T.S. Thakur, J.

1. These writ petitions have been referred to a third Judge to resolve the conflict arising out of the opinions expressed by a Division Bench of this Court comprising Swatanter Kumar and Madan B.Lokur, JJ. The writ petitions assailed the validity of certain land acquisition proceedings in which while Swatanter Kumar, J held the inquiry under Section 5A and the declaration under Section 6 of the Land Acquisition Act, 1894 (for short the) to be legally valid, Madan B. Lokur, J. has held the same to be otherwise. The end result was been that while the acquisition proceedings have been upheld by Swatanter Kumar, J. the same have been quashed by M.B. Lokur, J.

2. The facts giving rise to the filing of the petitions have been set out in detail in the opinions recorded by the Honble Judges, comprising the Bench. The same need not, therefore, be stated over again except to the extent it is necessary to do so for appreciating the precise issue that arises for consideration and the context in which the same arises.

3. A large extent of land situate in 13 South Delhi villages was notified for acquisition by the respondents for what was described as Planned Development of Delhi. Objections to the acquisitions were invited by the respondents and were filed by the land owners but not all of them. A declaration under Section 6 of thewas, in due course, issued by the competent authority, the legality whereof was challenged in a large number of writ petitions filed in this Court. Some of these petitions raised the contention that the declaration was beyond the period of three years stipulated by the. That plea was examined and repelled by a full Bench of this Court in Balak Ram Gupta v. Union of India., 117 (2005) DLT 753 (FB)=AIR 1987 Delhi 239 (FB). Since there are three different decisions rendered by this Court from time-to-time with the same cause title, the Full Bench decision, which is the first in point of time shall be referred to as Balak Ram to avoid confusion.

4. The plea of limitation urged by the petitioners having failed, the matters came up before a Division Bench of this Court to examine the other contentions urged by the petitioners against the validity of the impugned declaration. The Division Bench examined the validity of the declaration and the inquiry under Section 5A and found that the same were legally unsustainable. By a short order dated 14th August, 1988 the Court allowed the petitions and quashed the inquiry under Section 5A as also the declaration under Section 6 awarding Rs.15,000/- as costs in each group of petitions. The short operative order is reported in Balak Ram Gupta v. Union of India, 38 (1989) DLT 243 (DB) and shall be referred to as Balak Ram-II. The detailed reasons in support of the conclusion of the Division Bench were rendered separately and are recorded in Balak Ram v. Union of India, 37 (1989) DLT 150 (DB) (hereinafter referred to as Balak Ram-III).

5. I shall presently refer to the reasons recorded in Balak Ram-III. But before I do so, I need mention that the decision in Balak Ram-III appears to have been understood to mean as though the acquisition proceedings in respect of all the villages covered by the impugned notification stood quashed. This is evident from the fact that in some of the subsequent petitions filed before this Court directions on that assumption were issued from time-to-time. So much so a direction issued by this Court in Balbir Singh v. Union of India & Ors., 39 (1989) DLT 233 (DB) on the above assumption was questioned before the Supreme Court by the Delhi Development Authority and was upheld in Delhi Development Authority v. Sudan Singh & Ors., (1997) 5 SCC 430 [LQ/SC/1991/494] further strengthening the impression that the decision in Balak Ram-III had the effect of quashing the acquisition proceedings in toto regardless of whether or not the land owners were parties to the petition in the batch of cases decided by Balak Ram-II and III.

6. Then came a petition filed by one Abhey Ram, which was dismissed by this Court on the ground that the plea of limitation raised by the petitioners stood concluded by Balak Ram-I. In an appeal filed against that judgment, the Supreme Court overruled the decision in Sudan Singhs case (supra) upon which the petitioner placed reliance and held that Balak Ram-III was applicable only to 73 writ petitions which were disposed of by Balak Ram-II [See Abhey Ram v. Union of India, II (1997) CLT 450 (SC)=1997 (5) SCC 421 [LQ/SC/1997/727] ]. The general impression carried by the land owners which, according to Counsel appearing for the petitioners was the impression carried even by the respondents that Balak Ram-III had the effect of quashing the acquisition proceedings qua every bit of land notified under the impugned declarations was, thus, authoritatively dispelled by the Supreme Court and operation of Balak Ram-III limited to only those petitions which were actually disposed of by the said order. The Supreme Court also held that since such of the owners as had not filed any objections, were not entitled to question the validity of the inquiry under Section 5A, the declarations under Section 6 qua such owners, were valid in the eyes of law.

7. In Delhi Administration v. Gurdip Singh Uban & Ors., 81 (1999) DLT 514 (SC)=VII (1999) SLT 308=(1999) 7 SCC 44 [LQ/SC/1999/772] , a direction issued by this Court giving benefit of the judgment in Balak Ram-III, was assailed by the Delhi Administration. The Apex Court reiterated the legal position stated in Abhey Rams case (supra) that such of the owners as had not filed objections under Section 5A were not entitled to question the validity of the inquiry under Section 5A. Since Gurdip Singh Uban was one such owner who had not filed objections, the Apex Court dismissed his petition also on that ground. A review petition filed against that decision was disposed of and is reported in Delhi Administration v. Gurdip Singh Uban & Ors., 87 (2000) DLT 245 (SC)=VI (2000) SLT 477=(2000) 7 SCC 296 [LQ/SC/2000/1246] in which the Court once again held that the operation of Balak Ram-II and III must remain confined to the 73 writ petitions that were decided in Balak Ram-II, particularly, so because the petitions, which were filed and which did not get proper consideration were personal to each case and no objection relating to absence of any public purpose was either raised or had prevailed to justify the extension of the same treatment to the cases of other land owners. Having said so, Their Lordships dealt with points 4 and 5 formulated in the judgment and expressed doubts about certain observations made by the Division Bench in Balak Ram-III so far as the same related to the manner in which the Lt. Governor had exercised his powers while issuing the declaration under Section 6 of the. The Court declared that it was unnecessary for a declaration to contain reasons and that it would be sufficient if the authority which conducts inquiry under Section 5A of thehas considered the objections and the appropriate Government has accepted the report submitted to it. The Court reiterated that such of the owners as have not filed their objections under Section 5A of thewere not entitled to the benefit of Balak Ram-III.

8. The present batch of cases which also seems to have been filed around the same time as petitions disposed of by Balak Ram-II and III were filed raised for the consideration of the Court the very same issues touching the validity of the inquiry under Section 5A and the declaration issued under Section 6 of the. The Judges comprising the Division Bench were unanimous in upholding the validity of the notifications issued under Section 4 of thefollowing an earlier decision rendered by this Court in Munni Lal v. Union of India, ILR (1984) I Delhi 469. The Bench was similarly unanimous in holding that the declaration under Section 6 of thewas within the period stipulated for the purpose after excluding the period during which the proceedings had remained stayed by orders passed by this Court. The Bench also held that in cases where objections had not been filed, the impugned declaration could not be assailed on the ground of invalidity of the inquiry under Section 5A.

9. The Bench, however, differed on the question of validity of the inquiry under Section 5A of thein cases where objections were filed by the land owners. The challenge to the proceedings under Section 5A was primarily founded on a plea that a hearing had not been afforded to the land owners before submission of the report under Section 5A by the Collector. The argument was that although some hearing may have taken place before the Collector in connection with the objections filed by the owners yet before he could submit his report the incumbent Collector who had heard the owners, was transferred. The Collector, who succeeded him and who eventually made the report had not, however, afforded any hearing to the petitioners before making his recommendations. Swatanter Kumar, J. repelled that contention. Firstly because absence of a personal hearing to the party concerned should normally be coupled with an element of prejudice. If no prejudice is caused, the Courts would be reluctant to set aside the action merely on the ground that the same is violative of a rule of procedure or practice. Secondly because even if the owners were heard by an officer different from the one who made the report under Section 5A, it would make no difference as the officer who had made the report had duly considered the objections and given detailed reasons for rejecting the same. The following passage from the opinion recorded by Swatanter Kumar, J. sums up the reasoning in this regard:

There is no doubt that a valuable right is available to a land owner/objector under Section 5A of the. This right has to be dealt with in accordance with the prescribed procedure. Principles of natural justice is in-built element of such procedure. The violations of principles of natural justice should normally be coupled with element of prejudice. If no prejudice is caused, the Courts would be reluctant to set aside the action merely on the ground that it is violative of procedure or practice particularly when provisions of sections are silent in that regard. In the present case, admittedly, objections were filed, objectors were called for hearing on different occasions, some of them appeared and some of them even did not appear. Even if they were heard by a different Officer who found no substance in the grounds taken by the Objector so as to make a favourable report under Section 5A of the Act, and subsequently, another Officer duly considered the entire record including large number of objections which were filed before the authorities during the acquisition proceedings and gave a detailed and reasoned report directly relatable to such records and documents produced. The petitioners even before this Court, has taken no specific grounds with definite pleadings showing that they have suffered any prejudice or violation of any established procedure as a result of the action of the respondents. Thus, the petitioners cannot take any advantage from the principle afore-indicated.

10. The Court further held that the view taken by the Division Bench in Balak Ram-II was no longer good law in view of the decisions of the Supreme Court in the cases of Abhey Ram and Gurdip Singh Uban (supra). Relying upon the decision of the Supreme Court in Ossein & Gelatine Manufacturers Association of India v. Modi Alkalies & Chemicals Ltd. & Anr., 39 (1989) DLT 51 (SC)=1989 (4) SCC 264 [LQ/SC/1989/398] , the Court held that satisfaction of the authorities in land acquisition proceeding was a subjective satisfaction, open to judicial review within a very narrow compass and that the decision of the Lt. Governor did not suffer from the vice of arbitrariness to warrant interference. The Court observed:

The authorities might have acted with some lack of administrative proprietary and did not maintain the records meticulously so as to invite some criticism, but this by itself would not be sufficient ground for judicial intervention by the Courts.

11. The decision in Hari Ram v. Union of India, 2002 (61) DRJ 86 [LQ/DelHC/2001/906] , relied upon by the petitioners, was distinguished observing that in the case in hand, the records had been produced to show that hearings were attended by the objectors either personally or through authorised representatives. The Court also observed that public interest should get precedence over private interest and that number of petitions having been dismissed in relation to the same notifications, acceptance of the objections raised by the owners in the present cases which are in any case without any substance would frustrate and impede the Planned Development of Delhi. The Court observed:

Acceptance of objections, which as already stated, are without any substance, would even further frustrate or cause impediments in achieving of the public purpose namely Planned Development of Delhi. The fine distinction drawn between two classes based on niceties of imagination of the objectors are apparently contrary to the records which reasonably demonstrate the adherence to principles of natural justice and statutory provisions including Section 5A of the.

12. In the opinion of Swatanter Kumar, J. therefore, the petitioners did not make out a case for interference with the impugned acquisition proceedings.

13. Madan B. Lokur, J. recorded a dissent and held that Balak Ram-III remains valid even today insofar as the said decision dealt with the question of validity of the inquiry under Section 5A of theand in particular the requirement of a hearing to the owner by the person, who makes the report to the Government. The Court held that whether or not the inquiry conducted by the Collector under Section 5A of theis an administrative inquiry was academic in view of the pronouncements of the Supreme Court that even when the inquiry may be administrative in nature, the same does not dispense with the application of principles of natural justice given the nature and consequences of the inquiry.

14. Relying upon the decisions of the Supreme Court in Union of India & Ors. v. Mukesh Hans, V (2004) SLT 712=(2004) 8 SCC 14 [LQ/SC/2004/1060] and Munshi Singh v. Union of India, (1973) 2 SCC 337 [LQ/SC/1972/384] , Lokur, J held that whatever be the nature of the inquiry conducted under Section 5A, the right of representation and hearing given to the land owner was a valuable right and that the person whose property is sought to be acquired should have a reasonable opportunity of persuading the authorities why his property should not be acquired. The Court concluded that having regard to the importance of the proceedings under Section 5A for the owner and the wholesome principle on which the same envisages an opportunity to the owner to oppose the acquisition proceedings, the proceedings in these cases should not have been conducted in the casual manner in which they appear to have been concluded in regard to villages of Chhattarpur, Khanpur, Satbari, Tughlakabad, Khirkee and Deoli. Following Balak Ram-III, the Court quashed the acquisition proceedings in cases where objections had been filed by the owners as being contrary to the principles of natural justice.

15. I have heard learned Counsel for the parties and perused the record.

16. Appearing for some of the petitioners, Mr. Lekhi, argued that the reference made by the Division Bench was itself defective and deserved to be returned for a proper formulation of the point in regard to which the Judges comprising the Bench had differed. He drew my attention to the provisions of Clause 26 of the Letters Patent and contended that in order to be valid, a reference must formulate the precise issue on which the third Judge is called upon to pronounce. There was, according to the learned Counsel, a failure of that mandatory requirement in the instant case inasmuch as neither the opinions recorded by the two Honble Judges comprising the Bench nor the order referring the cases to a third Judge identified the precise issue on which they had differed. He submitted that instead of groping for the precise issues on which the Judges had differed, it would be more appropriate if the petitions are referred back to the Bench for formulation of the points of difference.

17. On behalf of the respondents, Mr. Poddar, on the other hand, submitted that while a reference back to the Division Bench may not be an absolute necessity, the posting of Writ Petition Nos. 1941, 1943, 1944, 1945, 1946, 1947, 1952, 1953, 1956, 2082, 2083, 2084, 2085, 2090, 2098 and 2109 of 1985, 563, 566, 567 and 977 of 1986 (Vill: Deoli), 2093, 2094, 2095 of 1985 (Vill: Satbari), 571 of 1986 (Vill: Tughlaqabad), 1142, 1725 and 1826 of 1986 (Vill: Khanpur), 1874 of 1986, 360 of 1987 (Vill: Khirkee), 2526, 2527, 2529 of 1985, 1057, 2702 of 1986, 169, 675 & 677 of 1987 (Vill: Chhatarpur) before this Court was unnecessary as the same stood dismissed by the Division Bench. He urged that since no objections were, in the above writ petitions, filed by the land owners there was no room for any interference by either the Division Bench or by this Court in those cases. The Registry had, according to Mr. Poddar, erroneously posted the above petitions before this Court, which deserved to be deleted from the list.

18. The order of reference to the third Judge passed by the Division Bench on 3rd May, 2005 does not identify either the writ petitions that are referred to the third Judge nor does the same formulate the points of difference, which the third Judge is required to examine and resolve. The reference order simply extracts para 41 of the opinion recorded by Madan B. Lokur, J and directs that cases falling within the ambit of the directions issued in the said paragraph shall be placed before Honble the Chief Justice for reference to the third Judge. A reading of para 41 of the judgment rendered by Madan B. Lokur, J. would show that the inquiry under Section 5A of thein relation to villages of Chhattarpur, Khanpur, Satbari, Tughlakabad, Khirkee and Deoli was found to be casual and contrary to the principles of natural justice. The writ petitions that were filed in relation to the said villages were not identified either in the opinion recorded by Lokur, J. or in the reference order. Consequently, it was left to the Registry to determine as to which cases would stand dismissed on account of non-filing of objections and which others would stand referred to the third Judge. When the batch of petitions was first placed before me on 8th April, 2005, it was pointed out by Counsel for the parties that a large number of other petitions that stood referred to the third Judge in identical circumstances had not been posted. A direction for posting of all such matters was accordingly given. This direction was repeated in another order dated 15th July, 2005 and the acquiring authority directed to furnish a list of all such petitions as related to the villages mentioned in the reference order whereupon the Registry was to identify and post the same for hearing before the Court. The Registry accordingly conducted an exercise and identified the present batch of cases which according to it fall within the scope of the reference order. The exercise, however, appears to be based only on the particulars of the village in which the land sought to be acquired is situated. The result is that all the writ petitions relating to Chhattarpur, Khanpur, Satbari, Tughlakabad, Khirkee and Deoli have been posted without examining whether any one of those petitions has been filed by an owner, who had not filed any objection under Section 5A of the.

19. According to Mr. Poddar, the land owners in the writ petitions mentioned by him have not filed any objections with the result that their petitions stand dismissed by the unanimous order passed by the Division Bench. That position is not acceptable to learned Counsel for the petitioners. Learned Counsel for the parties, however, agreed that the question whether or not objections have been filed and whether or not writ petitions mentioned by Mr. Poddar stand dismissed may be left to be examined by the Division Bench after this Court renders its opinion on the points of difference and directs the matters to be placed before the Division Bench for further orders. I need not, in the light of that submission, go into the question whether any objections were filed in the petitions mentioned by Mr. Poddar and whether the same stand dismissed in terms of the orders passed by the Honble Judges comprising the Division Bench. I need only examine whether the reference must necessarily be sent back to the Division Bench for formulation of the points of difference as argued by Mr. Lekhi.

20. Clause 26 of the Letters Patent constituting the High Court of Judicature at Lahore regulates reference to a third Judge in the event of a difference of opinion arising between the Judges comprising a Division Bench. It would be useful to extract the same in extenso:

26. Single Judges and Division CourtsAnd We do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of Section 108 of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

21. A plain reading of the above leaves no manner of doubt that a reference to a third Judge remains confined to the issues on which the Judges comprising the Division Bench have disagreed. It is also evident from a reading of the provision that the precise issue on which the difference arises has to be formulated and the hearing before the third Judge limited only to the points so formulated and referred. There is considerable good sense behind that provision. A reference to the third Judge is not a re-hearing of the entire case embracing all the issues that may arise for determination in the same. Whatever has been resolved by a unanimous decision goes out of the purview of the reference to the third Judge, who need not and indeed cannot examine those aspects. That apart the precise issue on which the Judges comprising the Division Bench have differed makes the exercise before the third Judge short and quick and keeps the debate focussed on what precisely is the area of difference. Formulation of the precise questions of law or fact on which there is a difference of opinion would thus go a long way in identifying the contours of the debate before the third Judge and in avoiding an unnecessary time consuming and expansive exercise.

22. That the reference order in the present cases has not formulated the points of difference, is obvious from a plain reading of the said order. Much though it would have been convenient for all concerned including the third Judge to address and resolve the issues if the same had been formulated, the absence of any such formulation in the present case may not call for a reference back to the Division Bench. That is because although the point of difference has not been specifically formulated, a reading of the two opinions rendered by my esteemed brother Judges makes it clear that the difference indeed lies in a narrow compass. The question on which the difference has arisen precisely is whether there was any violation of the requirement of affording to the land owners an opportunity of personal hearing as required under the mandatory provisions of Section 5A of the. That question has two distinct facets, one regarding the effectiveness of the hearing given by a Collector who demitted office before submitting his report to the Government and the other regarding the prejudice caused to the petitioners. The question whether the overriding considerations of public interest underlying the acquisition can justify departure from the provisions of Section 5A and whether the view expressed by this Court in Balak Ram-II continues to hold good on the limited issue of validity of the procedure adopted by the Collector conducting the inquiry under Section 5A would fall for consideration but only incidentally. That was the precise scope of the debate before me on which learned Counsel for the parties agreed to address arguments, which I had the benefit of hearing at considerable length. There is, in that view of the matter, no compelling necessity for referring the matters back to the Division Bench for formulation of the precise points on which the difference of opinion has arisen.

23. Before I advert to the question whether the provisions of Section 5A of the Land Acquisition Act were violated in the present batch of cases, I may briefly refer to a few decisions rendered by the Supreme Court as regards the content and nature of the Inquiry under Section 5A and whether or not the same is mandatory in character.

24. The provisions of Section 5A which stipulate the requirement of a personal hearing to the objector have been held to be mandatory in character by a long line of decisions rendered by the Supreme Court. One of the earliest decisions delivered by the Apex Court in this regard was in Nandeshwar Prasad and Others v. U.P. Government and Others, AIR 1964 SC 1217 [LQ/SC/1963/132] where the Court declared Section 5A to be conferring a valuable right on the land owner to object to the proposed acquisition of his property. That position was reiterated in Munshi Singh and Othersv. Union of India (supra), where the Court declared that Section 5A embodied a just and wholesome principle that a person, whose property is being or is intended to be acquired, should have a proper and a reasonable opportunity of persuading the authorities concerned to give up the acquisition of the property belonging to that person. This was followed by the decision of the Supreme Court in Shri Mandir Sita Ramji v. Lt. Governor of Delhi and Others, 11 (1975) DLT 121 (SC)=1975 (4) SCC 298 [LQ/SC/1974/211] , where the Court declared that the duty to afford an opportunity of being heard to the land owner was mandatory in character. The fact that the recommendations made by the Collector are not binding on the Government, was, declared the Court, wholly inconsequential and did not exonerate the Collector of his duty to hear the objector and make his recommendations. Then came Shri Farid Ahmed Abdul Samad and Another v.The Municipal Corporation of the City of Ahmedabad and Another, 1976 (3) SCC 719 [LQ/SC/1976/245] where the Court held that denial of an opportunity of being heard under Section 5A was not just a matter of failure of rules of natural justice but non-compliance with the mandatory provisions of Section 5A of the. The Court observed:

We are clearly of opinion that Section 5A of the Land Acquisition Act is applicable in the matter of acquisition of land in this case and since no personal hearing had been given to the appellants by the Commissioner with regard to their written objections the order of acquisition and the resultant confirmation order of the State Government with respect to the land of the appellants are invalid under the law and the same are quashed. It should be pointed out, it is not a case of failure of the rules of natural justice as such as appeared to be the only concern of the High Court and also of the City Civil Court. It is a case of absolute non-compliance with a mandatory provision under Section 5A of the Land Acquisition Act which is clearly applicable in the matter of acquisition under the Bombay Act.

25. The above was followed by a decision of the Supreme Court in Shyam Nandan Prasad and Others v. State of Bihar and Others, 1993 (4) SCC 255 [LQ/SC/1993/614] where the Court relying upon the earlier pronouncements, reiterated the legal position and observed:

That the compliance of provisions of Section 5A is mandatory, is beyond dispute. See in this connection, Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 [LQ/SC/1974/211] and Farid Ahmed Abdul Samad v. Municipal Corporation of the City of Ahmedabad, (1976) 3 SCC 719 [LQ/SC/1976/245] . Affording of opportunity of being heard to the objector is a must. The provision embodies a just and wholesome principle that a person whose property is being, or is intended to be, acquired should have the occasion to persuade the authorities concerned that his property be not touched for acquisition. This right is not absolute, however, if the appropriate Government, in its discretion, chooses to dispense with its applicability by invoking urgency provisions of Section 17 of the. But once Section 5A is kept applicable, there is no cause to treat its provisions lightly or casually.

26. More recently, the significance of the inquiry under Section 5A and a hearing to the objectors was examined by the Supreme Court in Union of India and Others v. Mukesh Hans, V (2004) SLT 712=IV (2004) CLT 40 (SC)=2004 (8) SCC 14 [LQ/SC/2004/1060] . The Court held that an inquiry under Section 5A was not an empty formality and it was a substantive right which can be taken away only on the proof of valid reasons. Reference may also be made to the decision of the Supreme Court in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and Others, VII (2005) SLT 193=IV (2005) CLT 60 (SC)=2005 (7) SCC 627 [LQ/SC/2005/944] , where the Supreme Court reaffirmed the above position.

27. There is in the light of the above pronouncements, no gainsaid that violation of Section 5A which is mandatory in character has the effect of vitiating any recommendation made by the Collector and consequent declaration made by the Government. That would be true in all cases where the land owner has filed objections to the proposed acquisition for it is only in case such objections are filed that the duty to hear the objector in support of the same would arise. Cases where no objections to the acquisition proceedings have been filed would constitute an exception to the general rule that the owners must be afforded a personal hearing as required under Section 5A.

28. The violation of Section 5A alleged in the present batch of cases is in the nature of denial of hearing to the owners who had filed objections to the proposed acquisitions. The case of the petitioners which was not disputed by the respondents is that while owners who had filed such objections had been given an opportunity of being heard by the Collector of the time, before he could make his recommendations on the basis of any such objections and hearing, he was transferred and succeeded by another Collector who did not admittedly afford any such hearing. The petitioners, therefore, argued before the Division Bench and so also before me that the absence of any hearing by the Collector who made the recommendations constituted a violation of the mandatory provisions of Section 5A and, therefore, vitiated the acquisitions proceedings.

29. The respondents, on the other hand, gave a two-fold answer to that contention. Firstly, it was argued that a hearing having been given by the out-going Collector, the requirement of Section 5A stood satisfied. It was immaterial having regard to the nature of the enquiry under Section 5A whether the hearing was granted by the Collector who made the recommendations or by his predecessor in office. So long as the hearing was given, it was sufficient, argued Mr. Poddar, Counsel for the respondent.

30. Secondly, it was submitted by the respondents that absence of a hearing by the officer who made the recommendations by itself did not vitiate the acquisition proceedings unless the petitioners demonstrated prejudice arising out of any such denial. No case of any prejudice had, according to the respondents, been made out. Nor was any such prejudice caused keeping in view the fact that the objections raised by the owners were general in character which already stood rejected not only by the Collector in regard to other owners but also by this Court in Munni Lals case (supra).

31. Two precise questions fall for consideration on the above submissions. These are:

1. Whether grant of hearing by one Collector and making of the report/ recommendations by another would satisfy the requirement of Section 5A of the Land Acquisition Act and

2. Whether the owners must demonstrate prejudice on account of a denial of hearing to them before the Court can interfere with the acquisition proceedings on account of violation of Section 5A of the

I propose to deal with the questions ad seriatim.

Re: Question No. 1:

32. The significance of the inquiry envisaged under Section 5A of the Land Acquisition Act, would stand considerably diluted in case the requirement of a personal hearing to the land owners was held to be a mere formality. As a matter of fact, one of the reasons why the inquiry under Section 5A has been held by the Apex Court to be so very significant is the fact that the Legislature has specifically provided for a personal hearing of the land owners in the same. An interpretation that would dispense with the hearing or render the same ritualistic shall therefore have to be avoided. If the whole purpose of holding an inquiry under Section 5A is to give an opportunity to the land owner to persuade the Collector to drop the proceedings for acquisition, the same would be defeated, if a hearing in support of the objections were to be denied. Such a denial would be implicit in cases where the person who has eventually drawn up the report under Section 5A is not the person who had heard the land owners in support of the objections. Section 5A of the Act, in essence, ensures compliance with the principles of natural justice. It would, however, be a blatant denial of the benefit of those principles, if a hearing given by one was held sufficient to support or sustain the report or judgment delivered by another. Just as, making a judge in his own cause is, abhorrent to the concept of natural justice so also grant of hearing by one to support the opinion of another will fall short of fairness in action which is the very foundation of the principles of natural justice and Section 5A of the Land Acquisition Act. Recognizing any such hearing as sufficient compliance with the principles of natural justice or with the provisions of Section 5A of thewould be a negation of the very purpose underlying the said provision.

33. I am supported, in the above view, by a decision of a Constitutional Bench of the Supreme Court in Gulla Palli Nageshra Rao v. Andhra Pradesh State Road Transport Corporation, AIR 1959 SC 308 [LQ/SC/1958/140] . One of the questions that fell for consideration in that case was, whether the requirement of Section 68D(2) of the Motor Vehicles Act providing for a hearing to the person affected by the State Government could be said to have been satisfied in case where the hearing was granted by the Secretary to the Government instead of the State Government as stipulated under the Provision. While the Motor Vehicles Act and the rules framed thereunder cast a duty upon the State Government to give a personal hearing, the rules prescribed a procedure by which such hearing was to be granted by the Secretary. Their Lordships took note of the divided responsibility arising from a reading of the statutory provisions and held that the same was destructive of the concept of judicial hearing, which had the effect of defeating the very object of a personal hearing. The Court declared that when one person hears and another decides, then personal hearing becomes an empty formality. Speaking for the majority, K. Suba Rao, J as His Lordships then was, observed:

The second objection is that while the and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear-up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We, therefore, hold that the laid procedure followed in this case also pretends another basic principle of judicial procedure.

34. The above statement of law, in my opinion concludes the controversy and provides a complete answer to question No. 1. The hearing in the instant case was a mandatory statutory requirement, just as it was in Nageshwar Raos case (supra). The Collector who submitted the report in terms of Section 5A of the Act, had not admittedly granted the personal hearing envisaged by the said provision. I may before parting with this aspect refer to a few more decisions to illustrate the legal position.

35. Following the decision in Nageshwar Raos case (supra) the High Court of Calcutta in Ramchand Jagdishchand v. The Deputy Collector of Customs, Calcutta and Ors., AIR 1963 Calcutta 331 took the view that personal hearing connotes personal aspects both as regards person heard and the person hearing. Consequently, when a personal hearing is given, the person who heard the land owner cannot allow an inquiry to be held and evidence to be taken by another person and then pass an order on reading the records. Doing so, would have the effect of depriving an opportunity to the person to be heard of satisfying the person who passed the order. The following passage from the said decision, is in this connection apposite:

Where a personal hearing is given in an adjudication, the person who hears cannot allow an inquiry to be held or evidence to be taken by another person and then pass the order on reading the records. The person to be heard is there deprived of an opportunity of satisfying the person who passes the order. The words personal hearing connote personal aspect both as regards the person heard and the person hearing. That is the principle of natural justice which indicates that personal hearing is not an empty formality.

Where, therefore, a personal hearing is given in an adjudication of confiscation of imported goods under Section 182 by the Assistant Collector of Customs and the order of confiscation is passed by the Deputy Collector who did not hear the importer in person, his order is impeachable on the ground of violation of the principle of natural justice.

36. The same effect is the decision of the Division Bench of Punjab and Haryana High Court in Sh. Amir Singh v. Government of India, New Delhi and Ors., AIR 1965 Punjab 84. That was also a case where the hearing was granted by an officer of the Custom Department but before he could pass orders on the subject, he was transferred succeeded by another officer, who eventually passed the order impugned before the Court. The question was whether the hearing given before the outgoing officer would suffice to sustain the order passed by his successor in office. Repelling the contention that such a hearing would satisfy the rules of natural justice, the Court observed that:

It is cardinal principle of judicial system that a case should be decided by the authority hearing the arguments and that a successor cannot decide a case without hearing the arguments afresh on the ground that arguments have already been advanced before his predecessor who left the case without deciding it himself. The object of hearing arguments is to give an opportunity to a party to satisfy the Tribunal about the case set up by that party and to explain any adverse facts which may emerge on the record. Therefore, it is essential that the successor must hear the arguments afresh. If one person hears and another decides, then personal hearing becomes an empty formality and a mere farce.

37. If the purpose underlying the grant of a personal hearing to the land owner is to enable him to satisfy the Collector that his land should not be acquired then there is no distinction between a case where the hearing is by a quasi-judicial forum like the Collector, or Tribunal under the Customs Act and the Collector acting under the Land Acquisition Act. In Balak Ram Guptas II case (supra), this Court had, on the basis of a careful examination of the relevant record produced by the respondents noticed that in respect of Chhaturpur, Khanpur, Deoli, Satbari, Khirkee, Tughlakabad and Tigri, the objections were heard by one Collector while the report was submitted by another. The Court gave, in a tabular form, the details gathered from the record and held that in the absence of fresh hearing by the Collectors, who made the reports, the provisions and the requirements under Section 5A stood violated. The Court even noted the concessions made by Mr. R.K. Anand, learned Counsel appearing for the respondents that declaration under Section 6 of thein regard to the 7 villages where Section 5A objections were heard by one Land Acquisition Collector and the reports were made by another without a fresh hearing, could not be supported by him. Independent of that concession, the Court held that the requirement of a personal hearing to the objector shall stand satisfied only in case the person who had made the report had also heard the objections. The Court also recorded a finding of fact that the Land Acquisition Collectors, who had actually made the report for the above mentioned 7 villages had denied a hearing to the objectors and accordingly quashed the declaration based on the said reports. The following observations in this regard are relevant:

But apart from this concession we had independently examined the legal requirements under Section 5A and Section 6 of the Land Acquisition Act and the facts disclosed on the original record that there was no effective and real opportunity of being heard to the petitioners and, therefore, the land acquisition proceedings cannot be sustained in law. Reading of Section 5A makes it clear that it confers a right of being heard on the objector and imposes a duty on the Collector to give an opportunity of being heard in person or through a pleader. He is also required to consider all the objections and make further inquiry, if any, before he submits his report. Section 5A in terms recognizes the principles of natural justice implicit in a fair trial, namely that no prejudicial order should be passed against a person unless he has been given an effective opportunity of being heard. Implicit in the provisions of Section 5A is the requirement that a person hearing the objections and the objections and the person making the report must be one and the same. Effective hearing to the objector is a mandatory requirement of Section 5A. The obvious reason fro making the provisions mandatory is that valuable property of the objector is taken by Government without his consent and right of eminent domain conceded to the Government should not be arbitrarily exercised by Government. Mr. R.K. Anand admitted that on perusal of original files he did not find any notes maintained by the LAC who heard the objectors which could have been looked into by the other LAC, who actually made the report. It is an admitted position that the LACs, who actually made the report for these seven villages did not themselves give any hearing to the objectors. We have, therefore, no alternative but to hold that the entire land acquisition proceedings in relation to the said seven villages are vitiated and the notifications under Section 6 deserved to be quashed.

38. There was some debate before me as it was before the Division Bench whether the decision in Balak Ram Guptas case (supra) has been overruled by the Supreme Court in the subsequent decisions rendered by Their Lordships. I have carefully gone through the decisions to which reference was made by Mr. Poddar in an attempt to show that the decision in Balak Ram Guptas case no longer holds good but am unable to find any observation in anyone of those decisions, finding fault with or overruling the view taken by this Court that a personal hearing under Section 5A of themust be given by the very same officer who makes the report. There is in any case nothing to suggest in anyone of the subsequent decisions rendered by the Apex Court in which Balak Ram Guptas III case has been discussed to show that the observations made by this Court in the paragraph extracted above were found to be legally unsustainable. Reference may, at this stage, be made to another decision rendered by a Division Bench of this Court in Hari Ram Kakkarv. Union of India & Ors. (supra). This Court had, in that case noted the decisions rendered in Munnilals case, Balak Ram Guptas I case, Balak Ram Guptas II case and Balak Ram Guptas III case in the light of subsequent pronouncements of Their Lordships of the Supreme Court in Delhi Administration v. Gurdeep Singh Uban (supra), and Abhey Ram v. Union of India (supra), and held, on the basis of the record produced before it that there was a complete negation of the right conferred on the land owners under Section 5A of the. In relation to village Satbari the Court found that the Collector who had heard the land owners was not the one, who had eventually made the report to the Government. Since the successor in office of the outgoing Collector had not himself heard the objections, the requirement of Section 5A was, observed the Court, violated. What is significant is that the decisions in Hari Ram Kakkars case was rendered after taking note of the decision referred by the Supreme Court in Gurdip Singh Ubans case and in the case of Abhey Ram (supra). None of those decisions were taken as having overruled Balak Ram Guptas case insofar as the said decision recognized that the Collector who hears the land owners alone can submit the report under Section 5A of the. The Court had, at any rate, taken an independent view on the same lines and quashed the proceedings on account of non-compliance with the provisions of Section 5A. A Bench of co-ordinate jurisdiction would have had no option but to fall in line with that reasoning unless it found something erroneous in the same in which event a reference to a Full Bench alone would provide a solution [see State of Tripura v. Tripura Bar Association and Ors., 1998 (5) SCC 637 [LQ/SC/1998/465] ;Govt. of A.P and Anr. v. B. Satyanarayana Rao (Dead) by LRs., IV (2000) SLT 228=2000 (4) SCC 262 [LQ/SC/2000/658] ; Govt. of Andhra Pradesh and Ors. v. A.P. Jaiswal and Ors., VIII 2000 SLT 707=2001 (1) SCC 748 [LQ/SC/2000/1944] ; State of Maharashtra & Ors. v. Abdul Javed Abdul Majid & Ors., 2002 (Suppl.-I) JT 151].

39. In the light of what has been stated above, I have no hesitation in answering the question No. 1 in NEGATIVE.

Re: Question No. 2:

40. On behalf of the respondents, it was argued by Mr. Poddar that, even if, there was a violation of provisions of Section 5A inasmuch as the personal hearing envisaged thereunder was given not by the Collector, who made the report but by his predecessor in office, the same should not vitiate the acquisition proceedings unless the land owners had suffered any demonstrable prejudice. Elaborating that submission he urged that no prejudice had been suffered by the land owners in the instant case, as the objections filed by them were general in nature, which had been earlier dealt with by the Collector and rejected and which rejection had been, in the case of land owners similarly placed, upheld by this Court in Munni Lals case. It was argued by Mr. Poddar that, even if, a personal hearing was given by the Collector who made the report, the same would not have made any difference in terms of the end result of the exercise. He submitted that grant of a hearing in such a case would be a useless exercise the denial whereof would not ipso facto entitle the owner to the grant of any relief. Reliance in support was placed by Mr. Poddar upon the decisions of the Supreme Court in Tej Kaur and Ors. v. State of Punjab & Ors., II (2003) SLT 536=(2003) 4 SCC 485 [LQ/SC/2003/342] , where the Supreme Court had declined to interfere with an acquisition proceeding in what was, according to the learned Counsel, a similar fact situation. Reliance was also placed by Mr. Poddar upon the decision of the Supreme Court in Mohd. Sartaj & Anr. v. State of U.P. & Ors., I (2006) SLT 467=2006 (2) SCC 315 [LQ/SC/2006/36] .

41. In Tej Kaurs case (supra), the Supreme Court reiterated the legal position, as stated in its earlier decisions in Farid Ahmed Abdul Samads case (supra), Mandir Sita Ramjis case (supra) and Shyam Nandan Prasads case (supra) and declared that Section 5A inquiry is an important stage in the acquisition proceedings and that the objector must be given a reasonable opportunity of being heard denial whereof would seriously prejudice his rights. Having said so, Their Lordships observed:

It is true that Section 5A enquiry is an important stage in the acquisition proceedings and a person who is aware of Section 4(1) notification can raise objection to the effect that his property is not required for acquisition and he is also at liberty to raise the contention that the property is not required for any public purpose. It is also true, that the objector must also be given a reasonable opportunity of being heard and any violation of the procedure prescribed under Section 5A would seriously prejudice the rights of the owner of the property whose land is sought to be acquired. In the instant case, however, it is pertinent to note that the Collector had, in fact, conducted the Section 5A inquiry, though there is no material on record to show that the appellants in Civil Appeal No. 66 of 1998 were heard in person. The facts and circumstances of Civil Appeal No. 66 of 1998 clearly show that the objection raised by the appellants was considered and partly allowed by the Collector. About eight acres of land was sought to be acquired from the appellants as per the notification, but out of that, an extent of six acres was excluded from acquisition and only one-and-a-half acres of land was actually acquired by the authorities. This would clearly show that the objection filed by the appellants was considered by the Collector. Moreover, Section 6 declaration was made on 18.3.1992 and the award was passed on 15.3.1994. The appellants filed the writ petition only on 12.4.1994. In spite of the Section 6 declaration having been made on 18.3.1992, the appellants allowed the acquisition proceedings to go on until the award was passed. This fact clearly indicates that the appellants did not have a genuine grievance against Section 5A inquiry held by the Collector. Therefore, we are not inclined to interfere with the judgment on the grounds now advanced by the appellants.

42. A plain reading of the above passage would show that Their Lordships had quashed the proceedings not because the owners had failed to demonstrate prejudice resulting from the denial of an opportunity of a personal hearing but because of the circumstances set out in the passage extracted above. Once, the Court was of the view that the appellant did not have a genuine grievance and that the petition had been filed long after the declaration under Section 6 of the Land Acquisition Act was issued, the Court could and did indeed decline to grant relief. That decision cannot therefore be seen as an authority for the proposition that violation of the requirements of Section 5 A notwithstanding the Court would insist upon proof of prejudice to the land owners before interfering with the acquisition proceedings.

43. On the question whether proof of prejudice on account of violation of principles of natural justice is essential before the Court interferes with an order passed to the prejudice of party, there are two distinct schools of thought. One of these proceeds on the theory that principles of natural justice do not admit of any exclusionary rule and that non-observance of natural justice is by itself prejudice making proof of prejudice unnecessary for interference by the Court.

44. The other school of thought which is equally well supported by the decisions of the Supreme Court is that the Courts do not issue futile writs and if no prejudice was caused to the party by reason of denial of natural justice, the Court may not interfere, such denial notwithstanding. I shall briefly refer to the decisions supporting the above two seemingly contradicting propositions of law.

45. In S.L. Kapoor v. Jagmohan & Ors., 1980 (4) SCC 379 [LQ/SC/1980/396] , the Supreme Court held that proof of prejudice caused to the party was not necessary and that non-observance of natural justice itself resulted in prejudice. In support, the Court relied upon an earlier decision rendered by it in State of Orissa v. Dr. (Miss) Binapani Dei and Ors., AIR 1967 SC 1269 [LQ/SC/1967/37] . Reliance was also placed upon Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi & Ors., AIR 1978 SC 851 [LQ/SC/1977/331] and Ridge v. Baldwin and Ors., 1963 (2) All England Reports and the legal position summarized as under:

In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.

46. Then came M.C. Mehta v. Union of India & Ors., VI (1999) SLT 177=1999 (6) SCC 237 [LQ/SC/1999/645] , where the Court held that in certain circumstances an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution. One of the situations where the Court may do so relate to cases where no prejudice is caused to the person concerned. This was followed by Aligarh Muslim University & Ors. v. Mansoor Ali Khan, VI (2000) SLT 415=AIR 2000 SC 2783 [LQ/SC/2000/1276] , in which relying upon its earlier decisions in MC Mehtas case and in K.L. Tripathi v. State Bank of India & Ors., AIR 1984 SC 273 [LQ/SC/1983/281] , the Court held that mere violation of natural justice was not enough and that proof of prejudice was essential in order that the Court may interfere.

47. In Viveka Nand Sethi v. Chairman, J & K Bank Ltd. & Ors., IV (2005) SLT 238=2005 (5) SCC 337 [LQ/SC/2005/595] , the Court held that the application of principles of natural justice would depend upon the fact situation of each case and that there was no strait-jacket formula for their application. That view was followed in Mohd. Sartaj & Anr. v. State of U.P. & Ors. (supra), where the Court held that no prejudice had been caused to the appellants by the non-service of a notice and denial of the hearing before the order of cancellation of the examination taken by him was passed.

48. Each one of the cases referred to above, in which proof of prejudice was insisted upon by Their Lordships, dealt with a fact situation in which the aggrieved party relied upon the abstract principles of natural justice. While examining the validity of an order passed without compliance with the requirement of those principles, the Apex Court has looked into whether any prejudice was demonstrated by the petitioner and declined to interfere where no such prejudice was demonstrable. That, however, does not necessarily lead to the conclusion that violation of the provisions of Section 5A of the Land Acquisition Act which mandates a personal hearing for the land owner in support of the objections can be treated on a similar footing. That is because once the application of principles of natural justice is made mandatory by a statutory provision, denial of a hearing would in itself result in prejudice requiring no further proof of prejudice by the land owner for the Court to interfere. The decisions handed down by the Supreme Court regarding the significance of Section 5A inquiry and the consequence of its violation, in my view, leave no room for this Court to hold that the mandatory nature of the said provision notwithstanding a violation of the same would still remain inconsequential unless the owner is able to demonstrate prejudice. The position may indeed have been different, if the statute was silent on the subject, for in that case non-observance of the principles of natural justice may have given rise to the question whether any prejudice had been caused by any such failure of the authority. We are not, however, in the realm of uncodified general principles of natural justice. We are, on the contrary, dealing with a situation whether the Parliament has enacted a statutory provision couched in mandatory language making it essential for the Collector to hear the land owner before he submits his report. The Supreme Court as already noticed in the beginning of this order, has held the requirement of a hearing in an inquiry under Section 5A to be akin to a constitutional requirement. In that view of the matter, therefore, I have no hesitation in answering even the second question in the NEGATIVE.

49. In the result, I would agree with the view taken by my esteemed brother M.B. Lokur, J. that the impugned acquisition proceedings are liable to be quashed for violation of the provisions of Section 5A of the Land Acquisition Act. A formal and effective order to that effect can however be passed only by the Division Bench keeping in view the majority opinion. The petitions shall, therefore, be listed before the Division Bench for appropriate orders in that regard. I make it clear that I have not expressed any opinion whether or not any objections had been filed by the petitioners in WP Nos 1941, 1943, 1944, 1945, 1946, 1947, 1952, 1953, 1956, 2082, 2083, 2084, 2085, 2090, 2098 and 2109 of 1985, 563, 566, 567 and 977 of 1986 (Vill: Deoli), 2093, 2094, 2095 of 1985 (Vill:Satbari), 571 of 1986(Vill: Tughlaqabad), 1142, 1725 and 1826 of 1986 (Vill: Khanpur), 1874 of 1986, 360 of 1987 (Vill: Khirkee), 2526, 2527, 2529 of 1985, 1057, 2702 of 1986, 169, 675 and 677 of 1987 (Vill: Chhatarpur) as contended by Mr. Poddar. Depending upon whether objections are found to have been filed in those petitions which aspect can be canvassed before the Division Bench, the legal position emerging from the majority opinion will apply to those petitions also.