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2017 DIGILAW 312 (ALL)

GAJRAJ SINGH v. STATE OF U. P.

2017-01-23

DILIP GUPTA, SIDDHARTHA VARMA

body2017
JUDGMENT By the Court.—The petitioners have sought the quashing of the notification dated 8 August 2013 that was issued under Section 4(1) of the Land acquisition Act, 1894 (the Act) as also the declaration that was made under Section 6 of the Act on 16 October 2014. The petitioners have also assailed the award made under Section 11 of the Act on 22 October 2016. 2. The notification issued under Section 4(1) of the Act was published in the Gazzette on 17 August 2013 and in the two newspapers on 15 October 2013. Public notice of the substance of the notification was caused on 17 October 2013. The declaration under Section 6 of the Act was published in the Gazette on 16 October 2014 and in the two newspapers on 22 October 2014. Public notice of the declaration made under Section 6 of the Act was caused on 16 October 2014. 3. It needs to be stated that the notification issued under Section 4 (1) of the Act provided opportunity to any person interested in the land to file objections within 21 days. The objections filed by the petitioners and the other tenure holders were rejected and thereafter, the declaration was made under Section 6 of the Act. The award was also subsequently made on 22 October 2016. 4. The sole contention of learned counsel for the petitioners is that Abadi land could not have been acquired and the objections which were filed by the petitioners were wrongly rejected. 5. Learned Standing Counsel appearing for respondent Nos. 1, 3 and 4 and Sri Shivam Yadav, learned counsel appearing for respondent No. 2 have, however, raised a preliminary objection that this petition should not be entertained as it has been filed with inordinate delay. It has also been pointed out that the petitioners had earlier filed Writ C No. 70767 of 2013 to assail the notification issued under Section 4 of the Act. This petition was dismissed on 9 February 2016 as having been rendered infructuous since the declaration under Section 6 of the Act had not been challenged. 6. We have considered the submissions advanced by the learned counsel for the parties. 7. This petition was dismissed on 9 February 2016 as having been rendered infructuous since the declaration under Section 6 of the Act had not been challenged. 6. We have considered the submissions advanced by the learned counsel for the parties. 7. This petition has been filed to challenge the notification issued under Section 4(1) of the Act and the declaration made under Section 6 of the Act after a lapse of almost two years and 3 months and that too after the award was made on 22 October 2016. No satisfactory explanation has been offered for this inordinate delay except stating that after making of the award, possession is now being taken. This cannot be a sufficient ground for explaining the delay as what is basically challenged is the notification issued under Section 4(1) of the Act and the declaration made under Section 6 of the Act. 8. A Constitution Bench of the Supreme Court way back in the year 1974 in Aflatoon and others v. Lt. Governor of Delhi and others, AIR 1974 SC 2077 , examined the consequences of a delayed challenge to the acquisition proceedings and observed that writ petitions filed in the year 1972 seeking to challenge the notification issued under Section 4 of the Land Acquisition Act and the declaration made under Section 6 of the Act in the year 1966 should be dismissed solely on the ground of laches on the part of the petitioners as the petitioners should not be permitted to sit on the fence and allow the Government to complete the acquisition proceedings and then attack the notification on grounds which were available to them at the time when the notification was published as that would be putting a premium on dilatory tactics. 9. This Constitution Bench decision has been repeatedly followed by the Supreme Court in subsequent decisions. 10. In The Ramjas Foundation and others v. Union of India and others, AIR 1993 SC 852 , the notification under Section 4 of the Land Acquisition Act was issued in 1959 and the declaration under Section 6 of the said Act was made in 1969. The writ petitions were filed in the year 1973. 10. In The Ramjas Foundation and others v. Union of India and others, AIR 1993 SC 852 , the notification under Section 4 of the Land Acquisition Act was issued in 1959 and the declaration under Section 6 of the said Act was made in 1969. The writ petitions were filed in the year 1973. After referring to the aforesaid Constitution Bench decision in Aflatoon, the Supreme Court observed as follows : “.........The challenge on the other hand in the writ petition is in respect of notifications under Sections 4 and 6 covering the entire land measuring about 730 bighas situate in village Sadhurakhurd. We find no justification at all in explaining the delay on the ground that no award has been passed nor the appellants have been dispossessed so far. This cannot be an explanation for not challenging the notifications under Sections 4 and 6 of the Act. ............... In the facts and circumstances of the case before us the appellants were also sitting on the fence and did not take any steps of challenging the notifications under Sections 4 and 6 of the Act till 1973 though the grounds now sought to be urged were available to the appellants as soon as such notifications were issued. Thus viewing the matter from any angle we are clearly of the view that the writ petition was also liable to be dismissed on the ground of laches and delay on the part of the appellants apart from other grounds already dealt by us. In the face of the aforesaid view taken by us, it is not necessary at all to go on other questions raised in the case. ........”. The same view was reiterated by the Supreme Court in State of Tamil Nadu and others v. L. Krishnan and others, (1996) 1 SCC 250 , and it was observed : “There is yet another and a very strong factor militating against the writ petitioners. No only did they fail to file any objections in the enquiries held under Section 5-A, they also failed to act soon after the declarations under Section 6 were made. As stated above, the declarations under Section 6 were made in the year 1978 and the present writ petitions were filed only sometime in the year 1982-83 when the awards were about to be passed. As stated above, the declarations under Section 6 were made in the year 1978 and the present writ petitions were filed only sometime in the year 1982-83 when the awards were about to be passed. It has been pointed out in Aflatoon that laches of this nature are fatal. ...........” This was also the view expressed by the Supreme Court in Urban Improvement Trust, Udaipur v. Bheru Lal and others, JT 2002 (7) SC 310. In this case the declaration under Section 6 of the Land Acquisition Act was published in the official gazette on 24 May 1994 but the writ petitions were filed after two years to challenge the acquisition proceedings. The Supreme Court observed that in a case where the land is needed for a public purpose and that too for a scheme framed under the Urban Development Act, the Courts should take care not to entertain writ petition filed with delay as it is likely to not only cause prejudice to the persons for whose benefits the housing scheme is framed but it also has a negative impact on the planned development of the area. 11. In Government of A.P. and others v. Kollutla Obi Reddy and others, (2005) 6 SCC 493 , the Supreme Court again observed that the writ petitions filed after a long passage of time to challenge the acquisition proceedings should not be entertained. 12. The same view has been taken by the Supreme Court in the subsequent judgments rendered in Swaika Properties Ltd. and another v. State of Rajasthan and others, AIR 2008 SC 1494 ; Sawaran Lata and others v. State of Haryana, (2010) 4 SCC 532 and in Banda Development Authority, Banda v. Moti Lal Agarwal and others, (2011) 5 SCC 394 . In Banda Development Authority, Banda, the Supreme Court held : “16. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of BDA and the State Government, the High Court was duty-bound to take cognizance of the long time gap of nine years between the issue of declaration under Section 6(1) and filing of the writ petition, and declined relief to Respondent 1 on the ground that he was guilty of laches because the acquired land had been utilised for implementing the residential scheme and third-party rights had been created. The unexplained delay of about six years between the passing of award and filing of the writ petition was also sufficient for refusing to entertain the prayer made in the writ petition. 17. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self-imposed restraint evolved by the superior Courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallised rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits. ..................... 19. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose. ...................... 26. In the instant case, the acquired land was utilised for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, water and sewer lines, etc. BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, BDA not only incurred huge expenditure but also created third-party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost siix years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to Respondent No. 1.” 13. The Supreme Court has, thus, repeatedly declined to entertain petitions for quashing the acquisition when they have been filed with considerable delay after the publication of the declaration under Section 6 of the Land Acquisition Act. The Supreme Court has, thus, repeatedly declined to entertain petitions for quashing the acquisition when they have been filed with considerable delay after the publication of the declaration under Section 6 of the Land Acquisition Act. In the Constitution Bench decision rendered in Aflatoon delay of six years was considered fatal and in the other cases delays ranging between two years to six years were found sufficient for dismissing the petitions on the ground of laches. 14. The challenge to the acquisition proceedings, therefore, cannot be entertained at this stage. 15. The petition is, accordingly, dismissed. —————