2000 Supreme(SC) 1364

2000(6) Supreme 58
SUPREME COURT OF INDIA
(From Delhi High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Delhi Administration -Appellant
versus
Gurdip Singh Uban & Ors. etc. -Respondents
I.A. No. 3 In C.A. No. 4656 of 1999
With
I.A. Nos. 4-5 In C.A. Nos. 4656-4657/99
And
W.P. (C) No. 155/2000
Decided on 18-8-2000
Counsel for the Parties :
For the Appearing Parties : Harish N. Salve, Solicitor General, K.N. Raval, Additional Solicitor General R. Venkatarmani, Shanti Bhushan, C.S. Vaidyanathan, P. Chidambaram, P.P. Rao, Sr. Advocates D.N. Goburdhan, Ms. Pinky Anand, Ms. Geeta Luthra, Ashok Mathur, Rajesh Kumar, P.B. Suresh, Vipin Nair, Hiren Dasan, Manoj Swarup, Ms. Vijayalakshmi Menon, Ms. Anuradha Dutt, Ms. Ekta Kapil, Vishnu B. Saharya, Sanjeev Sahay, Sanjay Sarin, Nikhilesh R., Advocates.

IMPORTANT POINTS
1. By describing an application as one for ‘clarification’ or ‘modification’,-though it is really one of review-a party cannot be permitted to circumvent or by-pass the circulation procedure prescribed in Order XL of the Supreme Court Rules and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly.
2. If the Court allows a writ petition and reasons were to follow later, the first order allowing the writ petition and issuing the writ absolute is the operative order. If reasons therefor are supplied later, as a matter of convenience, the latter order containing reasons cannot go beyond the four corners of the rule absolute already issued.
3. A landowner who failed to file objections in Section 5A inquiry, could not be allowed to raise these questions.

Headnote:(i) Supreme Court Rules, 1966-Order XL, Rule 1-Review-Practice of filing mechanical review petitions-Mere reproduction of grounds of SLP as grounds-Non-indication as to which ground strictly falls within narrow limits of Rules-Practice seriously deprecated. (Para 15)

       (ii) Supreme Court Rules, 1966- Order XL, Rule 3-Review-Procedure of circulation-Meant to save time and preclude frivolous review petitions-Applications for ‘clarifications’, ‘modification’, or recall of judgments which are in substance review petitions but to avoid circulation-Must be rejected straightway-Circulation procedure cannot be allowed to be circumvented or by-passed by indirectly obtaining hearing in open Court.

       Under the relevant Rule XL of the Supreme Court Rules, 1966, a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the application is to be rejected without giving an oral hearing or whether notice is to be issued. In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of Court and to preclude frivolous review petitions being filed and heard in open Court. However, with a view to avoid this procedure of ‘no hearing’, we find that sometimes applications are filed for ‘clarification’, ‘modification’ or ‘recall’ etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straightway inasmuch as the attempt is obviously to by-pass Order XL, Rule 3 relating to circulation of the application in Chambers for consideration without oral hearing. By describing an application as one for ‘clarification’ or ‘modification’, - though it is really one of review-a party cannot be permitted to circumvent or by-pass the circulation procedure prescribed in Order XL of the Supreme Court Rules and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. The Court should not permit hearing of such an application for ‘clarification’, ‘modification’ or ‘recall’ if the application is in substance one for review. In that event, the Court could either reject the application straightway with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers. (Paras 16 & 17)

       What we have said about equally applies to such applications filed after rejection of review applications particularly when a second review is not permissible under the Rule. Under Order XL Rule 5, a second review is not permitted. (Para 18)

       We should not however be understood as saying that in no case an application for ‘clarification’, ‘modification’ or ‘recall’ is maintainable after the first disposal of the matter. All that we are saying is that once such an application is listed in Court, - the Court will examine whether it is, in substance, in the nature of review and is to be rejected with or without costs or requires to be withdrawn with leave to file a review petition to be listed in chambers by circulation. Point 1 is decided accordingly. (Para 19)

       (iii) Supreme Court Rules, 1966-Order XL-Review-Procedure-Cannot be neglected on plea of justice-Word ‘justice’ and ‘injustice’ are sometimes loosely used-Court has to balance right of parties within four corners of law-Supreme Court is not lay Court meeting out justice according to whims and fancies but governed by law as well as by binding precedent. (Paras 22 & 23)

       (iv) Constitution of India-Article 32/226-Writ Petition-Rule ‘nisi’ and rule absolute-Meaning of -Order allowing writ petition-Reason by second order-First order allowing writ petition and issuing writ absolute is operative order-Later order containing reasons cannot go beyond four corners of rule absolute already issued.

       If the Court allows a writ petition and reasons were to follow later, the first order allowing the writ petition and issuing the writ absolute is the operative order. If reasons therefor are supplied later, as a matter of convenience, the latter order containing reasons cannot go beyond the four corners of the rule absolute already issued. (Para 30)

       (v) Land Acquisition Act, 1894- Section 6-Declaration of intended acquisition-Declaration need not contain reason or refer to objection for every particular land-It is sufficient if authority which conducts Section 5A inquiry has considered objection raised in relation to any particular land.

       The argument that Section 6 declaration must contain reasons or refer to the objections for every particular land, is not correct. No reasons or other facts need be mentioned in the Section 6 declaration on its face. If the satisfaction is challenged in the Court, the Government can show the record upon which the Government acted and justify the satisfaction expressed in the Section 6 declaration. It is true that Section 6 uses the word ‘particular land’ but in our view while referring to its satisfaction in regard to the need to acquire the entire land, the Government need not refer to every piece of particular land. It is sufficient if the authority which conducts the Section 5A inquiry has considered the objections raised in relation to any particular land. Even where the said authority accepts the objections, that is not binding on the Government which can take a different view for good reasons. Where the Government agrees with the report under Section 5A the declaration under Section 6 need not advert to the reasons or facts concerning each piece of land. (Paras 48 to 50)

       (vi) Land Acquisition Act, 1894- Section 48-Denotification-Government issuing letter to land owner that acquisition proceedings quashed by Court-Direction to approach appropriate authority for approval of building plan and for NOC for construction on land-Land owner constructing building after completing formalities-Principles of estoppel arises in favour of land owner-Government directed to denotify land. (Para 61)

       (vii) Supreme Court Rules- Order XL, Rule 3-Review-I.A. for recall of order -Not permissible-Applicant cannot be allowed to circumvent Order XL, Rule 3 and obtain personal hearing in open Court of issues which Court has to consider in chamber where no oral hearing is permitted.

       While review petition was pending and was yet to be circulated under Order XL, Rule 3, the applicant filed IAs for relief of recalling order passed in Civil Appeal.

       Held : The points raised in the IA 3 are clearly in substance points which are raised in the pending review application. By describing this application as one for ‘recall’ of the order in the Civil Appeals, the applicant cannot be allowed to circumvent the Order XL Rule 3 and obtain personal hearing in open Court of the issues which the court has to consider in Chambers where no oral hearing is permitted. We may also point out that in this court, it is normally customary to file IAs for ‘recall’ when SLPs are dismissed for default. But we are unable to understand how submissions in the nature of a request for review can be made by describing the IA as one for ‘recall’. To permit this request which is a review in disguise would become a bad precedent in future cases. Otherwise, in every case parties will start filing applications for `recall’ in addition to `review’ and raise the same grounds and seek an oral hearing in the IA for ‘recall’. In fact, learned senior counsel Sri C.V. Viadyanathan proceeded to hand over certain fresh documents in this IA to contend that the case of this applicant is also one where Section 48 could be favourably applied in her favour. The handing over of these documents in this manner is seriously objected to by the respondents. If the applicant is so advised, she may file these documents in the pending review application. But we cannot pass orders in this IA which virtually amounts to giving a disposal to her pending review petition 21/2000. We, therefore, reject this application however permitting the applicant to move the Registry to have the Review application listed in Chambers. (Para 67)

       (viii) Land Acquisition Act, 1894 -Sections 5A and 6-Objections to notification-Land owner who has not filed objections in Section 5A inquiry cannot be allowed to raise in writ proceedings that land acquisition officer failed to apply mind.

       A landowner who failed to file objections in Section 5A inquiry, could not be allowed to raise these questions. Objections under Section 5A, if filed, can relate to the contention that (i) the purpose for which land is being acquired is not a public purpose (ii) that even if the purpose is a public purpose, the land of the objector is not necessary, in the sense that the public purpose could be served by other land already proposed or some other land to which the objector may refer or (iii) that in any event, even if this land is necessary for the public purpose, the special fact-situation in which the objector is placed, it is a fit case for omitting his land from the acquisition. Objection (ii) is personal to the land and objection (iii) is personal to the objector. In the (ii) and (iii) type of objections, there is a personal element which has to be pleaded in the Section 5A inquiry and if objections have not been filed, the notification must be conclusive proof that the said person had "waived" all objections which were personal and which he could have raised. However, so far as objection (i) is concerned, even in case objections are not filed, the affected party can challenge in Court that the purpose was not a public purpose. In respect of each land owner whose land is acquired, the Section 4 notification if it is sought to be avoided on personal grounds as stated in (ii) and (iii) above, it is necessary that objection be filed to avoid a voidable notification. Otherwise, the notification which is not avoided on any personal grounds, remains operative and personal objections are deemed to be waived. If the entire land is needed for a public purpose, it is not necessary for the Government ( or here the Lt. Governor) to say in the section 6 declaration that each piece of land is required for the public purpose. (Paras 36, 52, 53, 54 & 55)