JUDGMENT Pradeep Kant and R.P. Yadav, JJ.
1. This writ petition under Article 226 of the Constitution has been filed by the City Montessori School, through its founder-director Smt. Bharti Gandhi, challenging the notification issued under Section 48 of the Land Acquisition Act, 1894, denotifying the land' In question vide Government order dated 5.11.2004. The area of the land In question, which has been denotified, is 6000 sq. ft. of plot No. 11 situated at Station Road, Mohalla Chhitwapur, Lucknow.
2. In brief, the necessary facts which have given rise to the issuance of the aforesaid notification, and the pleadings of the parties are being narrated as under:
A land comprising 23000 sq. ft. situated at 11, Station Road, Lucknow, was acquired by the State Government vide notifications dated 7.9.1976 and 6.10.1979, issued under Sections 4 and 6 of the Land Acquisition Act, for the purpose of expansion of one of the branches of City Montessori School, running a chain of schools in different parts of the city. This land belonged to Smt. Urmila Bhalla and Smt. Sheela Kapoor but was under the possession of two tenants, N.K. Bhargava, the predecessor in interest of respondent No. 8 S.K. Bhargava and the petitioner. The area in occupation of N.K. Bhargava was approximately 6000 sq. ft lying in the front portion of the plot, whereas the remaining area of 17000 sq. ft. was in occupation of the petitioner, where it has been running one of the branches of the school since the year 1963.
3. It appears that eviction proceedings had taken place against the petitioner, in which the plea of eviction of the landlady was accepted and, therefore, the petitioner moved the State Government for acquiring the aforesaid land including the adjacent portion of 6000 sq. ft, in occupation of N.K. Bhargava. The State Government, on considering the request and being satisfied about the public purpose, Initiated the acquisition proceedings under Chapter VII of the Act for making acquisition in favour of the school, which is a deemed company under Section 3(e) of the Act. The necessary agreement was executed between the Governor of Uttar Pradesh and the petitioner, as required under Section 42 of the Act and was duly published in official Gazette on 6.10.1979.
4. The aforesaid notifications issued under Sections 4 and 6 and consequently the acquisition was challenged by N.K. Bhargava in the High Court by filing a writ petition bearing No. 112 of 1980.
5. Skipping further details of litigation and the stand taken by either parties before the High Court, suffice would be to record that the High Court allowed the said writ petition vide its order dated 26.5.1998. quashing the two notifications under Sections 4 and 6 with respect to the entire land.
6. It was not in dispute that the petitioner had deposited the entire cost of acquisition of the entire area of 23000 sq. ft and that a stay order was granted in favour of N.K. Bhargava from being dispossessed throughout the proceedings of the writ petition.
7. Aggrieved by the aforesaid Judgment and order of High Court, initially two appeals were filed before the Supreme Court, one by the petitioner and the second by U.P. Parents Association. Later on special leave petition was filed by the State also, obviously for justifying the acquisition made by following the provisions of Chapter VII of the Act.
The Supreme Court allowed the appeals partly vide order dated 22.2.2005.
8. During the pendency of these appeals, a proposal was given by the State Government to act under Section 48 of the Act and to denotify the land under occupation of N.K. Bhargava from acquisition and finally a notification under Section 48(1) was issued by the Governor on 5.11.2004, denotifying the area of 6000 sq. ft. of the land, which was in possession of N.K. Bhargava. The Court further on the issuance of the aforesaid notification under Section 48(1) denotifying the aforesaid area of 6000 sq. ft., and on no objection being expressed by the respondents to the civil appeals, and rather concession being given by them, set aside the Judgment of the High Court to the extent of remaining 17000 sq. ft.
9. The effect of the order of the Apex Court was that the acquisition with respect to 17000 sq. ft. of land was saved and the rest of the area of the land stood denotified. The petitioner feeling aggrieved by the issuance of notification under Section 48(1). denotifying the area of 6000 sq. ft., has approached this Court in writ Jurisdiction, taking the aforesaid action of the State Government as accrual of a fresh cause of action.
10. No contest has been put in by respondents No. 6, 7 and 8 but an application for impleadment was moved by the widow of N.K. Bhargava and sons of S.K. Bhargava, which application having been allowed after hearing the parties counsel, an opportunity of arguments in the matter has been afforded to their counsel, Sri N.K. Seth.
11. Assailing the notification issued under Section 48(1) issued on 5.11.2004, Sri Shanti Bhushan, the learned senior advocate, assisted by Sri R.P. Gupta, advocate, submitted that it was not within the power of the State Government to move a proposal for denotification of the land and in any case no notification could have been issued denotifying any portion of the land and in particular 6000 sq. ft. unilaterally, without following the relevant provisions of the Act and without giving any notice to the petitioner, the acquisition having been made under Chapter VII of the Act.
12. Elaborating the aforesaid arguments, learned Counsel urged that admittedly no notice was issued to the petitioner before denotifying the land and since the question was regarding denotifying the land which had been acquired for a company wherein a contract has already been entered into between the Governor and the Company and cost of acquisition had already been paid, the State Government of its own, without affording any opportunity to the Company, would have no authority to denotify the land.
13. Reliance has been placed upon the case of Larsen and Toubro Ltd. etc. v. State of Gujarat and Ors. , wherein the Apex Court has signified the difference between the acquisition with respect to power of the State Government where it decides to withdraw the land from acquisition under Section 48, of which possession has not been taken in a case where the acquisition has not been made for a company and where the said acquisition has been made for a company.
14. The Court observed that "an owner need not be given any notice of the intention of the State Government to withdraw from the acquisition and the State Government is at liberty to do so. Rights of the owner are well protected by Sub-section (2) of Section 48 of the Act and if he suffered any damage in consequence of the acquisition proceedings, he is to be compensated and Sub-section (3) of Section 48 provides as to how such compensation is to be determined. There is, therefore, no difficulty when it is the owner whose land is withdrawn from acquisition is concerned. However, in the case of a company, opportunity has to be given to it to show cause against any order which the State Government proposes to make withdrawing from the acquisition. Reasons for this are not far to seek. After notification under Section 4 is issued, when it appears to the State Government that the land in any locality is needed for a company, any person interested in such land which has been notified can file objections under Section 5A(I) of the Act. Such objections are to be made to the Collector in writing and who after giving the objector an opportunity for being heard and after hearing of such objections and after making such further enquiry, if any, as the Collector thinks necessary, is to make a report to the State Government for its decision. Then the decision of the State Government on the objections is final. Before the applicability of other provisions in the process of acquisition, in the case of company, previous consent of the State Government is required under Section 39 of the Act and it is also necessary that the company shall have executed the agreement as provided in Section 41 of the Act."
15. After dealing with the manner and procedure in which the acquisition is to be made for the company, the Court found that the agreement entered into by the company with the State Government is to be published in the official Gazette and that Section 42 of the Act provides that the agreement on its publication would have the same effect as if it had formed part of the Act. After having done all this, State Government cannot unilaterally and without notice to the company withdraw from acquisition. A declaration under Section 6 of the Act is made by notification only after formalities under Part VII of the Act which contains Sections 39 to 42 have been complied and report of the Collector under Section 5A(2) of the Act is before the State Government who consents to acquire the land on its satisfaction that it is needed for the company. A valuable right, thus, accrues to the company to oppose the proposed decision of the State Government withdrawing from acquisition.
16. Further reliance has been placed upon the case of State Government Houseless Harijan Employees Association v. State of Karnataka and Ors. AIR 2001 SC 437 : 2001 (1) AWC 476 (SC), where the Supreme Court had an occasion to deal with the matter of withdrawal from acquisition when the acquisition has been made for a company. The Court found that Section 48 does not in terms exclude the principles of natural justice. However, the section has been construed to exclude the owner's right to be heard before the acquisition is withdrawn. This is because the owner's grievances are redressable under Section 48(2). But as far as beneficiary of the acquisition is concerned there is no similar statutory provision. In contract with the owner's position the beneficiary of the acquisition may by withdrawal from the acquisition suffer substantial loss without redress particularly when it may have deposited compensation money towards the cost of the acquisition and the steps for acquisition under the Act have substantially been proceeded with. An opportunity of being heard may allow the beneficiary not only to counter the basis for withdrawal, but also, if the circumstances permitted, to cure any defect or shortcoming and fill any lacuna'.
17. In Para 34 of the report, the Court observed as under:
34. It may be noted that as in the case of the company, under Section 3(f)(vi) the prior approval to the acquisition is required if an acquisition is made for the purpose of providing land for carrying out, inter alia, any housing scheme sponsored by a Society registered under the Society Registration Act, I860. This approval must be made after adequate enquiry. Again the issuance of the Notification under Section 4 is followed by filing and hearing of objections under Section 5A by the Collector. With the publication of declaration under Section 6 of the Collector is to take steps for holding an inquiry under Section 9 after giving notice to all the persons interested. After completing the inquiry under Section 11 the Collector is required to pass an Award with the approval of the State Government giving:
(i) the true area of the land ;
(ii) the compensation which in his opinion should be allowed for the land ; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interest In the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him.
18. Para 36 of the report says that a distinction may perhaps be drawn with beneficiaries who do not bear the cost of acquisition as the appellant has done in this case. But in the circumstances of this case, the State Government could not have withdrawn from the acquisition without hearing the appellant. This finding is sufficient to decide the appeal in favour of the appellant'.
19. Learned Additional Chief Standing Counsel, Sri Alok Sinha and Sri N.K. Seth for the private respondents have argued that the aforesaid pleas of not issuing notice to the petitioners and not affording prior opportunity to it before denotifying the land are not open for being raised in view of the fact that the denotification of the land has been done on the basis of the deliberations, which took place before the Supreme Court and under its directives. For this purpose attention has been drawn to the order dated 3.8.1998, by means of which the Apex Court, while issuing notice ordered for maintenance of status quo regarding possession on spot by all the parties. The second order passed on 6.3.2003 placed before us only says that the matter shall remain part-heard and that on the next date the entire record of land acquisition shall be produced. Vide order dated 21.1.2004 the case was adjourned for three weeks. On 18.3.2004, permission was granted to file affidavit dated 18.3.2004, wherein the Court passed the following order:
Permission to file affidavit dated 18.3.2002, shown to the Court wherein it is stated that the State Government is proposing to de notify the area occupied by the respondents from out of the total land acquired. We adjourn this matter to 20.7.2004.
Last order which has been placed before us is dated 21.9.2004 which has been reproduced below:
It was stated to us that the State Government was proposing to denotify the area occupied by the respondents from out of the total land acquired. Even though decision has been taken, till date the denotification has not taken place. We grant one final opportunity and adjourn these appeals for three months to enable the Government to denotify the area occupied by the respondents. In the event if it is not denotified by the next date, the Chief Secretary to remain present in this Court personally.
20. Learned Counsel for the respondents have also placed reliance upon affidavit filed on behalf of the State dated 18.3.2004, wherein an averment was made that in accordance with the oral observations made by this Hon'ble Court the State Government of Uttar Pradesh has initiated the proposal for denotification of the 6,000 Square feet land in dispute claimed by the tenant Sri S.K. Bhargava, out of the total area of the land acquired.
21. This is the same very affidavit, which was permitted to be filed by the Supreme Court vide order dated 18.3.2004. The next document is the letter written to the District Magistrate, Lucknow by Gyan Bhargavt, who was the pairokar of S.K. Bhargava before the Apex Court, in which it was stated that the Hon'ble Court on 11.2.2004 and 19.2.2004 has ordered for denotifying the land of S.K. Bhargava (kidnapped) and, therefore, a request was made that the aforesaid proceedings of denotification be completed by 20.7.2004, i.e., before the pronouncement of the judgment by the Apex Court.
22. The State has also placed reliance upon the supplementary-affidavit filed by Smt. Bharti Gandhi and in particular paragraphs 13 and 14 to indicate that the petitioner was fully aware about the denotification proceedings, which were being taken by the State Government but it did not file any objections. For the same very argument, the State counsel read the letter dated 22.7.2004, written by the District Magistrate, Lucknow to the Secretary to the State Government which says that the City Montessori School, Station Road, has been asked to submit a proposal for denotification but no such proposal has been sent by the school. The letter also said that since the land was acquired by issuance of notification on the request/proposal sent by the City Montessori School, therefore, denotification of the said land can only be done when the proposal to that effect is sent by the City Montessori School. The letter written by Sri Jagdish Gandhi, Manager of the School wherein reference of the letter issued by the Additional District Magistrate (L.A.) dated 2.6.2004 has been made. The two other letters dated 13.5.2004 and 10.6.2004 is the internal correspondence between the Government and the Additional District Magistrate (Land Acquisition) and that with the District Magistrate, Lucknow.
23. In view of the aforesaid orders passed by the Apex Court at various intervals and the letters referred to above, it has been strongly urged that not only that the petitioner was having full knowledge of the denotification proceedings but. it did not file any objections, and that the aforesaid letters also reveal that in case it was willing to file any objection against the proposal of denotification, it could have done so. Submission, therefore, is that the petitioner, under the aforesaid circumstances, cannot challenge the procedure adopted by issuing the notification under Section 48 as such a plea would also be hit by the principle of acquiescence and doctrine of waiver.
24. Sri N.K. Seth has placed reliance upon the case of Manak Lal, Advocate v. Dr. Prem Chand Sanghvi , wherein the Court made the following observations:
It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. As Sir John Romilly, M.R. has observed in Vyvyan v. Vyvyan (1861) 30 Beav 65 at p. 74 : 54 ER 813 at 817 (E), waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights and that being so, he neglects to enforce them, or chooses one benefit instead of another, either but not both, of which he might claim.
25. In the case of Sachidanand Pandey and Anr. v. State of West Bengal and Ors. , the Supreme Court was considering the decision of leasing out the land of Zoological Gardens to Taj Group of Hotels, without inviting tenders from willing persons and without considering the impact on the Zoo and without consulting various authorities of the institutions.
In Para 27 of the report, the Court rejected the argument of violation of principles of natural justice and observed as under:
It was said that the principles of natural justice has not been observed and that those who are most interested in the Zoological Garden were not heard in the matter before the decision was taken. We do not think that anyone can have a justifiable grievance on this score. The proposal to lease the Begumbari land was public knowledge as we have seen. Such as those as were really interested in the matter like the Managing Committee of the Zoological Garden and the Director of the Zoo did have their say in the matter. The Public Undertakings Committee in its report discussed the matter and invited the Government's attention to various factors. The matter was further discussed on the floor of the Legislative Assembly. It is impossible to agree with the submission that there was any failure to observe principles of natural justice.
26. In the case of Patna Regional Development Authority and Ors. v. Rashtriya Pariyojna Nirman Nigam and Ors. , the Apex Court was considering the decision of the tender committee in not awarding the contract to a tenderer who already stood blacklisted without issuing any notice and affording opportunity. The Court held that since the order of blacklisting was passed four years back, and it was not challenged at the relevant time though found subsequently to be bad, the decision of the tender committee could not be said to be bad as it only took note of existing order and was not sitting in judgment over such order, which was in force for the last four years.
27. The last case which has been relied upon is Ferro Alloys Corporation Ltd. and Anr. v. Union of India and Ors. . In this case, reliance has been placed upon paragraphs 34 to 40, wherein the conduct of the party throughout the litigation was considered and it was held that the appellant had waived, therefore, the writ petition was not maintainable on the grounds of waiver, estoppel and acquiescence on the part of the appellant.
28. The respondents further submitted that once the petitioner in fact agreed before the Supreme Court for release of the land in question and took the advantage of having the remaining land to the extent of 17000 sq. ft. only by means of concession, the petitioner cannot be allowed to withdraw itself from the consensus arrived at before the Supreme Court, on mere technicalities of non-issuance of notice to the petitioner before issuing the notification under Section 48(1).
29. Before considering the aforesaid arguments raised by either side, one very essential and proven fact need be mentioned. The notifications issued under Sections 4 and 6 of the Act in respect of the entire area covering 23000 sq. ft. became the subject-matter of challenge in a writ petition bearing No. 112 of 1980 before the High Court and they were quashed vide order dated 26.5.1998. After the quashing of the aforesaid two notifications, the land did not remain under acquisition and became free from acquisition. The State Government did not have any subsisting right over the aforesaid land after the acquisition made by the State Government was annulled by the High Court. The possession was with the respective tenants of the area in which they were in occupation and thus, actual possession was never taken by the State Government nor was handed over to the beneficiary. In the civil appeals preferred before the Supreme Court, no orders were passed staying the operation or effect of the judgment and order passed by the High Court in the writ petition but only a limited interim order of stay was passed for maintaining status quo as regard the possession. The effect of the aforesaid judgment passed by the High Court thus, was that the entire land measuring 23000 sq. ft. came out of the clutches of the provisions of the Land Acquisition Act and none of the provisions including Section 48(1) remained applicable.
30. Before the Supreme Court the State Government appears to have given the proposal of denotifying the land to the extent of 6000 sq. ft. unmindful of the fact that neither there was any power with the State Government nor there was any occasion to denotify any portion of the land, as it was no more under acquisition. The proposal of denotifying the area of 6000 sq. ft. was a concession made by the State in favour of one of the respondents viz. Bhargava in civil appeal filed by the petitioner, meaning thereby that a concession in favour of one respondent was given by the other respondent. It is thus to be seen that whether concession given by one respondent to another respondent, would bind the petitioner.
31. The aforesaid position is admitted to the petitioner as well as to the respondents. The petitioner in the writ petition has specifically pleaded in Paragraphs 2 and 3 but has qualified the said statement by saying that the aforesaid fact was not brought to the kind notice of the Hon'ble Supreme Court by the State, while proposing to denotify the said portion of the tenant.
32. Sri N.K. Seth appearing for the private respondents, namely, representatives of N.K. Bhargava, also says and asserts that in view of the aforesaid factual and legal position that there being no acquisition in existence and the notifications under Sections 4 and 6 earlier issued being non-existent, there was no occasion for the State nor any necessity or authority and Jurisdiction to issue any notification under Section 48(1) as the land already stood reverted to the owner and consequently to the tenants, who were in possessions thereof.
33. The notification under Section 48(1) can be issued only in terms of Section 48, which reads as under:
48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.(1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.
(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.
(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.
34. The aforesaid section postulates that when the land has been acquired but possession has not been taken, then before possession of the acquired land is taken, the same can be released by issuing a notification denotifying the land. But in case there is no acquisition or the land does not stand acquired, or the possession has been taken, after the issuance of notifications under Sections 4 and 6, there would be no power with the State Government to Issue any notification denotifying the land.
35. In the instant case, admittedly possession had not been taken but there was no acquisition in existence nor any notification under Sections 4 and 6 was in force during the pendency of the civil appeal, before the Apex Court, so as to give any authority to the State Government to issue any notification under Section 48(1). The entire land in question including 6000 sq. ft. thus remained the property of the owners, over which the petitioner was the tenant of 17000 sq. ft. and N.K. Bhargava was the tenant of 6000 sq. ft.
36. The half hearted plea raised by Sri Shanti Bhushan that since the appeal pending before the Supreme Court was continuance of the writ proceedings, therefore, it cannot be said that the Judgment passed by the High Court was given its full effect in so far as it had quashed the notification under Sections 4 and 6, is simply an attempt to overcome the own pleadings of the petitioner and the obvious factual and legal position with respect to status of the land, which was no more under acquisition. The Supreme Court having not stayed the operation of the order passed by the High Court and there being only a limited stay order with respect to maintenance of status quo regarding possession, the existence of the notification under Sections 4 and 6 cannot be read into the aforesaid interim order.
37. Thus, it is an established fact that on the day when the State issued the notification under Section 48(1) with respect to the land measuring 6000 sq. ft., it had no power to do so, as the land was not under acquisition. The notification under Sections 4 and 6 being no more in existence, there was no necessity to issue the same even for the benefit of N.K. Bhargava who, as a legal consequence, had already got back the aforesaid land and whose possession was no more dependent upon the will of the State Government to denotify it.
38. In regard to the pleas challenging the notification under Section 48(1) on the grounds of violation of principles of natural justice and non-issuance of notice to the petitioner, learned Counsel for the respondents could not substantiate the plea of acquiescence and waiver, raised by them.
39. The aforesaid plea of acquiescence and waiver on the part of the petitioner has been pressed by relying upon various orders passed by the Supreme Court and the correspondence, both of which have been referred to in detail in the earlier part of the judgment.
40. Letters aforesaid nowhere require the petitioner to submit objection to the proposed denotification nor any such proposal was made known to it, so that the petitioner could have filed objections, after knowing the reasons for such a proposal, as in the absence of the reasons for the proposed denotification, probably it was not possible to file any objections, rather the petitioner was asked to submit a proposal for denotifying the land. The respondents have not been able to indicate any provisions under the Land Acquisition Act that if the State Government finds it expedient to denotify the land already acquired for a company under Part VII, the proposal has to be sent by the said company, for denotifying the land.
41. The scheme of the Act and the ratio of the judgments pronounced in the case of M/s. Larsen and Toubro Ltd. (supra) and State Government Houseless Harijan Employees Association (supra), casts an obligation upon the State to issue notice to the company for knowing its views against the intention of the State Government to withdraw the land from acquisition. No such notice was ever issued to the petitioner.
42. We have gone through the aforesaid letters relied upon by the respondents, carefully and we find that by no stretch of imagination, it can at all be inferred that the procedure as interpreted by the Apex Court was ever followed by the State. The aforesaid letters are thus, wholly insufficient to either sustain the plea of waiver or of acquiescence.
43. The affidavit filed by the State on 18.3.2004 though does make a mention of the oral directive issued by the Apex Court but it cannot be taken to mean that while denotifying the land, the statutory requirement or procedure required to be followed, was to be ignored. Likewise the letter written by Cyan Bhargava to the authority for expediting the proposal of denotification, would also not be of any assistance for the aforesaid plea of waiver or acquiescence.
44. The proceedings, which took place before the Supreme Court, also do not indicate anywhere that the petitioner had consented or had agreed for aforesaid release of the land but since the proposal was given in presence of the petitioner by the State to denotify the land and the Court had directed in presence of all the parties including the petitioner to implement the decision taken by the State Government, therefore, it has to be seen that whether a notification issued under these circumstances, without giving notice to the petitioner, and opportunity to file objections, would be immune from challenge being raised by the petitioner on the plea of acquiescence and waiver.
45. Much emphasis has been placed upon the order dated 21.9.2004, passed by the Supreme Court, which has been reproduced in the earlier part of the judgment to indicate that reluctance on the part of the State Government to denotify the land, was seen with concern by the Supreme Court and, therefore, while granting three months time to enable the State Government to denotify the area occupied by the respondents, a direction was issued for the personal presence of the Chief Secretary on failure to do so.
46. We have gone through the aforesaid order and we find that it takes into consideration the statement given by the State Government that it was proposing to denotify the area occupied by the respondents, for which though decision had been taken but the notification was not issued. The Court granted one final opportunity to enable the Government to denotify the area occupied by the respondents.
47. The aforesaid order, though only directed for implementation of the decision, which was already taken by the State Government on its own proposal but the Court did not remotely suggest that how this denotification has to be done and whether while withdrawing the land by issuing notification under Section 48(1), relevant prescribed procedure including issuance of notice to the petitioner should be followed or not. Even assuming that the Supreme Court was made known about the decision/proposal of the State Government to denotify the area, it cannot be presumed that the Court allowed the State Government to denotify the land, without following the mandatory procedure of law and to issue the notification in violation of the specific provisions. Issuance of notification under Section 48(1) would only be saved when a valid notification is issued. Any invalid notification would not stand the test of judicial scrutiny and cannot be sustained.
48. Apart from the aforesaid facts, the conduct of the petitioner before the Supreme Court would also be a matter of consideration while entertaining the aforesaid pleas. According to the respondents, the petitioner should be satisfied with 17000 sq. ft. of land, which has been made available to it by setting aside the order of the High Court to that extent and should not clamour for 6000 sq. ft., particularly when only by sheer concession, the petitioner was given 17000 sq ft. of land. Submission, however, is that the petitioner has taken advantage by not objecting to the proceedings for denotification and allowing them to be concluded with a silence, only for getting 17000 sq. ft. land and making a ground for challenging the denotification with respect to release of 6000 sq. ft. land, in separate proceedings.
49. The petitioner's case, to the contrary, is that it had never given up its case of 6000 sq. ft. and that even before the Supreme Court, a plea was raised that the entire judgment passed by the High Court deserves to be set aside but the Supreme Court did not enter into that question but gave liberty to the aggrieved person, to challenge the validity of the notification issued under Section 48, the petitioner, being such aggrieved person, has every right to challenge the aforesaid notification in the present writ petition.
50. The following paragraphs of the Supreme Court judgment, relevant for the purpose is being quoted below:
It was submitted on behalf of the appellants that there are good grounds to set aside the judgment of the High Court because the facts of the case disclose that the owner of the land accepted compensation in respect of the land in question and, therefore, respondent S.K. Bhargava had no locus to challenge the acquisition, he being only a tenant claiming a right under the owner of the land. At best he could have claimed apportionment of compensation under the provisions of the Act.
It is not necessary for us to go into this contention and other contentions urged in support of the plea that the acquisition was valid, since the respondents concede that acquisition in respect of the acquired land, except land measuring about 6000 sq. ft. which has been released in exercise of power under Section 48(1) of the Act, may be upheld.
Accordingly, we partly allow these appeals and set aside the judgment and order of the High Court quashing the acquisition in so far as it relates to the land measuring about 17000 sq. ft. of which possession was taken by the Government, and which does not include that part of the land measuring about 6000 sq. ft. which is the subject-matter of the notification issued under Section 48(1) of the Act.
We have not expressed any opinion on the validity of the notification issued under Section 48 of the Act and this order will not prevent any interested person from challenging that notification, if so advised.
51. The right of the petitioner to challenge the notification issued under Section 48 has to be seen in the light of the judgment of the Apex Court.
52. True, if the petitioner had taken favours of a large portion of the land, namely, 17000 sq. ft. and had chosen not to object to the denotification with respect to 6000 sq. ft, though it was having full opportunity to do so, either before the Supreme Court or before the State Government, the petitioner presumably would not have been entitled to challenge the validity of the said notification by filing a fresh writ petition. The conduct of the petitioner, in this regard, would thus be an important consideration.
53. Apart from the reasons given by us that the State Government did not issue any notice to the petitioner nor gave any opportunity to the petitioner to file objections against the proposed action of denotifying the land, it is also to be taken note of, that before the Supreme Court, the petitioner did object and raise the plea that the entire judgment of the High Court, ie., covering 23000 sq. ft. of land including 6000 sq. ft., which was denotified, was liable to be set aside. This argument, which finds mention in the judgment, obviously was raised, after the issuance of the notification dated 5.11.2004, as the judgment was delivered much thereafter on 22.2.2005. The Court did not feel appropriate to test the aforesaid contention and other contentions also, urged in support of the aforesaid plea, in view of the fact that the respondents conceded the acquisition in respect of the acquired land, except the land measuring about 6000 sq. ft., which stood released under Section 48(1). The appeals were thereafter partly allowed and the order of the High Court was set aside, only to the extent of land measuring 17000 sq. ft.
54. The Apex Court, after allowing the appeals in part, specifically passed an order saying that their Lordships have not expressed any opinion on 'the validity of the notification issued under Section 48 of the Act and this order will not prevent any interested person from challenging that notification, if so advised.
55. A plea has been raised by the learned Counsel for the respondents that the petitioner cannot be taken to be an aggrieved person within the aforesaid observation of the Apex Court, inasmuch as that the petitioner was fully aware about the entire proceedings and had allowed the order to be passed without any objection.
56. It is also to be considered, as to who can be the aggrieved person in the given circumstances of the present case and whether the petitioner shall stand excluded from the said category.
57. The land, on the proposal of the petitioner, was acquired under Part VII by issuing the notification under Sections 4 and 6, after completing all the formalities and execution of the agreement between the Governor and the petitioner. The petitioner had deposited the entire cost of acquisition. The total land of 23000 sq. ft. was owned by two person, namely, respondents No. 6 and 7, who had been paid the compensation. The aforesaid land was in occupation of the petitioner as tenant as well as in the occupation of Sri S.K. Bhargava in the same capacity. The area in possession of the petitioner was 17000 sq. ft. and area in occupation of N.K. Bhargava was 6000 sq. ft. For the land wherein the owner has already been given the cost of acquisition and only two persons are in occupation of the same, namely, the petitioner and Bhargava, there cannot be a third person, who could be said to be aggrieved either by acquisition or denotification of the land. The Supreme Court, while giving liberty to any interested person for challenging the denotification, did not exclude the petitioner from exercising such right. The petitioner obviously is an aggrieved party, who also gets a right to challenge the denotification in view of the liberty given by the Supreme Court.
58. Apart from this, we feel it appropriate to put on record that but for the liberty given by the Supreme Court for challenging the notification under Section 48(1) by any interested person, this Court would not have entertained the writ petition.
59. Having recorded the aforesaid finding and having come to the conclusion that while issuing the notification under Section 48(1), the State Government did not follow the procedure, as prescribed and did not issue any notice nor gave opportunity to the petitioner to file objection against the proposed denotification and, therefore, the aforesaid notification is bad in law but still the question arises as to what relief can be granted to the petitioner, in view of the fact that the aforesaid land measuring 6000 sq. ft. already stands released as a result of quashing of the notifications under Sections 4 and 6 by the High Court, which judgment, to that extent, has not been interfered with by the Supreme Court and that the Court would not issue a futile writ, which cannot be implemented.
60. The land, which stands released from acquisition in pursuance of the High Court's order upheld by the Supreme Court, cannot be transferred or delivered to the petitioner and consequently no fruitful purpose would be served by quashing the notification issued under Section 48(1).
61. The petitioner thus, is not entitled for any relief.
62. The petition is dismissed. Costs easy.