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2018 DIGILAW 422 (ALL)

MAHAVEER v. STATE OF U. P.

2018-02-16

AJIT KUMAR, SUDHIR AGARWAL

body2018
JUDGMENT By the Court.—Heard Sri Saurabh Basu, learned counsel for petitioner, Sri Ramendra Pratap Singh, learned counsel for respondent No. 3 and learned Standing Counsel for respondent Nos. 1 and 2. 2. By means of present writ petition under Article 226 of the Constitution of India, petitioner is seeking quashing of order dated 2.7.2012 passed by first respondent, whereby, representation made by petitioner has been rejected, holding that land has already vested in State pursuant to land acquisition proceedings under Land Acquisition Act, 1894 (hereinafter referred to as ‘Act, 1894’) and therefore, no benefit under Section 48(1) can be given to the petitioner by releasing such land, in his favour. 3. In order to appreciate, it is necessary to refer brief material facts in the case. The basic pleading raised in the writ petition is to the effect that land of plot No. 664 area 0.879 and plot No. 661 area 0.712 hectares situated in Gulistanpur, Greater NOIDA, Gautam Buddh Nagar was subject to the notification for acquisition issued by Government under Act, 1894. The further fact pleaded is that petitioner continued to enjoy possession over the land. The said notification under Section 4/17 and 6/17 came to be challenged before this Court by means of a bunch of writ petitions, led by Writ Petition No. 20156 of 2009. This Court quashed notification leaving it open for respondents to take appropriate action in the matter after complying with the provisions of Section 5-A(1) & (2) of the Act, 1894 and further direction was issued in respect of those tenure holders who not accepted compensation to the effect that in case if, no development has been made out on the land acquired, opportunity is given to petitioner to apply State Government by making proper application for release of their land under Section 48(1) of the Act, 1894. 4. On the basis of aforesaid judgment, petitioner seems to have made a number of representations and thereafter filed Writ Petition No. 65164 of 2011 and got a direction to the effect that his application may be decided. 5. The case pleaded before writ Court was that he has already made an application in compliance of order of this Court under Section 48(1) before appropriate authority but the same has remained pending. 5. The case pleaded before writ Court was that he has already made an application in compliance of order of this Court under Section 48(1) before appropriate authority but the same has remained pending. Thus, without going into the merits of the case of petitioner, this Court vide order dated 17.11.2011 directed competent authority to decide representation of the petitioner. Petitioner thereafter, seems to have made a number of representations, one after another, before competent authority and has annexed all of them alongwith writ petition. The first respondent vide order dated 2.7.2012 has disposed of representations of petitioner holding that petitioner’s land has already been acquired under acquisition proceedings and he has already been paid compensation and, therefore, no benefit could be given to him under Section 48(1) of the Act, 1894. 6. In order to appreciate the arguments being advanced by the petitioner that his representation is wrongly rejected and that he is entitled to the benefit of order of writ Court dated 30.5.2011 passed in bunch of writ petitions, it is necessary to trace out history of litigation by petitioner in connection with acquisition proceedings in the present case. 7. On careful examination of the pleadings raised in this writ petition as well as representation made by petitioner, as has been annexed with the writ petition, we do not find a single sentence that petitioner was ever party to any of the writ petition which were decided in the bunch vide judgment dated 30.5.2011, leading writ petition Smt. Rajni and others v. State of U.P. and others, 2011(6) ADJ 140 (DB). We also do not find any pleading to the effect that possession has not been taken from petitioner and that he continued to enjoy land in question and in effective possession thereof. Thus, there is no specific pleading to the effect that possession of land of petitioner was not taken pursuant to land acquisition proceedings whereas, on the contrary it is an admitted fact that petitioner has already been paid compensation. On repeated query being made from learned counsel for petitioner, as to what right he had to make representations in the matters of statutory acquisition even without questioning acquisition proceedings; and if he had even challenged those proceedings, what order had been passed in his case, learned counsel for petitioner could not make any positive reply. On repeated query being made from learned counsel for petitioner, as to what right he had to make representations in the matters of statutory acquisition even without questioning acquisition proceedings; and if he had even challenged those proceedings, what order had been passed in his case, learned counsel for petitioner could not make any positive reply. All that he pleaded is that there was an order of this Court for deciding representation referring to his application under Section 48(1) dated 20/22.6.2011 and it was duty of the concerned respondents to release land in his favour. 8. However, we are of the considered opinion that a mere representation and order passed for disposal of the same, would not give any lawful right to petitioner to regain land under Section 48(1) unless pre-requisites in invoking provisions for return of land are in existence. 9. We may point out here that even by means of this writ petition, petitioner has not challenged acquisition proceedings, therefore, we are of the clear view that once acquisition proceedings stood completed under Act, 1894 and compensation has been paid, petitioner cannot re-gain land by invoking provisions of Section 48(1) of the Act, 1894. 10. As far as judgment in Smt. Rajni (supra) is concerned, it was specific to petitioners who were party to writ petitions, in Court it provided specific benefit in paras 26 and 27 of judgment which are reproduced herein below: “26. In the result, all the writ petitions are partly allowed. The notification under Section 4/17(1) dated 5.9.2007 and notification under Section 6/17(1) dated 27.2.2008, under the Land Acquisition Act 1894, in respect of those persons who have not accepted compensation, or full compensation, are set aside to the effect that the application of Section 17(1) and (4) with the notification under Section 4, is set aside. The respondents shall be free to take appropriate action after complying with Section 5-A (1) and (2) of the Act. If they feel aggrieved by the fresh exercise undertaken by the State Govern, they shall be free to avail appropriate legal remedy. 27. The respondents shall be free to take appropriate action after complying with Section 5-A (1) and (2) of the Act. If they feel aggrieved by the fresh exercise undertaken by the State Govern, they shall be free to avail appropriate legal remedy. 27. So far as those persons who have accepted the compensation, since no significant development has been made on the land acquired by the State Government for GNOIDA, we give them liberty to apply to the State Government by making appropriate representations, for release of their land under Section 48(1) of the Land Acquisition Act 1894. The State Government will decide their representations, if made within a period of one month, very expeditiously, in accordance with law, without any discrimination. The GNOIDA shall not undertake any development work on the land of such petitioners until their representations are decided.” 11. This is further to be considered that these acquisition proceedings relate to the year 2009 and we are in 2018. In the absence of any challenge to acquisition proceedings by petitioner, merely because a tenure holder is identically placed, cannot be permitted to gain benefit under the judgment if he rises from a long slumber. 12. In a catena of decisions, Supreme Court has held that merely because a person is identically placed, would not get benefit of the judgments passed in respect of similarly placed persons, if he did not approach the Court in time. 13. In the case of Tarun Bharat Sangh, Alwar v. Union of India and others, 1994 Supp (2) SCC 342, while dealing with the issue of petitioner’s claim by opportunity of participating in the Committee in spite of having the knowledge of the proceedings, Court observed that in spite of intimation, if petitioner has kept quite and did not participate in the proceedings before committee, oral assertions cannot be accepted. Court observed that in a situation where claim has remained unestablished because of inaction on the part of petitioner, who remain non vigilant and has been sleeping over his rights, if any, then it is not open for such petitioner to say that he was aware of what have been going on. Court observed that such petitioner, if has not participated in the proceedings at appropriate time, he has to blame himself. 14. Court observed that such petitioner, if has not participated in the proceedings at appropriate time, he has to blame himself. 14. Again in Tridip Kumar Dingal and others v. State of West Bengal and others, (2009) 1 SCC 768 , Court while considering the claim of appointment of the candidate on merit observed “In our opinion, the learned counsel for the State is right in contending that even if this Court holds that the appellants who have approached this Court are entitled to some relief, such relief could be granted to those candidates who had grievance against the selection and who had challenged the action of the respondent authorities but it could not be extended to the applicants who have approached this Court in the present proceedings.” (emphasis added) 15. Reiterating the law that relief should be granted to the persons who were vigilant to their rights, Court dismissed special leave petition of appellants in that case (supra), though issued necessary directions only in respect of those appellants who were vigilant of their rights. 16. It is noticeable that though Limitation Act, 1963 does not apply in writ jurisdiction, however, Courts have repeatedly emphasized that the doctrine of limitation being based on public policy, principles enshrined therein are applicable to the writ petition and Courts have to take notice of limitation which goes to the root of the matter. The unexplained and inordinate delay can be a ground to refuse grant of relief as claimed. 17. Considering the issue whether a case once decided, a similar case, if filed after a inordinate delay, then whether an identical relief can be granted, Court in State of Orissa and another v. Mamta Mohanty, (2011) 3 SCC 436 , has held: “This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See: M/s. Rup Diamonds and others v. Union of India and others, AIR 1989 SC 674 ; State of Karnataka and others v. S.M. Kotrayya and others, (1996) 6 SCC 267 ; and Jagdish Lal and others v. State of Haryana and others, AIR 1997 SC 2366 ).” 18. We may also observe at this stage that the manner, in which relief clause in the present writ petition has been framed, if allowed, it would also amount to nullify the notification of acquisition of 2007, quashing of which has not been prayed for. The pleadings in a case are required to have direct nexus with the relief claimed. Even from the pleadings of present writ petition, we do not find that there is any challenge to the notification at all. In State of Orissa (supra), Court has also considered this aspect of the matter and held: “Pleadings and particulars are required to enable the Court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the Court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that “as a rule relief not founded on the pleadings should not be granted.” Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235 ; Ishwar Dutt v. Land Acquisition Collector and another, AIR 2005 SC 3165 ; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518 .)” 19. Learned counsel for the respondents relied upon a judgment in Mahadeo (dead) through L.R.s and others v. State of U.P. and others, (2013) 4 SCC 524 , in which Court has dealt with the issue of Section 48. Learned counsel for the respondents relied upon a judgment in Mahadeo (dead) through L.R.s and others v. State of U.P. and others, (2013) 4 SCC 524 , in which Court has dealt with the issue of Section 48. Paragraphs 14 and 15 of the judgment are reproduced hereunder: “14. There is no dispute with regard to the settled proposition of law that once the land is acquired and mandatory requirements are complied with including possession having been taken the land vests in the State Government free from all encumbrances. Even if some unutilised land remains, it cannot be re-conveyed or re-assigned to the erstwhile owner by invoking the provisions of the Land Acquisition Act. This Court in the case of Government of A.P. and another v. V. Syed Akbar, AIR 2005 SC 492 , held that : “10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the Land Acquisition Act and the possession of the land had been taken. By virtue of Section 16 of the Land Acquisition Act, the acquired land has vested absolutely in the Government free from all encumbrances. Under Section 48 of the Land Acquisition Act, Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under Section 48, the Government could not withdraw from acquisition or to reconvey the said land to the respondent as the possession of the land had already been taken. The position of law is well-settled. In State of Kerala and others v. M. Bhaskaran Pillai and another, (1997) 5 SCC 432 para 4 of the said judgment reads: (SCC p. 433) “4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value.” 15. In the case of Satendra Prasad Jain and others v. State of U.P. and others, AIR 1993 SC 2517 , a 3-Judge Bench of this Court after considering various provisions including Section 17 of the Act observed as under: “15. Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the land owner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner.” (Emphasis added) 20. A Division Bench of this Court, of which one of us (Sudhir Agarwal, J) was a member, in Babu v. State of U.P. and others, 2008(5) ADJ 171 (DB), has considered the scope and effect of Section 48 of the Act, 1894 and has held that once possession of land has been taken, land, subject to acquisition, cannot be released any further in favour of tenure holders. Para 26 of the judgment reads as under: “26. In the case of Section 48 if the liberty has been granted to the Government to release a land from acquisition before possession is taken, it does not confer any obligation or a duty upon the Government to make an inquiry in the matter even after issuance of a notification under Section 6 to decide as to whether it should exercise its discretion under Section 48 or not. Simultaneously, whether the Government shall avail its liberty under Section 48 or not would not confer a right upon the person whose land has been acquired to insist upon the Government to avail such liberty or not or to act in a particular manner. Any such insistence upon the Government will change the very nature of the exercise which is to be performed by the Government under Section 48 of the Act. Any such insistence upon the Government will change the very nature of the exercise which is to be performed by the Government under Section 48 of the Act. Section 48, in our view, would be attracted when the Government in the facts and circumstances of the case decide to release any land from acquisition but if it does not decide to do so, neither it has any occasion to consider the application of Section 48 in any manner nor it can be forced to exercise its discretion under Section 48 of releasing the land for acquisition. This is a voluntary exercise on the part of Government and it cannot and should not be forced and that too by a rigorous judicial review of an order passed by the Government declining to avail liberty as conferred under Section 48 of the Act.” 21. In view of the above exposition of law, we are of the considered opinion that present petition is nothing but a clear abuse of process of Court. In case where petitioner has simply set up his claim through representation on the basis of the order of this Court in some other writ petition decided at earlier point of time, seeking recourse to provisions of Section 48 of the Act, 1894, such a claim, according to our opinion, is totally misplaced on something which has attained finality under a statute cannot be reopened. Petitioner having not specifically pleaded that he enjoyed the land use as per his wish and was in effective possession thereof and that no actual physical possession was taken by the respondents, cannot make out a case under Section 48 of Act, 1894. 22. Court has seriously reprimanded the conduct of such a litigant who is indulged in abuse of process of Court/law/fraud. Dealing with the issue of abuse of process of Court, Court, in Kishore Samrite v. State of U.P. and others, (2013) 2 SCC 398 , has laid down very broad principle as instances of abuse of process of Court and law. vide para 32 of the judgment, Court has held as under: “32. The cases of abuse of the process of Court and such allied matters have been arising before the Courts consistently. vide para 32 of the judgment, Court has held as under: “32. The cases of abuse of the process of Court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the Court for redressal of any grievance and the consequences of abuse of the process of Court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are: 32.1 Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the Courts with ‘’unclean hands’. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief. 32.2 The people, who approach the Court for relief on an ex parte statement, are under a contract with the Court that they would state the whole case fully and fairly to the Court and where the litigant has broken such faith, the discretion of the Court cannot be exercised in favour of such a litigant. 32.3 The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court. 32.4 Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the Court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. 32.5 A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final. 32.6 The Court must ensure that its process is not abused and in order to prevent abuse of the process the Court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs. 32.7 Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. 32.7 Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants. 32.8 The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of Court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.” 23. As we have already held that the representation and entire proceedings raised by the petitioner by means of this writ petition are clear abuse of process of Court and law, we have no hesitation to dismiss this writ petition with exemplary cost which we assess to Rs. 50,000/-. We order accordingly.