Hon'ble Ashok Bhushan, J.
Hon'ble Mrs. Ranjana Pandya, J.
1. We have heard Sri Vishnu Sahai learned counsel for the petitioners and Sri Ram Krishna learned Chief Standing Counsel appearing on behalf of the State.
2. This writ petition alongwith First Appeal No. 880 of 1993 and First Appeal No. 401 of 1998 were nominated to this Bench by order dated 19.02.2014 passed by the Hon'ble Senior Judge.
3. After change of roster, the matter was taken up by another Bench of this Court on 10.04.2014
4. Under the order dated 18.04.2014 passed by Hon'ble the Chief Justice, this writ petition alongwith First Appeal No. 880 of 1993, Jasvir Singh v. Land Acquisition Officer, Rampur and First Appeal No. 401 of 1998 Kuljeet Singh v. Land Acquisition Officer, Rampur, have been heard together.
5. Counter and rejoinder affidavits have been exchanged between the parties in the present writ petition. With the consent of the parties, this writ petition is being finally decided by the present order. The First Appeal No. 880 of 1993 and First Appeal No. 401 of 1998 are also being decided by separate order of the date.
6. The facts giving rise to the present writ petition in chronological order are necessary to be noted for deciding the writ petition.
7. The petitioners are the owners of Plot No. 120/240 (Village Dibdiba, Tehsil Bilaspur, District Rampur).
8. A notification under Section 4 of the Land Acquisition Act 1894 (hereinafter referred to as the Land Acquisition Act) was issued dated 18.08.1981 for acquisition of Plot No. 120 an area of 7 acres. The urgency clause under Section 17(1) and Section 17(4) was invoked dispensing enquiry under Section 5-A of the Land Acquisition Act. The acquisition was made for the purpose “for the construction of New Broad Gauge Railway Line between Rampur and Halduwani” in the District-Rampur.
9. A simultaneous declaration under Section 6 of the Land Acquisition Act was issued dated 18.08.1991 for acquisition of the aforesaid plot alongwith two other plots. The declaration under Section 6 of the Land Acquisition Act was published in the U.P Gazette dated 14th November, 1981. A notice under Section 9 of the Land Acquisition Act was issued asking the petitioners to appear before the District Land Acquisition Officer on the 25 of August, 1982 regarding their claim in respect of the land and compensation.
10. The petitioners appeared before the District Land Acquisition Officer and filed objection dated 25.08.1982 The petitioners in their objections claimed that they may be awarded @ Rs. 50,000/- per acre as compensation for their land. They further claimed compensation for crops and trees which was available on the land at the time of collector's taking possession. The possession of land including Plot No. 120 was taken by the collector on 19.09.1986 (taking of possession by the collector on 19.09.1986 is an admitted fact).
11. The District Land Acquisition Officer gave his award under Section 11 of the Land Acquisition Act dated 22.09.1986 The District Land Acquisition Officer in his award has fixed the rate of compensation @ Rs. 12,000/- per acre alongwith 12% interest from the date of publication of notice under Sections 4, i.e, dated 14.11.1981 up to the date of taking possession, i.e, on 19.09.1986 With regard to crop tube-well and trees, it was mentioned in the award that a report has been called for and after valuation, the award would be declared separately.
12. Petitioners being dis-satisfied by the determination of compensation by award dated 22.09.1986, made a request to the District Land Acquisition Officer to make a reference under Section 18 of the Land Acquisition Act. The reference under Section 18 of the Land Acquisition Act was made by the District Land Acquisition Officer to the Court of District Judge, Rampur. On the application submitted by the petitioner no. 1, Reference No. 21 of 1987 Jasvir Singh v. Land Acquisition Officer was registered and on the application submitted by petitioners no. 2 and 3, namely, Kuljeet Singh and Lakhvir Singh, Reference No. 27 of 1987 was registered. The District Judge, Rampur vide his judgement and order dated 07.12.1988 had decided both the references. The District Judge, Rampur held that both the claimants are entitled for compensation @ Rs. 17,000/- per acre with 15% interest from the date of notification to the date of taking possession to be awarded with 30% solatium.
13. Against the judgement and order of the District Judge, Rampur dated 07.12.1988 passed in Land Acquisition References No. 21 of 1987 and Land Acquisition Reference No. 27 of 1987, the petitioner no. 1, Jasvir Singh filed First Appeal No. 880 of 1993 in this Court and the petitioners no. 2 and 3 filed First Appeal No. 401 of 1998. Both the aforesaid first appeals were decided by the High Court vide judgement and order dated 29.01.2004 The High Court modified the judgement and order of the District Court dated 07.12.1988 providing that the award @ 17,000/- per acre shall stand modified @ Rs. 30,000/- per acre.
14. Against the above judgement and order dated 29.01.2004 of learned Single Judge, petitioner no. 1 as well as petitioners no. 2 and 3 filed Special Leave Petition in the Apex Court. Both the appeals (Civil Appeal NO. 5714-15 of 2005, Jasvir Singh v. Land Acquisition Officer) were decided by the Apex Court vide judgement and order dated 12.09.2005 The order of the Apex Court was to the following effect:
“Leave Granted.
Learned counsel for the appellants submits that apart from the fact that he is aggrieved by the compensation as has been awarded by the High Court, the High Court has failed to award interest under Sec.23(1A) of the Land Acquisition Act. It is further submitted that other statutory benefits like solatium have not been awarded to the appellants. Secondly, it is submitted that there is no basis for arriving at the figure of Rs. 30.000/- per acre. Learned counsel appearing for the respondents is unable to dispute any of these averments made on behalf of the appellants. Accordingly, the impugned judgement of the High Court is set aside and the matter is remanded back to the High Court for decision afresh on merits and in accordance with law. Since the matter is quite old, the High Court will take steps to dispose of the matter expeditiously.
The appeals are disposed of.”
15. After the Apex Court remanded the matter vide its order dated 12.09.2005 to the High Court for taking decision in the first appeals afresh for determination of compensation in accordance with Section 23(1A) of the Act, the petitioners filed the present writ petition in this Court on 19.12.2005 The petitioners by this writ petition had prayed for the following relief:
“(a) Issue a writ, order or direction in the nature of mandamus commanding the respondents to issue fresh notification under sections 4, 6 and 17(1) of the Act after setting aside notification Nos. 2387-81/23 P.W-9-1(3)/R-81 and 2307-81/23 P.W-9-1 (3)/R-81 (Annexure Nos. 1 and 2 to the writ petition) under section 4 and 6 of the Act dated 18.08.1981 respectively. (aa) Issue a writ order or direction in the nature of mandamus commanding the respondent no. 3 to determined market value of the acquired land with reference to the date of final/complete award.
(aaa) Issue a writ, order or direction, declaring the petitioners of their acquired land, determining the market value thereof, with reference to the date of valid/fresh notification or date of valid and complete award of the land and not with reference to the illegal and lapsed notification U/S-4(1) of the Act.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay mean profit and damages alongwith interest thereon after making adjustment of alleged award made to the petitioners from the date of possession i.e 19.09.1986 till the date of issuance of fresh notification.
(c) Issue any order writ, order or direction as this Hon'ble Court may be deed fit and proper tin the facts and circumstances of the case; and
(d) Award the costs of the writ petition in favour of the petitioners.”
16. The writ petition was decided by a Division Bench of this Court on 03.12.2010 The Division Bench had issued the following directions vide its judgement dated 03.12.2010:-
“We thus direct the State Government to determine the compensation by way of negotiation under Section 11(2) of Land Acquisition Act either on the basis of agreed rate or market rate as provided by the Division Bench of Uttranchal High Court presided over by Hon'ble P.C Verma, J., in Bhupendra Singh v. Awas Vikas Parishad, reported in 2005 (2) UD UP 2951 and make payment of due compensation to the petitioners within a period of six months from the date of this judgement positively.”
17. The State filed Special Leave Petition against the judgement of Division Bench of this Court dated 03.12.2010 passed in the writ petition before the Apex Court. The Apex Court vide judgement and order dated 16.10.2013 passed in Civil Appeal NO. 7535 of 2012 has set aside the judgement and order of this Court dated 03.12.2010 The order was passed by the Apex Court on 16.10.2012 in Civil Appeal No. 7535 of 2012 (Arising out of SLP (Civil) No. 7809 of 2011), State of U.P v. Jasveer Singh. Following is the order which was passed by Hon'ble Apex Court on 16.10.2012:
“Leave granted.
We have heard Ms. Shobha Dikshit, learned senior counsel appearing for the appellants and Mr. P.S Patwalia and Sri C. L. Pandey, learned senior counsel appearing for the respondents.
After considering the pros and cons, without entering into serious controversies and making any comment on the merit of the case, we are of the considered opinion that in view of the judgement and order of this Court dated 26 November, 2010, which was passed in presence of the counsel for both the parties, the High Court ought not to have heard the matter at all. Thus, the judgement and order impugned before us has lost its sanctity.
Therefore, the same is hereby set aside.
However, in order to meet the ends of justice, we remand the case to the High Court to hear the writ petition afresh expeditiously preferably within a period of six months from the date of production of the certified copy of the order before the Hon'ble Chief Justice. The matter may be assigned to any particular Bench by the Hon'ble Chief Justice for final disposal. The parties shall be at liberty to raise all factual and legal issues involved in the case. The High Court is requested to deal with the relevant issues in detail.
More so, if the respondents are so aggrieved regarding withdrawal of their appeals, which had been remanded by this Court for determining the entitlement of interest under Section 23-(1A) of the Land Acquisition Act, 1984 and an application is made by the respondent to revive the same, the High Court may consider and decide the said application in accordance with Law. All the matters shall be heard simultaneously by the same Bench if the appeals are restored.
With the above directions, the appeal stands disposed of.”
18. After the above order of the Apex Court, the writ petition revived and has been heard.
19. A counter affidavit has been filed by respondents no. 1, 2 and 3 in the writ petition on 29.02.2008 in which it was stated that the First Appeal No. 880 of 1993 and First Appeal NO. 401 of 1998 had already been filed by the claimants which are pending consideration after remand by the Supreme Court's order dated 12.09.2005 It was pleaded in the counter affidavit that the filing of writ petition is misconceived and after receiving the payment under the award, the petitioners are not entitled to challenge the notification under Sections 4(1), 6(1) and 17(1) of the Land Acquisition Act. After setting aside the order of the High Court dated 03.12.2010 passed in this writ petition, the matter stands remanded to the High Court for taking decision afresh in the writ petition.
20. The Apex Court vide its judgement and order dated 16.10.2012 has observed that the party shall be at liberty to raise all factual and legal issues involved in the case.
21. The counter affidavit on behalf of respondents no. 2 and 3 has been filed on 09.04.2014 by giving details of all earlier litigations including the First Appeal No. 880 of 1993 and First Appeal No. 401 of 1998. It had been pleaded in the counter affidavit that the writ petition is highly barred by latches and can not be entertained. It is further pleaded that the writ petition has been filed after remand of the matter by the Apex Court vide judgement and order dated 12.09.2005 where First Appeals regarding compensation have been directed to be decided afresh. It is useful to reproduce the following pleadings made in paragraph 7 of the counter affidavit dated 09.04.2014:
“That allegations in paragraph nos. 49 to 53 of the amended writ petition are wrong and denied. It is stated that though the records related to materials which were before the State Government for invoking urgency clause has been misplaced. However, the same cannot be a ground that there was no urgency in the matter. The respondents reserve their right of filing a supplementary C A when ever the file is traced. It is stated that construction of broad gauge railway line was in public interest and was also urgent in nature. It is stated that notifications under Sections 4 and 6 of the Act, published in official gazette simultaneously on 14.11.1981 The possession was taken on 19.09.1986 and the award was declared on 22.09.1986 The petitioner nos. 1 and 2 received the compensation under the award on 24.10.1986 and petitioner no. 3 on 06.11.1986 Petitioner no. 1 Sri Jasvir Singh also received an amount of Rs. 47,417/- on 24.02.1987 regarding his “Power Kolhoo”, compensation for tube-well amounting to Rs. 31,868/- was received by Sri Jasveer Singh on 30.12.1986 Further Sri Jasvir Singh received compensation of 28 trees of guavas amounting to Rs. 20,720/- on 23.08.1988 On the aforesaid amount an amount of solatium and interest @ 12% amounting to Rs. 1,02,020.35 was received by Sri Jasveer Singh on 16.10.1989 He has also received compensation of 1.80 acres of land of Rs. 40,650.31 on 24.10.1986 and Lakhveer Singh has received compensation of Rs. 50,925.81 against 2.25 acre on 24.10.1986 and to Kuljeet Singh Rs. 50,925.8 against 2.25 acre. Thereafter, the petitioner filed two First Appeals challenging the order of the Reference Court by way of First Appeal No. 880 of 1993 and 401 of 1998, which was decided by this Hon'ble Court on 29.01.2004 Against the order of this Hon'ble Court, the petitioners filed Special Leave Petition (C) No. 21234 and 21235 of 2004 before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 12.09.2005 has remanded the matter to this Hon'ble Court for deciding the appeals afresh. It is also stated that the Land Acquisition Officer has also filed two Defective First Appeals against the order dated 07.12.1987 passed by the learned District Judge, Rampur on the References filed by the petitioners being Defective Appeal NOs. 463 of 1989 and 472 of 1989. The aforesaid First Appeals were however dismissed by this Hon'ble Court vide order dated 03.12.2010 as time barred. The present amended writ petition has been filed after the remand of the matter regarding First Appeal NOs. 880 of 1993 and 401 of 1998. In view of the aforesaid fact, the present writ petition is highly belated and is liable to be dismissed on the ground of latches. It is further stated that the petitioners are estopped form challenging the notification in question after they have taken the amount of compensation and the matter was referred, First Appeals were decided and the matter was taken up to the Hon'ble Supreme Court from where the matter has been remanded.”
22. Sri Vishnu Sahai, learned counsel for the petitioners has made various submissions. With regard to latches, it has been submitted that the petitioners were advised after the remand of the matter by the Supreme Court on 12.09.2005 to challenge the entire acquisition proceedings. He submits that the award given by the District Land Acquisition Officer is no award since the award did not include compensation for trees etc. It is submitted that there being no valid award passed by District Land Acquisition Officer, the petitioners can challenge the whole acquisition proceedings and there is no delay in filing the writ petition since the entire proceedings and possession of taking land is wholly illegal and invalid. It is further contended that acquisition has itself lapsed under Section 11-A of the Act. It is submitted that the petitioners has never slept over the matter and they were fighting for their legal right for the last 25 years.
23. It has further been submitted by Sri Vishnu Sahai learned counsel for the petitioner that there was no case for invoking Section 17(1) and 17(4) of the Land Acquisition Act. He submits that in spite of the order of the Court for producing the relevant records pertaining to invocation of urgency clause, no records have been produced by the State Government and the plea made by it is that the records are not traceable. He submits that the District Land Acquisition Officer has no power to declare the award as there is no approval of the Collector. He submits that only a meagre compensation was paid to the petitioners. The authorities have sold trees (Eucalyptus Trees) for a amount of Rs. 1,44,050/-. The award was not declared in accordance with the provisions of the Act. He reiterated that after remanding the first appeal arising out of order of District Judge passed under Section 18 of the Land Acquisition Act, on the advise of the counsel, the writ petition has been filed on 19.12.2005 He further submits that in writ petition, under the orders of the court, the steps were taken for outside settlement regarding amount of compensation and although the proposal was sent by the Divisional Commissioner to the State Government proposing payment of Rs. 6.93 crore, but the State Government took a decision not to accept the report and the State Government agreed to pay the compensation only @ Rs. 30,000/- per acres.
24. Learned counsel for the petitioner lastly submitted that, in fact, the entire grievance of the petitioner is regarding compensation. He submits that the possession having been taken long back and the railway line having been laid down, the petitioners are well aware that they can not be put back into possession but he submits that the entire acquisition proceedings be set aside and petitioners be held entitle to the compensation at the present market rate.
25. Sri Ram Krishna, learned Chief Standing Counsel appearing for the State by refuting the submissions of the learned counsel for the petitioner submits that the writ petition is liable to be dismissed on the ground of latches as the petitioners have filed the present writ petition after more than 24 years of publication of notification under Section 4 and declaration under Section 6 of the Act. He submits that the writ petition has been filed after about 19 years from the date of taking possession of land and after 19 years from the date of award. He submits that the petitioners, after award dated 22.9.1986, have made respective applications for references under Section 18 of the Land Acquisition Act for enhancement of the compensation which reference was registered as References No. 21 of 1987 and 27 of 1987 and ultimately decided on 07.12.1988
26. The petitioners dis-satisfied by the order of the District Judge, by which compensation was increased @ 17,000/- per acre, have filed First Appeal No. 880 of 1993 and First Appeal No. 401 of 1998 (Both the above numbers of the first appeal were given regular numbers after defects in the appeals were removed).
27. It is submitted that the first appeals were decided by the learned Single Judge vide judgement and order dated 29.01.2004 directing for payment of compensation @ Rs. 30,000/- per acre which was challenged by the petitioners before the apex Court and the Apex Court vide order dated 12.09.2005 set aside the order of the High Court and had remanded the matter for deciding both the first appeals afresh. The Apex Court noticed the submissions of the learned counsel for the appellants that the High Court has failed to award interest under Section 23(1)(A) of the Land Acquisition Act.
28. The learned Chief Standing Counsel submits that after the matter was remanded by the Apex Court, this writ petition was filed on 19.12.2005, which is nothing but the abuse of process of the Court. He submits that the petitioners' two First Appeals No. 880 of 1993 and 401 of 1998 being pending where question of enhancement of compensation is under consideration by the High Court, the filing of writ petition challenging the notification under Sections 4 and 6 dated 18.08.1981 after 24 years is gross abuse of the process of the Court and the petitioners' petition is liable to be dismissed as barred by latches. The petitioners can not be permitted to challenge the land acquisition proceedings which proceedings they never questioned and in the proceedings, made an application requesting for reference under Section 18 of the Act which was registered and decided. It is further submitted by Sri Ram Krishna, Advocate appearing for the State that the petitioners were aggrieved by award of compensation for which their First Appeals No. 880 of 1993 and 401 of 1998 are already pending consideration before this Court, hence there was neither any necessity nor any cause of action for filing the present writ petition. He submits that the petitioners' petition is liable to be dismissed on the ground of latches alone without entering into other submissions which has been sought to be raised by the petitioners.
29. Learned counsel for the parties have also placed reliance on various judgements of the Apex Court in support of their respective submissions, which shall be considered while considering their submissions in detail.
30. We have considered the submissions of the learned counsel for the parties and perused the record.
31. Before entering into the submissions raised by learned counsel for the petitioners on the merits to challenge the notification under Sections 4 and 6 dated 18.08.1981, it is necessary to consider the preliminary objection raised by the learned Chief Standing Counsel regarding delay and latches in filing the present writ petition.
32. From the facts of the case, as noted above, it is undisputed that the notification under Sections 4/6 was published in the U.P Gazette on 14 November, 1981. Notice under Section 9 was issued to the petitioners by District Land Acquisition Officer to appear before the Collector on 25.08.1982 The petitioners appeared before the District Land Acquisition Officer on the 25 of August, 1982 and filed their objections, copy of the objection has already been filed as Annexure 4 to the writ petition.
33. In the objection, petitioners claimed compensation @ of Rs. 50,000/- per acre. Admittedly, possession of the land was taken on 19.09.1986 with regard to which there is no dispute between the parties. The award was given on 22.09.1986 and immediately the reference application was made by the petitioners on which References No. 21 of 1987 and 27 of 1987 were registered before the District Judge, Rampur. Petitioners prosecuted the proceedings before the District Judge for enhancement of the compensation which reference was decided by the learned District Judge enhancing the compensation @ 17,000/- per acre. Against which the First Appeal No. 880 of 1993 and First Appeal No. 401 of 1998 were filed, which were decided by the High Court vide its judgement and order dated 29.01.2004 The High Court enhanced the compensation @ 30,000/- per acre, which was challenged by the petitioners before the Apex Court by filing Special Leave Petition. The Apex Court vide its order dated 12.09.2005 has set aside the order of the High Court dated 29.01.2004 and remanded the appeals to the High Court for fresh decision. After the order dated 12.09.2005 passed by the Apex Court, this writ petition has been filed on 17 December, 2005.
34. It is further relevant to note as stated in the counter affidavit that the petitioners no. 1 and 2 have received compensation under the award on 24.10.1986 and the petitioner no. 3 has received compensation on 06.11.1986 The compensation for ‘Power Kolhoo’ and tube-well was also received on 24.02.1987 and 30.12.1986, respectively. Compensation for certain trees were also paid in the year 1998. Petitioners having participated in the proceedings of the Land Acquisition by filing objection on 25.08.1982, they were well aware of proceedings and they have taken proper steps for enhancement of the compensation by making a request for references under Section 18 of the Land Acquisition Act. The writ petition has been filed after 24 years of notification under Sections 4 and 6 and after 19 years from taking possession of land and giving of the award. Only explanation, which has been given in the writ petition, for filing the writ petition is in Paragraph 18, 19 and 20, which is quoted below:
“18. That after remand the case, the petitioners, thereafter, approached the counsel of the High Court regarding the future course of action and they were informed that a writ petition was to be preferred challenging the notifications before this Hon'ble High Court, The counsel of the petitioners further informed the petitioners that the documents, which the petitioners have brought was incomplete and this faced with the circumstances, the petitioners again went to their home town and then collected the relevant appears and also arranged the expenses for filing of the petition. Hence there is no delay on the part of the petitioners but due to circumstances as mentioned above.
19. That the question raised in the aforesaid writ petition in respect to the validity of the notification as well as the consequential awards made by the respondent No. 3 in pursuance of the aforesaid illegal notification, the petitioners are filing present writ petition before this Hon'ble Court asking for issuance of writ of mandamus commanding the respondents to issue fresh notifications after setting aside the notifications dated 18.08.1981 That in these circumstances, the petitioners having no other alternative is filing the present writ petition, as the action of the respondents in pursuance of notification which has already lapsed is illegal and totally without jurisdiction and hence is violating of Article 19(1)(g) read with Article 300-A of the Constitution of India.”
35. The delay in challenging the land acquisition proceedings is an important factor to be considered. It is well settled that the land acquisition proceedings can not be allowed to be challenged after considerable delay since by completion of the land acquisition proceedings after crossing several stages new rights are created and after taking possession of the land, the land vests in the State.
36. The judgement on which much reliance has been placed by the learned counsel for the respondents is the Constitution Bench judgment of the Apex Court in Aflatoon v. Lt. Governor of Delhi, (1975) 4 SCC 285.
37. In the aforesaid case, writ petitions were filed challenging the notification issued under Section 4 of the Act, 1894 in the year 1959. The argument which was put forward was that the public purpose as specified in the notification issued under Section 4, namely, the ‘planned development of Delhi” was vague as neither a Master Plan nor a Zonal Plan was in existence on the date of the notification and as the purpose specified in the notification was vague, the appellants were unable to exercise effectively their right under Section 5A of the Act. The Apex Court noted in the judgment that after notification under Section 4 of the Act was issued about 6000 objections were filed under Section 5A by interested persons and several writ petitions were also filed in the year 1966 and 1967, but the petitioners chose to wait till 1972 on the ground that particulars of the public purpose were not specified. In the above, background, the Apex Court laid down following in paragraphs 11, 12 and 13:
“11. Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their conduct in not challenging the validity of the notification even after the publication of the declaration under Section 6 in 1966. of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners (see Tilokchand Motichand v. H.B Munshi and Rabindranath Bose v. Union of India).
12. From the counter affidavit filed on behalf of the Government, it is clear that the Government have allotted a large portion of the land after the acquisition proceedings were finalised to Cooperative housing societies. To quash the notification at this stage would disturb the rights of third parties who are not before the Court.
13. As regards the second contention that there was inordinate delay in finalizing the acquisition proceedings and that the appellants and writ petitioners were deprived of the appreciation in value of the land in which they were interested, it may be noted that about 6,000 objections were filed under Section 5A by persons interested in the property. Several writ petitions were also filed in 1966 and 1967 challenging the validity of the acquisition proceedings. The Government had necessarily to wait for the disposal of the objections and petitions before proceeding further in the matter. Both the learned Single Judge as well as the Division Bench of the High Court were of the view that there was no inordinate delay on the part of the Government in completing the acquisition proceedings. We are not persuaded to come to a different conclusion.”
38. The Apex Court again in the case of Swaika Properties Pvt. Ltd. v. State of Rajsthn, reported in (2008) 4 SCC 695 wherein the applicant had filed the writ petition after passing of the award simultaneously filing reference under Section 18. In the said case the notification under Rajsthan Improvement Properties Act 1959 was issued on 25.06.1975 Declaration under Section 52 was issued on 08.02.1984 Notice was issued for handing over possession, then the writ petition was filed at Calcutta High Court, which was dismissed as the Court as having no territorial jurisdiction. On 17.02.1987 possession of the land was taken. Again a Writ Petition No. 1507 of 1987 was filed which was withdrawn on 26.06.1989 and award was given by the Land Acquisition Officer. A Writ Petition No. 2911 of 1989 was filed seeking quashing of the notification dated 08.02.1984 The High Court dismissed the writ petition. The Division Bench also dismissed the writ petition holding that since the appellant had filed an application under Section 18 for enhancement of compensation hence they are not entitled to the relief sought in the writ petition. In the said case, The Apex Court laid down following in paragraphs 11 to 19:-
11. Being aggrieved, the appellants carried the matter in appeal before the Division Bench of the High Court of Rajasthan. The Division Bench, agreeing with the view taken by the learned Single Judge, dismissed the appeal and held that since the appellants had filed an application under Section 18 of the Land Acquisition Act, 1894 for enhancement of the compensation they are not entitled to the relief sought for in the writ petition. The said order is under challenge before us.
12. A preliminary objection has been taken by the respondents to the effect that the appeal is liable to be dismissed on the ground of the delay on the part of the appellants to challenge the acquisition proceedings. It is also submitted that the acquisition of the land cannot be challenged after taking over of the possession and after the award having become final. In support of this submission, the respondents have relied upon a number of judgments of this Court.
13. Counsel for the appellants, however, strenuously contended that there was no delay on the part of the appellants in filing the writ petition challenging the acquisition proceedings. He submitted that soon after the notice under Section 52(5) was issued by by the respondents, the appellants filed writ petition before the High Court of Calcutta which stood dismissed pursuant to an order of this Court, as noted above. Thereafter the appellants filed another writ petition before the High Court of Rajasthan which was withdrawn. Within a period of four months thereof, i.e, on 05 July 1989, another writ petition bearing No. 2911 of 1989 was filed. Counsel also submitted that these acts of the appellants demonstrate that there was no delay on the part of the appellants to seek redressal of their grievance. It was contended that actual possession of the land was never taken by the respondents on 17/18 February 1987.
14. We do not find any substance in the submissions of the counsel for the appellants. No doubt, the appellants had filed a writ petition before the Calcutta High Court challenging the acquisition proceedings, but the said writ petition was dismissed by this Court on 08 April 1985 holding that the Calcutta High Court did not have the territorial jurisdiction to entertain the writ petition. Thereafter, till 1987 the appellants did not challenge the acquisition proceedings and the writ petition was filed by it before the Rajasthan High Court which had the territorial jurisdiction in the matter and the same was withdrawn which was again filed within the next four months thereof, meaning thereby, during the interregnum the appellants slept over the matter. However, the appellants have not been able to give any explanation for the same.
15. Insofar as the contention regarding the possession having not been taken is concerned, the respondents submit that the possession of the land in dispute has already been taken. Be that as it may, the award in respect of the land having become final, the State Government is vested with the powers to take possession of the land concerned and, therefore, there is no reason to disbelieve the claim of the State Government that the possession had been taken before the filing of the writ petition. Moreover, the appellants sought enhancement of compensation by filing reference application under Section 18 of the Land Acquisition Act, 1894. Simultaneously, the appellants filed writ petition before the High Court of Rajasthan after passing of the award.
16. This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In the case of Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. (1996) 11 SCC 501 where K. Ramaswamy, J. speaking for a Bench consisting of His Lordship and S.B Majmudar, J. held: (SCC P.520 para 29)
“29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches.”
In the concurring judgment, S.B Majmudar, J. held as under:
“35….. Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent conduct. The Division Bench of the High Court had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State Government for being handed over to the Corporation. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches. ….”
17. Similarly, in the case of State of Rajasthan v. D.R Laxmi (1996) 6 SCC 445 following the decision of this Court in the case of Municipal Corporation of Greater Bombay (supra) it was held:
“.9.. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches. ….”
18. To the similar effect is the judgment of this Court in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig (2000) 2 SCC 48 this Court, following the decision of this Court in the case of C. Padma v. Dy. Secy. to the Govt. of T.N (1997) 2 SCC 627 held:
“17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Govt. of T.N) ….”
19. In the present case also, the writ petition having been filed after taking over the possession and the award having become final, the same deserves to be dismissed on the ground of delay and laches. Accordingly, the order of the learned Single Judge and that of the Division Bench are affirmed to the extent of dismissal of the writ petition and the special appeal without going into the merits thereof. This appeal also deserves to be dismissed without going into the merits of the case and is dismissed as such. No costs.”
39. The Apex Court had occasion to consider again the question of delay in challenging the land acquisition proceedings in Sawaran Lata v. State of Haryana (2010) 4 SCC 532. In the said case notification under Section 4 was issued on 02.05.2001 Declaration was issued on 13.04.2002 Award was given on 27.04.2004 and the writ petition was filed in the year 2009. The High Court dismissed the writ petition on the ground of latches. Against which, an appeal was filed, the Apex Court dismissed the appeal. Following was laid down:
“5. The issue involved in these petitions is as to whether the acquisition proceedings can be challenged at a belated stage. The issue is no more res integra as the issue has been considered by this Court time and again.
6. When a person challenges Section 4 Notification on any ground, it should be challenged within a reasonable period, and if the acquisition is challenged at a belated stage, the petition deserves to be dismissed only on this count. (Vide Hari Singh v. State of U.P, AIR 1984 SC 1020).
7. A Constitution Bench of this Court, in Aflatoon v. Lt. Governor, Delhi AIR 1974 SC 2077, while dealing with the issue, observed as under:-
”…. to have sat on the fence and allowed the government to complete the acquisition on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner.”
8. Same view has been reiterated by this Court observing that acquisition proceedings should be challenged before the same attain finality, in State of Mysore v. V.K Kangan AIR 1975 SC 2190; PT. Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83; Bhoop Singh v. Union of India AIR 1992 SC 1414; State of Orissa v. Dhobei Sethi (1995) 5 SCC 583; State Of Maharashtra v. Digambar. AIR 1995 SC 1991; State of Tamil Nadu v. L. Krishnan AIR 1996 SC 497; and C. Padma v. Dy. Secretary to Govt. of Tamil Nadu (1997) 2 SCC 627.
9. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. AIR 1997 SC 482, this Court observed as under:-
“If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vest in the State free from all encumbrances, the slumbered interested person would be told off the gates of the Court that his grievance should not be entertained when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. (Emphasis added) 5
10. Similar view has been reiterated in State of Rajasthan v. D.R Laxmi, (1996) 6 SCC 445, wherein this Court has held that even the void proceedings need not be set at naught if the party has not approached the Court within reasonable time, as judicial review is not permissible at a belated stage. This Court held as under:
“……Delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of laches. It is thus, well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loathe to quash the notifications……..The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances.” (Emphasis Added)
11. Similar view has been reiterated by this Court in Northern Indian Glass Industries v. Jaswant Singh AIR 2003 SC 234; and Haryana State Handloom & Handicrafts Corporation Ltd. v. Jain School Society AIR 2004 SC 850.
12. In the instant case, it is not the case of the petitioners that they had not been aware of acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of Act 1894 had been published in the newspapers having no wide circulation. Even if, the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of acquisition proceedings for the reason that very huge chunk of land belonging to large number of tenure holders had been notified for acquisition. Therefore, it should have been a talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings.”
40. The Recent judgment of the Apex Court in Banda Development Authority, Banda v. Moti Lal Agarwal reported in (2011) 5 SCC 394 has also been relied by the learned counsel for the respondents. In the aforesaid case, there was a delay of 6 years between the passing of the award and filing of the writ petition. Following principles were laid down in paragraphs 16, 17, 18, 19 and 26:
“16. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of the BDA and the State Government, the High Court was duty bound to take cognizance of the long time gap of 9 years between the issue of declaration under Section 6(1) and filing of the writ petition and declined relief to respondent No. 1 on the ground that he was guilty of laches because the acquired land had been utilized 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 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/crystallized 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.
18. In State of Madhya Pradesh v. Bhailal Bhai, the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held: (AIR pp.1011-12, paras 17 & 21)
“17…….It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly took into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it…..It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.
* * *
21. The learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable.”
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 this case, the acquired land was utilized 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. the 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, the 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 six 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.”
41. In view of the law laid down by the Apex Court in the above cases this writ petition which is highly belated, can not be entertained and the same deserves to be dismissed on the ground of latches alone.
42. Learned counsel for the petitioner had placed reliance on a judgement of the Apex Court reported in Royal Orchid Hotel v. G. Tayarama Reddy (2011) 10 SCC 608 It was a case where the land was acquired for public purposes which was transferred to private party and corporate industry. In the above context the Apex Court laid down the following proposition of law in paragraph no. 25:
“Although the Framers of the Constitution have not prescribed any period of limitation for filing a petition under Article 226 of the Constitution of India and the power conferred upon the High Court to issue to any person or authority including any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari is not hedged with any condition or constraint, in the last 61 years the superior courts have evolved several rules of self-imposed restraint including the one that the High Court may not enquire into belated or stale claim and deny relief to the petitioner if he is found guilty of laches. The principle underlying this rule is that the one who is not vigilant and does not seek intervention of the Court within reasonable time from the date of accrual of cause of action or alleged violation of the constitutional, legal or other right is not entitled to relief under Article 226 of the Constitution. Another reason for the High Court's refusal to entertain belated claim is that during the intervening period rights of third parties may have crystallised and it will be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and there is no cogent explanation for the delay. We may hasten to add that no hard-and-fast rule can be laid down and no straitjacket formula can be evolved for deciding the question of delay/laches and each case has to be decided on its own facts.”
43. In the above case the Apex Court entertained the writ petition due to special facts of the case where it was held that there was fraudulent exercise of the power of eminent domain. The above case does not help the appellant in the facts of present case.
44. Only explanation, as noted above, which has been given by the petitioner in paragraphs 17, 18, 19 and 20 of the writ petition is that after the remand of the case by the Supreme Court on 12.09.2005, the petitioners were advised to approach the counsel of the High Court regarding the future course of action, who advised that the writ petition be preferred. The said explanation can not be held to be satisfactory for explaining the latches in filing the writ petition after 19 years of the award and taking possession of the land, whereas the petitioners participated in proceedings and filed application for making reference under Section 18 of the Act for enhancement of compensation, which proceedings are still being prosecuted by them.
45. Taking into consideration the entire facts and circumstances of the case, we are of the view that the writ petition is highly barred by latches and deserves to be dismissed on the ground of latches alone.
46. As has been observed above, the petitioners' main grievance is for enhancement of compensation, for which the petitioner has already filed First Appeal No. 880 of 1993 and First Appeal No. 401 of 1998 which appeals are being allowed by order of the date, we see no reason to entertain the writ petition.
47. Although, various submissions on merits challenging the entire acquisition proceedings have been raised by learned counsel for the petitioners, but we having taken the view that the writ petition is highly barred by latches, we do not find it necessary to enter into the submissions raised by learned counsel for the petitioners on merits.
48. In the result, the writ petition is dismissed as barred by latches.
49. The parties shall bear their own costs.