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OM PRAKASH PANDEY versus UNION OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Om Prakash Pandey v. Union Of India And Others - WRIT - A No. 29252 of 2003 [2003] RD-AH 207 (14 July 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.34

Civil Misc. Writ Petition No. 16228 of 1992

Naseeb Ahmad & Ors. ......... Petitioners

Versus

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

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

Hon. D.P. Gupta, J.

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

This writ petition has been filed for restraining the respondents from interfering with the peaceful possession of the petitioners over the land in dispute, which had been subject matter of the land acquisition proceedings and declare that the said proceedings stood lapsed.

Facts and circumstances giving rise to this case are that the respondents issued a notification under Section 4 of the Land Acquisition Act, 1894, hereinafter called ''the Act', and the same was published on 06.06.1983 in the U.P. Gazette, in respect of 362-12-14 bighas comprising in revenue estate of 2-3 villages. It included the land of the petitioner no.4 consisting of Khasra No.4 measuring 1 bigha 10 biswas. Declaration under Section 6  of the Act was published in respect of the said entire land on 16.06.1983 along with a notification under Sections 17 and 17 (1-A) of the Act. Thus, the provisions of Section 5-A of the Act were dispensed with. On 02.04.1985, the possession of the most of land had been taken but certain plots were left out. The award was made on 22.09.1986 but it was not in respect of Khasra No.4, i.e. land in dispute. However, on the said date, supplementary award was made in respect of the left out plots including the land of petitioner No.4. The writ petition has been filed challenging the said supplementary award on the ground that by virtue of the amendment in Act, which came into force on 24th September, 1984, the award could be made only upto 23rd September, 1986 and not at subsequent stage, as it would lapse by virtue of the provisions of Section 11-A of the Act and the supplementary award was made subsequently, though purported to have been made on 22.09.1986 and it is not the real and genuine award. Signature of the then Special Land Acquisition Officer have been forged.

We have heard Shri D.V. Jaiswal, learned counsel for the petitioners; Shri C.K. Rai, learned Standing Counsel for the State and Shri Ashok Mohiley, learned counsel for other respondents.

It has been submitted by the learned counsel for the petitioners that the petitioners' land had not been included in the main award made on 22.09.1986. Thus, there was no occasion for the respondents to make the supplementary award on the same day for the left out lands. The supplementary award is definitely an ante dated document and, thus, is liable to be quashed and as there was no award in fact within a period of two years from the date of commencement of the Amendment Act, the proceedings stood lapsed.

On the contrary, it has been submitted by the learned counsel for the respondents that the award was made in 1986, the writ petition has been filed in 1992, i.e. after expiry of more than 6 years of the said award. Petitioners no. 1, 2 and 3 are the purchasers of the land by agreement to sell   without any registered sale deed in their favour dated 11.02.1987, which is not only subsequent to Section 4 notification but also after making of the supplementary award.  Petitioner nos. 1 to 3 claim that they had paid the entire consideration to the petitioner no.4. The agreement to sell itself is void. More so, the agreement to sell does not confer any title on them. If the petitioner no.4 has taken the entire amount and has no interest in the property, the petition itself is not maintainable at his behest. The possession of the land has been taken from the petitioner no.4 on 05.12.1986, therefore, the petitioner no.4 did not possess any title to transfer to the petitioner nos. 1, 2 and 3 for the reason that once the land vested in the State by virtue of the provisions of Section 16 of the Act, it cannot be divested. The total land acquired measured 362-12-14 bighas. Petitioner no.4 claims to own only 1 bigha 10 biswas. Land acquisition proceedings cannot be challenged by any means on any ground by him as it would hamper the entire purpose for which the land had been acquired. The allegations that the supplementary award is ante dated and forged document, is false, as the petitioner has not produced any evidence to that effect. More so, supplementary award was given in respect of large area of land belonging to large number of land owners. Had it been so, other persons  could also have challenged the proceedings. As everybody was satisfied, the issue is not worth examining at the behest of the petitioners alone having such a small area, that too, after by executing agreement to sell by petitioner no.4 in favour of petitioners no. 1, 2 and 3. As the agreement is in contravention of the public policy, it is void and does not have any sanctity. Thus, the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

Admitted position remains that in the main award made on 22.09.1986, petitioners' land was not included. However, in the supplementary award, several lands owned by large number of persons were included. It was in respect of the petitioners' land also. Other persons have not challenged the proceedings. Petitioner no.4 owns a small part of  land, i.e. 1 bigha 10 biswas and claims to have executed an agreement to sell subsequent to the date of award in 1987 in favour of the petitioners no. 1, 2 and 3 and no explanation has been furnished by the petitioners as why the writ petition has been filed after expiry of more than 6 years from the date of award.

When a person challenges Section 4 Notification  on any ground,   it  should   be challenged  within  reasonable period and if  the acquisition is challenged at a belated stage, the petition  deserves  to be dismissed only on  this count, as  explained by the Hon'ble Supreme Court               in the case  of Hari Singh & ors.  Vs.  State  of U.P., AIR  1984 SC 1020, wherein it has been 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.   I.D.I.  Co.  (Pvt) 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 incumbrances, 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."

In  view of the above, as the  petitioner  has not approached  the  Court within  reasonable  time and   allowed   the    completion   of   the  acquisition  proceedings, the petition is  liable to be rejected only on the ground of delay.

In State of U.P.  Vs.  Smt.  Pista Devi, AIR 1986  SC  2025,  the Hon'ble Apex  Court  has    observed  that  where  a large track of  land  is acquired  and the land belong to large number  of persons,  challenging  the entire acquisition  at  the instance  of one or few persons should not be entertained,  as it would hamper the  development  of the entire  land  and purpose, for  which  the   land is sought   to  be   acquired,  would  stood  frustrated  at  the behest of few persons  though  the other  affected  persons  have  accepted  the  acquisition  proceedings  and accepted the  award etc.

In the instant case, the total land acquired is 362-12-14 bighas and petitioner no.4 had an area only to the extent of 1 bighas 10 biswas. This is negligible considering the total area acquired. Thus, the petition is liable to be dismissed on the ground that the acquisition proceedings could not be quashed at the behest of  a person having such a small fraction of land unless there are compelling circumstances to do so.

In  State  of  Tamil  Nadu  &  Anr.   Vs. Mahalakshmi  Ammal & ors., AIR 1996 SC 866,  the Supreme Court   held  that   possession  of   the  acquired  land  is  to be taken only  by  way  of memorandum/   Panchnama,  which  is a   legally  accepted  norm and it may not be possible for the  party to   take  actual    physical   possession.                Therefore,  subsequent continuation, if any, held  by the erst-while  owner  is   only  illegal  and  unlawful  possession  which  does  not  bind  the                Government, nor vested under Section 16, divested in the illegal occupant.

In Satendra Prasad Jain Vs. State of U.P. & Ors., AIR  1993 SC 2517, the Hon'ble Supreme Court held that once land vests in the State free from all incumbrances, it cannot be divested or revested and proceedings under the Act would not lapse even if award is not made within the statutory period. Only relief which land-owner can claim to have compensation for the land. The same view has been reiterated in Avadh Behari Yadav Vs. State of Bihar & Ors., (1995) 6 SCC 31; U.P. Jal Nigam Vs. Kalra Properties (P) Ltd., AIR 1996 SC 1170; Allahabad Development Authority Vs. Nasiruzzaman & Ors., JT 1996 (8) SC 429; and Niladri Narayan Chandradhurja Vs. State of West Bengal & Ors., AIR  2002 SC 2532.

In view of the above, there may be some substance in legal submissions on behalf of the respondents in this respect, but in the fact-situation of this case, no help can be taken from it, as the respondents in their counter affidavit have stated that they had taken the possession on 05.12.1986, i.e. after making of the supplementary award. But we failed to understand how either of the petitioners can claim to be in possession of the land after 05.12.1986.

Petitioners no. 1, 2 and 3 are the persons claiming to have executed an agreement to sell with petitioner no.4 subsequent to not only Section 4 notification but after the date of award. It is settled legal proposition that any person who purchases land after Section 4 notification, does not have a right to maintain a writ challenging the acquisition proceedings.

In Pandit Leela Ram Vs. Union of India, AIR 1975 SC 2112, the Apex Court has held that any one who deals with the land subsequent to Section 4 notification, would do so at his own peril. In Sneh Prabha Vs. State of Uttar Pradesh AIR 1996 SC 540, the Apex Court held that Section 4 notification gives a notice to the public that the land is needed for public purpose and it further points out "an impediment to any one to incumber the land acquired thereunder."

Similarly, in U.P. Jal Nigam Vs. M/s. Kalra Properties Pvt. Ltd. (supra), the Hon'ble Supreme Court held that purchase after publication of Section 4 notification is void against the State and at the most the purchaser may be a ''person' interested in compensation since he steps into the shoes of the erstwhile owner and may merely claim compensation.  

However, in subsequent judgment in Jaipur Development Authority Vs. Mahavir Housing Coop. Society, Jaipur, (1996) 11 SCC 299, the Apex Court, though not decided the issue finally, expressed a doubt on the maintainability of reference under Section 18 by the subsequent purchaser.

In Ajay Kishan Singhal Vs. Union of India, AIR 1996 SC 2677 and Galaxy Merchantiles Ltd. Vs. State of Haryana, (1997) 11 SCC 427, the Hon'ble Apex Court has categorically held that a person who purchase the land after publication of Section 4 notification, is not entitled to challenge the proceedings.

Thus, in view of the above, it can be held that the petitioners no. 1,2 and 3 have no right to maintain a writ as they cannot be put on a pedestrian higher than that of a gambler who had purchased nothing but litigation and if they claim that they had paid the entire consideration, the petitioner no.4 has no interest in the property and the petition cannot be entertained at the behest of such persons.

So far as the allegations of ante dated award is concerned, there is a presumption under Section 114, Illustration (e) of the Evidence Act, 1872 that all actions of the State have been performed in accordance with law prescribed therein.

A Constitution Bench of the Hon'ble Supreme Court in Gopal Narain Vs. State of U.P. & Ors., AIR 1964 SC 370, held that there is a presumption when a statutory authority makes an order, that it has followed the prescribed procedure and such a presumption can only be rebutted by adducing appropriate evidence. However, the party, which makes an allegation that the act has not regularly been performed, the onus to prove lies upon him that the proper procedure has not been followed or the act has not been performed as was required under the law.

In Maharaja Pratap Bahadur Singh Vs. Thakur Man Mohan Dey & ors., AIR 1966 SC 1931, the Hon'ble Supreme court considered the scope of illustration (e) of Section 114 of the Evidence Act and the question was: whether the Deputy Commissioner, who performed the particular function, had even been authorised to act. The court held that if an official act is proved to have been done, it will be presumed to have been regularly done and in such an eventuality and circumstances, the Court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the Authority concerned.

Another Constitution Bench of the Hon'ble Supreme Court, in Ajit Singh Vs. State of Punjab & ors., AIR 1967 SC 856, considered the case where the issue had been raised that the Consolidation Officer had never been appointed to perform the function of the said office and the order of his appointment had never been produced. The Hon'ble Court held that such an objection can hardly be entertained in the fact of presumption under Section 114 of the Indian Evidence Act and, thus, it was observed that the officers should have acted under due authorization.

A Constitution Bench of the Hon'ble Supreme Court, in State of Punjab Vs. Satya Pal Dang & Ors., AIR 1969 SC 903, dealt with the prorogation issued by the governor. The court observed as under:-

"We are bound to take judicial notice of the prorogation and presume the regularity of these actions which must be interpreted as far as possible so that the things done may be valid rather than invalid."

In Narayan Govind Gavate Vs. State of Maharashtra & ors., AIR 1977 SC 183, the Hon'ble Supreme Court observed that presumption provided in illustration (e) of Section 114 of then Evidence Act is based on well-known maxim of law "omnia praesumuntur rite esse acta"(i.e. all acts are presumed to have been rightly and regularly done). The Court further held that this presumption is, however, one of the fact. It is an optional presumption and can be displaced by the circumstances, indicating that the power lodged in an authority or official has not been exercised in accordance with law.

Similar view has been reiterated in Jhaman Lal Vs. State of Rajasthan & ors., AIR 1965 Raj. 86; Ganga Ram Vs. Smt.  Phulwati, AIR 1970 All. 446; Saheed Ahmed Vs.  Syed  Qumar  Ali & Anr., AIR 1973 All. 23; Somasudarshan  Goud Vs. The District  Collector, Hyderabad & Anr., AIR 1978 AP 420; Sone Lal & ors. Vs. State of U.P. & ors., AIT 1978 SC 1142; Municipal Board, Saharanpur Vs. Imperial Tobacco of India Ltd. & ors., AIR 1999 SC 264; K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510; the State Government of NCT Delhi Vs. Sunil and Anr., (2001) 1 SCC 652; Kiran Gupta Vs. State of U.P. & ors. (2000) 7 SCC 719; and Supdt. Narcotics Control Bureau Vs. R. Paulsamy, (2000) 9 SCC 549).

Thus, it is clear that in law there is a presumption that official acts have regularly been performed and such presumption can be rebutted only by adding evidence. A mere bald denial of such a performance is not sufficient to rebut the said presumption. In the instant case respondents have not produced any evidence on the basis of which such a presumption can be held to have stood rebutted.

In the instant case, petitioners could not make any attempt to rebut the presumption that the supplementary award had been made in a regular course and is an ante dated document. Shri Jaiswal has half-heartedly made the suggestion that the supplementary award is not only ante dated but the signatures  of the then Land Acquisition Officer has been forged by someone else. However, petition is pending for more than 11 years, no application had ever been filed by the petitioners to send the signatures for comparison to the hand-writing expert, as was permissible for them  by virtue of the provisions of Section 45 of the Evidence Act. We have ourselves compared the signatures of the award and supplementary award, but it does not appear to be a forged signature of the Special Land Acquisition Officer. Such a disputed question of fact cannot be examined at such a belated stage on merely bald allegations as held by Hon'ble Supreme Court in Hari Singh (supra).

Thus, in view of the above, as the petitioners miserably failed to lead any evidence in rebuttal, we are not inclined  to examine the issue further. It is quite possible that in the main Award the lands, possession of which could not be taken up, were not included, but after making of the same, it was considered desirable to make award in respect of those lands also. There is nothing on record to show that either of those persons whose lands were covered by the supplementary award, had ever challenged the proceedings.

To sum up, the land acquisition proceedings have been challenged after six years of the making of award. The petitioners are basically purchasers of the land through agreement to sell after the award, which is not permissible in law. The land involved has a very small area, i.e. negligible,  considering the total area by the said proceedings and once the land had vested in the State free from incumbrances, it cannot be divested.

Thus, in view of the above, petition lacks merit and failed. It is dismissed accordingly. No order as to costs. Original record of the case called for by this Court earlier is returned to Sri Ashok Mohiley, learned counsel for the respondents.

23.09.2003

AHA


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