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2014 DIGILAW 452 (PAT)

State of Bihar v. Helios Corporation Limited

2014-04-11

NAVIN SINHA, VIKASH JAIN

body2014
ORDER : NAVIN SINHA, J. The present appeal arises from order dated 15.5.2012 allowing C W J C no. 6749 of 2011. The Learned Single Judge held that preparation of a draft statement under Section 8 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called “the Act") without complying the procedure prescribed under Section 6 (1) or (2) of the Act rendered the entire proceeding null and void. Since possession of the lands had also not been taken before repeal of the Act, the proceedings lapsed under Section 3 (2) (a) of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 (hereinafter called “the Repeal act”) adopted by the Bihar Legislative Assembly on 11.8.2006. 2. Learned AdditioAdvocate General II submitted that the writ application filed in 2011, challenging the final orders passed far back as July, 1999 in Urban land Ceiling case no. 1 of 1998 was grossly barred by unexplained delay and laches. The writ application ought to have been dismissed at the threshold on this ground alone. The draft statement under Section 8 (1) had been sent to the respondent by registered letter no. 326 on 27.6.1998. No objections were filed. The final statement under Section 9 of the Act was also sent to the respondent by registered letter no.2631 dated 13.10.1998. No objections were again filed by the respondent. The notification for acquisition of the lands declared excess under Section 10(1) of the Act was again sent by registered post to the respondent. The respondent then filed objections under Section 10 (1) on 29.12.1998. It was granted personal hearing on 29.1.1999 and was also directed to file written arguments within 3 days which it never did. No objection was taken regarding non-receipt of notice under Section 8(1) or 9 of the Act. No objection was also taken regarding non-compliance with Section 6 of the Act. Orders were then passed on 4.2.1999 under Section 10 (3) of the Act rejecting the objections. As the respondent did not voluntarily hand over possession of the excess lands despite notice, orders were passed under Section 10 (5) of the Act on 5.7.1999 to take forcible possession. Possession was then taken under Section 10 (6) of the Act on 9.7.1999 by the Anchal Adhikari and Jamabandi no. 439 opened in the name of the State. A Signboard was put up on the lands declaring it to be State property. Possession was then taken under Section 10 (6) of the Act on 9.7.1999 by the Anchal Adhikari and Jamabandi no. 439 opened in the name of the State. A Signboard was put up on the lands declaring it to be State property. In the writ petition, the respondent had sought relief for restitution of the lands in question, an acknowledgement by itself for absence of possession by it. The compensation payable was assessed at Rs.90,000/-informed to the respondent on 13.7.1999. The respondent had adequate statutory remedies of Appeal under the Act but never challenged any of the orders. Recourse cannot be had to the extraordinary jurisdiction under Article 226 without any explanation for not availing alternate statutory remedies. Reliance was placed on (2010) 8 SCC 110 (United Bank of India v. Satyawati Tandon). The State government adopted the Repeal Act much later on 11.8.2006. 3. It was next submitted that the respondent held excess lands. It was mandatory for it to file return under Section 6 (1) of the Act after it purchased the lands on 27.4.1996. No return was filed by it. It was not mandatory for the Appellant to issue notice to the respondent under Section 6 (2) (b) of the Act if no return was filed by the respondent. Reliance was placed on 1976 PLJR 134 (Mahabir Prasad v. State of Bihar). The respondent in his objection dated 29.12.1998 took no objection that no notice had been given to him under Section 6 (2) (b) of the Act vitiating the proceeding. 4. Learned Senior Counsel Shri S. A. Narain for the respondent submitted that if it did not file return under Section 6 (1) of the Act, under the non obstante clause in Section 6 (2) (b), “may” has to be read as “shall”, and it was mandatory for the Appellant to issue notice to the respondent under the same. In absence of such notice, the entire proceedings are bad for non-compliance with foundational procedures for initiation of a proceeding. 5. It was submitted that the respondent had denied receipt of any notice under Sections 8, 9 and beyond 10 (1) of the Act. The onus was on the State government to demonstrate valid service of notices. There is contradiction in the orders dated 27.6.1998 and 5.8.1998 with regard to the address at which notice under Section 8(1) was sent. 5. It was submitted that the respondent had denied receipt of any notice under Sections 8, 9 and beyond 10 (1) of the Act. The onus was on the State government to demonstrate valid service of notices. There is contradiction in the orders dated 27.6.1998 and 5.8.1998 with regard to the address at which notice under Section 8(1) was sent. The former mentions Hajipur address and the latter Patna address. 6. The draft statement sent under Section 8(1) of the Act was not accompanied by a statutory notice under Section 8(3) of the Act to reply within thirty days. Section 8 was also therefore not complied with. Even if no objections had been filed, it was still obligatory under Section 8 (4) of the Act to fix a date for hearing and give separate notice of the same. In absence of this procedure, final statement published under Section 9 was invalid. In absence of proof for gazette publication of the notification declaring excess lands to be acquired under Section 10(1) of the Act for information of the general public, and disposal of objections under Section 10(2) of the Act there could not be deemed vesting of the lands in the State government under Section 10(3) of the Act. There had been no gazette publication for deemed vesting of the lands under Section 10(3) of the Act also. No separate notice was given under Section 10 [5] of the Act to hand over possession of the lands within thirty days. There was no evidence to demonstrate taking of physical possession of the lands under Section 10(6) of the Act on 14.7.1999. The possession of the lands at all times has remained and even today is with the respondent. The proceedings therefore lapsed on 11.8.2006 under the Repeal Act after its adoption by the State government relying on 2001 AIR SCW 5128 (Smt. Angoori devi v. State of Uttar Pradesh). Mere creation of Jamabandi does not tantamount to possession. Preparation of a “Panchnama” was a sine qua-non for possession relying on (2009) 10 SCC 501 (Sita Ram Bhandar Society v. Lieutenant Governor), (2010) 13 SCC 158 (Om Prakash Verma v. State of Andhra Pradesh). Mere creation of Jamabandi does not tantamount to possession. Preparation of a “Panchnama” was a sine qua-non for possession relying on (2009) 10 SCC 501 (Sita Ram Bhandar Society v. Lieutenant Governor), (2010) 13 SCC 158 (Om Prakash Verma v. State of Andhra Pradesh). Reliance was further placed on (2012) 4 SCC 158(Vinayak Kashinath Shilkar v. Deputy Collector) and (2013) 4 SCC 280 (State of Uttar Pradesh v. Hari Ram) that deemed vesting under Section 10(3) would not tantamount to actual possession under Section 10(6) of the Act. 7. Compensation has also not been paid to the respondent. An alternate submission was that even if possession is claimed still in absence of compensation paid the proceedings again lapsed on 11.8.2006 under Section 3 and 4 of the Repeal Act after its adoption by the State government. 8. Learned Senior Counsel Sri Narain further submitted that even if the pleadings in the writ application were defective or insufficient it does not absolve the State government from having to strictly comply statutory provisions as other modes of performance are necessarily forbidden. On 27.6.2011, the writ Court had called for the entire records of the Land Ceiling proceeding. Instead, the appellants produced only the order sheet. The appellant was made aware of the proceedings only after receipt of notice under Section 10(1) of the Act. Objections were promptly filed on 29.12.1998. There had been no delay in fact. Non- compliance with statutory provisions including non-payment of compensation, the question of not availing alternate statutory remedies also made delay an irrelevant factor. Reliance was placed on [2013] 1 SCC 353 [:2013 (1) PLJR (SC) 290] (Tukaram Kana Joshi v. Maharashtra Industrial development Corporation). 9. We have considered the submission on behalf of the parties. 10. The preamble of the Act provides for ceiling on vacant lands in urban agglomeration and acquisition of excess lands beyond ceiling limit. The Statement of objects and reasons states the need to exercise social control over urban land and prevent concentration of urban lands in a few hands. 11. Section 6 of the Act, in the relevant extract for the present controversy read as follows: “6. The Statement of objects and reasons states the need to exercise social control over urban land and prevent concentration of urban lands in a few hands. 11. Section 6 of the Act, in the relevant extract for the present controversy read as follows: “6. Persons holding vacant land in excess of ceiling limit to file statement.—(1) Every person holding vacant land in excess of the ceiling limit at the commencement of this Act shall, within such period as may be prescribed, file a statement before the competent authority having jurisdiction specifying the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein, held by him (including the nature of his right, title or interest therein) and also specifying the vacant lands within the ceiling limit which he desires to retain: (2) If the competent authority is of opinion that— (a) in any State to which this Act applies in the first instance, any person held on or after the 17th day of February, 1975 and before the commencement of this Act or holds at such commencement; or (b) in any State which adopts this Act under clause (1) of Article 252 of the constitution, any person holds at the commencement of this Act, vacant land in excess of the ceiling limit, then, notwithstanding anything contained in sub-section (1), it may serve a notice upon such person requiring him to file, within such period as may be specified in the notice, the statement referred to in sub-section (1). (3) The competent authority may, if it is satisfied that it is necessary so to do, extend the date for filing the statement under this section by further period or periods as it may think fit; so, however, that the period or the aggregate of the periods of such extension shall not exceed three months. (c) in the case of a company, by the principal officer thereof; Explanation.—For the purposes of this sub-section, “principal officer”,— (i) in relation to a company, means the secretary, manager or managing-director of the company; 12. Lands measuring a total area of 19,680 square meters were purchased by the respondent Corporation on 27.4.1996 through its Secretary. (c) in the case of a company, by the principal officer thereof; Explanation.—For the purposes of this sub-section, “principal officer”,— (i) in relation to a company, means the secretary, manager or managing-director of the company; 12. Lands measuring a total area of 19,680 square meters were purchased by the respondent Corporation on 27.4.1996 through its Secretary. The respondent Corporation being a juristic person entitled to one unit only admittedly held vacant land in excess of ceiling limit. Section 6(1) of the Act uses the word “shall” making it mandatory for the respondent to file statement within 212 days prescribed under Rule 3 of the Urban Land (Ceiling and Regulation) Rules 1976 (hereinafter called the Rules). Section 38 of the Act made non filing of return by a person an offence punishable with imprisonment which may extend to two years or with fine which may extend to five thousand rupees or with both. Section 39 of the Act made it a punishable offence for a Company not to have filed statement. No defence or explanation has been furnished by the respondent for failure to file statement under Section 6 (1) of the Act except for a bald assertion that it was not obligatory for it to do so. 13. Sub clause (2)(b) of Section 6 provides that if the competent authority is of the opinion that such person holds vacant land in excess of ceiling limit it may serve notice upon the person requiring him to file statement under Section 6(1). The formation of an opinion that the person held excess urban vacant land in excess of ceiling limit in an urban agglomeration is the only condition precedent. Sub clause (2)(b) is not an alternative procedure to Section 6(1) of the Act. To read the words “may” in the sub-clause as “shall” will be doing complete violence to the scheme of the statutory provisions suggesting that it was not obligatory in law for a person holding excess lands to file statement under Section 6(1) till a notice was not given under Section 6(2)(b). The non-obstante clause does not in any manner read down or does away with the mandatory obligation of the landholder to file statement under Section 6 (1) of the Act. It only gives discretion to the State. 14. The respondent offers no explanation for not filing statement of vacant excess lands under Section 6 (1). The non-obstante clause does not in any manner read down or does away with the mandatory obligation of the landholder to file statement under Section 6 (1) of the Act. It only gives discretion to the State. 14. The respondent offers no explanation for not filing statement of vacant excess lands under Section 6 (1). In (2006) 7 SCC 365 (Govt. of A.P. v. M. Krishnaveni) on the failure to file statement under Section 6(1) and its effect it was observed as follows : “23….Admittedly, Smt K. Pramila Rani did not file statement at all before the competent authority in the prescribed form furnishing the details of land held by her as envisaged under Section 6 of the Act and the competent authority was not obliged to prepare draft statement of her share in the land and serve on her to enable her to file objections under Section 8 of the Act. Therefore, Smt K. Pramila Rani could not be allowed to contend that no inquiry under Section 8 of the Act was conducted by the competent authority and that the vestment of her surplus land in the State Government was bad and illegal….” 15. Section 8 provides for preparation of draft statement on basis of the statement filed under Section 6. If the contention of the respondent be accepted, a person may not deliberately file statement under Section 6(1) of the Act despite holding excess vacant lands. The authorities may be of the opinion that he holds excess vacant lands to prepare draft statement under Section 8, yet it shall be mandatory to issue notice under Section 6(2)(b) effectively giving an advantage to the person for his own lapse for failure to file return. The imposition of penalty under Section 38 or 39 for failure to file return would hardly be a deterrent as ultimately, the landowner would have the last word in still retaining the excess lands even after imprisonment and payment of fine. The entire purpose of the Act would stand defeated if the argument advanced be accepted. No prejudice is also caused to the person as he has full opportunity to object under Section 8 and thereafter that he does not hold excess vacant lands. 16. The view taken by us finds support from A.I.R. 1991 Orissa 19 (Sourindra Narayan Bhanja Deo v. Special officer-cum-competent Authority) (DB). No prejudice is also caused to the person as he has full opportunity to object under Section 8 and thereafter that he does not hold excess vacant lands. 16. The view taken by us finds support from A.I.R. 1991 Orissa 19 (Sourindra Narayan Bhanja Deo v. Special officer-cum-competent Authority) (DB). Statement under Section 6(1) had not been filed and no notice had been given under section 6 [2] [b]. It was likewise contended that the only recourse for the authorities was to launch prosecution under Section 38. Adjudication under section 8 in absence of the same was impermissible. Rejecting the submission Hon’ble Mr. Justice Dr. Arijit Pasayat (as his lordships then was) held : “5… If the interpretation as suggested is accepted, then the State may enrich in terms of money, but the avowed object would not be achieved. Prosecution as provided in section 38 may not be always a persuasive factor for submission of a statement. There may be large number of cases where the land owners may find it profitable to avoid filing of statement and preference payment of fine which may be negligible considering the value of the property in board in those particular cases. On payment of fine they shall continue to hold the land in absence of any provision for deprivation thereof under the statute. This is contrary to the very object of the statute as aforestated” 6. The true intention of section 8 appears to be to determine the computable area, and find out surplus area, if any. In our view, section 8 [1] should, therefore be conveniently, read as follows “8. Preparation of draft statement as regards of vacant land held in excess of ceiling limit. (1) on the basis of the statement filed under section 6, and after such inquiry as the competent authority may deem fit to make, the competent authority shall prepare a draft statement in respect of the person who has filed [or was required to file] the statement under section 6” the words of in brackets have been supplied by us to make the section more workable and to be in line and in consonance with the legislative intent. We, therefore, find no substance in the argument raised that it is impermissible to prepare a draft statement in absence of a statement required to be filed under section 6.” 17. We, therefore, find no substance in the argument raised that it is impermissible to prepare a draft statement in absence of a statement required to be filed under section 6.” 17. On 10.6.1997, the authorities opined that the Company as the owner was entitled to exemption of one unit only i.e.1500 square meters of lands and 18,180 meters were to be acquired as excess. The registered office of the Company was described in the sale deed to be situated at Station road, Patna. The draft statement under Section 8 (1) was sent by registered letter no. 326 dated 27.6.1998 at the Hajipur residence of the Secretary of the Company. There was no denial in the writ petition either of the identity or residence of the Secretary. The A/D card was not received. On 5.8.1998, more than 30 days later, the authorities opined deemed service of notice under Order V Rule 19A of the Code of Civil Procedure. Section 114 (e) and (f) of the Indian Evidence Act,1872 provides for certain presumptions of facts with regard to conduct of public business that official acts had been regularly performed and that common course of business had been followed. There shall therefore be a presumption that the draft statement under Section 8(1) was accompanied by the statutory notice under Section 8(3) of the Act. Likewise there shall be a presumption that the registered notice was delivered to the addressee. Both these were rebuttable presumptions. If the respondent wished to deny them, it was required to be specifically pleaded in the objections filed under Section 10(1) of the Act or in the writ petition with necessary prima facie evidence. The respondent did no such thing. 18. The presumption for the correctness of an official act having been duly performed was noticed observing in A.I.R 1966 SC 1931 (Maharaja Pratap Singh Bahadur vs. Thakur Manmohan Dey) : “12….The validity of the said grant was not questioned all these long years. Even in the plaint its validity was not challenged on the ground that the sanction of the Board of Revenue was not given. For the reasons mentioned by us in context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to say the Board of Revenue gave its sanction….” 19. For the reasons mentioned by us in context of Act V of 1859, in our view, this is a fit case where we can reasonably presume that when the lease was granted all the statutory requirements were complied with, that is to say the Board of Revenue gave its sanction….” 19. Such presumption was again noticed in (1964) 3 SCR 1 (P.J.Ratnam v. D.Kanikaram) observing : “6….There would be a presumption of regularity in respect of official and judicial acts and it would be for the party who challenges such regularity to plead and prove his case.” 20. The presumption for delivery of a registered notice sent on the correct address and the onus to rebut being on the addressee was noticed in (2008)13 SCC 689 (Subodh S. Salaskar v. Jayprakash M. Shah) observing :- “22. In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfilment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under: “27. Meaning of service by post.—Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression “serve” or either of the expression “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 23. Thirty days” time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by speed post, ordinarily the service takes place within a few days. Even under Order 5 Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days.” 21. The State government then published the final statement under Section 9 in absence of any objection by the respondent. In a situation of this nature, there was no occasion for the Court to hold that service of notice could not be effected within a period of thirty days.” 21. The State government then published the final statement under Section 9 in absence of any objection by the respondent. It was sent to the respondent by registered letter no.2631 dated 21.8.1998. This fact again finds no denial in the writ petition. 22. It is not the case of the respondent that the registered notice under Section 10(1) of the Act was sent on any different address. At this stage the respondent claims to have received registered notice and filed its objections on 29.12.1998. It contained no denial for non-receipt of notice under Section 6(2)(b), 8 and 9 of the Act. Similarly, neither the objection nor the writ petition contains any assertion that it was not published in the gazette. The gazette publication was signed on 1.12.1998. There shall be a presumption of its publication also unless shown to the contrary. The parties were heard on the objections on 29.1.1999 and the respondent asked to file written arguments. It did not do so. The parties were again heard on 4.2.1999 and orders passed to exclude one unit i.e.1500 square meters under Section 10(2) of the Act. Gazette publication was then done under Section 10(3) that the lands were deemed to have been acquired and vested in the State government. Orders were passed on 2.6.1999 under Section 10 (5) of the Act requiring the respondent to voluntarily hand over possession. The Anchal Adhikari, Danapur by letter no.645 dated 22.6.1999 reported that the respondent had declined to hand over the surplus lands voluntarily. Orders were passed on 7.7.1999 for taking forceful possession. The Anchal Adhikari, Danapur by letter no.784 dated 9.7.1999 reported that possession had been taken and Jamabandi opened. It was ordered on 10.7.1999 that a Board be put up on the lands as government property. The counter affidavit confirms it was done. There is no denial of the fact in the rejoinder to it. 23. The pleadings in the writ application on facts in support of the assertion regarding non-compliance with Statutory procedures was not inadequate but completely wanting to support cause of action. The counter affidavit confirms it was done. There is no denial of the fact in the rejoinder to it. 23. The pleadings in the writ application on facts in support of the assertion regarding non-compliance with Statutory procedures was not inadequate but completely wanting to support cause of action. In (1988) 4 SCC 534 (Bharat Singh v. State of Haryana) it was observed: “13….In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable….” 24. The Act does not provide any procedure for taking possession. Land constitutes immovable property. The mode shall have to be different from taking possession of movable property. The respondent does not deny the letters of the Anchal Adhikari dated 22.6.1999 and 9.7.1999 regarding refusal to voluntarily hand over possession and the forcible taking of possession. The respondent had applied for sanction of building plan upon the lands to the Patna Regional Development Authority on 24.6.1997 numbered as Plan Case no. 503/97. The plan never came to be sanctioned. The respondent gives no explanation regarding pursuation for sanction of the plan. Patently it lost interest because it had lost possession of the lands. The prayer in the writ application filed in 2011 is “to restitute the land in question”. 503/97. The plan never came to be sanctioned. The respondent gives no explanation regarding pursuation for sanction of the plan. Patently it lost interest because it had lost possession of the lands. The prayer in the writ application filed in 2011 is “to restitute the land in question”. Apart from a bald claim of possession nothing has been brought on record by the respondent in support of continued possession and enjoyment of the property. 25. Restitution has been defined in Aiyars’s Judicial Dictionary, 10th edition as “The restoring to the original state. A putting into possession of a person who was unlawfully dispossessed.” The word has been defined in Webstet’s Dictionary as “the returning of something to its original state or condition”. 26. The principle of restitution is defined in Section 144 Code of Civil Procedure as follows : 44. Application for restitution.— (1) Where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order] or such part thereof as has been varied, reversed, set aside or modified]; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order. 27. The respondent in the writ petition sought restitution of possession. It is but an acknowledgement by it that possession had been taken by the State government. There can thus be no doubt in the facts of the case with regard to possession being with the State government. Adverting to the facts of the present case reference may also be made to (1976) 1 SCC 700 (Balwant Narayan Bhagde v. M.D. Bhagwat) in context of the mode for possession. His Lordship Justice N. L. Untwalia observed as follows:: “25….But the question is what is the mode of taking possession? The Act is silent on the point. Adverting to the facts of the present case reference may also be made to (1976) 1 SCC 700 (Balwant Narayan Bhagde v. M.D. Bhagwat) in context of the mode for possession. His Lordship Justice N. L. Untwalia observed as follows:: “25….But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possesssion is not necessary…..” (emphasis by us) 28. Concurring in dismissing the appeal, Justice P. N., Bhagwati and Justice A.C. Gupta observed as follows:- “28. ……..How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession……” 29. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession……” 29. This has been followed in (2005) 12 SCC 489 (P.K.Kalburqi v. State of Karnataka) observing: “6………This view appears to be contrary to the majority decision of this Court in Balwant Narayan Bhagde v. M.D. Bhagwat, wherein this Court observed that how such possession would be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. In the instant case the lands of which possession was sought to be taken were unoccupied, in the sense that there was no crop or structure standing thereon. In such a case only symbolic possession could be taken, and as was pointed out by this Court in the aforesaid decision, such possession would amount to vesting the land in the Government……..” 30. There is no denial by the respondents that a board had not been put up by the authorities on the lands. There were no standing crops on the land. The respondent had adequate statutory remedies under Section 12 and 13 of the Act which it never availed in time. Even resort to Article 226 of the Constitution was also highly belated with no explanation regarding the same. On its own contentions it was made aware of the proceedings when it filed it objections on 29.12.1998 and yet the writ petition was filed in 2013, 14 years later. Compensation had been determined and informed to him. If he chose not to take it he cannot make it a ground of action. The Repeal Act does not provide that the proceeding shall abate if compensation was not paid also. It only provides that if the proceedings abate for lack of possession yet the lands will not be returned till the compensation paid has not been returned. Obviously the person cannot retain both the lands and the compensation. 31. Delay has always been considered an important factor for exercise of discretionary writ jurisdiction. Judicial precedents have not evolved any rigid and fixed yardstick for the purpose. Obviously the person cannot retain both the lands and the compensation. 31. Delay has always been considered an important factor for exercise of discretionary writ jurisdiction. Judicial precedents have not evolved any rigid and fixed yardstick for the purpose. It shall necessarily vary and depend on the facts of a case. Non- accrual of third party rights cannot be a mitigating factor irrespective of all other considerations. The right to ventilate grievances before a Court of law cannot always be sacrificed at the altar of delay. Yet it cannot vest a right to ventilate grievances at leisure by only asserting that it relates to property rights. Valid orders may be sought to be proved as illegal by passage of time due to non-availability of records due to a delayed challenge. Government planning may go awry by belated interference apart from financial repercussions. Considering a claim raised fourteen years later it was observed in (1975) 1 SCC 152 (P.S. Sadasivaswamy v. State of T.N.) : “2. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner’s petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work….” 32. The denial of discretionary relief under Article 226 was considered in (1995) 4 SCC 683 (State of Maharashtra v. Digambar), observing: “14. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.” 33. The judgments relied upon by the respondents regarding deemed vesting of the lands not amounting to actual possession and abatement of proceedings on account of continuous possession have no application to the facts of the present case. 34. In Tukaram Kana Joshi (supra) relied upon by the respondents, lands were acquired in 1964 under the Land Acquisition Act but no compensation was paid. Despite pursuing the matter with the Special land Acquisition Officer and the Revenue authorities no relief forthcoming, the writ petition was filed in 2009. The Supreme Court observed that the question for condonation was largely dependent on the facts of a case. Delay was condoned noticing the special features as set out below which completely distinguish the present case to the converse on its facts : “11….The appellants had asked repeatedly for grant of the benefit of compensation…. 16…. The claimants are illiterate and inarticulate persons, who have been deprived of their fundamental rights by the State, without it resorting to any procedure prescribed by law, without the Court realising that the enrichment of a welfare State, or of its instrumentalities, at the cost of poor farmers is not permissible, particularly when done at the behest of the State itself. The appellants belonged to a class which did not have any other vocation or any business/calling to fall back upon, for the purpose of earning their livelihood. 19. The appellants have been seriously discriminated against qua other persons, whose land was also acquired. Some of them were given the benefits of acquisition, including compensation in the year 1966. This kind of discrimination not only breeds corruption, but also disrespect for governance, as it leads to frustration and to a certain extent, forces persons to take the law into their own hands…..” 35. We are of the considered opinion that the writ application ought not to have been entertained and was required to be dismissed at the very outset on grounds of gross, inordinate and completely unexplained delay. The writ application was essentially speculative in nature reducing litigation to a game of chess. 36. The order under appeal is not sustainable on merits as also on the grounds of delayed challenge. 37. The Appeal is allowed and the writ application is dismissed.