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SANJEEV KUMAR GARG versus STATE OF U.P. THRU' PRINCIPAL SECRETARY, AVAS EVAM SHAHRI

High Court of Judicature at Allahabad

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Sanjeev Kumar Garg v. State Of U.P. Thru' Principal Secretary, Avas Evam Shahri - WRIT - C No. 20946 of 2006 [2006] RD-AH 8238 (24 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO. 20946 OF 2006

Sanjeev Kumar Garg & Anr.  -------------    Petitioners              

Versus.

State of U.P. & Ors.              -------------  Respondents

_________

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble  Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J)

This writ petition has been filed  for quashing the Notification dated 16.10.2004 (Annex. 5) and 27.9.2005 (Annex. 6) and further for restraining the Authorities not to acquire the land in dispute, Khasra No. 1271, situate in the Revenue Estate of Village Morta, Pargana Jalalabad, Tehsil and District Ghaziabad, for residential purposes.

The facts and circumstances giving rise to this case are that a Notification was issued on 16.10.2004 under Section 4 of the Land Acquisition Act 1894 (hereinafter called the Act) for acquisition of huge tract of land, including the land of the petitioner, measuring 20 ft x 80 ft. While issuing the Notification under Section 4, objections under Section 5-A were dispensed with. In respect of the said land, the declaration under Section 6 was made on 16th October, 2004. Resorting to the provision of Section 7, possession of the land could be taken any time. The total land sought to be notified under Section 6 had been 3.64 hectares. The petitioners have filed this writ petition for quashing the acquisition proceedings on several grounds, including dispensation of Section 5-A of the Act.

The learned Standing Counsel appearing for the State has raised  preliminary objection regarding the maintainability of the writ petition at such a belated stage and pointing out that petitioners have not disclosed as to whether the possession had been taken or not. In paragraph 15, it has been submitted that the aforesaid Notifications/Declarations permitted the Collector to take possession of the acquired land without waiting for the Award under Section 11 of the Act. Hence petition is liable to be dismissed.

In spite of our repeated queries, Shri Pankaj Mithal, learned counsel for the petitioners could not explain the delay except by saying that petitioner had not been aware of the acquisition proceedings.

In the instant case, the possession might have already been taken by the State as the provision of Section 17 had been resorted to. It is difficult to believe that petitioners had no knowledge of initiation of acquisition proceedings as in the case of State of U.P. Vs. Smt Pista Devi & Ors., AIR 1986 SC 2025, the Apex Court has held that it is difficult to believe that where a huge tract of land is being acquired and there are large number of persons to be adversely affected by the acquisition proceedings, as it became talk of the town, that the person interested remained unaware of the acquisition proceedings.

It was also held  therein that where the land had been acquired in a big chunk, the acquisition proceedings should not be disturbed at behest of one or few of the persons, as it disturbs the acquisition proceedings. Plan Development should not be stopped at the instance of few persons.

More so, no explanation has been furnished for approaching the Court at a belated stage except that some person had already approached this Court in time, therefore the petitioners who are also entitled should be heard even at a belated stage.

When a person challenges the acquisition proceedings  on any ground, it  should be challenged within a reasonable period, and if  the acquisition is challenged at a belated stage, the petition  deserves  to be dismissed only on  this count. In Hari Singh & Ors.  Vs.  State  of U.P., AIR  1984 SC 1020, the Apex Court held that where  a large area of land is acquired  and the plots,  which  are  subject  to  acquisition, belong to  large  number  of  persons,  if  other persons have  not  challenged   the   acquisition proceedings,  it  is  difficult to  believe  that   appellant  was not aware of the initiation of the  acquisition proceedings as the acquisition of the said land  would  be  the talk of the town  in  a   short time and if the person interested failed to approach the writ court within reasonable period, the petition  should  fail only on the ground  of delay.

A  Constitution  Bench  of  the   Hon'ble Supreme Court,  in  Aflatoon  &  Ors.   Vs.   Lt. Governor,  Delhi  & Ors., AIR 1974 SC  2077,  has observed as under:-

  "  ....  to have sat in fence and allowed the    government   to    complete    the acquisition    on    the  basis    that notification  under Section 4 and the  declaration  under  Section 6 were  valid                        and then  to attack the notification on                        the grounds which were available to them                        at the time when the  notification was                        published, would be putting a premium of                        dilatory tactics. The writ petitions are                        liable to be dismissed on the ground  of                        laches  and  delay  on the  part  of  the                        petitioner."

Same  view has been taken by the  Hon'ble  Supreme Court  in  State  of   Mysore  Vs.   V.K. Kangan, AIR 1975 SC 2190, wherein it was observed  that respondent was not entitled to challenge the validity  of  Section  4  Notification  after  an unreasonable lapse of time.  If public notice, as  required  by Section 4 of the Act, was not  given and that  would  per se vitiate the  notification  under Section  4,  the person  interested  should have challenged  its validity within a reasonable  time of the publication of the notification under  Section 4 of the Act.

The  issue  of delay in filing  the  writ petition was considered by the Hon'ble Apex Court in Smt.   Sudama  Devi Vs.  Commissioner &  Ors.,  (1983) 2  SCC  1,  wherein  the  Apex  Court  has  observed as under:-

" There  is  no   period  of  limitation prescribed by any law for filing the writ   petition   under  Article 226 of the Constitution.   It is, in fact,  doubtful   whether any such period of limitation can  be  prescribed by law.  In any event, one  thing  is clear and beyond doubt that  no   such  period  of limitation can  be  laid  down  either under the rules made by  the   High  Court  or by practice.   For  every case,  it would have to be decided on the                        facts and circumstances whether the                        petitioner is guilty of laches and that                        would have to be done without taking into                        account any specific period as period of                        limitation. There may be cases where                        even short delay may be fatal while there                        may be cases where even a long delay may                        not be evidence of laches on the part of                        the petitioner."

In State of Tamil Nadu Vs.  L.  Krishnan, AIR 1996 SC 497, the Apex Court held that " the delay in  challenging the notification was  fatal   and the writ   petitions   were   liable  to   be  dismissed  on  the  ground of  laches  only"  and exercise  of  power under Article 226, after  the award had been made, was held to be unjustified.

Similarly, in  State of Maharashtra  Vs. Digambar,  AIR  1995 SC 1991; and State of  Orissa  Vs.  Dhobei  Sethi & Anr., (1995) 5 SCC 583,  the Apex Court  held  that  if the  land  acquisition  proceedings  stood finalised, interference by the  writ court, quashing notification and declaration under Sections 4 and 6 respectively, was unwarranted   and  uncalled   for.   Exercise  of  jurisdiction  in such a case cannot be said to be  judicious and reasonable.

Similar  view  has   been  reiterated  in  Girdharan  Prasad  Missir  Vs.  State  of  Bihar, (1980) 2  SCC  83;   H.D.   Vora  Vs.   State  of  Maharashtra,  AIR  1984 SC 866;  Ram  Chand  Vs.  Union of India, (1994) 1 SCC 44;  Bhoop Singh Vs. Union of  India, AIR 1992 SC 1414, and C.   Padma Vs.  Deputy  Secretary  to Govt.  of Tamil  Nadu, (1997) 2 SCC 627).

In Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. (P) Ltd., AIR 1997 SC  482, the Hon'ble Supreme Court  observed  as  under:-

"If  the  interested  person  allows  the                       grass to grow under his feet by allowing                        the acquisition proceedings to go on and                        reach its terminus  in  the  award  and                        possession is taken in furtherance                        thereof and vest in the State free  from                        all encumbrances, the slumbered                        interested  person would be told off  the                        gates  of  the Court that  his  grievance                        should  not be entertained when there  is                        inordinate  delay  in   filing  the  writ                        petition  and when all steps taken in the                        acquisition proceedings have become                        final, the Court should be loath to quash                        the  notifications.  The High Court  has,                        no  doubt,  discretionary   power under                        Article  226 of the Constitution to quash                        the  notification under Section 4 (1) and                        Declaration  under  Section  6.   But  it                        should be exercised taking all  relevant                        factors into pragmatic consideration.                        When  the award was passed and possession                        was  taken, the Court should not exercise                        its  power to quash the award which is  a                        material   factor   to  be   taken   into                        consideration before exercising the power                        under Article 226. The fact  that  no                        third party  rights were created in  the                        case, is hardly a ground for                        interference."

Similar view has been reiterated in State of Rajasthan  &  Ors.  Vs.  D.R.  Laxmi  &  Ors., (1996) 6 SCC 445, wherein the Apex Court has held   that even the void proceedings need not be set at naught if  the party has not approached the Court within reasonable time, as judicial review is not  permissible at a belated stage.

In  Hindustan  Petroleum Corporation  Vs. Dolly Das,  (1999) 4 SCC 450, the Apex Court held as under:-

"So  far  as   the  contention  regarding laches  of the respondents in filing  the writ  petition  is concerned,  delay,  by   itself,  may  not  defeat the claim for   relief unless the position of payment had   been so altered which cannot be retracted on  account of lapse of time or  inaction  of  the other party.  This aspect,  being dependant  upon  the examination  of  the facts  of the case and such a  contention  not  having  been raised before the  High  Court,  it  would not be  appropriate  to  allow  the  appellants  to raise  such  a  contention  for the first time before us. Besides,  where  the  mode  is  that  the period  for  which the option of  renewal has  been  exercised, has not come to  an end. During  the subsistence of such a  period,  certainly the respondents  could make a  complaint that such exercise of option was not available to the                        appellants and, therefore, the jurisdiction  of the High Court could  be invoked even at a later stage.  Further, the  appellants  are  not  put  to  undue hardship  in any manner by reason of this delay in approaching the High Court for a  relief."

Similar view has been reiterated by the Hon'ble Supreme Court in Northern Indian Glass Industries Vs. Jaswant Singh, AIR 2003 SC 234; and Haryana State Handloom & Handicrafts Corporation Ltd. Vs. Jain School Society, AIR 2004 SC 850.

If some person has taken a relief from this Court by filing a Writ Petition  immediately after the cause of action had arisen, petitioners cannot take the benefit thereof by filing a writ petition belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.

In  State of Karnataka & ors. Vs. S.M.  Kotrayaya  & Ors., (1996) 6 SCC 267, the  Hon'ble Supreme Court  rejected  the  contention  that  a petition  should be considered ignoring the delay and laches  on  the  ground  that  he  filed the petition  just after coming to know of the relief granted by  the  Court in a similar case as  the same cannot  furnish  a  proper  explanation  for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches.  

Same  view  has  been reiterated  by  the Hon'ble Supreme  Court in Jagdish Lal & ors.  Vs. State of  Haryana  &  ors.,  AIR  1997  SC  2366, observing as under:-  

"Suffice it to state that appellants may be  sleeping  over their rights for  long and  elected  to  wake-up when  they  had impetus  from  Veerpal Chauhan and Ajit Singh's  ratio.... disparate attempts of the  appellants  to re-do the  seniority, held by them in various cadre.... are not  amenable to the judicial review  at this  belated  stage. The  High  Court, therefore, has rightly dismissed the writ petition on the ground of delay as well."

In M/s.  Roop Diamonds & ors.  Vs.  Union of India & ors., 1989 SC 674, the Hon'ble Supreme Court considered  a case where petitioner  wanted to get the relief on the basis of the judgment of the Supreme  Court  wherein a particular law  had been declared  ultra  vires.  The Court  rejected the petition  on  the ground of delay and  latches observing as under:-    

"There  is  one   more  ground   which basically  sets  the present case  apart. Petitioners are re-agitating claims which they  have not persued for several years. Petitioners  were  not vigilant but  were content to be dormant and close to sit on the  fence till somebody else's case came to  be  decided."

In Abhey Ram & Ors. Vs. Union of India & Ors., AIR 1997 SC 2564 the Hon'ble Supreme Court came to the conclusion that where a composite Notification under Section 4 and a Declaration under Section 6 are issued and petitions against the same are filed by any of the land owners and Court grants the interim relief or final relief, the proceedings qua persons other than writ petitioners would not be deemed to be de-notified or outside the purview of the provisions of the Act 1894, as the judgment and order would operate only qua the land in the ownership of petitioners therein.

Similar view has been reiterated by the Hon'ble Supreme Court  in Delhi Administration Vs. Gurdip Singh Uban & Ors., (1999) 7 SCC 44.

In view of the above, as no explanation has been furnished by the petitioners for approaching the Court at such a belated stage and there is no specific pleading as to whether petitioners have already been dispossessed from the land in dispute, no relief can be given to the petitioner at such a belated stage. Petitioners cannot take advantage of the litigation by some diligent persons. We are, therefore, not inclined to entertain the writ petition.

Petition is accordingly dismissed.

24.4.2006

AKSI


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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