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M/S SWASTIK PIPES LTD. THRU'EXECUTIVE DIRECTOR J. KUKRETI versus D.M.,/COLLECTOR & OTHERS

High Court of Judicature at Allahabad

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M/S Swastik Pipes Ltd. Thru'Executive Director J. Kukreti v. D.M.,/Collector & Others - WRIT - C No. 14155 of 2004 [2004] RD-AH 204 (7 April 2004)

 

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

 -Challenging the land acquisition proceeding at a belated stage

  -If acquisition for industry, exempt the industry

    CIVIL MISC. WRIT PETITION NO.14155 OF 2004

M/s. Swastik Pipes Limited .........            Petitioner

              Versus

District Magistrate/Collector,

Mathura & ors. .........          Respondents

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

Hon. D.P. Gupta, J.

This writ petition has been filed raising large number of grievances including challenge to the land acquisition proceedings, particularly notification under Section 4 dated 23.01.2001 of the Land Acquisition Act, 1894, hereinafter called the ''Act 1894' and declaration dated 5.10.2002 under Section 6 of the Act 1894 on large number of grounds particularly that the objection filed by the petitioner under Section 5-A of the Act 1894 has not been decided.

We are not impressed by the submissions made by Shri Agrawal, learned counsel appearing for the petitioner for the reason that the validity of the said notification and declaration under Sections 4 and 6 of the Act 1894  cannot be challenged at such a belated stage. If objectionS filed by the petitioner under Section 5-A were not disposed of, he ought to have filed the petition immediately after publication of declaration under Section 6 of the Act 1894. (Vide Hari Singh Vs. State of U.P. & ors., AIR 1984 SC 1020; The Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; and Northern Indian Glass Industries Vs. Jaswant Singh & ors., (2003) 1 SCC 335).

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 wit 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 finalized, 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.

Thus, at such a belated stage, the validity of Section 4 Notification and Section 6 Declaration cannot be examined and petition is liable to be dismissed only on the ground of delay and laches. Nor it is possible for the Court to issue direction to the respondent to consider the objections filed by the petitioner under Section 5-A after Declaration under Section 6 of the Act 1894.

However, it is also settled law that if the land is acquired for a particular purpose and someone has utilised his land sought to be acquired for the same purpose and it could be adjusted under the scheme for which land is to be acquired, his land should be exempted in exercise of powers under Section 48 of the Act 1894. (Vide Union of India & anr. Vs. Bal Ram Singh & anr., 1992 Supp (2) SCC 136; State of T.N. & anr. Vs. Mahalakshmi Ammal & ors., (1996) 7 SCC 269; & Sube Singh & ors. Vs. State of Haryana & ors., JT 2001 (6) SC 578). In the aforesaid cases, Hon'ble Supreme Court has held that industrial units should not be removed acquiring the land for the purpose of establishing industries  itself, if it can be fitted with the scheme for which development is being made and land is sought to be acquired. The Authority should grant exemption if the scheme does not get frustrated even after certain modifications by the tenure holder as required by the authority concerned.

Thus, in view of the above, we dispose of this writ petition that in case petitioner files an application under Section 48 of the Act 1894 before the competent authority for releasing the land on which factory of the petitioner has been set up, it shall be considered strictly in accordance with law and if some adjustment is required, the petitioner may be directed to do so within a period two months from the date of filing the application, which the petitioner is directed to file within 10 days from today along with a certified copy of this order.

For a period of 10 weeks, status quo as on today, shall be maintained regarding possession.

07.04.2004

AHA/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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