KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS.

means and they would otherwise never be able to acquire a A house." The Court concluded: (Brijendra Prasad Gupta case (supra), sec p. 225, para 28) "28. The Court must shake off its myth that public purpose B is served only if the State or the Housing Board or the joint -sector company does not earn any profit. There cannot be any better authority than the State or the statutory corporation to supervise or monitor the functions of the joint venture company. Courts will certainly step in if the public purpose is sought to be frustrated."( emphasis supplied) c

116. Reliance was also placed· on State of Karnataka v. All India Manufacturers Organisation (2006) 4 SCC 683. In that case, the Government ofKarnataka undertook a mega project for developing its transport and communication system. A memorandum of understanding was entered into between the D State Government and a company for implementation of the project and lands were acquired. A public interest litigation (PIL) was filed in the High Court alleging that the land was not needed for public purpose and yet excess land was acquired and had been given to a company. The action was, therefore, illegal, unlawful and mala fide. Negativing the contention and upholding the action, this Court observed that the project was an integrated infra.structure development project and not merely a highway project As an integrated project, it required acquisition and transfer of lands even away from the main alignment of the .road. Acquisition of land and giving it to the company was, therefore, legal l\!ld lawful and did not suffer from mala fides. ·

127. We would have indeed considered the contention of the learned counsel for the appellants closely in the light of earlier decisio_ns of this Court.·We are, however, of the view that on the facts and· in the· circumstances .of the present case, the G Government was right in forming an opinion and reaching a · satisfaction as to "public purpose" and in initiating proceedings under Sections 4 and ·6 and in invoking Part U ofthe Act. We, therefore, refrain from undertaking further exercise·. In our considered opinion, it is not necessary for u_s to enter into larger question in view of"fact situation" in the instant case. H

394 SUPREME COURT REPORTS [2016] 11 S.C.R.

A Conclusions 128.Applying the aforesaid principles to the case on hand, in our considered opinion, it cannot be said that the proceedings · initiated by the State for acquisition of land under the Land Acquisition Act, 1894 are illegal, unlawful, unwarranted, inala B fide, fraud on statute or have been taken in colourable exercise of power. · 131. In our judgment, the respondents are right in submitting that in case of integrated and indivisible project, the project has to be taken as a whole and must be judged whether it is in· the c larger public interest. It cannot be split into different components and to consider whether each an·aevery component will serve . public good. A holistic apprnach has to be adopted in such matters. If the project taken as a wlfole is an attempt in the direction of bringing foreign exchange, generating employment opportunities and securing economic benefits to the State and the public at large, it will serve public purpose. ·

132. It is clearly established in this case that the infrastructure development project conceived by the State and executed under the auspices of its instrumentality (APIIC) is one covered by the Act. The joint venture mechanism for implementing the policy, executing the project and achieving lawful public purpose for realising the goal oflarger public good would neither destroy the object nor vitiate the exercise of power of public purpose for developme.nt of infrastructure. The concept of joint venture to tap resources of private sector for infrastructural development for fulfilment of public purpose has been recognised in foreign countries . as also in India in several decisions of this Court. . · 133. The entire amount of compensation is to be paid by State agency (AP/IC) which also works as nodal agency for execution of the project. Ji is primarily for the State to decide whether there exists public purpose or not. Undoubtedly, the decision of the State is not beyond judicial scrutiny. Jn appropriate cases, where such power is exercised ma/a fide or for collateral purposes fJr the purported action is dehors the Act, irrational or otherwise unreasonable or the so-called purpose is "no public purpose" at all and fraud on statute is apparent, a writ court can undoubtedly interfere.

KEDAR NATH YADAV v. STATE OF WEST BENGAL & OR$. 395 [ARUN MISHRA, J.]

_But except in such cases, the declaration of the Government A is not subject to judicial review. In other words, a writ court, while exercising powers under Articles 32, 226 or 136 of the Constitution, cannot substitute its o~n judgment for the iudgment of the Gpvi!_rnment as to what constitutes ''public purpose". (emphasis supplied) B Thus this Court has laid down that when the entire compen;;ation is to be paid by APIIC, it is for the State to decide whether there exists a public purpose or not, though the decision of the State is not beyond judicial scrutiny. Whether it is exercised mala fide or collaterally'or de hors of the Act and no public purpose would be served, court can interfere. The expenditure out of the funds oftheAPIIC was held to be c from public revenue as provided in Explanation 2 of section 6(1) of the Act.

23. In Urmila Roy & Ors. v. Bengal Peerlesis Housing . Development Co. Ltd. & Ors. (2009) 5 SCC 242, this Court has considered the amended provisions and ExpJanation 2 of section 6 and D held th~t the expenditure is the test for appilcability of the procedure prescribed in Part II as it was borne by the State Government or the Housing Board that the acquisition was for Part II and not Part VII of the Act. This Court has held thus: "38. A perusal of the second proviso and Explanation 2 of E Section 6 in particular reveals that ifthe compensation awarded for the _property is paid substantially out of the funds of a corporation owned or controlled by the State, such compensation will be deemed to be paid out of public funds and as such would satisfy the test of-acquisition for a public purpose. F

39. We see from the record that as per the letter issued by the Land Acquisition Collector on 13-11-2001 to the Housing Ministry of the State Government, a request had been made that a sum of Rs 3 crores which represented about ·so% of the compensation of the acquired land be.deposited. This memo had G been forwaroed by the State Government to the Housing Board and on 23-11-2001 a sum of Rs I. 70 crores towards compensation . had been sent by Bengal Peerless to the Land Acquisition Collector through the Housing Board.

40. It appears that on 30-10-2003 the State Government H

396 SUPREME COURT REPORTS [2016] 11 S.C.R.

A had requested the Housing Board to make an-angements for the balance payment of compensation of about Rs 82,04, 138 and by a memorandum of3 l-l 0-2003 the Government of West Bengal had directed the Housing Board to pay the additional balance compensation which too was defrayed by an account payee cheque dated 3-11-2003 drawn on Bank of Maharashtra. The B accounts statement of Bank of Maharashtra was produced before us for perusal and this statement supports the argument that the aforesaid amount had, indeed, been paid from the funds of the Housing Board which is completely owned and controlled by the State Government. c 41. In their written submissions the appellants have doubted the accuracy of this accounts statement, by asserting that they had not been able to verify its contents as it had been produced for the first time in this Court. We find that even if this objection is accepted and the statement ruled out of consideration, the D other evidence on record does indicate. that a substantial part of the compensation had been paid from the government funds.

43. In Indra} it Parekh v. State of Gzljarat (1975) I SCC 824 in which a somewhat restricted meaning has been given to the extremely broad parameters laid down in Pratibha Nema E case (supra), but it has nonetheless been observed that if a reasonable amount of compensation had been drawn out of. government funds, it would satisfy the requirement of a public purpose as per the Act.

44. In the present case, as already mentioned above, we F find that a substantial part of the compensation has, indeed, been paid by the State Government or by the Housing Board which clearly satisfies the test of public purpose. In this background, we endorse the finding of the Division 6ench that the procedure envisaged in Part I1 and not in Part VIT of the Act would be applicable. This is precisely what has been done." G

24. ·In Nand Kishore Gupta & Ors. v. State of U.P. & Ors. (20 I 0) I 0 SCC 282, this Court has referred to the decisions in Devinder Singh (supra) and Pratibha Nema (supra) and has laid down that there was no conflict in the decisions. This Court has considered the matter thus: H

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 397 fARUN MISHRA, J.l

"80. During the debate, the decision in Devinder Singh v. A State of Punjab (2008) I SCC 728 was also referred to. It was urged that there was a conflict in this decision and the decision in Pratibha Nema case (2003) 110 SCC 626. This was a case where the petitioners who were the owners of the agricultural lands, had challenged the acquisition oflands for M/s International B Tractors Ltd. It was claimed that the land was being acquired for public purpose i.e. setting up Ganesha Project of M/s International Tractors Ltd. at various villages. The High Court had held that the land acquisition was for public purpose. This Court explained the "public purpose" as defined in Section 3(t) of the Act and noted that the aforementioned Ganesha Project c was not a project of the State, but the one undertaken by the Company M/s International Tractors Ltd. The Court then went on to consider Sections 40 and 41 of the Act along with Rule 4 of the LandAcqui~ition (Companies) Rules, 1963 and came to the conclusion that the same could not be a public purpose as the D whole compensation was coming from the coffers of the Company. In that view, the Court further came to the conclusion that the State not having followed the provisions of Sections 40 and 41 of the Act, the whole process had suffered illegality.

81. The Court also considered the decision in Pratibha Nema case (supra) and distinguished the same by making a E comment to the following effect: (Devinder Siugh case (supra), sec p. 738, para 22) "22 . ... But we must hasten to add that the Bench did not, have any occasion to consider the question as to whether the State is entitled to take recourse to the provisions of both Part F II and Part VII of the Act simultaneously.". The Court, however, refused to go into the nicety of the question and observed that in a case of acquisition for a public company, public purpose is not to be assumed and the point of distinction between acquisition of lands under Part 11 and Part VII of the G Act would be the source of funds to cover the cost of acquisition. The Court also considered the judgment of this Court in Somawanti v. State of Punjab, AIR 1963 SC 151, Jage Ram v. State of Haryana ( 1971) 1 SCC 671 and Shyam Behari v. State of MP. AIR 1965 SC 427 Ultimately, the Court came to the H

398 SUPREME COURT REPORTS [2016] 11 S.C.R.

A conclusion that the necessary provisions not having been found, the view of the High Court was not correct, whereby it had upheld the land acquisition, holding it to be for the public purpose.

82. We have '?losely seen the judgment in Devinder Singh (supra) however, the factual situation in the judgment is quite B different. In our opinion, the judgment will not help the appellants to contend that the present land acquisition is not for public purpose. We also do not think that there is any serious conflict between the decision in Pratibha Nema case (supra) and the decision in Devinder Singh v. State of Punjab (supra), so as to require a reference to the larger Bench. In our opinion, the c decision in Pratibha Nema case (supra) applies to the fact situation in this case.

83Copy pinpoint83. Therefore, considering the overall factual situation, we are of the opin'ion that the High Court was right in holding that the acquisition was made for the public purpose. We find from the order of the High Court that the High Court has considered the question of public purpose keeping in mind the correct principles of law. We are, therefore, of the opinion that the contention raised by the learned counsel for the appellants that this acquisition was not for the public purpose for various reasons which we have disc1;1§sed, is not correct." 25.In my opinion for the purpose of acquiring land in the instant case it was not necessary to have recourse to the provisions contained in Chapter VII of the Act. The proposal submitted to the Cabinet on 30.5.2006 indicates that the West Bengal Industrial Development F Corporation (WBIDC) was the acquiring body to acquire I 053 acres of land for Small Car Project ofTML at Singur which was comprised in Gopal Nagar, Singherberi, Beraberi, Khaserberi and Bajemelia. Thus the Cabinet has approved the said proposal. WBIDC was associated with the project right from the beginning and was instrumental in getting _ the land identified by the TML for the purpose of selection. The memo .G forthe Standing Committee of the Cabinet on Industry dated 26'.7.2006 contains the decision of acquisition ofland for public purpose under Land Acquisition Act it was made considering the following facts : "(B) Declaration of Acquisition as Public Purpose under the LA Act - H

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 399 [ARUN MISHRA, J.]

Keeping in view the importance of this Industrial investment in the automobile sector for the industrial development of the State, and keeping in view the fact that the land is being acquired by the West Bengal Industrial Development Corporation as the Requiring Body, and WBIDC being a Corporation owned and contro!Ied by the State Government, it is proposed that this acquisition be done for public purpose in terms of Section 3(t)(iv) of the Land Acquisition Act, 1894. · The matter is accordingly placed before the Standing Committee of the Cabinet on Industries for decision on the following: I. Approval of the revised package of incentives as described c in item above;

2. Approval for taking up land acquisition for public purpose as described in item above." The Standing Committee has approved the same as apparerfFfrom the Minutes placed on record. Notification under section 4 of the Act b was published in the Gazette on 21.7.2006 in which it was mentioned that the land is likely to be needed by the Government/Government undertaking/DevelopmentAuthorities at the public expense for publi1< · purpose, viz., employment generation and socio-economic development of the area by setting up small car project. Though it was not specifically mentioned that the WBIDC is to be the acquiring body but a deCision had already been taken in this regard and the aforesaid expression · Government Undertaking/Development authorities would include acquisition by WBIDC as the Government has decided to treat it as a public purpose as it was to generate direct employment to 1800 persons and by direct employment through vendors and through other service providers to 4 700 persons approx. Similar is the position with respect to . declaration under section 6 of the Act. As the Government has treated the acquisition for a public purpose and the entire money has been paid _by WBIDC consequently by mere mention that the land was required for the small car project of TML .would not make it an acquisition for a . G comp.any under Part VII. Non-mention of WBIDC cannot be taken to be an illegality impinging the validity of the notification under section 4 of the Act. The fact that the application was filed by TML indicating its willingness for setting up the industry would not also make ii an acquisition for a company but how the State has dealt with the.same, would be the H

400 SUPREME COURT REPORTS [2016] 11 S.C.R.

A decisive factor. Since WBIDC was involved right from the beginni_ng by the State Government and a decision was taken by the State Government that WBIDC would be the acquiring authority and WBIDC was involved in identification of the land and the reports were submitted by it to the Government, the acquisition was for WBIDC is apparent as the land was to vest in the WBIDC and it has paid the compensation. Payment B of premium amount as per the conditions of lease agreement fastened upon the TML would also not make it a compensation paid by TML as already discussed hereinabove. In my opinion it was not necessary for the State Government to deposit the amount of compensation as compensation paid by the corporation is also to be treated out of public c revenue.

26. The aims and objects of the amendment of section 3(f) when taken into consideration would not alter the aforesaid position of law. Acquisition ofland for a company or for industrialization ifit is for public purpose would be covered under section 3(f) as amended and when corporation is the acquiring authority and amount of compensation is borne by it in entirety and land has been ultimately leased out to TML for it$ project by it the acquisition would remain for a public purpose under section 3(f) attracting Part II of the Act. The procedure adopted under Part II cannot be said to be impermissible. It cannot be said to be acquisition under guise of public purpose so as to violate the intendment of exclusion of the company from section 3(f) as amended.

27. Considering the various decisions rendered by this Court in post-amendment period in Amarnath Ashram Thtst Society & Am: v. .. Government of U.P. & Ors., Pratibha Nema, Devinder Singh v. State of Punjab, Sooraram Pratap Reddy, Urmila Roy & Ors. v. Bengal F Peerless Housing Development Co. Ltd. & Ors., and Nand Kishore Gupta v. State of U.P. discussed hereinabove are binding on a Co- ordinate Bench and I find no reason to take a different view on merits_

28. Even ot)1erwise I feel bound by the principle of stare decisis in view of the aforesaid consistent decisions of this Court. In WamanRao G v. Union ofIndia ( 198 I) 2 SCC 362, it has been laid down that the rule of stare decisis requires that it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis. In Union of India v. Raghubir Singh (1989) 2 SCC 754, it has been laid down that the law declared by this Court H should be certain, clear and consistent. The doctrine of binding precedent

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 401 rARUN MISHRA, J.l

has'the merit of promoting certainty and consistency in judicial decisions. A In Krishena Ku111ar v. Union of India (1990) 4 SCC 207, law to the similar effect has been laid down when departure is rendered necessary to vindicate plain, obvious principles of law· and remedy continued injustice. In Mishri Lal v. Dhirendra Nath, (1999) 4 SCC 11 it has been laid down that the doctrine is base9 on 'pug_lic policy' and should be B adhered to subserve the ends of justice. In Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673, it has been observed that the doctrine has the merit of promoting certainty and _consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming c part of daily affairs. In Shanker Raju v. Union of India (2011) 2 SCC 132 it has been observed that a judgment, which has held the field for a long time, should not be unsettled. The view which has held the field for a long time should not be disturbed only because another view is possible. In Fida Hussain v. Moradabad Development Authority & Am: (2011) D 12 sec 615 it has been observed that the decision of two Judges is binding on another Division Bench of two Judges. Following obs~rvations have been made by this Court in Union of India v. Raghubir Singh (1989) 2 sec 754: "28. We are of the opinion that a pronouncement of E law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court." F In Union of India v. Paras La111inates (PJ Ltd. ( 1990) 4 SCC 453 it has been observed that a Co-ordinate Bench should not disturb the decision on an identical question. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. It is necessary to inculcate confidence in the administration of justice as laid down in Joint Co111111issio11er of Income Tax, Surat v. G Saheli Leasing and Industries Ltd. (2010) 6 SCC 384. It cannot be referred to a larger Bench unless there is an error apparent on its face or that a particular earlier decision was not noticed, which has a direct bearing or has taken a contrary view. In The Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 a Constitution Bench of this Court has observed H

402 SUPREME COURT REPORTS [2016] ll S.C.R.

A that in reviewing and revising irs earlier decision, in the interests of the public good or for any other valid and compulsive reasons, it must be the . constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation oflaw.

29. In my opinion, on merits the view taken by this Court does not B require reconsideration at all and otherwise also I find no ground in view of the consistent decisions to take a different view.

30. For the aforesaid i·easons I respectfully disagree with the conclusion of esteemed brother on question numbers I and 2. IN RE. QUESTION NOS. 3, 4 AND 5 c

31. Coming to question nos. 3, 4 and 5 as they are inter connected, it appears that even before issuance of notification under section 4 of the Act decision has been taken to acquire the land in question. The notification under section 4 is an introductory measure. Section 4 of the Act is extracted hereunder : D "4. Publication of prelimi,nary notification and powers of officers thereupon.-( l) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to · that effect shall be published in the Official Gazette and in two daily new~papers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publicat'ion of die notification). (2) Thereupon it shall be lawful for any officer, either ( generally or specially authorized by such Government in this behalf, and for his servants and workmen,- G to enter upon and survey and take levels of any land in such localitY; to dig or bore in the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and H

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 403 [ARUN MISHRA, J.]

the intended line_ of the work (if any) proposed to be made thereon; to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels ·· · taken and the boundaries and line marked to cut down and clear away any part of any standing crop, fence or jungle: Provided that no person shall enter into any building or upon any· enclosed court or garden attached to a dwelling-house (unless with the consent of the occupier thereof) without previously giving such oc.:upier at least seven days' notice in writing of his intention c to do so."

32. It is apparent from section 4(2) that after notification is issued it shall be lawful for any officer to enter upon and survey and to do all the acts which are necessary to ascertain whether land is adapted for such purpose. The notification is of exploratory character and it does D not proprio motu result in acquisition. The proposal for acquisition in any particular locality ripens into definite proceedings where Government is satisfied how land is needed for public purpose. Section 4( I) does not require land to be defined or identified but requires locality to be stated so as to file objection under section 5 of the Act. In the instant case the E Cabinet has taken a decision to acquire the said land beforehand for which a notification has ultimately been issued under sections 4 followed by declaration under section 6 of the Act. The right under section SA of the Act is a valuable right has been laid down in various decisions cited at bar referred her_einafter. F

33. In Raghubir Singh Sherawat v. State of Haryana & Ors. (2012) 1 sec 792 it was observed thus: "39. In this context, it is necessary to remember that the rules of natural justice have been ingrained in the scheme of Section 5-A with a view to ensure that before any person is deprived of G his land by way of compulsory acquisition, he must get .an opportunity to oppose the decision of the State Government and/ or its agencies/instrumentalities to acquire the particular parcel of land. At the hearing, the objector can make an effort to convince the Land Acquisition Collector to make recommendation against the acquisition of his land. He can also H

404 SUPREME COURT REPORTS f20161 11 S.C.R.

A point out that the land proposed to be acquired is not st1itable for the purpose specified in the notification issued under Section 4( I). Not only this, he can ·produce evidence to show that another piece ofland is available and the same can be utilised for execution of the particular project or scheme."

B In Kamal Trading (P) Ltd. v. State of W.B. (2012) 2 SCC it was held thus: "25. According to the appellant, the notification under Section .4 of the LA Act was not served on the owner companies. However, upon coming to know of this notification, the appellant c vide their letter dated 8-9-1997 submitted objections running into four pages containing 8 paragraphs. We have already noted that the Second Land Acquisition Officer adjourned the hearing on one occasion as requested by the appellant. He, however, refused to adjourn the maJter any further. The second request was rejected. We feel that looking to the nature of the issues involved, the Second Land Acquisition Officer could have adjourned the proceedings after putting the appellant to terms because hearing the representative of the owner companies was mandatory. In any event, if he did not want to adjourn the proceedings and wanted to consider the objections in the absence of the counsel for the owner companies and assuming such a course is permissible in law, he should have dealt with the objections carefally and not in such a light-hearted manner because a heavy responsibility rested on his shoulders." (emphasis supplied)

F 34. In Surinder Singh Brar & Ors. v. Union of India & Ors. (2013) I SCC 403 it was observed thus : . "69. In the context of the statement contained in the first line of the paragraph titled "Observations", we repeatedly asked ShriSudhirWalia, learned counsel assisting Dr Raj iv Dhavan to show as to when the LAO had summoned the revenue records and when he had conducted spot inspection but the learned counsel could not produce any document to substantiate the statement contained in the two rcp011s of the LAO. This leads to an inference that, in both the reports, the LAO had made a misleading and false statement about his having seen the revenue records and conducted spot inspection. That apai1, the reports

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 405 [ARUN MISHRA, J.]

do not contain any iota of consideration of the objections filed by the landowners. Mere reproduction of the substance of the objections cannot be equated with objective consideration thereof in the light of the submission made by the objectors during the course ofhearing. Thus, the violation of the mandate of Section 5-A(2) is writ large on the face of the reports prepared by the LAO. (emphasis supplied)

70. The reason why the LAO did not apply his mind to the objections filed by the appellants and other landowners is obvious. He was a minion in the hierarchy of the administration of the Union Territory of Chandigarh and could not have even thought of making recommendations contrary to what was contained in c the letter sent by the Administrator to Surinder Singh Brar. If he had shown the courage of acting independently and made recommendation against the acquisition of land, he would have surely been shifted from that post and his career would have been jeopardised. In the system of governance which we have today, junior officers in the administration cannot even think of, what to say of, acting against the wishes/dictates of thei1; superiors. One who violates this unwritten code of conduct does so at his own peril and is described as foolhardy. Even those constituting higher strata of services follow the path of least resistance and find it most convenient to tow the iine of their superiors. Therefore, the LAO cannot be blamed for having acted as an obedient subordinate of the superior authorities, including the Administrator. H01l'eve1; that cannot be a legitimate ground to approve the reports prepared by him without even a semblance of consideration of the objections filed by the appellants and other landowners and we have no hesitation ·to hold that the LAO failed to discharge the statutory duty cast upon him to prepare a report after objectively co11sidering the objections filed under Section 5-A(l) and submissions made by the objectors during the course of personal hearing. (emphasis supplied). G

76. Section 5-A, which embodies the most important dimension of the rules of natural justice, lays down that any person interested in any land notified under Section 4( I) may, within 30 days of publication of the. notification, submit objection H

406 SUPREME COURT REPORTS [2016) 11 S.C.R.

A in writing against the proposed acquisition ofland or of any land in the locality to the Collector. The Collector is required to give the objector an opportunity of being hern:d either in person or by any person authorised by him or by pleader. After hearing the objector(s) and rnaking such further inquiry, as he may think necessary, the Collector has to make a report in respect ofland B notified under Section 4(1) with his recommendations on the objections and forward the same to the Government along with the record of the proceedings held by him. The Collector can make different reports in respect of different parcels of land proposed to be acquired. c 84. What needs to be emphasised is that hearing required to be given under Section 5-A(2) to a person who is sought to be deprived ofhis land.and who has filed objections under Section 5-A(I) must be effective and not an empty formality. The Collector who is enjoined with the task of hearing the objectors has the freedom of making further enquiry as he may think necessary. In either eventuality, he has to make report in respect of the land notified under Section 4(1) or make different reports in respect of different parcels of such la1id to the appropriate· Government containing his recommendations on the objections and submit the same to the appropriate Government along with the record of proceedings held by him for the latter's decision. The appropriate Government is obliged to consider the report, if any, made under Section 5-A(2) and then record its satisfaction that the particular land is needed for a public purpose. This exercise culminates into making a declaration that the land is needed for a public purpose and the declaration is to be signed by a Secretary to the Government or some other officer duly authorised to certify its orders. The formation of opinion on the . issue ofneed ofland for a public purpose and suitability thereof is sine qua non for issue of a declaration under Section 6( I). Any violation of the substantive right of the landowners and/or other interested persons to.file objections or denial of opportunity of personal hearing to the objector(s) vitiates the recommendations made by the Collector and the decision taken by the appropriate Government on such recommendations. The recommendations made by the Collector without duly considering the objections filed under Section 5-A(I) and submissions made atthe hearing

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 407 fARUN MISHRA, J.l

given under Section 5-A(2) or failure of the appropriate A Government to take objective decision on such objections in the light of the recommendations made by the Collector will denude the decision of the appropriate Government of statutory finality. To put it differently, the satisfaction recorded by the appropriate Government that the particular land is needed for a public purpose and the declaration made under Section 6(1) will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the authorities concerned or there is violation of the principles of natural justice. The cases before us are illustrative of flagrant violation of the mandate of Sections 5- A(2) and 6(1). Therefore, the second question is answered in c the affirmative. (emphasis supplied)

87. The proposition laid down in the aforementioned two judgments does not support the stance of the Chandigarh Administration that even though there is breach of the mandate of Section 5-A read with Section 6(1 ), the Court cannot, after the issue of declaration under Section 6(1 ), nullify the acquisition proceedings. As a matter of fact, the ratio of both the judgments is that satisfaction of the appropriate Government envisaged in Section 6( I) must be preceded by consideration of the report prepared by the Collector after considering the objections filed under Section 5-A and hearing the objectors. This necessarily implies that the Government must objectively apply its mind to the report of the Collector and the objections filed by the landowners and then take a decision whether or not the land is needed for the specified public purpose. A mechanical endorsement of the report of the Collector cannot be a substitute for the requirement of application of mind by the Government which must be clearly reflected in the record.

88. In addition to what we have observed on the issue of flagrant violation of the two sections, it will be apposite to recapitulate the language of the declarations issued under Section G 6( I), which were published on 28-2-2007. A reading of the declarations makes it clear that the authority issuing the same was totally unmindful of the requirement of the statute. This could be the only reason why instead ofrecording satisfaction of the appropriate Government that the land is needed for a public H

408 SUPREME COURT REPORTS [2016] 11 S.C.R.

A purpose, the notification uses the expressions "appears to the Administrator" and "likely to be needed". This only adds to the casualness with which the entire issue of acquisition has been dealt with by the .higher functionaries of the Chandigarh Administration. 8 89. Adverting to the impugned order [Surinder Singh Brar v. Union of India, W.P. (C) No. 5065 of2007, decided on 18-3- 2011 (P&H)], we find that the High Court has not examined the substantive grounds on which the appellants had challenged the acquisition of their land with the required seriousness and failed to notice that the LAO had not at all considered several objections c including those relating to adverse impact on the environment and ecology of the area raised by the landowners and mechanically recommended the acquisition ofland notified under Section 4(1 ), that the reports of the LAO were not placed before the competent authority and that even the Adviser had not objectively considered D the reports of the LAO in the light of the objections filed under Section 5-A( I) and simply appended his s;~natures on the note prepared by the Secretary (Finance). This omission on the High Court's part has resulted in miscarriage of justice."

35. Jn Gojer Brothers Private Ltd. & Anr. v. State of West E Bengal & Ors. (2013) 16 SCC 660 this Court observed : "18. In Surinder Singh Brar v. Union of India (2013) I SCC 403, this Court extensively considered the report prepared by the Land Acquisition Officer and the decision taken by the administration of the Union Territory of Chandigarh and observed: F (SCC pp. 450-5 I, 455-58, paras 68-70, 76-79 & 84) "68. A cursory reading of the reports of the LAO may give an impression that he had applied his mind to the objections filed under Section 5-A( I) and assigned reasons for not ente1ia.ining the same, but a careful analysis thereof leaves no G doubt that the officer concerned had not at all applied his mind to the objections of the landowners and merely created a facade of doing so. In the opening paragraph under the heading 'Observations', the LAO recorded that he had seen the revenue records and conducted spot inspection. He then reproduced the Statement of Objects and Reasons contained in the Bill H which led to the enactment of the Punjab New Capital

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 409 rARUN MISHRA, J.l

(Periphery) Control Act, 1952 and proceed to extract some A portion ofreply dated 31-7-2006 sent by the Administrator to Surinder Singh Brar.

19. In Usha Stud and Agricultural Farms (P) Ltd. v. State of Haryana (2013) 4 SCC 210, the Court reiterated the propositions laid down in Raghbir Singh Sehrawat case (2012) 1 SCC 792 . B and Kamal Trading (P) Ltd. v. State of W.B. (2012) 2 SCC 25 and observed: (Usha Stud case (supra), SCC p. 227, para 30) "30. The ratio of the aforesaid judgments is that Section 5- A(2), which represents statutory embodiment of the rule of audi alteram paiiem, gives an opportunity to the objector to c make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons fornot acquiring the same. That section also makes it obligatory for the ·collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6( 1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take ,final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6( 1)." F

21. In our view, non-consideration of the objections filed under Section 5-A( I) has resulted in denial of effective opportunity of hearing to the appellant. The manner in which the Joint Secretary to the Government approved the recommendation made by the Land Acquisition Collector favouring acquisition of G the property is reflective of total non-application of mind by the competent authority to the recommendation made by the Land Acquisition Collector and the report prepared by him."

36. In Usha Stud & Agricultural Farms (P) Ltd. v. State of Haryana (2013) 4 SCC 210 this Court observed: H

410 SUPREME COURT REPORTS [2016] 11 S.C.R.

A "30. The ratio of the aforesaid judgments is that Section 5- A(2), which represents statutory embodiment of the rule of audialterampartem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the Notification issued under Section 4(1) or thatthere are other valid reasons for not acquiring B the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6( 1) provides that c ifthe appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section.S-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by.the D landowners and other interested persons. Then and then only, a declaration can be made under Section 6( I)."

37. In Sharma Agro Industries v. State of Haryana & Ors. (2015) 3 sec 341, it was observed:

E "14. The Land Acquisition Collector in the present case has recommended to the State Government that the land covered in· these civil appeals need not be acquired. On our direction, Mr. Manjit Singh, the learned Additional Advocate General representing the Stat~ of Haryana has made available the record pertaining to acquisition of the;; lands involved in these appeals. F The following is the relevant translated extract of the recommendations made by the Land Acquisition Collector: ' "On 16-1-2003 I visited the spot concerned for the purpose of inspection; with the Kanoongo and Patwari belonging to the Revenue Department. A sellc;;r has been established since 1981 G in Khasra Nos. 3959, 3960, 396111, 3961/2, 3963, 3964, 3965, 396611, "3967: 3968 with a total area of 29 bighas 11 biswas .. The Government ofHaryana, Department oflndustry, had also issued a licence to the seller for this industry, and the same is operative till date. An old factory is established in Khasra Nos. H 39(:i6/2, 3971/2, with a total area of I bigha 11 biswas. Small-

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 411 [ARUN MISHRA, J.]

scale industry licences established in Khasra Nos. 4000, 4001/ A 2, 4001/1/1, 4001/1/2, 4001/1/3, 4002/1, 4002/2 where old factories along with lantered houses have been constructed. When the land was acquired in 1986 in Sector 3, the abovementioned khasra numbers were excluded from the acquisition process. Hence the abovementioned land may be B released, measuring total of3 7 bighas and 13 biswas. The above numbers are leftover for acquirement. sd/- Land Acquisition Collector, Karna!" The State Government ha.s neither accepted the recommendations of the Land Acquisition Collector nor assigned c any reasons before issuing declaration notification under Section 6 of the Act. The same is sought to be justified by the learned Additional Advocate General contending that it is the prerogative of the Government to either accept or reject the recommendations of the Land Acquisition Collector with respect D to the proposed land to be acquired by issuing declaration notification under Section 6 of the Act. This contention of the learnedAdditiona!Advocate General is wholly untenable in law in vtew of the decisions referred to above. However, after adverting to the decisions of this Court in the above case and in the cases referred to supra, the said report of the Land Acquisition . E Collector was neither accepted by the Government nor did the Government assign any reasons before issuing the declaration notification by holding that the land is required for public purpose,. we are of the view that the acquisition proceedi.ngs are vitiated in law. F

412 SUPREME COURT REPORTS [2016] ll S.C.R.

A The documents produced before the High Court and this Court do not show that the State Government had objectively applied mind to the recommendations made by the Land Acquisition Collector and felt satisfied thatthe land in question deserves to be acquired for the purpose specified in the notification issued under Section 4(1). The record also does not contain any B indication as to why the State Government did not consider it proper to accept the recommendations of the Land Acquisition Collector. Therefore, there is no esc_ape from the conclusion that the impugned acquisition is ultra vires the provisions contained in Section 6 of the Act."" c 38. In Vinod Kumar v. State of Haryana & Ors. (2014) 3 SCC 203 it was observed thus: "10. In Kamal Trading (P) Ltd. v. State of WB. (2012) 2 SCC 25 it has been held as under: (SCC pp. 29-30, paras 14-16)

D "14. It must be borne in mind that the proceedings under the LA Act are based on the principle of.eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to hiin by law to protect himself from arbitrary acquisition by pointing out to the authority concerned, inter alia, that the important ingredient, namely, 'public purpose' is absent in the proposed acquisition or the acquisition is ma la fide. The LA Act being an expropriatory legislation, its provisions will have to be strictly construed.

15. Hearing contemplated under Section 5-A(2) is necessary JP enable the Collector to deal effectively with the objections raised against the proposed acquisition and make·a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collectors recommendations qnd the r~cord of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, ~made by the H Collector under Section 5-A(2). As said by this Court in

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 413 [ARUN MISHRA, J.]

Hindustan Petroleum C01pn. Ltd v. Darius Shapur Chenai A (2005) 7 SCC 627the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further B inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf. .

16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for. a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must c be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this D provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind." (emphasis supplied) E

414 SUPREME COURT REPORTS f20161 11 S.C.R.

A "35. Whqt is most surprising is that the High Court did not even deal with the issue relating to application of mind by the Government to the report submitted by the Land Acquisition Collector under Section 5-A{2) along with his recommendations. The documents produced before the High Court and {his Court do npt show that the State Government B had objectively applied mind to the recommendations made by the Land Acquisition Collector and felt satisfied that the land in question deserves to be acquired for the purpose specified in the notification issued under Section 4(1). The record also does not contain any indication as to why the c State Government did not consider it proper to accept the recommendations of the Land Acquisition Collector. Therefore, there is no escape from the conclusion that the impugned acquisition is ultra vires the provisions contained in Section 6 of the Act." (emphasis supplied)

D 14. In the light of the foregoing cases, it is evident that the Government has to consider the report of the Land Acquisition Collector while making declaration ofacquisition ofland under Section 6 of the Act. Further, ifthe Government is coming to a conclusion which is contrary-to the repo11, then the Government has to provide appropriate reasons for the same." E

39. In Gurbinder Kaur Brar & Am: v. Union of India & Ors. (2013) 11 sec 228 it was observed: "9. We also agree with the learned counsel for the appellants that the report of the Lan_d Acquisition Officer was vitiated due F to total non-application of mind by the officer concerned to a large number of substantive objections raised by the appellants under Section 5-A(l). He mechanically rejected the objections . and senior officers of the Chandigarh Administration accepted the report of the Land Acquisition Officer despite the fact that the same had been prepared in violation of Section 5-A(2)." G 40 .In the instant ca~e it is apparent from the report that there is no objective consideration of objections at any stage. The 'inquiry held and the report sent under section SA of the Act was clearly influenced by the decision of the Cabinet taken before issuance of notificatfon under section 4 of the Act to acquire land in certain J L numbers in particular mouza's a~ per the choice of location by TML which has prevailed

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 41S [ARUN MISHRA, J.]

whereas in the matter of acquisition of such vast area comparative fertility aspect of chunk ofJand to be selected ought to have been considered and land which is more or less barren ought to have been preferred which exercise has not been resorted to. Though the State Government could have taken decision before issuance ofnotification under section 4 for setting up of project however it could not have taken decision to acquire particular land in various mouza's before survey is undertaken as authorized by the provisions contained in section 4 of the Act, the action of the State has the effect of frustrating very purpose of holding inquiry under section 5A. The inquiry held under section 5A is a farce and an eyewash neither the Collector nor State Government considered the matter with objectivity as mandated. Inquiry has not been done. with c open mind with requisite fairness they were clearly influenced by decision. of cabinet. Entire acquisition stands vitiated in the facts and circumstances of the case. The case need not be relegated to the stage of inquiry as project itself has been abandoned.

41. However, for enquiry under section 5A individual notices are not provided. It is not provided in the Act that individual notices should be issued. The publications as envisaged under section 4 are enough and are the only requirement of the law to be mandatorily observed pursuant to which ..g_bjections under section SA are required to be filed. The notification under s_ectjon 4 is required to be published in the Official Gazette and two daily newspapers; out of that one newspaper shall be in the regional language, ·and public notice of such substance has to be given at the convenient places in the locality. Witliin thirty days the objections are to be filed under section SA.Thus non-servi.1<e ofindividual notices on farmers would not vitiate the enquiry.

42. For the aforesaid reasons, I agree with the ultimate conclusion of e;steemed brother as to question nos.3, 4 and S. IN RE. QUESTION NUMBERS 6 TO 9

43. It appears that the award has been passed without issuance ofnotices to holders on the pretext that it was not possible to serve them due to prevailing situation. For determination of compensation irn;lividual notices are required to be issued. Section 9(1) requires the Collector to publish public notice fortaking possessiort and for claims to compensation to be made. Section 9(3) requires the Collector shall serve notice to the same effect on the occupier if any, of the Ian.:! and on all such persons known or seem to be interested therein etc. In case the person interested H

416 SUPREME COURT REPORTS (2016] 11 S.C.R.

A resides elsewhere notice has to be sent by post to the last known address or place of business which has not been followed in the instant case. In my opinion the service of personal notice is mandatory as required under section 9(3) of the Act. Non-compliance of the provision would render the award invalid requiring determination of compensation afresh at the same time it would not have the effect on the validity of the notification B under section 4 and declaration made under section 6 of the Act. The award cannot be questioned in the writ jurisdiction and non-issuance of individual notices under section 9 would not vitiate the notification issued under sections 4 and declaration made under section 6 of the Act. However, the fact remains that proper procedure has not been followed -c in the instant matter. The question of adequacy of the compensation determined cannot vitiate the acquisition. It was also not disputed before us that after the award was passed on merits, further consent awards _were passed in favour of certain persons for which no authority or provision of law could be shown. Be that as it may. It would have no impact on validity of notification under section 4 or declaration made D under section 6 of the Act. ·

44. In my opinion question number 7 as to determination of proper compensation cannot be considered in writ jurisdiction as any person aggrieved by inadequacy of compensation has the remedy to seek reference as provided in section 18 of the Act. E Accordingly I answer the question numbers 6, 7 and 8. RELIEF

45. After acquisition of the land by WBDIC it granted lease to TML and handed over possession. Ultimately, the TML could not start operations as is apparent from its letter dated 28.9.2010. They had removed their equipment and machinery also. Though the project would . circumstances have been beneficial, however in the . - it has moved out as environment could not be created for normal working of the plant as mentioned in letter ofTML. The State Government has taken possession of the land from TML and TML has abandoned its project in the State of West Bengal and has shifted it to the State of Gujarat.

46. -P-Ossession has bee~ taken tet1.- years before from the landowner:s. In a case wh.ere there are no sale-deeds evidence forthcoming compensation is awarded to land-owners on annualized yield of 10 years as held by this Court in Special Land Acquisition Officer H

KEDAR NATH YADAV v. STATE OF WEST BENGAL & ORS. 417

v. Virupax Shankar Nadagouda (1996) 6 SCC 124 and Collector, A Land Acquisition v. Gana Ram Dhoba (1996) 1 SCJ 15. In.the facts of this case it would be appropriate to direct that land is given back to all land owners since they have been deprived of the usufruct of the land for a decade as such the compensation paid to them shall n9t be recovered. They are permitted to retain it or claim it in full and final B settlement of claim towards damages for deprivation of use of their land etc. 4 7. In view of determination on question numbers 3, 4 and S and due to violation of the provisions contained in section SA of the Act, in the facts of the case to do complete justice between the parties in exercise of power under Article 142 of Constitution the entire proceedings c pertaining to land acquisition are quashed and case is not relegated in the instant case to the stage of inquiry under section SA. of the Act as ordinarily resorted to, as the very purpose of acquisition has failed and directing an inquiry afresh would be an exercise in futiliiy. The land shall be given back to the land owners and compensation if any paid to them D shall not be recovered from them those who have not collected it are free to collect the same in Iieu of damages for deprivation·of possession for ten years.

48. The impugned orders are set aside, the appeals are allowed with the aforesaid directions. Parties to bear their own costs. E ORDER The points formulated above have been answered by separate opinions. Howeve.r we concur on the question of quashing the impugned acquisition proceedings and reliefs to be granted to the land owners/ cultivators. The appeals are allowed, the common judgment and order F dated 18.01.2008 passed in W.P. No. 23836 (W) of2006 and connected writ petitions by the High Court of Calcutta is set aside. The acquisition of land of the landowners/cultivators in the instant case is declared as illegal and void. Since the nature ofthe acquired lands has been changed in view of the acquisition, we direct the Survey Settlement Department G of the State Government of West Bengal to conduct a survey and identify the mouzas of lands acquired with reference to lay out plans, other connected records, village maps and survey settlement records of the lands in question within'! 0 weeks from the date ofreceipt of the copy of this order, in order to identify the respective portions ofland ~hich needs to be returned to the respective landowners/cultivators. Let possession H

418 SUPREME COURT REPORTS r20l6l l l S.C.R.

A of the lands be restored to the landowners/cultivators within 12 weeks from the date pf re1 eipt of the copy of'this judgment and order. The compensation which has already been paid to the land owners/cultivators shall not be recovered by the state government as they have been deprived of the occupation and enjoyment of their lands for the last ten years. The landowners/cultivators who have not withdrawn the B compensation are permitted to withdraw the same which is in deposit either with the Land Acquisition Collector or the Court.

Kalpana K. Tripathy Appeals allowed.