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2023 DIGILAW 2808 (ALL)

Hakim Singh v. State of U. P.

2023-12-13

MAHESH CHANDRA TRIPATHI, PRASHANT KUMAR

body2023
JUDGMENT : Heard Shri M.A. Haseen, learned counsel for the petitioner; Shri Sharad Chandra Upadhyay, learned Standing Counsel for State respondents and Shri Nipun Singh, learned counsel for U.P. Avas Evam Vikas Parishad (in short ''the Parishad''). 2. The instant writ petition has been preferred for a direction to respondents not to dispossess the petitioner from the land in question at Khasra No. 863, 864, 897, 903, 904 situated at Village Kakaraitha, Tehsil Sadar, District Agra, declared surplus vide order dated 18.5.1977 passed under the Urban Land (Ceiling and Regulations) Act, 1976 and record the name of the petitioner after expunging the name of State Government. 3. It transpires from the record that ceiling proceedings were initiated under the Urban Land (Ceiling and Regulation) Act, 1976 (in short ''the Act, 1976'') against the petitioner-Hakim Singh and his brother Mavasia, both sons of Beneram, who were recorded tenure holders of Plot Nos. 863, 864, 897, 903, 904 (total area 8 Beegha 4 Biswa) (in short ''the disputed land''), Village Kakaraitha, Tehsil Sadar, District Agra. The petitioner was recorded tenure holder with bhumidhari rights and was in possession over his holding (half share of the disputed land). A notice under Section 8 (3) of the Act, 1976 was issued to the petitioner by the Prescribed Authority in the year 1977 and the same was also objected. The said objection was rejected by the Prescribed Authority vide order dated 18.5.1977 declaring certain land as surplus. It is claimed that the petitioner had no knowledge of the order dated 18.5.1977 and had never received any notice under Section 9 of the Act, 1976. Therefore, he could not file any appeal against the order dated 18.5.1977. It is also claimed that in the ceiling proceeding 1500 sq. mtr. land was left in favour of the petitioner as per Section 4 (9) of the Act, 1976, upon which the respondents had no right and title and as such the entire impugned action of the respondents is arbitrary and illegal. Though the land in question was declared surplus but no actual and physical possession was taken from the petitioner and the petitioner remained and still in actual and physical possession over the disputed land. It is also claimed that no compensation under Section 11 of the Act, 1976 was given to the petitioner. Though the land in question was declared surplus but no actual and physical possession was taken from the petitioner and the petitioner remained and still in actual and physical possession over the disputed land. It is also claimed that no compensation under Section 11 of the Act, 1976 was given to the petitioner. Although the notification under Section 10 (3) of the Act, 1976 was issued on 27.12.1982 and under Section 10 (5) was issued on 18.9.1986 but as both the notifications were not served upon the petitioner, therefore, actual possession was neither been delivered by the petitioner nor taken by the State Government. No proceeding for taking possession under Section 10 (6) of the Act, 1976 or any other provisions had even been invoked against the disputed land. After the Repeal Act, 1999 no proceeding under Section 10 (6) can be initiated and the State Government cannot dispossess the petitioner after the Repeal Act. Mere publication of notification under Section 10 (3) and 10 (5) of the Act, 1976 is not sufficient, if the actual physical possession has not been taken by the prescribed Authority. 4. It is contended that neither the actual physical possession has been taken by the authorities nor the petitioner has handed over the possession to the State but surprisingly in the month of April, 2017 the officials of the respondent No. 5-Parishad came on the spot and threatened the petitioner for dispossession. When the petitioner enquired about the same, they orally informed that the entire land including the land in dispute (8 Beegha 4 Biswa) was acquired for housing purposes. It is claimed that neither the petitioner had received any notice or information of the acquisition by respondent No. 5-Parishad nor he received any compensation. As such it is submitted that this Court may come for rescue and reprieve of the petitioner. 5. On the matter being taken up on 11.12.2023, the Court has proceeded to pass the following order : ''1. Sri S.C. Upadhyay, learned Standing Counsel has placed detailed instructions indicating therein that for the part of the land, ceiling proceeding under Urban Land (Ceiling and Regulation) Act, 1976 (in short, Act, 1976) was initiated and the possession was taken over by the State Government way back in the year 1980. Sri S.C. Upadhyay, learned Standing Counsel has placed detailed instructions indicating therein that for the part of the land, ceiling proceeding under Urban Land (Ceiling and Regulation) Act, 1976 (in short, Act, 1976) was initiated and the possession was taken over by the State Government way back in the year 1980. For the remaining part, the surplus land was handed over to the Awas Evam Vikas Parishad, which had also initiated the acquisition proceeding under Sections 28 and 32 of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (in short, Act, 1965). It is also claimed that qua the acquisition proceedings, which were drawn under the Act, 1965, the award was also made and adequate compensation was also paid to the tenure holders. 2. Sri S.C. Upadhyay, learned Standing Counsel has raised an objection that at this stage, in view of law laid down by Division Bench of this Court in Writ C No. 38977 of 2022 (Mithai Lal and 11 others v. State of U.P. and 2 others) decided on 16.2.2023, no relief can be accorded and in case in lieu of the award the petitioner has not lifted the compensation, it is open to the petitioner to lift the said compensation but neither any relief can be accorded under the Act of 1976 nor under the Act of 1965 the acquisition proceeding can be challenged at this stage. 3. On the request of learned counsel for the petitioner, the matter is adjourned. 4. Put up this matter as fresh day after tomorrow i.e. 13.12.2023 at 2 PM.'' 6. On the matter being taken up today, Shri Nipun Singh, learned counsel for Parishad, on the instructions, submits that for Sikandara Project, Agra, notification under Section 28 of U.P. Avas Evam Vikas Parishad Act, 1965 (in short ''Act, 1965'') of Khasra No. 863 (2-1-0) 864 (1-17-0), 897 (1-14-0), 903 (1-5-0) and Khasra No. 904 (1-7-0) i.e. Total (8-4-0) of Village Kakretha was issued on 4.4.1970 and notification under Section 32 was issued on 28.6.1980. After the acquisition proceeding, the actual physical possession was taken by the competent authority on 26.7.1983 and the award was declared on 26.8.1985. The compensation was also taken by the petitioner. At present allotment scheme is already completed and even allotment has also been made. The petitioner has not come to the Court with clean hands. After the acquisition proceeding, the actual physical possession was taken by the competent authority on 26.7.1983 and the award was declared on 26.8.1985. The compensation was also taken by the petitioner. At present allotment scheme is already completed and even allotment has also been made. The petitioner has not come to the Court with clean hands. He had transferred his rights to Shri Sobran Singh and Madhu through sale-deed, who have received compensation and as such he has mislead the Court that he has not received the compensation. Learned counsel for Parishad, in this backdrop, submits that after the land was acquired and possession was taken over, the same was vested in the State free from all encumbrances. Later on under the Scheme, allotments were also made. He submits that at this belated stage, the relief as has been sought for, cannot be accorded and the writ petition is liable to be dismissed on the ground of delay and laches. 7. Shri Nipun Singh, learned counsel for Parishad has also contended that at this stage the alleged possession cannot sustain and even the provisions of Section 24 (2) of the Right to Fair Compensation & Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 (in short ''the Act, 2013'') would not apply to the acquisition made under the provisions of Act, 1965. He submits that the said issue is no longer res integra in view of the Division Bench judgment of this Court in Atul Sharma and others v. State of U.P. and others, 2017(10) ADJ 308 (DB)(LB) and Jagbeer Singh and others v. State of U.P. and others, 2017(9) ADJ 350 (DB). The operative portion of the judgment in Atul Sharma and others (Supra) is quoted as under : ''.............The aforesaid observations have been later on reproduced, considered and explained by the Apex Court in at least three decisions which deserve mention, the leading being Ch. Tika Ramji and others etc. v. The State of Uttar Pradesh and others ( AIR 1956 SC 676 ), paragraphs 30 to 39. The second decision is in the case of the State of T.N. and another v. Adhiyaman Educational & Research Institute and others,( 1995 (4) SCC 104 ) paragraphs 15 to 18 and the third decision is in the case of Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme v. Stae of Tamil Nadu and others (1996 Vol. The second decision is in the case of the State of T.N. and another v. Adhiyaman Educational & Research Institute and others,( 1995 (4) SCC 104 ) paragraphs 15 to 18 and the third decision is in the case of Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme v. Stae of Tamil Nadu and others (1996 Vol. 3 SCC 15) paragraphs 19, 20, 23 to 26. There are many more decisions to the same effect and it is not necessary for us to burden this judgment with anything further. The basic principle that can be culled out from a perusal of these judgments is that the test of repugnancy is whether the law made by Parliament and that by the State Legislature occupy the same field and whether the Parliament intended to lay down a exhaustive code in respect of the subject-matter replacing the act of the State Legislature. The non-inclusion of the 1965 Act in the 4th Schedule to the 2013 Act in terms of Section 105 thereof does not necessarily mean that the 2013 Act was extended to be applied in acquisitions under the 1965 Act. The intent of the 2013 Act was to eclipse the anomalies and improve the conditions of payment of compensation to acquisitions made under the Land Acquisition Act, 1894 only. Since the 1894 Act has been repealed, and the 1965 Act continues to exist without any amendment there does not arise any issue of repugnancy or inconsistency. This has to be viewed from another angle. The benefit of deemed lapse is by a fiction under a specific statute. A provision of fiction has to be strictly construed and it cannot be impliedly treated to be incorporated unless the 1965 Act also contemplates any such fiction. It is for this reason that an amendment will have to be expressly brought about in the 1965 Act if the provisions of 2013 Act have to be applied and not otherwise in relation to the procedure of acquisition. A provision of deemed lapse cannot be read into by way of interpretation into 1965 Act without specific amendment therein. The other question is can this be construed the other way around by presuming an implied applicability of the 2013 Act merely because Section 55 of the 1965 Act incorporates the procedure of acquisition under the 1894 Act. A provision of deemed lapse cannot be read into by way of interpretation into 1965 Act without specific amendment therein. The other question is can this be construed the other way around by presuming an implied applicability of the 2013 Act merely because Section 55 of the 1965 Act incorporates the procedure of acquisition under the 1894 Act. We may put on record that the issue of lapse of an acquisition proceeding under Section 11-A of the 1894 Act was specifically held to be not applicable in acquisitions under the 1965 Act in Jainul Islam's case. The same situation exists here where the issue of deemed lapse under Section 24(2) is sought to be introduced and read into the 1965 Act. We cannot accept this proposition inasmuch as Section 55 of the 1965 Act has not been amended so as to include any provision relating to the acquisition resulting in any lapse as contained in the 2013 Act. Thus, such applicability cannot be implied when it has not been incorporated in the 1965 Act. There is yet another reason namely the provisions of 2013 Act as contained in Section 24(2) are not inconsistent with any provision of the State Act that exists from before. Conversely the State Act also does not include any provision that may said to be inconsistent or in conflict with 2013 Act. The non-inclusion of the benefit of the clause of deemed lapse does not make the enactment inconsistent, conflicting or repugnant. To understand this recourse can be had to the provisions quoted herein above in the 2013 Act that clearly provide that the 2013 Act and its provisions are in addition and not in derogation of any law for the time being in force. Consequently the States have been left to enact any law that may provide for any better facilities relating to acquisition over and above that has been provided for in the 2013 Act. This, therefore, also removes the elements of discrimination or arbitrariness. It is open to the State to provide better facility or benefit in matters of acquisition by bringing about any amendment in the 1965 Act. This, therefore, also removes the elements of discrimination or arbitrariness. It is open to the State to provide better facility or benefit in matters of acquisition by bringing about any amendment in the 1965 Act. Coming to the last limb of this argument namely the resultant discrimination in relation to acquisitions having been made prior to 1.1.2014, we may point out that when there is a legislation by incorporation then it is only that part of legislation which stands incorporated and continues to exist and not a new legislation which refers to the proceedings under the old legislation. The reason is what can be incorporated is that which exists. It is for this reason that Section 55 of the 1965 Act incorporated the then existing provisions of 1894 Act. The 1894 Act has now been repealed and is not in existence. Thus, it is only the provisions of 1894 Act that have been incorporated in Section 55 of the 1965 Act that will continue to exist for that purpose only to that limited extent. The same does not within its fold draw the elements of the 2013 Act which has never been intended to be incorporated or included in the 1965 Act or vice-versa. Thus, these are two sets of acquisitions under the different Acts and the question of applying Article 14 to invoke discrimination does not arise. However, there is another shade of this discrimination which has to be avoided keeping in view the ratio of the Jainul Islam's case. To that extent we hold that if any acquisition is made by the authority under the 1965 Act after 1.1.2014 then it's actions or the assessment of compensation cannot be less than what has been contemplated in 2013 Act. The determination of the quantum of compensation, therefore, on principles will have to be applied in relation to acquisitions made by the Awas Vikas Parishad under the 1965 Act after 1.1.2014 as per the 2013 Act. Consequently for all the reasons aforesaid the relief claimed in the writ petition with regard to the lapse of the proceedings cannot be availed of and the petition is accordingly dismissed.'' 8. For ready reference, the operative portion of the judgment in Jagbeer Singh and others (Supra) is quoted as under : ''.........The Fourth Schedule contained in the 2013 Act makes reference to 13 Acts but does not make reference to the Parishad Act. For ready reference, the operative portion of the judgment in Jagbeer Singh and others (Supra) is quoted as under : ''.........The Fourth Schedule contained in the 2013 Act makes reference to 13 Acts but does not make reference to the Parishad Act. This issue was also considered by a Division Bench of this Court in Atul Sharma. It was sought to be contended that Section 24(2) of the 2013 Act would apply to acquisitions made under the Parishad Act. This contention was repelled by the Division Bench holding that the absence of exclusion of the applicability of the 2013 Act would not necessarily mean that the 2013 Act would apply to the acquisitions made under the Parishad Act. The observations of the Division Bench are as follows: ''The non-inclusion of the 1965 Act in the 4th Schedule to the 2013 Act in terms of Section 105 thereof does not necessarily mean that the 2013 Act was extended to be applied in acquisitions under the 1965 Act. The intent of the 2013 Act was to eclipse the anomalies and improve the conditions of payment of compensation to acquisitions made under the Land Acquisition Act, 1894 only. Since the 1894 Act has been repealed, and the 1965 Act continues to exist without any amendment there does not arise any issue of repugnancy or inconsistency. This has to be viewed from another angle. The benefit of deemed lapse is by a fiction under a specific statute. A provision of fiction has to be strictly construed and it cannot be impliedly treated to be incorporated unless the 1965 Act also contemplates any such fiction. It is for this reason that an amendment will have to be expressly brought about in the 1965 Act if the provisions of 2013 Act have to be applied and not otherwise in relation to the procedure of acquisition. A provision of deemed lapse cannot be read into by way of interpretation into 1965 Act without specific amendment therein. It is for this reason that an amendment will have to be expressly brought about in the 1965 Act if the provisions of 2013 Act have to be applied and not otherwise in relation to the procedure of acquisition. A provision of deemed lapse cannot be read into by way of interpretation into 1965 Act without specific amendment therein. In this connection, the Division Bench also observed that since Section 11-A of the Acquisition Act was held not to be applicable to acquisitions made under the Parishad Act, the same position would exist in regard to Section 24(2) of the 2013 Act and the observations are: ''The other question is can this be construed the other way around by presuming an implied applicability of the 2013 Act merely because Section 55 of the 1965 Act incorporates the procedure of acquisition under the 1894 Act. We may put on record that the issue of lapse of an acquisition proceeding under Section 11-A of the 1894 Act was specifically held to be not applicable in acquisitions under the 1965 Act in Jainul Islam's case. The same situation exists here where the issue of deemed lapse under Section 24(2) is sought to be introduced and read into the 1965 Act. We cannot accept this proposition inasmuch as Section 55 of the 1965 Act has not been amended so as to include any provision relating to the acquisition resulting in any lapse as contained in the 2013 Act. Thus, such applicability cannot be implied when it has not been incorporated in the 1965 Act.'' The decisions referred to by the learned counsel for the petitioners relating to lapsing of acquisition under Section 24(2) of the 2013 Act when land was acquired under the provisions of the Acquisition Act would, therefore, not come to the aid of the petitioners. Thus, for all the reasons stated above, it is not possible to accept the contention of the learned counsel for the petitioners that Section 24(2) of the 2013 Act would be applicable to the acquisitions made under the Parishad Act. In the end, learned counsel for the petitioners submitted that though the award was made way back on 30 December 2013, compensation has not been paid to the petitioners who are the subsequent purchaser of the land that was acquired. In the end, learned counsel for the petitioners submitted that though the award was made way back on 30 December 2013, compensation has not been paid to the petitioners who are the subsequent purchaser of the land that was acquired. It is for the petitioners to file an application before the Special Land Acquisition Officer for payment of the compensation and the Court has no reason to doubt that in case such an application is filed, it shall be decided in accordance with law after hearing the parties concerned. The writ petition is, accordingly, dismissed with the aforesaid observations.'' 9. Similar arguments have also been raised by learned Standing Counsel. On the basis of instructions dated 16.11.2023 sent by the Additional District Magistrate (City), Agra, he submits that under the Scheme in question the land in question was acquired. At the time of acquisition, the names of petitioner-Hakim Singh and Mawasia both sons of Baniram were recorded in the revenue record. After acquisition, the possession was transferred on 26.7.1983 and the award was declared on 26.8.1985. The original land owner Mawasia has sold his half portion to Smt. Madhu daughter of Lakhmi Chand and the petitioner Hakim Singh has sold his half portion to Soran Singh son of Ram Dayal. The said Soran Singh had sold his half share to Saudan Singh son of Kuwari. Accordingly, Soran Singh, Saudan Singh and Smt. Madhu had received the compensation of their share/portion. As such the claim of the petitioner that he has not received compensation is absolutely incorrect and unjustified. It is submitted that acquisition proceeding had been completed way back and as such at this belated stage no interference is required in the matter. 10. Heard rival submissions and perused the record, as well as the instructions placed by learned counsel for the respondents. 11. In the present matter two issues are involved for adjudication. The First Issue is ''whether the part of disputed land, which was acquired under the Act, 1965 is valid or not?'' The Second Issue is ''whether the Ceiling Proceeding drawn under the Act, 1976 is sustainable or not?'' First Issue 12. So far as the first issue is concerned, the notification under Section 28 of the Act, 1965 (pari materia Section 4 of the Land Acquisition Act, 1894) of the land viz. So far as the first issue is concerned, the notification under Section 28 of the Act, 1965 (pari materia Section 4 of the Land Acquisition Act, 1894) of the land viz. Khasra No. 863 (2-1-0), 864 (1-17-0), 897 (1-14-0), 903 (1-5-0) and Khasra No. 904 (1-7-0) Total 8-4-0 for planned development was issued on 4.4.1970. Thereafter, the notification under Section 32 of the Act, 1965 (pari materia Section 6 of the Land Acquisition Act, 1894) was issued on 28.6.1980. After the completion of acquisition proceeding, the competent authority had taken over the actual physical possession of the aforesaid land under the Land Acquisition Act, 1894 and, thereafter, the possession of the same was handed over to the Parishad on 26.7.1983. The award of the disputed land (8-4-0) was also made on 26.8.1985. At the time of acquisition, the names of the petitioner-Hakim Singh and his brother Mavasia, both sons of Beneram were recorded in the revenue record. The said Mawasia had sold half portion of his holding to Smt. Madhu daughter of Lakhmi Chand and the petitioner Hakim Singh had also sold his half portion to Soran Singh son of Ram Dayal. Even thereafter, the said Soran Singh had also sold his half share to Saudan Singh son of Kuwari. On the basis of said transfer, Soran Singh had received compensation of Rs. 40,093.50 on 2.9.1985; Saudan Singh received compensation of Rs. 40,093.50 on 2.9.1985 and Smt. Madhu received compensation of Rs. 79,457.30 on 3.9.1985. Therefore, on the basis of instructions, it is claimed that in lieu of the award, the compensation was either lifted by the petitioner, his brother or even by the subsequent purchasers. Therefore, the claim, as has been set up before us, that in lieu of the award the petitioner has not lifted the compensation is factually incorrect. 13. There cannot be any quarrel with respect to the settled legal proposition that the purchase, subsequent to the issuance of notification under Section 28 of the Act, 1965 (pari materia of Section 4 of the Land Acquisition Act, 1894) in relation to such land, is void against the State and at the most, the purchaser may be a person interested in compensation, since he steps into the shoes of the erstwhile owner and may, therefore, merely claim compensation. However, it is also apparent from the record that third party interest had been created and the compensation had also been lifted by the parties. Therefore, at this stage, we are not inclined to dwell with the issue whether the alleged transfer/sale of the disputed land is prior or after the notification under Section 28 of the Act, 1965. Hon'ble the Apex Court in the case of Rajasthan State Industrial Development and Investment Corporation v. Subhash Sindhi Cooperative Housing Society Jaipur and others, AIR 2013 SC 1226 , has observed in Paragraph No. 7 as follows : ''7. There can be no quarrel with respect to the settled legal proposition that a purchaser, subsequent to the issuance of a Section 4 Notification in respect of the land, cannot challenge the acquisition proceedings, and can only claim compensation as the sale transaction in such a situation is void qua the Government. Any such encumbrance created by the owner, or any transfer of the land in question, that is made after the issuance of such a notification, would be deemed to be void and would not be binding on the Government. (Vide: Gian Chand v. Gopala and others, (1995) 2 SCC 528 ; Yadu Nandan Garg v. State of Rajasthan and others, AIR 1996 SC 520 ; Jaipur Development Authority v. Mahavir Housing Coop. Society, Jaipur and others, (1996) 11 SCC 229 ; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others, (1997) 1 SCC 35 ; Meera Sahni v. Lieutenant Governor of Delhi and others, (2008) 9 SCC 177 ; Har Narain (Dead) by Lrs. v. Mam Chand (Dead) by LRs. and others, (2010) 13 SCC 128 ; and V. Chandrasekaran and another v. The Administrative Officer and others, JT 2012 (9) SC 260).'' 14. Hon'ble the Apex Court has also considered the issue 'whether the subsequent purchaser can challenge the acquisition proceeding' in V. Chandrasekaran and another v. The Administrative Officer and others, JT 2012 (9) SC 260 and observed as under : ''Whether subsequent purchaser can challenge the acquisition proceedings: 6. The issue of maintainability of the writ petitions by the person who purchases the land subsequent to a notification being issued Under Section 4 of the Act has been considered by this Court time and again. The issue of maintainability of the writ petitions by the person who purchases the land subsequent to a notification being issued Under Section 4 of the Act has been considered by this Court time and again. In Pandit Leela Ram v. Union of India, AIR 1975 SC 2112 , this Court held that, any one who deals with the land subsequent to a Section 4 notification being issued, does so, at his own peril. In Sneh Prabha v. State of Uttar Pradesh, AIR 1996 SC 540 , this Court held that a Section 4 in notification gives a notice to the public at large that the land in respect to which it has been issued, is needed for a public purpose, and it further points out that there will be ''an impediment to any one to encumber the land acquired thereunder.'' The alienation thereafter does not bind the State or the beneficiary under the acquisition. The purchaser is entitled only to receive compensation. While deciding the said case, reliance was placed on an earlier judgment of this Court in Union of India v. Shri Shiv Kumar Bhargava and others, JT (1995) 6 SC 274. 7. Similarly, in U.P. Jal Nigam v. Kalra Properties Pvt. Ltd., AIR 1996 SC 1170 , this Court held that, purchase of land after publication of a Section 4 notification in relation to such land, is void against the State and at the most, the purchaser may be a person-interested in compensation, since he steps into the shoes of the erstwhile owner and may therefore, merely claim compensation. (See also: Star Wire (India) Ltd. v. State of Haryana and others, (1996) 11 SCC 698 ). 9. In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale-deed executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title.'' 15. In the present matter, admittedly the petitioner has not approached this Court with clean hands. In the present matter, admittedly the petitioner has not approached this Court with clean hands. No averment is made in the writ petition, at what time he has created third party interest in the property in dispute, whereas through the instructions, it is brought into notice to the Court that the compensation was lifted. Considering the aforesaid facts and in the light of the judgments cited above, we find that in lieu of the award the entire compensation has been lifted. Therefore, at this belated stage, any challenge to the proceeding under the Act, 1965 is not available either to the petitioner or to the subsequent purchasers. Second Issue 16. The second issue pertains to the proceedings under the Act, 1976. A notice under Section 8 (3) of the Act, 1976 was issued to the petitioner to which he filed an objection. Even the said objection was rejected by the Prescribed Authority way back on 18.5.1977 declaring the disputed land of the petitioner as surplus. Thereafter, notice under Section 10 (3) of the Act, 1976 was issued on 29.3.1986. Thereafter, notice under Section 10 (5) was issued according 30 days time to the petitioner for handing over possession and admittedly the same was served upon the petitioner on 17.10.1986. Thereafter, the possession was taken over and the name of erstwhile owner was also expunged and the name of the State Government was entered in the revenue record. Therefore, it is absolutely incorrect to say that the petitioner was having no knowledge about the ceiling proceeding as the revenue record is maintained/rectified/modified in every six years known as ''Shat Varshiki Khatauni''. Each and every villager is very particular/conscious regarding entry in the revenue record. The entry in the Khasra and khatauni gives an ample opportunity to the recorded tenure holder or to his/her heirs for correction in the revenue record. Once the name of the State Government was entered in the revenue record, therefore, it cannot be said, at this belated stage, that the petitioner had no knowledge regarding the said proceeding. 17. It is evident from the record that the petitioner has raised the issue of possession and notice under Section 10 (6) of the Ceiling Act after lapse of more than 40 years and there is no explanation for the delay. 17. It is evident from the record that the petitioner has raised the issue of possession and notice under Section 10 (6) of the Ceiling Act after lapse of more than 40 years and there is no explanation for the delay. The said aspect of the matter has been considered in detail in Dehri Rohtas Light Railway v. District Board Bhojpur and others, (1992) 2 SCC 598 , wherein Hon'ble Supreme Court observed in paragraph No. 13 as under : ''The rule which says that the Court may not inquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Trilok Chand (supra) relied on is distinguishable on the facts of the present case. The levy is based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that suit has been rightly dismissed.'' 18. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that suit has been rightly dismissed.'' 18. Similarly, Hon'ble Apex Court has also considered the delay and laches pertaining to ceiling matters in Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5 , wherein the petitioner had approached after considerable delay of ten years after the land was declared surplus and vested in the State Government and the writ petition was summarily dismissed by the High Court and the same was also approved by the Apex Court. Hon'ble Apex Court has also considered the delay and laches in preferring the petition under Article 226 of Constution of India in Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48 and held that the equitable doctrine, namely, ''delay defects equity'' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. 19. The Supreme Court in U.P. Jal Nigam and another v. Jaswant Singh and another, (2006) 11 SCC 464 referred, with approval the law relating to laches, as summarized in Halsbury's Law of England. The relevant extract from the aforesaid judgement is reproduced below : ''12. The statement of law has also been summarized in Halsbury's Laws of England, Para 911, pg. 395 as follows : ''In determining whether there has been such delay as to amount to laches, the chief points to be considered are : (i) acquiescence on the claimant's part; and (ii) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.'' (Emphasis added) 20. In Tukaram Kana Joshi and others v. MIDC and others, (2013) 1 SCC 353 , the Supreme Court observed as follows : ''12. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N., AIR 1974 SC 2271 ; State of M.P. and others v. Nandlal Jaiswal and others, AIR 1987 SC 251 ; and Tridip Kumar Dingal and others v. State of West Bengal and others, (2009) 1 SCC 768 ;) 14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The Court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports and others, AIR 1970 SC 769 ; Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 ; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and others, AIR 1993 SC 802 ; Dayal Singh and others v. Union of India and others, AIR 2003 SC 1140 ; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar and others, AIR 2011 SC 2161 ).'' 21. In State of Assam v. Bhaskar Jyoti Sharma and others, (2015) 5 SCC 321 , it was held by the Apex Court as under : ''16. The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). The issue can be viewed from another angle also. Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis, the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile land owner on 7th December, 1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would, in our opinion, give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure. 17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram's case (supra). That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram's case (supra) considering whether the word 'may' appearing in Section 10(5)gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5)and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of law did not fall for consideration in that case. In our opinion, what Section 10(5)prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma-erstwhile owner had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so. 19. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7th December, 1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked learned counsel for the parties whether they can, upon remand on the analogy of the decision in the case of Gyanaba Dilavarsinh Jadega (supra), adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution.'' (Emphasis added) 22. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution.'' (Emphasis added) 22. The aforesaid judgment of Hon'ble Supreme Court in Bhaskar Jyoti Sharma and others (supra) has been followed by a coordinate Bench of this Court in the case of Shiv Ram Singh v. State of U.P. and others, 2015(7) ADJ 630 , wherein the writ petition was dismissed on the ground of laches with following observations : ''We must also advert to another aspect of the matter particularly having regard to the recent decision of the Supreme Court in Bhaskar Jyoti Sarma (supra). The petitioner moved the first writ petition in 2002 nearly three years after the Repeal Act had come into force. After the earlier writ petition was disposed of by directing the District Magistrate to pass an order on the representation of the petitioner, an order was passed by the District Magistrate on 10 May 2007. The petitioner thereafter waited for a period of over two years until the present writ petition was filed in July 2009. If the petitioner had been dispossessed of the land without due notice under Section 10(5), such a grievance could have been raised at the relevant time. As a matter of fact, it has been the case of the State all along that a notice under Section 10(5) was, in fact, issued in the present case which would be borne out from the original file which has been produced before the Court. The issue is whether such a grievance could be made long after, before the Court. The petitioner had waited for nearly three years after the Repeal Act came into force to file the first writ petition and thereafter for a period of over two years after the disposal of the representation despite the finding of the District Magistrate that possession was taken over on 25 June 1993. In our view, such a belated challenge should not, in any event, be entertained.'' 23. In Kapilaben Ambalal Patel and others v. State of Gujarat, 2021 (12) SCC 95 , the Apex Court has considered the delay and laches in detail and declined to accept the pleas setup by the legal heirs/representatives of the original land holder on the ground of inordinate delay. In Kapilaben Ambalal Patel and others v. State of Gujarat, 2021 (12) SCC 95 , the Apex Court has considered the delay and laches in detail and declined to accept the pleas setup by the legal heirs/representatives of the original land holder on the ground of inordinate delay. Relevant paragraph of the judgement is reproduced herein below : ''Feeling aggrieved, the landowners have approached this Court. It is urged that there is no tittle of evidence to substantiate the fact asserted by the respondent State that physical possession of the land in question has been taken over on 20-3-1986. It was merely a paper-possession in the form of possession panchnama. According to the appellants, de facto possession of the subject land as on the date of the Repeal Act is crucial and entails in abatement of all the actions of the State authorities under the 1976 Act. Mere issuance of notification under Section 10(3) of the 1976 Act regarding deemed vesting of the land in the State is not enough for the purposes of the Repeal Act. Reliance has been placed on Vinayak Kashinath Shilkar v. Collector & Competent Authority, (2012) 4 SCC 718 , State of U.P. v. Hari Ram, (2013) 4 SCC 280 , Gajanan Kamlya Patil v. Additional Collector & Competent Authority (ULC), (2014) 12 SCC 523 and Mangalsen v. State of U.P., (2014) 15 SCC 332 . The consistent view of this Court is that physical possession must be taken by the State authorities, failing which the proceedings shall abate on account of the Repeal Act. The appellants have relied on revenue records to show that the continued possession remained with the appellants/landowners even after the possession panchnama was made on 20-3-1986. The revenue entries have presumptive value and the respondent State had failed to rebut the same. ''Furthermore, in the grounds all that is asserted is that the High Court erred in holding that there was delay of 14 years in filing of writ petition and in not appreciating that the notice under Section 10(5) of the 1976 Act dated 23-1-1986, was not served upon Ambalal Parsottambhai Patel as he had already expired on 31-12-1985 and notice sent to him was returned bacy on 2-2-1986 unserved with remark ''said owner has expired''. Further, the legal heirs of Ambalal Parsottambhai Patel ought to have been served with the said notice.........Be that as it may, we are not inclined to reverse the conclusion recorded by the Division Bench of the High Court that the writ petition filed by the appellants was hopelpessly delayed and suffered from laches. That is a possible view in the facts of the present case.'' 24. Recently, the coordinate Bench of this Court has also considered the Ceiling Act and Repeal Act qua to the subsequent purchaser in Smt. Kalawati Devi v. State of UP and others, 2023(2) ADJ 201 (DB) on the ground that the owner never protested or agitated her dispossession before any authority or Court. In the circumstances, the subsequent purchaser cannot raise challenge to the procedure of dispossession at belated stage on the strength of a sale-deed being void ab-initio. Relevant paragraph Nos. 22, 23 and 24 of the judgement are reproduced herein below : ''22. The question of issuing notice under Section 10(5) to the petitioner after 16 years from the date of notice under Section 10(1) of the Act does not arise. The State had taken possession from the land owner way back in 1981. The subsequent transfer of the land in 1994, followed by mutation of the name of the petitioner, would have no bearing on the right of the petitioner. The transfer of the surplus land by the erstwhile owner, in the eye of law being nullity i.e. void ab-initio would not confer any right or title upon the petitioner. The possession of the petitioner after the proceedings concluding under the Act, upon the State taking possession, would merely be a case of encroachment of State land. The Repeal Act would not come to the assistance of the petitioner, rather, the case of the petitioner would not fall within the ambit and scope of the Repeal Act being subsequent purchaser of the surplus land after notification under Section 10(1)/10(3) of the Act. 23. Having regard to the facts and circumstances of the case, petitioner lacks locus, and any case, the proceedings came to be set up belatedly by the petitioner in 2006 by approaching this Court and filing a petition, being Writ Petition No. 14698 of 2006, which came to be disposed of directing the Collector to take a decision. 23. Having regard to the facts and circumstances of the case, petitioner lacks locus, and any case, the proceedings came to be set up belatedly by the petitioner in 2006 by approaching this Court and filing a petition, being Writ Petition No. 14698 of 2006, which came to be disposed of directing the Collector to take a decision. Pursuant thereof, the impugned order came to be passed on 27.4.2011, whereby, the second respondent after recording the facts arrived at a conclusion that the transfer of the land by the erstwhile owner, declared surplus, vesting in the State, is a void document and does not confer any right and title upon the petitioner. The erstwhile tenure holder (Khelai), had no title or ownership to transfer the land, the petitioner on the strength of alleged possession on State land cannot agitate his dispossession in view of Repeal Act. The surplus land vested with the State upon notification under Section 10(3) followed by dispossession of the erstwhile owner of the land (Khelai) under Section 10(5) way back in 1981. The owner never protested or agitated his dispossession before any authority or Court. In the circumstances, the subsequent buyer (Petitioner) cannot raise challenge to the procedure of dispossession at belated stage on the strength of a sale-deed being void ab-initio. 24. The writ petition being devoid of merit, is accordingly, dismissed.'' 25. It is also well-settled that delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. This Court in Basic Shiksha Parishad U.P. Allahabad and others v. Aditya Kishor and Prabhat Kumar and others, 2013(2) ADJ 607 , has observed in para 13 as under : ''......13. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council v. Pan Singh and others, JT 2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S. Lipton India Ltd. and others v. Union of India and others, JT 1994(6) SC 71 and M.R. Gupta v. Union of India and others, 1995(5) SCC 628 , it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1961 SC 993 , it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa v. Pyari Mohan Samantaray and others, AIR 1976 SC 2617 and State of Orissa and others v. Arun Kumar Patnaik and others, 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass v. Union of India and others, AIR 2007 SC 1330 : 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey v. State of U.P. and others, 2008(4) ESC 2423 . This has been followed in Virender Chaudhary v. Bharat Petroleum Corporation and others, 2009(1) SCC 297 . In S.S. Balu and another v. State of Kerala and others, 2009(2) SCC 479 , the Apex Court held that it is well-settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus v. State of Maharashtra and others, 2009 (3) SCC 281 , the Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc., (1874) 5 PC 239 and held as under: Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. In Yunus v. State of Maharashtra and others, 2009 (3) SCC 281 , the Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc., (1874) 5 PC 239 and held as under: Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material.......Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy....... 26. Considering the facts and circumstances of the case as well as respectfully considering the judgments cited at Bar, we find that in lieu of the award entire compensation has been lifted and even ceiling proceedings were also finalised way back in early 1980s, therefore, at this belated stage, any challenge to the proceedings under the Act, 1965 or the Act, 1976 cannot be accepted. The claim set up by the petitioner is highly time barred and even on merits no case is made out to grant any relief at this belated stage. 27. In view of above, the writ petition sans merit and is accordingly dismissed.