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2015 DIGILAW 205 (ALL)

BAJJI v. STATE OF U. P.

2015-02-02

KRISHNA MURARI, SHASHI KANT

body2015
JUDGMENT Hon’ble Krishna Murari, J.—Heard learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1 to 3 and Shri Ramendra Pratap Singh appearing for respondent No. 4. By means of this petition, petitioner has prayed for following reliefs: “1. issue a writ, order or direction in the nature of certiorari quashing the impugned Notification No. 181/Bhau-18-11-74 Bha. 93 Lucknow, dated 5.5.1993, under Section 4 of Land Acquisition Act and impugned Notification No. 2747 Bhau/18-11-74 Bha. 93, dated 25.5.1993, under Section 6 of the Land Acquisition Act 1894, in respect of petitioner’s land comprising of the Plot No. 114, area 0-1-5, Plot No. 166, area 1-8-0, Plot No. 167 area 1-8-0, plot No. 168 area 1-1-0, Plot No. 169 area 0-13-0 mentioned in the extract of khatauni of revenue village Brahmpur Gajraula, Pargana and Tehsil Dadari District Gautam Budh Nagar (Annexure 1 and 2 to the writ petition). 2. issue a writ, order or direction in the nature of mandamus directing the respondents concerned to give additional compensation at the rate of 64% and or avail of allotment of developed abadi land to the extend of 10% subject to a maximum in the light of directions issued by this Hon’ble Court in the case of Gajraj Singh and others v. State of U.P. and others, 2011 (11) ADJ 1 , till the disposal of the present writ petition, so that justice may be done. 3. issue any suitable order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case., so that justice may be done. 4. award the cost of the writ petition.” 2. Shri Ramendra Pratap Singh, learned counsel for the respondents has raised a preliminary objection regarding the maintainability of the writ petition. He submits that the writ petition has been filed after more than 22 years from the date of declaration issued under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and it is highly bared by laches. He submits that even the Full Bench judgment in Gajraj Singh and others v. State of U.P. and others, 2011 (11) ADJ 1 , was delivered on 21.10.2011, and more than 3 years have elapsed from the judgment of the Full Bench in Gajraj’s case (supra), which decided the bunch of writ petitions including the writ petition relating to Village Habibpur. In the entire writ petition, the petitioners, in any paragraph, have not given any explanation for delay and laches in approaching this Court. 3. However, placing reliance on the Full Bench judgment of this Court in the case of Gajraj (supra), it has been urged by learned counsel for the petitioner that relief prayed is liable to be granted in view of the said judgment. 4. Full Bench in the case of Gajraj (supra) has not entertained the petitions barred by delay and laches in a general manner without examining specific cases. It may be relevant to quote following from the report. “We, however, cannot loose sight of the fact that the above grounds taken are not applicable to those writ petitioners, where the acquisition was finalised decades ago and allotment of private builders and colonisers which were complained of were not applicable in the aforesaid cases. We, now proceed to refer to cases in which there are inordinate delay and the aforesaid ground pleaded are not applicable to them. These petitions with inordinate delay relate to Noida. There are two writ petitions of Village Nithari namely; Writ Petition No. 45933/2011, Ravindra Sharma and another v. State of U.P. and others, 47545/2011, Babu Ram and others v. State of U.P. and others. These two writ petitions have been filed in the year 2011, where as the notification under Section 4 was issued on 1.6.1976 and declaration under Section 6 was issued on 16.9.1976. The possession was taken by the respondents on 28.10.1976 and the award was also declared on 15.7.1978. The writ petitions have been filed after more than 2 decades. There are no grounds in the writ petitions to entertain such highly barred writ petitions in exercise of writ jurisdiction. Both these writ petitions deserve to be dismissed on the ground of laches alone.” 5. Thereafter, the Full Bench after analysing the individual cases, dismissed the petitions, which were filed with inordinate delay and laches. Thus, the Full Bench decision in the case of Gajraj (supra) does not lay down an absolute proposition that despite laches and delay, the petitions are to be entertained. 6. The same view has been taken by the Hon’ble Apex Court in catena of decisions. Reference may be made to the following pronouncements. 7. Thus, the Full Bench decision in the case of Gajraj (supra) does not lay down an absolute proposition that despite laches and delay, the petitions are to be entertained. 6. The same view has been taken by the Hon’ble Apex Court in catena of decisions. Reference may be made to the following pronouncements. 7. Om Prakash and another v. State of U.P. and others, (1998) 6 SCC 1 , wherein it has been observed in paragraph 30 as under. “30. It is also to be kept in view that the impugned notification under Section 6 of the Act was issued for the purpose of planned development of District Ghaziabad through NOIDA and by the said notification, 496 acres of land spread over hundreds of plot numbers have ben acquired. Out of 494.26 acres of land under acquisition, only the present appellants owning about 50 acres, making a grievance about acquisition of their lands have gone to the Court. Thus, almost 9/10th of the acquired lands have stood validly acquired under the land acquisition proceedings and only dispute centers round 1/10th of these acquired lands owned by the present appellants. It is a comprehensive project for the further planned development in the district. We are informed by learned senior counsel Shri Mohta for NOIDA, that a lot of construction work has ben done on the undisputed land under acquisition and pipelines and other infrastructure have been put up. That the disputed lands belonging to the appellants may have stray complex of lands sought to be acquired. That if notification under Section 4(1) read with Section 17 (4) is set aside qua these pockets of lands then the entire development activity in the complex will come to a grinding halt and that would not be in the interest of anyone. ........................... That we cannot permit upsetting the entire apple cart of acquisition of 500 acres only at the behest of 1/10th of land owners whose lands are sought to be acquired. We may also keep in view the further alien fact that all the appellants have filed reference for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned senior counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time barred during the pendency of these proceedings. We may also keep in view the further alien fact that all the appellants have filed reference for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned senior counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time barred during the pendency of these proceedings. Therefore, without prejudice to their contentions in the present proceedings they have filed such references. Be that as it may., that shows that an award is also made and reference are pending. Under these circumstances for enabling the appellants to have their say regarding release of their lands on the ground that they are having abadi and that the State Policy helps them in this connection the appellants can be permitted to have their grievances voiced before the State authorities under Section 48 rather than under Section 5-A of the Act at such a late stage. Consequently, despite our finding in favour of the appellants on Point No. 1, we do not think that this is a fit case to set aside the acquisition proceedings on the plea of the appellants about non-compliance with Section 5-A at this late stage. it is also obvious that if on this point the notifications are quashed for non-compliance of Section 5-A, that would open a pandora’s box and those occupants who are uptill now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities. All these complications are required to be avoided and hence while considering the question of exercise of our discretionary jurisdiction under Article 136 of the Constitution of India, we do not think that this is a fit case for interference in the present proceedings with the impugned notifications. Point No. 3, therefore, is answered in the affirmative against the appellants and in favour of the respondents.” 8. In the case of Tika Ram and others v. State of U.P. and others, (2009) 10 SCC 689 , the Court was faced with a situation where invocation of Section 5A of the Act, 1894 was held not to be justified. The Court thereafter proceeded to consider as to whether the notification deserves to be quashed or not. Following was laid down in paragraph 116 : “116. The Court thereafter proceeded to consider as to whether the notification deserves to be quashed or not. Following was laid down in paragraph 116 : “116. In a reported decision in Kishan Das and others v. State of U.P. and others, this Court has taken a view that where the acquisition has been completed by taking the possession of the land under acquisition and the constructions have been made and completed, the question of urgency and the exercise of power under Section 17(4) would not arise. We must notice that acquisitions in this case are of 1984-1985 and two decades have passed thereafter. The whole township has come up, the houses and the lands have been allotted, sold and re-sold, awards have been passed and overwhelming majority of land owners have also accepted the compensation, this includes even some of the appellants. In such circumstances we do not think that the High Court was in any way wrong in not interfering with the exercise of power under Section 17 (4) of the Act. At any rate, after the considered findings on the factual questions recorded by the High Court, we would not go into that question.” 9. In the case of Anand Singh and another v. State of U.P. and others, (2010) 11 SCC 242 , appeal was filed against the judgment of the High Court dismissing the writ petitions filed by land holders. One of the submission made before the High Court and the Apex Court was that the State Government wrongly exercised its power under Section 17(4) in dispensing with the inquiry. The Apex Court after considering all relevant cases came to the conclusion that the dispensation of inquiry under Section 5A was unsustainable. The Apex Court after taking the view that notification in so far as the dispensation of inquiry under Section 5A, was unsustainable, proceeded to consider as to whether acquisition proceedings were liable to be declared invalid and illegal. The Apex Court noticing the submission of the Gorakhpur Development Authority, which had invested huge amount in the development, did not grant relief to the petitioners for quashing the acquisition/notification. Following was laid down in paragraphs 55 and 56 which are reproduced hereunder : “55. In the facts and circumstances of the present case, therefore, the Government has completely failed to justify the dispensation of an enquiry under Section 5A by invoking Section 17(4). Following was laid down in paragraphs 55 and 56 which are reproduced hereunder : “55. In the facts and circumstances of the present case, therefore, the Government has completely failed to justify the dispensation of an enquiry under Section 5A by invoking Section 17(4). For this reason, the impugned notifications to the extent they state that Section 5A shall not apply suffer from legal infirmity. The question, then, arises whether at this distance of time, the acquisition proceedings must be declared invalid and illegal. 56. In the written submissions of the GDA, it is stated that subsequent to the declaration made under Section 6 of the Act in the month of December, 2004, award has been made and out of the 400 land owners more than 370 have already received compensation. It is also stated that out of the total cost of Rs. 8,85,14,000/- for development of the acquired land, an amount of Rs. 5,28,00,000/- has already been spent by the GDA and more than 60% of work has been completed. It, thus, seems that barring the appellants and few others all other tenure holders/land owners have accepted the ‘takings’ of their land. It is too late in the day to undo what has already been done. We are of the opinion, therefore, that in the peculiar facts and circumstances of the case, the appellants are not entitled to any relief although dispensation of enquiry under Section 5A was not justified.” 10. Reference may also be made to the judgment of the Hon’ble Apex Court rendered in the case of Shankara Cooperative Housing Society Ltd. v. M. Prabhakar and others, (2011) 5 SCC 607 laying down principles for granting or refusing relief on the ground of delay and laches. In paragraphs 54 and 68 of the reports, it was held as under. “54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well-settled. They are: (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. They are: (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay. 68. The other factor the High Court should have taken into consideration that during the period of delay, interest has accrued in favour of the third party and the condonatoin of unexplained delay would affect the rights of third parties. We are also of the view that reliance placed by Shri Ranjit Kumar on certain observations made by this Court would not assist him in the facts and circumstances of this case. While concluding on this issue, it would be useful to refer the observations made by the Court in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig, wherein it is stated that: ‘delay defeats equity and that the discretionary relief of condonation can be had, provided one has not given by his conduct, given a go by to his rights’.” 11. The Apex Court in Swaika Properties (P) Ltd. and another v. State of Rajasthan and others, (2008) 4 SCC 695 , has held that writ petition challenging the land acquisition proceedings with delay and laches be not entertained. The Apex Court in Swaika Properties (P) Ltd. and another v. State of Rajasthan and others, (2008) 4 SCC 695 , has held that writ petition challenging the land acquisition proceedings with delay and laches be not entertained. The Apex Court in Aflatoon and others v. Lt. Governor of Delhi and others, (1975) 4 SCC 285 , has laid down following in paragraph 11 of the reports: “11. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (see Tilokchand Motichand v. H.B. Munshi and Rabindranath Bose v. Union of India).” 12. Coming to the facts of the case in hand, notification under Section 4 of the Act was published in official gazette on 5.5.1993 and declaration under Section 6 of the Act on 25.6.1993. Total area of land acquired was 136 bigha, 8 biswa, 19 biswansi. The purpose of acquisition was planned industrial development in district Ghaziabad through Greater Noida Industrial Development Authority. Enquiry under Section 5-A was dispensed invoking provisions of Section 17 (4) of the Act. Award was made and published on 16.12.1996. Possession of the land acquired has admittedly been taken. 13. In identical circumstance, the Hon’ble Apex Court in the case of Municipal Corpn. Of Greater Bombay v. Industrial Development Investment Co. (P) Ltd., (1996) 11 SCC 501 , upheld the judgment of the High Court dismissing the writ petition filed by land holders on the ground of delay and laches. Hon’ble Mr. Justice K. Ramaswamy speaking for the Bench, observed as under. “29. Of Greater Bombay v. Industrial Development Investment Co. (P) Ltd., (1996) 11 SCC 501 , upheld the judgment of the High Court dismissing the writ petition filed by land holders on the ground of delay and laches. Hon’ble Mr. Justice K. Ramaswamy speaking for the Bench, observed as under. “29. 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.” In the concurring judgment, Hon’ble S.B. Majmudar, J. held as under : “35 ..... Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent conduct. The Division Bench of the High Court had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State Government for being handed over to the Corporation. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches.” 14. Similarly, in the case of State of Rajasthan and others v. D.R. Laxmi and others, (1996) 6 SCC 445 , it was held : “9. ... 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.” 15. To the similar effect is the judgment of Hon’ble Apex Court in Municipal Council, Ahmednagar and another v. Shah Hyder Beig and others, (2000) 2 SCC 48 , it was held as under: “In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by Hon’ble Apex Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Government of T.N., (1997) 2 SCC 627 )”. 16. In a more recent decision in the case of Swaika Properties (P) Ltd. and another v. State of Rajasthan and others, (2008) 4 SCC 695 , while dismissing the challenge to land acquisition proceedings made after possession was taken and award was made in Hon’ble Apex Court held as under. 16. In a more recent decision in the case of Swaika Properties (P) Ltd. and another v. State of Rajasthan and others, (2008) 4 SCC 695 , while dismissing the challenge to land acquisition proceedings made after possession was taken and award was made in Hon’ble Apex Court held as under. “In the present case also, the writ petition having been filed after taking over the possession and the award having become final, the same deserves to be dismissed on the ground of delay and laches. Accordingly, the order of the learned Single Judge and that of the Division Bench are affirmed to the extent of dismissal of the writ petition and the special appeal without going into the merits thereof. This appeal also deserves to be dismissed without going into the merits of the case and is dismissed as such. No costs.” 17. Dispute in the present case is confined only to Plot Nos. 114, area 0-1-5, Plot No. 166, area 1-8-0, Plot No. 167, area 1-8-0, plot No. 168 area 1-1-0 and Plot No. 169 area 0-13-0 belonging to the petitioner. Thus, the dispute is confined only in respect of a very small fraction of total land under acquisition. It is not disputed or denied that after acquisition, land was transferred by the Greater NOIDA to certain private builders and a lot of development work has been undertaken bringing about a substantial change in the nature of the land. 18. The acquisition proceedings have been challenged by the petitioner after about two decades. The submissions as made and the aspects or suggested by learned counsel for the petitioner hardly gives any reasonable and satisfactory explanation for gross and inordinate delay in filing the petition. 19. In challenge to land acquisition proceedings, delay plays an important role. Petitioner cannot be allowed to sit on the fence and wait for completion of the land acquisition proceedings and thereafter approach the Court. 20. In view of the facts and discussions made above, the writ petition is liable to be dismissed on the ground of delay and laches and the same, accordingly, stands dismissed. 21. However, there shall be no order as to costs. ——————