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2004 DIGILAW 592 (RAJ)

Jagdish Prasad Mahant v. State of Raj.

2004-04-15

ANIL DEV SINGH, K.S.RATHORE

body2004
Honble SINGH, CJ.–This appeal is directed against the judgment of the learned single judge dated 10.3.2004 rendered in CW 1362/1986. The facts giving rise to the appeal, are as follows:- On 3.4.1974 the land in question was notified under Sec. 4 of the Rajasthan Land Acquisition Act, 1953. This was followed by a declaration under Sec. 6 of the Land Acquisition Act, which was issued on 13.10.1976. Thereafter on 9.1.1986, notification under Sec. 9 was issued. On 27.1.1986, after issuance of notification under Sec. 9 of the Land Acquisition Act, the appellant filed objections to the notification issued under Sec. 4. It appears that the Collector did not favourably react to the objections filed by the appellant and on 16.4.1986 an award was passed by him. The appellant challenged the acquisition proceedings after the award was rendered by the Collector by means of a writ petition. (2). From the narration of facts, it is apparent that the acquisition proceedings which were initiated by Sec. 4 notification in the year 1974, were challenged after about thirty years. In case the appellant had any grievance with regard to the issuance of the notification under Sec. 4 of the Land Acquisition Act, he ought to have challenged the same within a reasonable period of time. In Municipal Council, Ahmednagar & Another vs. Shah Hyder Beig & Others (1), the supreme court in regard to the delay occasioned in filing the writ petition for challenging the acquisition proceedings, held as follows:- ``The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, ``delay defeats equity has its fullest application in the matter of grant of relief under Article 226 of the Constitution. Hence, the equitable doctrine, namely, ``delay defeats equity has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basis tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of a school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above. (3). Applying the principle laid down by the supreme court to the instant appeal, challenge mounted by the appellant to Sec. 4 notification is not sustainable. The appellant after an inordinate delay cannot be heard to say that the notification under Sec. 4 stands vitiated as no personal notice was served on his father, who was the Mahant of the temple which owned the land in question. The delay in the instant case defeats the equity and no discretionary relief can be granted to the appellant. Besides, the appellant cannot be permitted to raise the plea that no notice under Sec. 4 of the Land Acquisition Act was served on his father, as this argument was not advanced before the learned single judge. The learned single judge, therefore, was right in rejecting the writ petition. (4). It is important to note that the appellant challenged the notification under Sec. 4 of the Land Acquisition Act after the award was rendered. No writ petition challenging Sec. 4 notification after passing of the award by the Collector should be entertained. In Municipal Corporation of Greater Bombay vs. Industrial Development Investment Co. (P) Ltd. (2), the supreme court held that after passing of the award and taking over of possession of the land by the Collector, the court should not exercise its power to quash the award. In Municipal Corporation of Greater Bombay vs. Industrial Development Investment Co. (P) Ltd. (2), the supreme court held that after passing of the award and taking over of possession of the land by the Collector, the court should not exercise its power to quash the award. In this regard the supreme court held as follows:- ``It is thus well-settled law that 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 powers 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 have exercised 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. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches. (5). In Municipal Council, Ahmednagar (supra), it was also held that no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder after the award is made by the Collector. In this regard the supreme court held as follows:- ``In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. (6). Learned counsel for the appellant admitted that the land in question was conveyed to the purchasers before issuance of Sec. 4 notification. According to him part of the land was sold by registered sale-deeds and the remaining part thereof was conveyed to purchasers on the basis of agreement to sell followed by delivery of possession of the land in question to them. It is noteworthy that the persons affected by the acquisition have not challenged the acquisition proceedings. (7). Learned counsel for the appellant raised certain pleas which from the impugned judgment do not appear to have been advanced before the learned single judge. It is noteworthy that the persons affected by the acquisition have not challenged the acquisition proceedings. (7). Learned counsel for the appellant raised certain pleas which from the impugned judgment do not appear to have been advanced before the learned single judge. It is well settled that in case the litigant claims that a particular point was taken and not noticed by the court, he cannot be heard to say in appeal that the point was raised. His remedy lies in filing a review petition before the court which had not noticed the point which was allegedly raised before it. (8). In the circumstances, we do not find any merit in the appeal. Accordingly, the same is dismissed. CMS 1934/2004 (9). Since the special appeal is dismissed, the stay application is dismissed as well.