LAND ACQUISITION

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Civil Court's Jurisdiction in Land Acquisition Matters
by Arun Kumar Barthakur*

Cite as : (2001) 7 SCC (Jour) 33

In State of Bihar v. Dhirendra Kumar1 the Supreme Court ruled that a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6 of the Land Acquisition Act, 1894 (for short "the Act"), except by the High Court in a proceeding under Article 226 of the Constitution2. This proposition was reiterated in Laxmi Chand v. Gram Panchayat3. In this case it was declared that an aggrieved person has the remedy only under Articles 226 and 136 from the constitutional courts viz. the High Court and the Supreme Court respectively, under their plenary power with self-imposed restraints on their exercise of powers4. These decisions are contrary to the express provisions of the Act. They have also whittled down the settled position that the civil court's jurisdiction is open, where action is taken without jurisdiction, despite there being express or implied bar under any Act5. Before discussing these decisions and their summary character, first we need to explore whether any provision of the Act has either in express or implied terms ousted the jurisdiction of the civil court to declare null and void any proceedings taken under the Act.

The test of the civil court's jurisdiction

"Ubi jus ibi remediem" - every right has a remedy - is one of the basic principles of law. It is settled law that the exclusion of the civil court's jurisdiction cannot be readily inferred and that such exclusion must be expressly provided in clear terms or be clear by implied terms of the Act6. Section 9 of the Civil Procedure Code signifying this principle reads:

"9. Courts to try all civil suits unless barred.—The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I.—A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II.—For the purpose of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."

The Supreme Court spelled out the jurisprudential basis of Section 9 in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma7. According to the Court, it is structured on the basic principle of a civilized jurisprudence that absence of machinery for enforcement of right renders it nugatory. The Court observed thus:

"no court can refuse to entertain a suit if it is of description mentioned in the section. That is amplified by use of expression 'all suits of civil nature'. The word 'civil' according to dictionary means 'relating to the citizen as an individual; civil rights'."8

It is therefore submitted that whenever the jurisdiction of the civil court is questioned in land acquisition matters, the civil court must examine the Act and its relevant provisions, and must enquire into the following questions:

1. Whether the Act contains any provision giving jurisdiction to the civil court or any provision expressly ousting it?

2. Whether the Act gives finality to the proceedings taken under its provisions? If so, what is the nature of finality?

3. Whether the Act contains a complete mode of redressal or machinery to determine all questions of law and facts, and all rights and liabilities?

4. Whether the remedies associated with actions in civil courts are prescribed by the Act? and,

5. Whether the Act contains a machinery for the restoration of the land illegally taken over by the Collector?9

A perusal of the entire Act reveals that there is no express bar ousting the jurisdiction of the civil court to question the legality of any proceedings under the Act. The Act has referred to "a court", "any court" and "the court" at different places. Let us examine the relevance of these expressions. The expression "court" is defined by Section 3(d) of the Act, which is set out hereunder:

"3. In this Act, unless there is something repugnant in the subject or context,-

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(d) the expression 'court' means a Principal Civil Court of Original Jurisdiction, unless the appropriate Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the court under this Act;"

It is submitted that the meaning of the expression "court" given under Section 3(d) has to be understood subject to the clause "unless there is something repugnant in the subject or context".

In the context of the limitation provided by the first proviso to Section 6(1) for publication of the declaration from the date of the notification published under Section 4(1), Explanation (1) to Section 6(1) lays down that in computing the period of the said limitation "the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 sub-section (1) is stayed by an order of a court shall be excluded". Similarly, the Explanation to Section 11-A lays down that in computing the period of two years referred to in that section, "the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded". Again the expression "any court" occurs in the Explanation to Section 23(1-A), which relates to payment of 12 per cent interest per annum on the market value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. The Explanation says that

"in computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded".

It is submitted that Parliament did not intend to cover the District Court exercising its referential jurisdiction within the meaning of "a court" or "any court". For this, it used the expression "the court" in Sections 18(1), 30, 31 and in sub-sections (1) and (1-A) of Section 23, and in other provisions of Part III of the Act. It is submitted that it would be plainly "repugnant in the subject or context", if the general expressions "a court" or "any court" are construed to be the Principal Civil Court of Original Jurisdiction, inasmuch as the District Court gets jurisdiction only on a reference duly made under Section 18(1) read with Section 31(2), or under Section 30 of the Act. The District Court does not have any role before the Collector's award is made. Nor does it have jurisdiction to stay proceedings under the provisions of the Act. It follows, therefore, that the expressions "a court" and "any court", which pertain to proceedings before making the award, must mean and include the original court of civil jurisdiction - which is the civil court within the local limits of which the land is situate, as provided under Sections 15 and 16 of the Civil Procedure Code, the appellate court being either the District Court or the High Court, depending upon the value of the suit, and the Supreme Court of India as the ultimate court of appeal. This interpretation is supported by the law laid down by the Supreme Court in Central Inland Water Transport Corpn. Ltd. v. Broj Nath Ganguly10:

"While an explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause, so that wherever the word defined is used in the particular statute in which that interpretation clause occurs, it will bear only that meaning unless where, as is usually provided, the subject or context otherwise requires...."11 (emphasis supplied)

The expression "a court" or "any court" may also include in its ambit a High Court where the aggrieved person may challenge the acquisition proceedings under Article 226 of the Constitution. But, the construction of the general expression "a court" or "any court" cannot be narrowed down to mean only the High Court, inasmuch as under the General Clauses Act, 1897 the expression "High Court" has been defined under Section 3(25) as under:

"3. (25) 'High Court', used with reference to civil proceedings shall mean the highest civil court of appeal (not including the Supreme Court) in the part of India in which the Act or regulation containing the expression operates;"

There is another general principle in law, which declares that a court cannot curtail the amplitude of a provision so as to restrict the benefit conferred by it. By contemplating stay or injunction which could be granted by "a court" under Sections 6(1) and 11-A, and "any court" under Section 23(1-A) of the Act the legislature has recognized the jurisdiction of the civil court in land acquisition matters. These provisions, therefore, by implication recognize the right of the expropriated landowners who are mostly poor to the remedy of the civil court against any illegal proceedings under the Act. Indeed they have protected their right to sue, subject to the ordinary law of limitation, while "the remedy by certiorari is hedged round by limitation and may not be available"12 on account of delay. They should not, therefore, be denied the benefit of the age-old and inalienable remedy of a suit in the local civil court, which is easily approachable for most of them when compared to the High Court. As such, being beneficial provisions, it is well settled that while construing them the court should adopt a construction, which advances the policy of the legislation to extend the benefit rather than a construction that has the effect of curtailing the benefit conferred by them. In Union of India v. Pradeep Kumari13 the appellant relied on the decisions earlier given by K. Ramaswamy and Venkatachala, JJ. in Babua Ram v. State of U.P.14 and Union of India v. Karnail Singh15 ruling that the expression "award of the court" occurring in Section 28-A(1) meant the "first award made by the court". Disagreeing with this ruling, Agrawal, J. speaking for a three-Judge Bench observed:

"By construing the expression 'where in an award under this Part' in sub-section (1) of Section 28-A to mean 'where in the first award made by the court under this Part', the word 'first', which is not found in sub-section (1) of Section 28-A, is being read therein and thereby the amplitude of the said provision is being curtailed so as to restrict the benefit conferred by it. In the matter of construction of a beneficent provision it is not permissible by judicial interpretation to read words which are not there and thereby restrict the scope of the said provision."16

It is therefore submitted with respect that if the expression "a court" occurring in Sections 6(1) and 11-A, and the expression "any court" occurring in Section 23(1-A) are construed to mean "a High Court" and "any High Court" respectively, the word "High", which is not found in these provisions is being read therein thereby curtailing the benefit conferred by the said provisions. Such an interpretation will not be any different from what Lord Atkin had discussed in Liversidge v. Anderson17. It may amount to legislation. It is also settled law that in interpreting the provision in a statute the exercise undertaken by the court is to make explicit the intention of the legislature. In State of Kerala v. Mathai Verghese18 the Supreme Court observed that "the court can merely interpret the section; it cannot rewrite, recast or redesign the section"19.

There is no express provision in the Act ousting the jurisdiction of the civil court. On the contrary, Section 52 provides as follows:

"52. Notice in case of suits for anything done in pursuance of Act.—No suit or other proceeding shall be commenced or prosecuted against any person for anything done in pursuance of this Act, without giving to such person a month's previous notice in writing of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends."

The provision of Section 52 makes it patent that the civil court has been given the jurisdiction to entertain and try any suit or any proceeding against any person for "anything done" in pursuance of the Act. This section thus declares by implication that if any person acting in pursuance of the Act, whether the Collector, or a land acquisition officer, takes possession of the land without complying with the provisions of the Act, the affected landowner would be entitled to seek remedy from a civil court by filing a suit against such officer after giving him a month's notice thereof. This is not anything different from the general principle of law as discussed by Maxwell:

"Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Act. It is recognized that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted....

If there is any ambiguity about the extent of the derogation by a statute from common law rights, the principle is clear that it is to be resolved in favour of maintaining common law rights unless they are clearly taken away. The well-established presumption is that the legislature does not intend to limit vested rights further than clearly appears from the enactment."20 (emphasis supplied)

It is submitted that the general expression "a court" occurring in Sections 6(1) and 11-A, and "any court" occurring in Section 23(1-A) - in the context of a stay granted by a court - are, therefore, not susceptible of any other meaning than that of the court within the local limits of whose jurisdiction the land sought to be acquired is situated: by no stretch of interpretation, the meaning of the expressions "a court" and "any court" can be restricted to a High Court exercising its extraordinary power under its special jurisdiction. This view is fortified again by the general principle of interpretation as discussed in Maxwell:

"It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended."21 (emphasis supplied)

Some legislations collaterally dealing with acquisition of land or other property also refer to the civil court's jurisdiction in such matters. For example, let us examine Section 6(iv)(hb) of the Bombay Court Fees Act. This section is reproduced below:

"6. (iv)(hb) for avoidance of acquisition proceedings.—In suits for declaration that any proceedings for compulsory acquisition of any movable or immoveable property are void - one-half of ad valorem fee leviable on the value of the property;"

The Bombay Court Fees Act lays down the consideration for the service of dispensing justice to the citizens of the State. The provisions of Section 6(iv)(hb), therefore, enact a quid pro quo - payment of the requisite court fee by a suitor on the one hand, and dispensing of justice by the courts on the other22. It is settled law that the legislature which embodies the will of the people is supreme in enacting such legislation enabling the aggrieved persons to obtain justice from the court against any illegal executive or private infringement. Hence, the right of recourse to a civil suit for avoiding the acquisition proceedings as being null and void has been statutorily conferred by Section 6(iv)(hb) on the affected landowners. In fact, the Court Fees Act and the Civil Procedure Code are complementary to each other and therefore must be harmoniously construed. In Mannan Lal v. Chhotaka Bibi23 the Supreme Court said:

"The provisions of the Court Fees Act and the Code of Civil Procedure have to be read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other."24

This was later reiterated in Diwan Bros. v. Central Bank of India25. It is an avowed principle of interpretation that the best mode of interpretation of a provision of a statute is to interpret "in such a way as to harmonize laws with laws.... Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as to make, as far as possible, a consistent enactment of the whole statute"26. Therefore, the provisions of Section 9 of the Civil Procedure Code to the effect that "the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred" shall have to be harmoniously read with Section 6(iv)(hb) of the Bombay Court Fees Act, which has conferred jurisdiction on the civil courts to declare any proceedings for compulsory acquisition of movable or immovable property as null and void, subject to the plaintiff paying one-half of ad valorem fee prescribed therefor. Inasmuch as no provision of the Land Acquisition Act, 1894 expressly or by necessary intendment ousts the jurisdiction of the civil court, the legislature has enacted Section 6(iv)(hb) expressly vesting an indefeasible right in the expropriated landowners. It follows, therefore, once the plaintiff completes his side of the obligation by paying the ad valorem fee, the court is vested with the jurisdiction and the obligation to dispense the service of adjudicating the suit under the provisions of law.

The above interpretation can be supported on the basis of another general principle to the effect that the legislature does not enact anything irrelevant or contrary to purpose and has a definite objective in view. This principle was given effect to by the Supreme Court in Hundraj Kanyalal Sajnani v. Union of India27 wherein P.B. Sawant, J., speaking for a five-Judge Constitution Bench ruled thus:

"In the first instance, it is an elementary rule of the interpretation of statutes that no provision of a statute should be read as redundant. ... Secondly, when the legislature had made a special provision for the two classes vesting in two different authorities the power to appoint them, it must be presumed that the legislature had a definite objective in view."28 (emphasis supplied)

The above discussions lead to the conclusion that the provisions of Sections 6(1), 11-A, 23(1-A) and 52 of the Land Acquisition Act, and Section 6(iv)(hb) of the Bombay Court Fees Act must be harmoniously construed, and that any attempt to interpret any provision of the Land Acquisition Act to render redundant or otiose Section 6(iv)(hb) of the Court Fees Act will be bereft of reason and authority.

It may be argued that certain issues are made final under the provisions of the Act. Section 12(1) may be cited in this connection. But analysis of this section makes it clear that there is no finality on legal issues.

Section 12(1) of the Land Acquisition Act reads as follows:

"12. Award of Collector when to be final.—(1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested." (emphasis supplied)

The finality of these three matters of the award is, however, subject to review by the Reference Court under Section 18 read with Section 31(2) or Section 30 of the Act. Except for the finality of these three factual matters, there is nothing in the Act making the award final as regards its legality. Moreover, the use of the word "final" in the statute means only that there is no appeal. The use of the expression "final" or "conclusive" in a statutory provision has been interpreted by Lord Denning, M.R. in R. v. Medical Appeal Tribunal29 in the following words:

"The word 'final' is not enough. That only means 'without appeal'. It does not mean 'without recourse to certiorari'. It makes the decision final on the facts, but not on the law. Notwithstanding that the decision is by a statute made 'final', certiorari can still issue for excess of jurisdiction or for error of law on the face of the record."30 (emphasis supplied)

The Supreme Court also had the occasion to deal with this question. In Ram Swarup v. Shikar Chand31 Gajendragadkar, C.J., speaking for a five-Judge Constitution Bench laid down that the finality of the orders provided under a special Act could be challenged in a civil proceeding on the ground that certain mandatory conditions subject to which the said orders in question could have been passed, had been violated, or that the said orders had been passed in violation of the principles of natural justice32.

A perusal of the provisions of Sections 12, 18, 30, 31, and the entire reference procedure under Part III of the Act, reveals that except for the right of reference on the said three factual matters, the Act does not provide for appeal from the award of the Collector. Of course, the appeal lies under Section 54 to the High Court from the award of the Reference Court made under Section 26 of the Act, and a second appeal lies to the Supreme Court from the decision of the High Court. But the remedy of appeal is restricted only to the questions of the aforesaid three factual matters. At most, therefore, the Act could be said to be a complete code, only for the special purpose of adjudicating any dispute with respect to the three factual matters of the area and value of the land and the apportionment of the compensation among the interested persons. Besides, there is neither an express provision to the effect that no order or proceeding taken under the Act shall be called in question in any court, nor any implied intendment barring the jurisdiction of the civil court. There is no finality attached to any of the proceedings taken under the Act or as to the validity of the award, which cannot be called in question in a court of law on any judicially recognized grounds. A perusal of the scheme also reveals that there is no machinery for determining all questions of law, which may conceivably arise under the Act. The Act also does not contain a machinery for restoration of any land, which may be unauthorizedly taken away. It is therefore submitted that the Act is not a complete code by itself.

The decisions in State of Bihar v. Dhirendra Kumar1 and Laxmi Chand v. Gram Panchayat3 rendered by the Supreme Court on various aspects of acquisition of land do not uphold the correct position of law as discussed below:

Dhirendra Kumar1 was decided by a two-Judge Bench presided over by K. Ramaswamy, J. One is at a loss to visualize the real nature of the case from the following basic facts noticed in the decision: proceedings were initiated for acquiring lands for the Housing Board by a notification under Section 4 of the Act published on 13-2-1957. The declaration under Section 6 was published on 27-3-1957. The possession of the land was taken on 22-3-1957, and handed over to the Housing Board on the same day. The plaintiffs allegedly encroached on the land and made unauthorized construction therein, and when the Housing Board sought to evict them, they laid a suit in the civil court and also applied for interlocutory injunction under Order 39 Rule 1 of the Civil Procedure Code. The Subordinate Judge found prima facie case with triable issues and granted injunction restraining the Housing Board from dispossessing them pending the disposal of the suit. Going by the facts, it appears clear that, since possession had been taken over on 22-3-1957 even before declaration of the public purpose under Section 6(1) published on 27-3-1957, the acquisition of the land was plainly without jurisdiction. Consequently, any later dispute as to possession and title to the land between the parties would be dehors the Act, inasmuch as, the title of the land could not have passed to the State Government, and from it to the Housing Board under the provisions of the Act. As such, it emerges from the facts that the Housing Board had no better title than the alleged encroachers to have them evicted from the land. On the contrary, it appears that the encroachers who were in possession of the land were entitled to protection of their right by raising the invalidity or nullity of the acquisition proceedings under the settled law in this regard. There is no adequate discussion of facts in the decision, making it rather difficult to come to a definite understanding about the nature of the dispute. The decision also does not notice the pleas of the plaintiffs and the counter-pleas of the defendants. It is nowhere mentioned whether the defendants had at all set up the plea of bar of the civil court's jurisdiction.

Another similar decision rendered by a two-Judge Bench presided over by K. Ramaswamy, J. is Gram Panchayat3. In this case, the petitioner had first challenged the validity of the acquisition by a writ petition before the High Court. The High Court dismissed the writ petition. Thereupon the petitioner filed a special leave petition, which was also dismissed by the Supreme Court. The petitioner then filed a suit challenging the validity of the acquisition and the award made by the Collector. He also prayed for a declaration that the land could not be acquired. The ground for the suit was that the land acquisition officer by his proceedings dated 13-7-1973 had dropped the acquisition, and hence he was devoid of power to reopen the same. The suit was dismissed. His appeal was also dismissed by the High Court. Hence, the petitioner once again approached the Supreme Court. The focal question before the Supreme Court was whether the land acquisition officer after having once dropped the proceedings to make the award had the power to subsequently make the award. It was answered affirmatively by the Court. In this context, it may be noted that the plaintiff had no case to file the suit: firstly, because his earlier writ petition and SLP questioning the validity of the acquisition were dismissed by the High Court and subsequently by the Supreme Court. Hence, the latter suit on the same cause of action was clearly barred by res judicata; and secondly, because it is settled law that unless the Government withdraws the acquisition by a notification made under Section 48, proceedings would be treated as pending. The Supreme Court found that the acquisition proceedings had not been withdrawn by a notification under Section 48 of the LA Act, and hence, the land acquisition officer had the jurisdiction to make the award. The observation of Their Lordships that "the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implication, stood barred"33 is an obiter dicta and is "a proposition wider than the case itself required"34. For, the said observation was not necessary to sustain the decision. Thirdly, this point does not appear to have been argued before the Court. And no citation of any authority on the point was given therein.

The question whether on acquisition the land vests in the Government or not is to be decided by the court. The Supreme Court had the occasion to deal with this issue in Govt. of A.P. v. Thummala Krishna Rao35. In this case, the lands were acquired under the Hyderabad Land Acquisition Act for Osmania University. This Act is in pari materia with the Central Act36. The landowner encroached upon the land after completion of acquisition and continued as such thereafter. The University filed a suit for possession which was dismissed on the ground of the defendants having completed their title after being in adverse possession for more than 12 years. Thereupon, the University sought to have them evicted by resorting to the provisions of the Land Encroachment Act. The encroachers then filed a writ petition before the Andhra Pradesh High Court. Their petition being dismissed by a Single Judge they appealed to the Division Bench, which held that the question whether the lands belonged to the University or not would have to be decided "as and when the Government comes forward with a suit for the purpose". On further appeal to the Supreme Court, the following questions fell to be determined:

1. Whether the encroachers on the lands, after a long lapse of time, could be evicted by the summary procedure of the Land Encroachment Act?

2. Whether the lands belonged to Osmania University or not?

3. Whether the land vested in the Government or in the University by virtue of acquisition?

4. What was the proper mode of remedy to adjudicate whether the title of the land had vested in the Government or in the University?

The Supreme Court upheld the Division Bench's order and Chandrachud, C.J., explained the law thus:

"If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belongs to it, and on the basis of such decision take recourse to the summary remedy provided by Section 6 (of the Land Encroachment Act) for evicting the person who is in possession of the property under a bona fide claim or title. ... The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy ... is not the kind of legal process which is suited to an adjudication of complicated questions of title."37

Chandrachud, C.J. further observed:

"The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit."38

From this ratio, it is clear that in Dhirendra Kumar1 the Housing Board did not have any legal authority to initiate steps to have the plaintiffs evicted, since it appeared that the plaintiffs had been in possession of the suit property from 1957 before they filed the title suit in 1985. Obviously, if the plaintiff had been in possession at least for 12 years next prior to instituting the suit, they would have perfected their title by operation of law. Moreover, from the facts of the case, the title of the suit property would not have vested in the Housing Board, inasmuch as the possession was taken even before making the declaration of public purpose, not to speak about before making the award. In the circumstances Dhirendra Kumar1, with respect, was wrongly decided.

Moreover, a five-Judge Constitution Bench held that the notifications under the Act can be set aside in a suit, if they are ultra vires the provisions of the Act. In Valjibhai Muljibhai Soneji v. State of Bombay39 the question whether a civil court can set aside a notification under Section 4 and Section 6 on the ground of it being ultra vires the Act came to be decided by a five-Judge Constitution Bench of the Supreme Court. In that case, the Government of Bombay instituted proceedings for acquisition of a piece of land in Ahmedabad for the purpose of constructing a bus depot of the State Transport Corporation. The plaintiffs challenged the validity of the acquisition proceedings on the following main grounds: (1) that the purpose mentioned in the notification under Section 4 of the Act was indefinite or vague; and (2) that the land was being acquired for the State Transport Corporation which was not a local authority but a company and as the provisions of Part VII of the Land Acquisition Act were not complied with, the acquisition was bad40. The Supreme Court held that the State Transport Corporation having been incorporated under the Indian law was a company and since the compensation to be awarded for the acquisition was to be paid only by the Corporation and no portion of it was paid by the Government, the acquisition would be bad because the provisions of Part VII of the Land Acquisition Act had not been complied with41. In the circumstances, the Supreme Court allowed the appeals and decreed the suits of the appellants with costs in all the courts42.

The civil court may have jurisdiction to cancel an award under the Act if the award was made without jurisdiction. This was made clear by the Supreme Court in State of J&K v. Sanahullah Mir43. In this case, the respondent was a landholder. The land in fact was owned by the Maharaja of Jammu and Kashmir. In 1893, the Government took the land for a timber depot, and as per the prevailing practice, no compensation was paid. Sixty years later, the respondent filed an application before the Prime Minister of Jammu and Kashmir for payment of compensation. Thereupon, the State initiated acquisition proceedings under the Jammu & Kashmir Land Acquisition Act, 1934, which is in pari materia with the Central Act. The Collector made an award of Rs 32,645.62 paise. On reference, the District Judge determined the compensation at Rs 35,900.10 paise. On appeal by the State, the High Court restored the amount fixed by the Collector.

The State also made an application under Order 41 Rule 27 of the Civil Procedure Code for the first time in the High Court claiming adverse possession and for submitting additional evidence. The High Court rejected this prayer. A review petition contending that the award was a nullity was also rejected by the High Court. Thereafter, the State filed the instant suit alleging that the defendant-respondent committed fraud and entire acquisition proceeding had been taken as a result of a mistake of fact and law and hence vitiated. The learned Judge dismissed the suit. The State's appeal was dismissed by the High Court. The Supreme Court upheld the State's contention and ruled that the award was a nullity44. The Supreme Court also repelled the contentions of estoppel and res judicata raised by the defendant that once the State had initiated the acquisition proceeding, they were estopped from challenging the award as a nullity, and also that they were not allowed to reagitate the same issue in a suit after the High Court had rejected their application and review petition.

This decision lays down the crucial ratio that (i) a suit lies in the civil court for the cancellation of the award which is a nullity; and that (ii) a suit can be filed not only by the landowners but also by the State challenging the acquisition proceedings as null and void on any recognized grounds.

The decision in State of Gujarat v. Sankalchand Khodidas Patel45 indicates that a suit against acquisition may lie if the Government has failed to comply with the provisions of the Act in declaring the public purpose for effecting acquisition. Similarly, the decision in State of A.P. v. Kalva Suryanarayana46 supports the view that the question whether the land was acquired by the Government or not is a question of fact and can be decided in a title suit filed against the Government on the grounds of failure to make the award and pay the compensation even though the notification was issued.

Essential conditions for a decision to be binding

It is settled that for a decision to have binding effect on subsequent Judges, it must fulfil the following conditions47:

(i) the point which has been decided, must have been argued by the counsel of the parties;

(ii) the decision must contain reference to the crucial words of the relevant provisions of the Act;

(iii) the decision must not be given in ignorance of a rule having the force of a statute; and

(iv) the decision must contain citation of authorities on the point decided; and

(v) in the absence of Conditions (i) to (iv) mentioned above, the decision is said to be passed sub silentio and per incuriam and will not be binding on and followed by a subsequent Judge.

The decisions in Dhirendra Kumar1 and Gram Panchayat3, as we have seen above, were passed sub silentio of the crucial provisions of Sections 6(1), 11-A, 23(1-A) and 52 of the Land Acquisition Act as to the jurisdiction of the civil court; and Section 6(iv)(hb) of the Bombay Court Fees Act, which confers an indefeasible right of access to the civil court on the expropriated landowner. Moreover, these decisions were rendered without discussing the precedents. Hence, it is submitted, with respect that the reliance on these decisions is to be avoided.

It is to be noted that the special remedy provided in Article 226 is not intended to do away with ordinary remedy in a civil suit. The said two decisions have also not followed the decision of the five-Judge Constitution Bench of the Supreme Court in State of M.P. v. Bhailal Bhai12 where it was laid down as follows:

"17. At the same time we cannot lose sight of the fact that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. ... It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution."48 (emphasis supplied)

It is, therefore, submitted that the law laid down in Gram Panchayat case3 that the only right which an aggrieved person has in land acquisition proceedings is to approach the High Court under its extraordinary jurisdiction, is contrary to the law laid down by the Constitution Bench and therefore it is not a binding authority.

As such, there is a preponderance of authorities laying down the view that though the aggrieved landowner can directly move the High Court by invoking its extraordinary jurisdiction, he cannot be compelled to do so; besides, it must not be overlooked that the vast majority of the expropriated farmers are ignorant and poor, and as a result, it is not easy for them to take resort to the writ proceedings. On the other hand, filing a suit in the local civil court is relatively an easier proposition for the large majority of the poor expropriated landowners. It is therefore submitted that the extraordinary jurisdiction of the High Court cannot supersede the common law rights of the expropriated farmers, which are also protected as we have shown above under the Explanation to the first proviso to Section 6(1) and in the Explanation to Section 11-A, and Sections 23(1-A) and 52 of the Act. It is, therefore, submitted, with respect, that Dhirendra Kumar1 and Gram Panchayat3 were wrongly decided.

The nullity of the award can be set up whenever and wherever it is sought to be enforced or is a foundation of any proceedings

The decision in Jaipur Development Authority v. Radhey Shyam49 indicates that the invalidity of the award on the ground of nullity can be raised in execution proceedings. In this case, the Supreme Court observed:

"Since we have already held that the Land Acquisition Officer has no power or jurisdiction to allot land in lieu of compensation, the decree even, if any, under Section 18 to the extent of any recognition of the directions in the award for the allotment of the land given under Section 11 is a nullity. It is open to the appellant to raise the invalidity, nullity of the decree in execution in that behalf. Accordingly we hold that the execution proceedings directing delivery of possession of the land as contained in the award is, invalid, void and inexecutable. Accordingly it is set aside."50

So, if the award of the Collector is ultra vires, the award is a nullity. Even if the District Court under reference confirms such an award, the nullity or invalidity of the award can be raised in the execution proceeding of the award made by the court under Section 26(1)51. Therefore, a fortiori, the invalidity of the award can as well be raised before the Reference Court itself. For, if the execution court can set aside the award on the ground of nullity, the Reference Court, at a prior stage can also hold the award to be a nullity. This is based on the maxim ratio et auctoritas clarissima mundi lumina - reason and authority, the two brightest lights of law must inform judicial decisions. As a corollary to the ratio of Jaipur Development49, the nullity of the award can also be raised before a civil court in any proceedings, for example, in a suit for recovery of possession on the ground of the award being a nullity.

The Reference Court can also set aside the acquisition proceedings on the ground of nullity. In Collector of Kamrup v. Kamakhya Ram Barooah52 it was held that if the acquisition proceedings are ultra vires, a civil court, including the Reference Court, has the jurisdiction to set aside the same as being invalid - despite there being an express exclusionary provision that no order passed under the Assam Land (Requisition and Acquisition) Act, 1948 shall be called in question in any court of law in Section 11. In contrast to the Assam Land (Requisition and Acquisition) Act, 1948 however, there is no ouster clause in the Central Act. It is, therefore, submitted that another decision of the Supreme Court in Balram Chandra v. State of U.P.53 rendered by a Division Bench presided over by K. Ramaswamy, J. laying down that the Reference Court has no jurisdiction to declare null and void the proceedings under the Act, with respect, was wrongly decided being per incuriam of Kamakhya Ram Barooah case52.

In Sushil Kumar Mehta v. Gobind Ram Bohra54 K. Ramaswamy, J. speaking for a three-Judge Bench has laid down that a decree passed by a court without jurisdiction over the subject-matter or on any other ground which goes to the root of its exercise of jurisdiction or inherent jurisdiction is a nullity and is non est. Its invalidity can be pleaded whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in collateral proceedings55.

This decision shows that nullity of the award can be raised before (a) the Reference Court, or (b) the execution court, or (c) in a collateral proceeding, e.g., in a suit for possession on the grounds that the acquisition proceedings are ultra vires.

The above view is supported by a long line of cases, a few of which are: Gaekwar Sarkar of Baroda v. Gandhi Kachrabhai Kasturchand56; Rameswar Singh v. Secy. of State for India57; Secy. of State v. Mask & Co.58; Ramrao Jankiram Kadam v. State of Bombay59; Firm Seth Radha Kishan v. Ludhiana Municipality60; Firm of Illuri Subbayya Chetty v. State of A.P.61; Addanki Tiruvenkata v. State of A.P.62; Shree Raja Kandregula v. State of A.P.63; Anwar v. First ADJ64; State of T.N. v. Ramalinga Samigal Madam65; Shiv Kumar Chadha v. Municipal Corpn. of Delhi66; Krishan Lal v. State of J&K67; and M.P. Electricity Board v. Vijaya Timber Co.68

Conclusions

(a) There is neither an ouster clause nor an implied intendment in the Act ousting the jurisdiction of the civil court to entertain a suit. On the contrary, the provisions of Sections 6(1) and 11-A expressly provide for a stay by a court of any action or proceedings to be taken in pursuance of the notification published under Section 4 and the declaration made under Section 6 of the Act. Section 23(1-A) expressly provides for holding up of any of the proceedings by stay or injunction by the order of any court. Besides, Section 52 provides for a suit against any proceeding taken under the Act. Hence, it is crystal clear that a suit lies to set aside the acquisition proceedings as being null and void.

(b) The award is made final by Section 12(1) only with respect to the three factual matters: (i) the area of the land, (ii) the value of the land, and (iii) the apportionment of the compensation between the interested persons. No finality is given to the legality of the award. In a line of decisions rendered in Division Benches as well as Constitution Benches of the Supreme Court, the acquisition proceedings originally challenged by instituting suits in the civil court had been set aside, and the suits were decreed. This signifies the acceptance of the jurisdiction of civil courts in land acquisition matters in India.

(c) The civil court has also been conferred with jurisdiction to try a suit under Section 6(iv)(hb) of the Bombay Court Fees Act. It is settled law that the provisions of the Civil Procedure Code - and by the same principle, the provisions of the Land Acquisition Act - and those of the Bombay Court Fees Act are complementary to each other, and that they must be harmoniously construed. Besides, the expressions "a court" and "any court" are not susceptible of the narrow meaning of the High Court exercising its extraordinary special jurisdiction under Article 226 of the Constitution. Such an interpretation, if given to these expressions, will amount to rewriting, redesigning or recasting the law by the court of which the court has no power. An aggrieved landowner is, therefore, vested with an indefeasible valuable right of access to the civil court which cannot be denied without rendering otiose the provisions of the Land Acquisition Act and Section 6(iv)(hb) of the Court Fees Act.

(d) It is settled law that if the orders or any proceedings were passed or taken without jurisdiction, they are null and void. The nullity of the order can be raised in any proceeding including a collateral proceeding. It is also settled law for over 100 years that even an express statutory bar does not oust the jurisdiction of the civil court, if the order complained of is a nullity, being ultra vires the provisions of the Act.

(e) The decisions in Dhirendra Kumar1 and Gram Panchayat3, with respect, were rendered per incuriam and sub silentio of Sections 6, 11-A, 23(1-A) and 52 of the Act which expressly lay down the jurisdiction of the civil court and also Section 6(iv)(hb) of the Bombay Court Fees Act which provides for institution of a suit challenging the acquisition proceedings as null and void and were therefore founded on a mistake of law. The Bench further was not apprised of earlier decisions of larger Benches and Constitution Benches of the Supreme Court, which specifically dealt with the jurisdiction of the civil court in land acquisition matters. Therefore, the conclusion of law in Dhirendra Kumar1 and Gram Panchayat3, with our utmost respect, is not correct. For similar reasons, Balram Chandra case53 was also per incuriam of the established precedents, and hence wrongly decided. All these decisions are, therefore, required to be reviewed by the Supreme Court to straighten the law in conformity with the provisions of the Act, and the established precedents in this regard.

*    Advocate, Bombay High Court Return to Text

1. (1995) 4 SCC 229 Return to Text
2. Ibid., at p. 230 Return to Text
3. (1996) 7 SCC 218, 220 Return to Text
4. Ibid., at p. 220. Return to Text
5. Sardara Singh v. Sardara Singh, (1990) 4 SCC 90, 96-98 Return to Text
6. Dhulabhai v. State of M.P., AIR 1969 SC 78 Return to Text
7. 1995 Supp (4) SCC 286 Return to Text
8. Ibid., at p. 318, para 29 Return to Text
9. In the light of the principles laid down by the Constitution Bench of the Supreme Court in Dhulabhai case6 Return to Text
10. (1986) 3 SCC 156 Return to Text
11. Ibid., at pp. 176-77, para 21 Return to Text
12. The Discipline of Law, p. 80, Lord Denning, M.R. Also see State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006 Return to Text
13. (1995) 2 SCC 736, 742 Return to Text
14. (1995) 2 SCC 689 Return to Text
15. (1995) 2 SCC 728 Return to Text
16. (1995) 2 SCC 736 at p. 742, para 9. Also see Jnan Ranjan Sen Gupta v. Arun Kumar Bose, (1975) 2 SCC 526, 530 Return to Text
17. 1942 AC 206, 245 Return to Text
18. (1986) 4 SCC 746 Return to Text
19. Ibid., at p. 749, para 6 Return to Text
20. Maxwell on The Interpretation of Statutes, 12th Edn., pp. 251-52 Return to Text
21. Ibid., at p. 116 Return to Text
22. See P.M. Ashwathanarayana Setty v. State of Karnataka, 1989 Supp (1) SCC 696, pp. 712-14 Return to Text
23. (1970) 1 SCC 769 Return to Text
24. Ibid., at p. 776, para 13 Return to Text
25. (1976) 3 SCC 800 Return to Text
26. Aphali Pharmaceuticals Ltd. v. State of Maharashtra, (1989) 4 SCC 378, 396-97 Return to Text
27. 1990 Supp SCC 577 Return to Text
28. Ibid., at p. 597, para 47 Return to Text
29. (1957) 1 QB 574, 583 Return to Text
30. See also Pyx Granite Co. Ltd. v. Ministry of Housing and Local Govt., 1960 AC 260 that came to be accepted by the Supreme Court in Dhulabhai v. State of M.P., AIR 1969 SC 78, 84. Also see Ridge v. Baldwin, 1964 AC 40 Return to Text
31. AIR 1966 SC 893 Return to Text
32. Ibid., at p. 897 Return to Text
33. (1996) 7 SCC 218, 220 Return to Text
34. Krishena Kumar v. Union of India, (1990) 4 SCC 207, 226, para 19 Return to Text
35. (1982) 2 SCC 134 Return to Text
36. Please see Mohd. Hasnuddin v. State of Maharashtra, (1979) 2 SCC 572, 576, where the provisions of Section 14(1) of the Hyderabad Land Acquisition Act were held to be in pari materia with the provisions of Section 18 of the Land Acquisition Act, 1894. Also see Mariyappa v. State of Karnataka, (1998) 3 SCC 276 where the Supreme Court held the Karnataka Land Acquisition Act in pari materia with the Central Act, inasmuch as it deals with the same subject of acquisition Return to Text
37. (1982) 2 SCC 134 Return to Text
38. Ibid., at p. 140, para 10 Return to Text
39. AIR 1963 SC 1890 Return to Text
40. Ibid., at p. 1893. Part VII of the Act envisages acquisition of land for companies Return to Text
41. Ibid., at p. 1894. By virtue of clause (cc) of Section 3 inserted by Act 68 of 1984, a State Transport Corporation is now a corporation owned or controlled by the State, and hence no longer a company. However, the ratio of this case that the civil court has jurisdiction to adjudicate a suit challenging the acquisition proceedings on any of the judicially recognized grounds is still valid Return to Text
42. Ibid., at p. 1895 Return to Text
43. (1980) 3 SCC 272 Return to Text
44. Ibid., at p. 277 Return to Text
45. (1977) 4 SCC 590 Return to Text
46. (1992) 2 SCC 732 Return to Text
47. Municipal Corpn. of Delhi v. Gurnam Kaur, (1989) 1 SCC 101, 110-11; Punjab Land Development & Reclamation Corpn. Ltd. v. Presiding Officer, (1990) 3 SCC 682, 706; State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, 162-64; Govt. of India v. Workmen of State Trading Corpn., (1997) 11 SCC 641 and Krishena Kumar v. Union of India, (1990) 4 SCC 207, 233 Return to Text
48. State of M.P. v. Bhailal Bhai, AIR 1964 SC 1006, p. 1011, para 17 Return to Text
49. (1994) 4 SCC 370 Return to Text
50. Ibid., at p. 375, para 8 Return to Text
51. Same law has been reiterated by K. Ramaswamy, J. in Urban Improvement Trust v. Gokul Narain, (1996) 4 SCC 178 Return to Text
52. AIR 1965 SC 1301 Return to Text
53. (1995) 3 SCC 723 Return to Text
54. (1990) 1 SCC 193 Return to Text
55. (1996) 4 SCC 178, 187. Also see Nawabkhan Abbaskhan v. State of Gujarat, (1974) 2 SCC 121 explaining the meaning of nullity Return to Text
56. ILR (1903) 27 Bom 344 (PC) Return to Text
57. ILR (1907) 34 Cal 470 (AC) Return to Text
58. AIR 1940 PC 105 Return to Text
59. AIR 1963 SC 827 Return to Text
60. AIR 1963 SC 1547 Return to Text
61. AIR 1964 SC 322 Return to Text
62. AIR 1964 SC 807 Return to Text
63. (1969) 3 SCC 71 Return to Text
64. (1986) 4 SCC 21 Return to Text
65. (1985) 4 SCC 10 Return to Text
66. (1993) 3 SCC 161 Return to Text
67. (1994) 4 SCC 422 Return to Text
68. (1997) 1 SCC 68 Return to Text