:
"68.A cursory reading of the reports of the LAO may give
an impression that he had applied mind to the objections
filed under Section 5A(1) and assigned reasons for not
H entertaining the same, but a careful analysis thereof leaves
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 507
WEST BENGAL [G.S. SINGHVI, J.]
no doubt that the officer concerned had not at all applied A
mind to the objections of the landowners and merely
created a facade of doing so. In the opening paragraph
under the heading "Observations", the LAO recorded that
he had seen the revenue records and conducted spot
inspection. He then reproduced the Statement of Objects B
and Reasons contained in the Bill which led to the
enactment of the Punjab New Capital (Periphery) Control
Act, 1952 and proceed to extract some portion of reply
dated 31.7.2006 sent by the Administrator to Surinder
Singh Brar. c
69.ln the context of the statement contained in the first line
ot the paragraph titled "Observations", we repeatedly
asked Shri Sudhir Walia, learned counsel assisting Dr.
Rajiv Dhawan to show as to when the LAO had summoned
the revenue records and when he had conducted spot D
inspection but the learned counsel could not produce any
document to substantiate the statement contained in the
two reports of the LAO. This leads to an inference that, in
both the reports, the LAO had made a misleading and
false statement about his having seen the revenue records E
and conducted spot inspection. That apart, the reports do
not contain any iota of consideration of the objections filed
by the landowners. Mere reproduction of the substance of
the objections cannot be equated with objective
consideration thereof in the light of the submission made F
by the objectors during the course of hearing. Thus, the
violation of the mandate of Section 5A(2) is writ large on
the face of the reports prepared by the LAO.
70. The reason why the LAO did not apply his mind to the G
objections filed by the appellants and other landowners is
obvious. He was a minion in the hierarchy of the
administration of the Union Territory of Chandigarh and
could not have even thought of making recommendations
contrary to what was contained in the letter sent by the H
508 SUPREME COURT REPORTS [2013} 12 S.C.R.
A Administrator to Surinder Singh Brar. If he had shown the
courage of acting independently and made
recommendation against the acquisition of land, he would
have surely been shifted from that post and his career
would have been jeopardized. In the system of governance
8 which we have today, junior officers in the administration
cannot even think of, what to say of, acting against the
wishes/dictates of their superiors. One who violates this
unwritten code of conduct does so at his own peril and is
described as a foolhardy. Even those constituting higher
c strata of services follow the path of least resistance and
find it most convenient to tow the line of their superiors.
Therefore, the LAO cannot be blamed for having acted as
an obedient subordinate of the superior authorities,
Including the Administrator. However, that cannot be a
legitimate ground to approve the reports prepared by him
D
without even a semblance of consideration of the
objections filed by the appellants and other landowners and
we have no hesitation to hold that the LAO failed to
discharge the statutory duty cast upon him to prepare a
report after objectively considering the objections filed
E under Section 5A(1) and submissions made by the
objectors during the course of personal hearing.
76. Section 5A, which embodies the most important
dimension of the rules of natural justice, lays down that any
F person interested in any land notified under Section 4(1)
may, within 30 days of publication of the notification,
submit objection in writing against the proposed
acquisition of land or of any land in the locality to the
Collector. The Collector is required to give the objector an
G opportunity of being heard either in person or by any person
authorised by him or by pleader. After hearing the
objector(s) and making such further inquiry, as he may
think necessary, the Collector has to make a report in
respect of land notified under Section 4(1) with his
H recommendations on the objections and forward the same
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 509
WEST BENGAL [G.S. SINGHVI, J.]
to the Government along with the ·record of the A
proceedings held by him. The Collector can make different
reports in respect of different parcels of land proposed to
be acquired.
77. Upon receipt of the Collector's report, the appropriate B
Government is required to take action under Section 6(1)
which lays down that after considering the report, if any,
made under Section 5-A(2), the appropriate Government
is satisfied that any particular land is needed for a public
purpose, then a declaration to that effect is required to be C
made under the signatures of a Secretary to the
Government or of some officer duly authorised to certify
its orders. This section also envisage·s making of different
declarations from time to time in respect of different
parcels of land covered by the same notification issued
under Section 5(1 ). In terms of clause (ii) of the proviso to D
Section 6(1 ), no declaration In respect of any particular
land covered by a notification issued under Section 4(1),
which is published after 24-9-1989 can be made after
expiry of one year from the date of publication of the
notification. To put it differently, a declaration is required E
to be made under Section 6(1) within one year from the
date of publication of the notification under Section 4(1).
78. In terms of Section 6(2), every declaration made under
Section 6(1) is required to be published in the Official F
Gazette and in two daily newspapers having circulation in
the locality in which the land proposed to be acquired is
situated. Of these, at least one must be in the regional
language. The Collector is also required to cause public
notice of the substance of such declaration to be given at G
convenient places in the locality. The declaration to be
published under Section 6(2) must contain the district or
other territorial division in which the land is situate, the
purpose for which it is needed, its approximate area or a
plan is made in respect of land and the place where such H
plan can be inspected.
510 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 79. Section 6(3) lays down that the declaration made under
Section 6(1) shall be conclusive evidence of the fact that
land is needed for a public purpose. After publication of
the declaration under Section 6, the Collector is required
to take order from the State Government for the acquisition
B of land to be carved out and measured and planned
(Sections 7 and 8). The next stage as envisaged is issue
of public notice and individual notice to the persons
interested in the land to file their claim for compensation.
Section 11 envisages holding of an enquiry into the claim
c and passing of an award by the Collector who is required
to take into consideration the provisions contained in
Section 23.
84. What needs to be emphasised is that hearing required
to be given under Section 5A(2) to a person who is sought
D to be deprived of his land and who has filed objections
under Section 5A(1) must be effective and not an empty
formality. The Collector who is enjoined with the task of
hearing the objectors has the freedom of making further
enquiry as he may think necessary. In either eventuality, he
E has to make report in respect of the land notified under
Section 4(1) or make different reports in respect of
different parcels of such land to the appropriate
Government containing his recommendations on the
objections and submit the same to the appropriate
F Government along with the record l)f proceedings held by
him for the latter's decision. The appropriate Government
is obliged to consider the report, if any, made under
Section 5A(2) and then record its satisfaction that the
particular land is needed for a public purpose. This
G exercise culminates into making a declaration that the land
is needed for a public purpose and the declaration is to
be signed by a Secretary to the Government or some
other officer duly authori.::;ed to certify its orders. The
formation of opinion on the issue of need of land for a
H public purpose and suitability thereof is sine qua non for
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 511
WEST BENGAL [G.S. SINGHVI, J.]
issue of a c';claration under Section 6(1 ). Any violation of A
the substantive right of the landowners and/or other
interested persons to file objections or denial of
opportunity of personal hearing to the objector(s) vitiates
the recommendations made by the Collector and the
decision taken by the appropriate Government on such B
recommendations. The recommendations made by the
Collector without duly considering the objections filed
under Section 5A(1) and submissions made at the hearing
given under Section 5A(2) or failure of the appropriate
Government to take objective decision on such objections c
in the light of the recommendations made by the Collector
will denude the decision of the appropriate Government of
statutory finality. To put it differently, the satisfaction
recorded by the appropriate Government that the particular
land is needed for a public purpose and the declaration
0
made under Section 6(1) will be devoid of legal sanctity if
statutorily engrafted procedural safeguards are not
adhered to by the concerned authorities or there is
violation of .the principles of natural justice. The cases
before us are illustrative of flagrant violation of the mandate
of Sections 5A(2) and 6(1)." E
21. In Usha Stud and Agricultural Farms Private Limited
v. State of Haryana (supra), the Court reiterated the
propositions laid down in Raghbir Singh Sehrawat's case
(supra) and Kamal Trading Private Limited v. State of West F
Bengal (supra) and observed:
"30.The ratio of the aforesaid judgments is that Section 5-
A(2), which represents statutory embodiment of the rule of
audi alteram partem, gives an opportunity to the objector G
to make an endeavour to convince the Collector that his
land is not required for the public purpose specified in the
notification issued under Section 4(1) or that there are
other valid reasons for not acquiring the same. That
section also makes it obligatory for the Collector \a submit H
512 SUPREME COURT REPORTS [2013) 12 S.C.R.
A report(s) to the appropriate Government containing his
recommendations on the objections, together with the
record of the proceedings held by him so that the
Government may take appropriate decision on the
objections. Section 6(1) provides that if the appropriate
B Government is satisfied, after considering the report, if any,
made by the Collector under Section 5-A(2) that particular
land is needed for the specified public purpose then a
declaration should be made. This necessarily implies that
the State Government is required to apply mind to the
c report of the Collector and take final decision on the
objections filed by the landowners and other interested
persons. Then and then only, a declaration can be made
under Section 6(1)."
22. If the report prepared by the Land Acquisition Collector
D is scrutinized in the light of the principles laid down in the afore-
mentioned judgments, we do not find any difficulty in holding
that the learned Single Judge and the Division Bench of the
High Court committed serious error by approving the
acquisition proceedings ignoring that the report was prepared
E in clear violation of mandate of Section 5A and the State
Government mechanically accepted the report leading to the
issue of declaration issued under Section 6(1). In the original
and supplementary objections filed by it, the appellant had
claimed that the entire exercise of acquisition was vitiated due
F to malafides and colourable exercise of power. The history of
litigation between the parties was also cited by the appellant
to substantiate its plea that the acquisition proceedings were
initiated only after the management of the school lost legal battle
up to this Court. It was also pleaded that the acquisition was
G meant to bye-pass the direction given by this Court to the
management of the school to handover the possession of the
school. Unfortunately, the Land Acquisition Collector did not
deal with any of the objections and summarily rejected the same
as if compliance of Section 5A(2) was an empty formality. The
H State Government also did not apply mind and mechanically
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 513
WEST BENGAL [G.S. SINGHVI, J.]
approved the one line recommendation made by the Land A
Acquisition Collector.
23. In our view, non-consideration of the objections filed
under Section 5A(1) has resulted in denial of effective
opportunity of hearing to the appellant. The manner in which the B
Joint Secretary to the Government approved the
recommendation made by the Land Acquisition Collector
favouring acquisition of the property is reflective of total non-
application of mind by the competent authority to the
recommendation made by the Land Acquisition Collector and C
the report prepared by him.
24. In the result, the appeals are allowed, the impugned
order as also the one passed by the learned Single Judge in
writ petition No.s. 1634 and 1931 of 2005 are set aside.
D
25. What the Division Bench of the High Court has done
is to substitute itself for the Land Acquisition Collector,
examined the objections raised by the appellant on merits and
concluded that no prejudice has been caused on account of
violation of the mandate of Section 5A(2). This was clearly E
impermissible. Therefore, the impugned order cannot be
sustained.
26. In view of the above, we do not consider it necessary
to pronounce upon the legality of the notification issued under
Section 4(1) of the Act because the same would be deemed F
to have lapsed with the passage of time. In this connection,
reference can usefully be made to the Constitution Bench
judgment of this Court in Padma $undara Rao (Dead) and
others v. State of Tamil Nadu (2002) 3 SCC 533. .
G
27. At this stage, Shri Gopal Subramanium, learned senior
counsel for respondent nos. 3 and 4 made a request that his
clients may be allowed sufficient time to explore the possibility
of shifting the school to an alternative accommodation and the
H
514 SUPREME COURT REPORTS (2013) 12 S.C.R.
A State Government may be directed to allCJt land for construction
of the school building.
28. Shri Mukul Rohatgi, learned senior counsel appearing
for the appellant graciously agreed that sufficient time may be
B given to the management of the school to shift from the present
site provided that an undertaking is filed before this Court to
vacate the premises by the end of the specified period.
29. Keeping in view the fact that about 900 students are
receiving education in the school, we accept the request made
C by Shri Subramanium and issue the following directions:
1. The management of the school shall handover vacant
possession of the portion of the ground floor of the building
in which the school is currently noused on or before
D 31.5.2015.
2. Within a week from today, thEl management of the
school may make a representation to the State
Government for allotment of an alternative site for
construction of a school building and for other ancillary
E purposes.
3. If any such representation is made by the management
for allotment of the alternative site, the State Government
shall consider the same sympathetically and pass
F appropriate order within a period of next three months.
4. Within four weeks from today, the management shall file
an undertaking in the form of an affidavit before this Court
that the portion of the ground floor of the building, which is
in their possession will be handed over to the
G
representative of the appellant on or before 31.05.2015.
5. If the management of the school fails to handover vacant
possession of the portion of the ground floor of the building,
which is in their possession on or before 31.05.2015, then
H the concerned official shall make himself liable to be
GOJER BROTHERS PRIVATE LIMITED v. STATE OF 515
WEST BENGAL [G.S. SINGHVI, J.]
•
punished under the Contempt of Courts Act, 1971. Not only A
this, the appellant shall be entitled to secure possession
and, for this purpose, it shall be free to seek assistance
of the local police. In that eventuality, the Commissioner
of Police shall provide the required police assistance to
the appellant. B
R.P. Appeal allowed.
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