S.K. Mehrotra, Advocate vs Lucknow Development Authority ...
2017 Latest Caselaw 772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 
Case :- MISC. BENCH No. - 11929 of 2013
 
Petitioner :- S.K. Mehrotra, Advocate
 
Respondent :- Lucknow Development Authority Thr.Its Vice Chairman & Ors.
 
Counsel for Petitioner :- S.K. Mehrotra (In Person)
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra,Mukund Tiwari
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for issuing a writ, order or direction in the nature of mandamus directing the opposite parties to remove all obstructions from the plot no.1416 situate in Village Bargawan, Pargana Bijnor, Tehsil Sadar, District Lucknow and restore the same to the petitioner or to provide a suitable plot to the petitioner in lieu of the above plot in the same scheme or to pay adequate compensation to the petitioner according to law.

2. Brief facts giving rise to filing of the present writ petition are that vide Notification dated 21.04.1979 published in U.P. Gazette under Section 4 of the Land Acquisition Act, 1 Bigha 15 Biswa and 15 Biswansi of Plot No.1416 of the petitioner was notified for acquisition in connection with Lucknow-Kanpur Road Nagar Prasar Yojna Part -2 and the award was made on 12.02.1985 by the Land Acquisition Officer. It is submitted by the petitioner that 5 Biswa and 5 Biswansi of the above plot, converted into 7146.56 sq. feet, was left out from acquisition proceedings in spite of that the rest of the land of the said plot was utilized and taken possession in connection with above Yojna. The Lucknow Development Authority vide letter dated 24.05.2010 informed the petitioner for payment of amount of the said plot and a cheque amounting to Rs.86,287/- was sent to the petitioner. Since rest of the plot was used as a commercial plot since 1987 and the petitioner accepted the amount of compensation under protest and the cheque sent to the petitioner was unacceptable, thus, was kept by the petitioner under protest. Later on by subsequent letters the petitioner made request for settlement of the matter but the authorities made a payment of compensation for the amount, as referred above, which is said to be purely arbitrary, illegal and against the Government Orders. The petitioner has assailed the order on the ground that the possession of the plot was taken without payment of reasonable compensation and the plot was utilized in the Yojna and the respondents are in possession of the land from 1987 without determining the actual compensation. Further the opposite parties have deprived the petitioner from the possession and the use of the plot and arbitrarily determined the compensation and paid through means of the cheque, as referred above, which is absolutely illegal and no compensation in the eyes of law. It has been further submitted that the compensation of the plot paid is most inappropriate with respect to the area and its commercial use.

3. By filing the counter affidavit it has been submitted that land Khasra Plot No.1416 was acquired under Kanpur Road Yojna and due compensation was awarded to the petitioner. Compensation of the said area was paid to the petitioner first by acquiring the land area 2.3.5 bighas and rest of the area was subsequently acquired and the compensation was awarded in light of the earlier award dated 12.02.1985. The claim of the petitioner is that the compensation should have been given in light of subsequent market rate and that too the rate should be calculated as commercial rate.

4. Learned counsel for the respondents has submitted that now after payment of compensation, the quantum of compensation cannot be challenged by the petitioner for the reason that the Award of the Collector constitutes in law an offer by the Government to pay certain price for land proposed to be acquired. Therefore, the person at whose instance the acquisition was made cannot be permitted to raise the issue regarding the quantum of the compensation. Section 25 of the Act further prescribes that the amount of compensation awarded by the Court cannot be less than the amount awarded by the Collector under Section 11. Therefore, apart from fraud, corruption or collusion, the amount of compensation awarded by the Collector under Section 11 of the Act may not be the question in any proceeding either by the Government or by the Company or local Authority at whose instance the acquisition is made. Even the writ jurisdiction cannot be resorted to, to avoid or circumvent the process of law and the provisions of the Statute. While deciding the said case, the reliance was placed by the Hon'ble Apex Court on the earlier judgments of the Court in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer & Anr., AIR 1961 SC 1500 Mohammed Hasnuddin Vs. The State of Maharashtra, AIR 1979 SC 404; and Ezra Vs. Secretary of State, 32 IA 93 (PC). The Award made by the Collector has an evidentiary value in a Reference made to the District Court under Section 82, and in case the claimant does not aware himself of the remedy under the provision of Section 18, the Award given under Section 11 becomes final and conclusive. (Vide Santosh Kumar & Ors. Vs. Central Warehousing Corporation & Anr. AIR 1986 SC 1164).

5. Notification and declaration under Sections 4 and 6 of the Act 1894 cannot be challenged at such a belated stage. (Vide Hari Singh Vs. State of U.P. & ors., AIR 1984 SC 1020; The Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; and Northern Indian Glass Industries Vs. Jaswant Singh & ors., AIR 2003 SC 234.

6. A Constitution Bench of the Hon'ble Supreme Court, in Aflatoon & Ors. Vs. Lt. Governor, Delhi & ors., AIR 1974 SC 2077, has observed as under:-

"...... to have sat in 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 wit petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner."

7. Same view has been taken by the Hon'ble Supreme Court in State of Mysore Vs. V. K. Kangan, AIR 1975 SC 2190, wherein it was observed that respondent was not entitled to challenge the validity of Section 4 Notification after an unreasonable lapse of time. If public notice, as required by Section 4 of the Act, was not given and that would per se vitiate the notification under Section 4, the person interested should have challenged its validity within a reasonable time of the publication of the notification under Section 4 of the Act.

8. The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., AIR 1983 SC 653, wherein the Apex Court has observed as under:-

"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."

9. In State of Tamil Nadu Vs. L. Krishnan, AIR 1996 SC 497, the Apex Court held that "the delay in challenging the notification was fatal and the writ petitions were liable to be dismissed on the ground of laches only" and exercise of power under Article 226, after the award had been made, was held to be unjustified.

10. Similarly, in State of Maharashtra Vs. Digambar, AIR 1995 SC 1991; and State of Orissa Vs. Dhobei Sethi & Anr. , (1995) 5 SCC 583, the Apex Court held that if the land acquisition proceedings stood finalized, interference by the writ court, quashing notification and declaration under Sections 4 and 6 respectively, was unwarranted and uncalled for. Exercise of jurisdiction in such a case cannot be said to be judicious and reasonable.

11. Similar view has been reiterated in Girdharan Prasad Missir Vs. State of Bihar, (1980) 2 SCC 83; H.D. Vora Vs. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh Vs. Union of India, AIR 1992 SC 1414, Ram Chand Vs. Union of India, (1994) 1 SCC 44; and C. Padma Vs. Deputy Secretary to Govt. of Tamil Nadu, (1997) 2 SCC 627).

12. In Municipal Corporation of Greater Bombay Vs. I.D.I. Co. (Pvt) Ltd., AIR 1997 SC 482, the Hon'ble Supreme 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 incumbrances, 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. The High Court has, no doubt, discretionary power 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 exercise 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."

13. Similar view has been reiterated in State of Rajasthan & ors.Vs. D.R. Laxmi & ors., (1996) 6 SCC 445, wherein the Apex 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.

14. In Hindustan Petroleum Corporation Vs. Dolly Das, (1999) 4 SCC 450, the Apex Court held as under:-

"So far as the contention regarding laches of the respondents in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of payment had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect, being dependant upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, where the mode is that the period for which the option of renewal has been exercised, has not come to an end. During the subsistence of such a period, certainly the respondents could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief."

15. In Ganpatibai & Anr. Vs. State of M.P. & Ors., (2006) 7 SCC 508, the Apex Court examined a case where the land owner filed a suit challenging the acquisition proceedings and it was dismissed as not maintainable and then he challenged the proceedings by filing a writ petition. The petition was dismissed on the ground of delay and laches. The Apex Court upheld the judgement observing that as long back the Apex Court had held that such suit was not maintainable, pendency of such suit could not be basis for explanation of the delay.

16. In case the petitioner has not approached the Court within reasonable time and allowed the completion of the acquisition proceedings, the petition is liable to be rejected only on the ground of delay.

17. 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. In Hari Singh & Ors. Vs. State of U.P., AIR 1984 SC 1020, the Apex Court held that where a large area of land is acquired and the plots, which are subject to acquisition, belong to large number of persons, if other persons have not challenged the acquisition proceedings, it is difficult to believe that appellant was not aware of the initiation of the acquisition proceedings as the acquisition of the said land would be the talk of the town in a short time and if the person interested failed to approach the writ court within reasonable period, the petition should fail only on the ground of delay.

18. Similar view has been reiterated by the Hon'ble Supreme Court in Northern Indian Glass Industries Vs. Jaswant Singh, AIR 2003 SC 234; and Haryana State Handloom & Handicrafts Corporation Ltd. Vs. Jain School Society, AIR 2004 SC 850.

19. If some person has taken a relief from this Court by filing a Writ Petition immediately after the cause of action had arisen, petitioners cannot take the benefit thereof by filing a writ petition belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.

20. In State of Karnataka & ors. Vs. S.M. Kotrayaya & Ors., (1996) 6 SCC 267, the Hon'ble Supreme Court rejected the contention that a petition should be considered ignoring the delay and laches on the ground that he filed the petition just after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches.

21. Same view has been reiterated by the Hon'ble Supreme Court in Jagdish Lal & ors. Vs. State of Haryana & ors., AIR 1997 SC 2366, observing as under:-

"Suffice it to state that appellants may be sleeping over their rights for long and elected to wake-up when they had impetus from Veerpal Chauhan and Ajit Singh's ratio.... disparate attempts of the appellants to re-do the seniority, held by them in various cadre.... are not amenable to the judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well."

22. In M/s. Roop Diamonds & ors. Vs. Union of India & ors., 1989 SC 674, the Hon'ble Supreme Court considered a case where petitioner wanted to get the relief on the basis of the judgment of the Supreme Court wherein a particular law had been declared ultra vires. The Court rejected the petition on the ground of delay and latches observing as under:-

"There is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they have not persued for several years. Petitioners were not vigilant but were content to be dormant and close to sit on the fence till somebody else's case came to be decided."

23. It is a case of the petitioner that major area of land was acquired previously but a very small area was left unacquired.

24. The State counsel has replied that the total area had been acquired and the amount of compensation was paid to the petitioner.

25. Now the question is as to whether small piece of land can be opposed to be acquired by the petitioner.

26. In State of U.P. Vs. Smt. Pista Devi, AIR 1986 SC 2025, the Hon'ble Apex Court has observed that where a large track of land is acquired and the lands belong to large number of persons, challenging the entire acquisition at the instance of one or few persons should not be entertained, as it would hamper the development of the entire land and purpose for which the land is sought to be acquired would stood frustrated at the behest of few persons though the other affected persons have accepted the acquisition proceedings and accepted the award etc.

27. The Act provides for a mode of sale and purchase of land between the tenure holders and the State. However, as it is against the wishes of the tenure holder/person interested, the Act provides for solatium etc. There can be no dispute to the settled legal proposition that once the possession of the land is taken under the provisions of the Act, it vests in the State free from all encumbrances, whatsoever, it cannot be divested. The land so acquired cannot be restored to the tenure holder/person interested even if it is not used for the purpose it was acquired or for any other purpose. The proceedings cannot be withdrawn/abandoned under the provisions of Section 48 of the Act or Section 21 of the General Clauses Act, once the possession of the land has been taken and the land has vested in State free from all encumbrances. (Vide State of Madhya Pradesh Vs. V.P. Sharma, AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh & Anr. Vs. Shri Avinash Sharma, AIR 1970 SC 1576; Satendra Prasad Jain Vs. State of U.P. & Ors., AIR 1993 SC 2517; and Rajasthan Housing Board & Ors. Vs. Shri Kishan & Ors., (1993) 2 SCC 84).

28. The meaning of word ''vesting' has been considered time and again. In Fruit and Vegetable Merchants Union Vs. The Delhi Improvement Trust, AIR 1957 SC 344, the Hon'ble Apex Court held that the meaning of word ''vesting' varies as per the context of the Statute in which the property vests. So far as the vesting under Sections 16 and 17 of the Act is concerned, the Court held as under:-

"In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration."

29. Encumbrances actually mean the burden caused by an act or omissions of man and not that created by nature.

30. In Abdul Karim Khan & Ors. Vs. Managing Committee George High School, AIR 1936 Alld. 879, this Court held that encumbrance means a burden or charge upon property or a claim or lien upon State or on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. So far as the provisions of the land acquisition are concerned, the word ''encumbrance' means therein is interest in respect of which compensation has been made or could have been claimed. It includes like a lease or a mortgage, securities, servitudes and trust etc.

31. In Collector of Bombay Vs. Nusserwanji Rattanji Mistri & Ors., AIR 1955 SC 298, the Hon'ble Apex Court held that the word ''encumbrances' in Land Acquisition Act mean interests in respect of which a compensation was made or could have been made.

32. In State of Himachal Pradesh Vs. Tarsem Singh & Ors., AIR 2001 SC 3431, the Hon'ble Apex Court held that the terminology ''free from all encumbrances' used in Section 16 is wholly unqualified and would include in its compass every right including an easementary right, which affects the land. It includes "all rights, title and interests including easementary rights" and stands extinguished when the title vests in the State. However, in Himachal Pradesh State Electricity Board Vs. Shiv Kumar Sharma, AIR 2005 SC 954, the Hon'ble Apex Court held that when the land vests in the State free from all encumbrances, it does not include the easementary rights.

33. Thus, ''free from all encumbrances' means vesting of land in the State without any burden or charge on it.

34. In Secretary of State Vs. Amulya Charan Banerjee, AIR 1927 Cal. 874, the Calcutta High Court considered the issue involved herein as to whether after acquisition of the land, it could be put to use for the purposes other than for what it was originally declared and held that ''after acquisition, the new owners have the ordinary rights of proprietors and may use their land as they think fit for any purpose, which does not infringe the rights of others and is not inconsistent with the purposes sanctioned by the Statute, under which the land has been taken. In Maharaja Luchmeswar Singh Vs. The Chairman of the Darbhanga Municipality, 17 IA 90, the Privy Council upheld the using of land for the purpose other than the purpose for which the land had been acquired reiterating the same view. In the said case, the land had been acquired for establishing a public Ghaat but on the part of the said land, a market had been established.

35. In Gulam Mustafa & Ors. Vs. The State of Maharashtra & Ors., AIR 1977 SC 448 in a similar situation, the Hon'ble Apex Court held as under:-

"Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the ........ declaration.

36. Reiterated a similar view in C. Padma & Ors. Vs. Deputy Secretary to the Government of Tamil Nadu & ors., (1997) 2 SCC 627, the Hon'ble Apex Court held that if by virtue of valid acquisition of land, it stands vested in the State, thereafter claimants are not entitled to restitution of the possession on the ground that either original public purpose is ceased to be in operation or the land could not be used for any other purposes.

37. In Bhagat Singh Vs. State of U.P. & Ors., AIR 1999 SC 436, the Hon'ble Apex Court held that the land use can be changed by the Statutory Authority after the land vests in the State free from all encumbrances.

38. Similar view has been reiterated in Niladri Narayan Chandradhurja Vs. State of West Bengal, AIR 2002 SC 2532; & Northern Indian Glass Industries Vs. Jaswant Singh & Ors., (2003) 1 SCC 335.

39. In Government of Andhra Pradesh & Anr. Vs. Syed Akbar, 2004 AIR SCW 7125, the Hon'ble Apex Court considered this issue and held that once the land has vested in State, it cannot be divested either by virtue of Section 48 of the Act nor can re-convey the said land to the person interested/tenure holder and the question of restitution of possession to the tenure holder does not arise. While deciding the said case, the reliance had been placed upon earlier judgments in State of Kerala & Ors. Vs. M. Bhaskaran Pillai & Anr., AIR 1997 SC 2703; Chandragauda Ramgonda Patil Vs. State of Maharastra, (1996) 6 SCC 405.

40. In Bangalore Development Authority Vs. R. Hanumaiah, (2005) 12 SCC 508, a similar view has been reiterated by the by the Hon'ble Apex Court placing reliance upon the judgments in Pratap Vs. State of Rajasthan, AIR 1996 SC 1296; Printers (Mysore) Ltd. Vs. M.A. Rasheed & Ors., (2004) 4 SCC 460.

41. In view of the above, the law can be crystallized that once the land is acquired and it vests in the State free from all encumbrances, it is not the concern of the land owner as how his land is used and whether the land is being used for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same unless the acquisition proceedings are itself challenged. The State does not have a power to reconvey the land to the person interested nor such a person can claim any right of restitute on any ground, whatsoever.

42. The respondents have filed a Gazette published on 08.07.1987 by which the land in question was acquired by the State Government under the urgency clause. It is not denied that the State cannot acquire the land in case of urgency for the development of urban area. The Act provides for inquiry. The purpose of inquiry under Section 5-A of the Land Acquisition Act, 1894 (hereinafter called the 'Act') is two fold. It enables the State Government to decide whether any part of the land is needed for a public purpose or for a company and it also provides a safeguard against any ill-informed action on the part of the Government. It also intends to serve a purpose i.e., to give an opportunity to the persons interested in the land to put forward their point of view, supported by some material as they may consider appropriate to show that the proceedings deserve to be dropped as it would not serve the purpose of acquisition and the land sought to be acquired may not be suitable for the said purpose.

43. In Delhi Administration Vs. Gurdip Singh Uban & Ors (2000) 7 SCC 296, the Hon'ble Supreme Court summarised that a person interested can file objections substantially on the following grounds:

(i) The purpose for which the land is acquired is not a public purpose;

(ii)That even if the purpose is a public purpose, the land of the objector is not necessary to be taken as the purpose could be served by other land already proposed or some other land to which the objector may refer; or

(iii) in the special facts and circumstances in which the objector is placed, it is a fit case for omitting his land from acquisition.

Apart from the above, another objection that can be possibly raised is that the proposed acquisition of a particular land may not at all serve the exact purpose, i.e., not suitable for the purpose for which the land is sought to be acquired or the land is being acquired for some collateral purpose. Such objections can therefore form the basis of an inquiry under Section 5-A of the Act.

44. In Daulat Singh Surana & Ors. Vs. First Land Acquisition Collector & Ors., (2007) 1 SCC 641, the Hon'ble Supreme Court while considering the meaning and scope of the expression "public purpose" considered large number of its earlier judgments, particularly, State of Bombay Vs. Bhanji Munji & Anr., AIR 1955 SC 41; State of Bombay Vs. Ali Gulshan, AIR 1955 SC 810; State of Bombay Vs. R.S. Nanji, AIR 1956 SC 294; Babu Barkya Thakur Vs. State of Bombay & Ors., AIR 1960 SC 1203; Somawanti Vs. State of Punjab & Ors., AIR 1963 SC 151; and Arnold Rodricks & Anr. Vs. State of Maharashtra & Ors., AIR 1966 SC 1788, and came to the conclusion that it is not possible to precisely define the expression "public purpose" as it would depend upon the facts and circumstances of each case. However, the Government is the best judge to decide as to whether the public purpose is served by issuing the Notification for acquisition of land. The public purpose must include an object in which the general interest of the community as opposed to the particular interest of individual, is directly and vitally concerned. Public purpose is bound to change with time and the prevailing conditions in the given area. Therefore, it cannot be defined within a particular framework. The declaration made by the Government in this regard is final. The Court has a limited scope of judicial review to interfere only if it is satisfied that it was a colourable exercise of power, on being challenged by the aggrieved party. The Court further held as under:-

"Public purpose" is not static. It also changes with the passage of time, needs and requirements of the community. Broadly speaking, public purpose means the general interest of the community as opposed to the interest of an individual.

The power of compulsory acquisition as described by the term "eminent domain" can be exercised only in the interest and for the welfare of the people. The concept of public purpose should include the matters, such as safety, security, health, welfare and prosperity of the community or public at large.

The concept of "eminent domain" is an essential attribute of every State. This concept is based on the fundamental principle that the interest and claim of the whole community is always superior to the interest of an individual."

45. It is also settled by now that once the original acquisition is valid and title has vested in the State/Authority then how it uses the excess land is not of any concern of the original owner and cannot be made a ground for invalidating the acquisition. A valid acquisition cannot be voided because long after, the Authority diverts its public purpose other than shown at the time of initial acquisition. The excess land can also be sold by public auction, the erstwhile owner cannot claim restitution of the part of the land as it vests in the State free from all encumbrances. (Vide Gulam Mustafa & Ors Vs. The State of Maharashtra & Ors., AIR 1977 SC 448; Chandragauda Ramgonda Patil & Anr Vs. State of Maharashtra & Ors (1996) 6 SCC 405; C. Padma & Ors. Vs. Dy. Secretary to the Govt of Tamil Nadu & Ors (1997) 2 SCC 627; State of Kerala & Ors Vs. M. Bhaskaran Pillai & Anr., AIR 1997 SC 2703; Tulsi Cooperative Housing Society, Hyderabad etc, etc Vs. State of Andhra Pradesh & Ors., AIR 1999 SC 3667 and Govt. of A.P. & Anr Vs. Syed Akbar., AIR 2005 SC 492).

46. Thus, in view of the above, the Court has to examine, as in the specific case on hand, whether the land is sought to be acquired for a public purpose.

47. In State of U.P. Vs. Smt. Pista Devi & Ors, AIR 1986 SC 2025, the Hon'ble Supreme Court considered its earlier judgment in Narayan Govind Gavate etc. Vs. State of Maharashtra & Ors., AIR 1977 SC 183, wherein it was held that the scheme relating to development of residential area in urban centres was not so urgent that it was necessary for eliminating the inquiry under Section 5-A of the Act and came to the conclusion that because of the subsequent fast development of urbanisation, the situation has completely changed and the problem of housing accommodation has become a matter of national urgency. Taking judicial note of this kind of development, the Court held that the acquisition of land for providing housing sites can warrant dispensation of the inquiry under Section 5-A of the Act. The Court further held that where a large area of land is sought to be acquired, the scheme of planned development should not be frustrated by judicial interference at the behest of few persons. On the issue that there was an omission in the notification issued under Section 17 (1-A) of the Act regarding the agricultural land the Court held that it was not fatal for the reason that the Government had the power to acquire the land other than waste and arable land also by invoking urgency clause.

48. It is settled by a series of pronouncements that objections under Section 5-A of the Act have to be filed within the period of 30 days from the date of publication of substance of Section 4 notification and opportunity of personal hearing is mandatory in case the persons interested file objections within the time stipulated therein and appear in person or through their representatives and ask for opportunity of hearing. (Vide Farid Ahmed Abdul Samad & Anr. Vs. The Municipal Corporation of the City of Ahmedabad & Anr., AIR 1976 SC 2095; Shyam Nandan Prasad Vs. State of Bihar, (1993) 4 SCC 255; Rambhai Lakhabai Bhakt Vs. State of Gujarat & Ors., (1995) 3 SCC 752; Tej Kaur Vs. State of Punjab & Ors., AIR 2003 SC 2414; Pratibha Nema Vs. State of Madhya Pradesh & Ors., AIR 2003 SC 3140; Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai, AIR 2005 SC 3520; and Kanpur Development Authority Vs. Mahabir Sahkari Awas Samiti Ltd., (2005) 10 SCC 320).

49. In Hindustan Petroleum Corporation (supra), the Hon'ble Supreme Court, while dealing with the issue observed as under:-

"It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid.

The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also to the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non-compliance with the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision-making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well-known principles viz. illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.

It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right."

50. The "right to property is now considered to be not only a constitutional or statutory right but also a human right". (Vide P.T. Munichikkanna Reddy & Ors. Vs. Revamma & Ors., (2007) 6 SCC 59).

51 Thus, in view of the above, it is evident that objections under Section 5-A of the Act have to be dealt with in accordance with law by providing opportunity of effective hearing to every objector, as it cannot be held to be an empty formality and in case such a hearing is not provided, the subsequent proceedings would stand vitiated.

52. The inquiry required under Section 5-A of the Act can be dispensed with in exercise of the power under Section 17 (4) of the Act only in grave urgency and in exceptional circumstances and the decision of the authority must be based on materials on record to support the same (bearing in mind the objections under Section 5-A of the Act), otherwise, it would amount to arbitrary exercise of power and denial of administrative fairness which may be a constitutional anathema. The exercise of power of 'eminent domain' may interfere with a right of property of a person by acquiring the same, but it should be done only for public purpose and should not violate the constitutional rights guaranteed under Article 300-A of the Constitution of India. Dispensation of an inquiry under Section 5-A of the Act without any justifiable cause could be violative of Article 14 of the Constitution. In absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved person of a fair and just opportunity of putting forth his objections for due consideration of the Authority concerned. (Vide Narayan Govind Gavate (supra); State of Punjab & Anr Vs. Gurdial Singh & Ors., AIR 1980 SC 319; Union of India & Ors Vs. Praveen Gupta & Ors, AIR 1997 SC 170; Union of India & Ors. Vs. Mukesh Hans etc. etc., AIR 2004 SC 4307 and Union of India & Ors. Vs. Krishan Lal Arneja & Ors., AIR 2004 SC 3582.

53. In Munshi Singh Vs. Union of India & Ors., AIR 1973 SC 1150, the Apex Court held as under:-

"7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. ...The legislature has therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections against the proposed acquisition. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A."

54. In Dora Phalauli Vs. State of Punjab & Ors., AIR 1979 SC 1594, the Apex Court observed that "the right of a person having any interest in the property to file an objection under Section 5-A of the Act should not be interfered with in a casual or cavalier manner".

55. In Mukesh Hans (supra) the Hon'ble Supreme Court considered as to whether in case of urgency under Section 17 (1) or in case of emergency under Section 17 (2), the powers under Section 17 (4) could be automatically invoked for dispensing with the inquiry, required under Section 5 A of the Act. The Court placing reliance upon its earlier judgment in Nandeshwar Prasad & Ors. Vs. U.P. Government & Ors., AIR 1964 SC 1217, came to the conclusion that 17 (4) carves out an exception to the normal mode of acquisition. Mere existence of urgency or unforeseen emergency may not necessarily compel the Government to dispense with 5-A inquiry. The appropriate Government has to apply its mind as to whether urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) warrants dispensation of the inquiry under Section 5-A and such an order is not automatic or consequential.

56. In Bhagat Singh Vs. State of U.P. & Ors., AIR 1999 SC 436, the Hon'ble Supreme Court considered the issue of urgency and dispensation of inquiry under Section 5-A of the Act and also considered the judgment in Om Prakash (supra) but refused to issue similar directions laying down clearly that the case of Om Prakash cannot be treated as precedent in all acquisition cases where Section 5-A inquiry is dispensed with. The Apex Court further observed that those directions had been issued in Om Prakash considering that the land in dispute was abadi land and the Government had taken a policy decision not to acquire the residential property for industrial use. It may also be necessary to point out that Hon'ble Mr. Justice S.B. Mazmoodar was a Member of the Bench in both the cases.

57. However, subsequent thereto, in First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr AIR 2002 SC 1314, the Hon'ble Supreme Court observed that the delay between the decision of the State Government to dispense with the enquiry under Section 5-A of the Act and the making of the declaration under Section 6 is not fatal. The Court observed as under:

"The question of urgency of an acquisition under Section 17 (1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under Section 17 (1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the Court unless the Court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the concerned authorities. If an order invoking power under Section 17 (4) is assailed, the Court may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind. Any post notification delay subsequent to the decision of the State Government dispensing with an inquiry under Section 5-A by invoking powers under Section 17 (1) of the Act would not invalidate the decision itself specially when no mala fides on the part of the government or its officers are alleged. Opinion of the State Government can be challenged in a Court of law if it could be shown that the State Government never applied its mind to the matter or that action of the State Government is mala fide. Though the satisfaction under Section 17 (4) is a subjective one and is not open to challenge before a Court of law, except for the grounds already indicated, but the said satisfaction must be of the Appropriate Government and that the satisfaction must be, as to the existence of an urgency. The conclusion of the Government that there was urgency even though cannot be conclusive but is entitled to great weight, as has been held by this Court in Jage Ram Vs. The State of Haryana & Ors, AIR 1971 SC 1033. Even a mere allegation that power was exercised malafide would not be enough and in support of such allegation specific materials should be placed before the Court. The burden of establishing malafides is very heavy on the person who alleges it. When the Court is called upon to examine the question as to whether the acquisition is malafide or not, what is necessary to be inquired into and found out is, whether the purpose for which the acquisition is going to be made, is a real purpose or a camouflage." (Emphasis added).

58. The aforesaid legal propositions make it clear that the view regarding post notification delay has not been consistent. Undoubtedly, the Hon'ble Supreme Court decided the case in Nirodhi Prakash Gangoli (supra) without taking note of Om Prakash (supra) and both the judgments are of two Hon'ble Judges.

59. A Bench of three Hon'ble Judges of the Apex Court in Deepak Pahwa & Ors. Vs. Lt. Governor of Delhi & Ors., AIR 1984 SC 1721, rejected the argument that pre-notification delay would render the invocation of the urgency provisions void. The Court held as under:-

"The other ground of attack is that if regard is had to the considerable length of time spent on inter-departmental discussion before the notification under Section 4 (1) was published, it would be apparent that there was no justification for invoking the urgency clause under Section 17 (4) and dispensing with the inquiry under Section 5-A. We are afraid, we cannot agree with this contention. Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. It is, therefore, not possible to agree with the submission that mere pre-notification delay would render the invocation of the urgency provisions void. We however wish to say nothing about post-notification delay. In Jage Ram Vs. State of Haryana, AIR 1971 SC 1033, this Court pointed out the fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the notification was issued, there was urgency or not. In Kasireddy Papaiah Vs. Government of Andhra Pradesh, AIR 1975 AP 269, it was held, "....delay on the part of tardy officials to take the further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the notification and to hold that there was never any urgency." (Emphasis added).

60. The larger Bench had taken a view that pre-notification delay would not render the proceedings or order invoking urgency clause void. The Court did not lay down any law in respect of the post-notification delay.

61. A Bench of three Hon'ble Judges of the Supreme Court in Chameli Singh & Ors. Vs. State of U.P. & Anr., AIR 1996 SC 1051, reiterated the similar view observing as under:-

"It is true that there was pre-notification and post-notification delay on the part of the officers to finalise and publish the notification. But those facts were present before the Government when it invoked urgency clause and dispensed with inquiry under Section 5-A. As held by this Court, the delay by itself accelerates the urgency: Larger the delay, greater be the urgency...... When the Government on the basis of the material, constitutional and international obligation, formed its opinion of urgency, the court, not being an appellate forum, would not disturb the finding unless the court conclusively finds the exercise of the power mala fide...... The lethargy on the part of the officers for pre and post-notification delay would not render the exercise of the power to invoke urgency clause invalid on that account." (emphasis added)

62. It is evident that while deciding Om Prakash and Nirodhi Parkash Gangoli (supra), the judgements of the larger Benches in Deepak Pahwa & Chameli Singh (supra) had not been brought to the notice of the Apex Court.

63. Undoubtedly, when there is a conflict or inconsistency in the judgments of the Apex Court, judgment of the larger Bench is to be followed. (Vide Union of India & Anr Vs. K.S. Subramanian, AIR 1976 SC 2433; State of U.P. & Ors. Vs. Ram Chandra Trivedi, AIR 1976 SC 2547; Union of India & Anr Vs. Raghubir Singh (dead) by L.Rs. etc, AIR 1989 SC 1933; N. Meera Rani Vs. Govt of Tamil Nadu & Anr, AIR 1989 SC 2027; General Manager Telecom Vs. A. Srinivasa Rao & Ors, (1997) 8 SCC 767; Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangh (2001) 4 SCC 448; N.S. Giri Vs. Corporation of City of Manglore & Ors., AIR 1999 SC 1958; Sub Inspector Roop Lal & Anr. Vs. Lt. Governor Delhi & Ors., AIR 2000 SC 594; S.H. Rangappa Vs. State of Karnataka & Ors., (2002) 1 SCC 538; P. Ramachandra Rao Vs. State of Karnataka (2002) 4 SCC 578; Union of India & Anr Vs. Hansoli Devi & Ors (2002) 7 SCC 273; Babu Parasu Kaikadi (dead) by L.Rs. Vs. Babu (dead) by L.Rs., AIR 2004 SC 754; Commissioner of Central Excise, Ahmedabad Vs. Orient Fabrics Pvt. Ltd., AIR 2004 SC 956; Central Board of Dawoodi Bohra Community & Anr Vs. State of Maharashtra & Anr, AIR 2005 SC 752; and Hardev Motor Transport Vs. State of Madhya Pradesh, (2006) 8 SCC 613).

64. Thus, in view of the above, we reach the inescapable conclusion that any lethargy on the part of the State Authorities which causes pre or post-notification delay, shall not render the invoking of the urgency powers and dispensation of inquiry under Section 5-A of the Act illegal or void.

65. In Pista Devi (supra), Hon'ble Supreme Court recognised the right of the Authority for whom the land was sought to be acquired, to communicate with State Government and place the material before it as the Court observed that communication between the State Government and the Development Authority could explain as to whether there was any delay, or whether there was any need to invoke the urgency provisions. The Court further observed that the "letters and the certificates submitted by the Collector and the Secretary of the Development Authority to the State Government before the issue of the notification under Section 4 (1) of the Act clearly demonstrated that at that time there was a great urgency felt by them regarding the provision of housing accommodation. The State Government acted upon the said report, certificates and other material which were before it." The Court further held that in the circumstances of the case, it cannot be said that the decision of the State Government in resorting to the urgency provision was unwarranted. Similarly in Krishna Lal Arneja (supra) the Apex Court took note of the fact that the delay may be caused or occasioned by the land owners themselves and, thus, such a delay would not vitiate the order passed for invoking urgency powers.

66. In Rajasthan Housing Board Vs. Shri Kishan & Anr., (1993) 2 SCC 84, the Supreme Court explained what kind of material was required for forming an opinion for invoking the urgency powers. The Court observed that in case, on the basis of the material placed before it, the State Government comes to the conclusion on due verification that there was an acute scarcity of land and there was a very heavy pressure/demand of land for public purpose and the Authority for whom the land was sought to be acquired was willing to execute the Scheme and had made an arrangement for finance and wanted to proceed with the time bound programme, the Government may be justified in invoking the urgency powers. In the said case the Hon'ble Apex Court took note of the fact that the Housing Board had made arrangement for finance and had appointed large number of Engineers and other subordinate staff for carrying out the scheme, and therefore, observed that an inquiry under Section 5-A of the Act would have resulted in uncalled for delay endangering the entire scheme and time schedule of the Board, and so held that the powers had been rightly exercised.

67. In Om Prakash (supra) the Hon'ble Supreme Court had undertaken the exercise to find out the material available to the Government for forming an opinion about dispensation of inquiry under Section 5-A of the Act. The Apex Court did not find any material on record on the basis of which an opinion could be formed to invoke the urgency powers as the possibility of unauthorised construction or encroachment upon the said land could not be said to be sufficient for invoking such powers.

68. Thus, from the aforesaid settled legal propositions, it is apparent that the Government must be satisfied that demand of land by invoking urgency powers is bonafide and persons interested cannot be deprived of their legal right to file objection just to avoid lethargy on the part of the officers of the State Government or for achieving some other ulterior purpose.

69. It is a settled legal proposition that the scope of judicial review is limited to the decision making procedure and not against the decision of the authority. The Court could review to correct errors of law or fundamental procedural requirements, which may lead to manifest injustice and can interfere with the impugned order in exceptional circumstances. In judicial review, the Court cannot trench on the jurisdiction to appreciate the evidence and arrive at its own conclusion as it is not an appeal from a decision. Review of the decision is not permissible where the findings are recorded by an authority on the basis of legal evidence and the said findings are not based either on ipsi dixit or conjectures or surmises. The Court cannot interfere on the ground that the matter requires appraisal of evidence. "Between appraisal of evidence and total lack of evidence, there is an appreciable difference which could never be lost sight of".

70. The power of judicial review of the writ court is limited, but it has competence to examine as to whether there was material to form such an opinion as required by law or the findings recorded by the authority concerned are perverse. It is settled law that non-consideration of relevant material renders an order perverse. A finding is said to be perverse when the same is not supported by evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularities (Vide Purushottam Chandra Vs. State of U.P. & Ors., AIR 1955 All 106; Mohar Singh Vs. President Notified Area Committee, Colonelganj & Ors., 1956 ALJ 759; Gaya Din Vs. Hanuman Prasad, AIR 2001 SC 386; and In the matter of Special Reference No. 1 of 2002 (Gujrat Assembly Election Matter), reported in (2002) 8 SCC 237).

71. A Full Bench of this Court in Nanha & Anr. Vs. Deputy Director of Consolidation, Kanpur & Ors., 1975 AWC 1 considered as to whether an order or a finding of a Court or Tribunal, passed on evidence on the record, can be interfered with under Article 226 of the Constitution, if some material evidence to the contrary has been ignored from consideration by the Court or Tribunal and held as under:-

"If it appears that a court of fact has in substance based its findings on no evidence or that its finding is perverse in the sense that no reasonable person could possibly come to that conclusion or that it erroneously ignores a vital plea or material evidence which affects the result, a manifest error of law apparent on the face of the record leading to failure of justice can be said to be established. But if a court or a tribunal bases its finding on a consideration of all relevant evidence, but an appellate or a revisional court or tribunal while affirming the finding does not refer to some material or contrary evidence in its order it cannot be said that it has been ignored from consideration so as to entitle the High Court to interfere under Article 226 of the Constitution."

72. The Hon'ble Apex Court in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, AIR 2005 SC 570, has gone a step further by bringing "errors of facts" within the scope of judicial review. While deciding the said case, reliance was placed upon the judgment in E. Vs. Secretary of State for the Home Department, (2004) 2 Weekly Law Report, 1351, wherein it has been held that a review of the merits of the decision making process is fundamental to the Court's jurisdiction. The power of review may even extend to a decision on a question of fact. The error sought to be corrected must be undeniably a significant factor in the decision making process.

73. The question whether inquiry under Section 5-A of the Act is necessary or not is a question of fact and it requires to be determined by the Government in the facts and circumstances of each case for the reason that no straight jacket formula can be evolved as under what circumstances the urgency clause should be invoked. The role of the Court is very limited and it can only see as to whether there was any material to form an opinion about invoking the urgency clause or whether the Government exercised the power in a malafide manner. The question as to whether urgency exists or not, is primarily a matter for determination of the Government subject to the scope of judicial review by the courts of law.

74. In Rajasthan Housing Board (supra) the Hon'ble Supreme Court, while dealing with the issue involved herein, held as under:-

"It must be remembered that the satisfaction under Section 17 (4) is a subjective one and so long as there is material upon which the Government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. This is the principle affirmed by decisions of this Court not under Section 17 (4) but also generally with respect to subjective satisfaction."

75. The adequacy and reliability of the material on the basis of which the conclusion is reached, cannot be permitted to be canvassed before the Court in writ jurisdiction. (Vide Rajinder Kumar Kindra Vs. Delhi Administration Through Secretary (Labour)& Ors (1984) 4 SCC 635; The General Court Martial & Ors Vs. Col. Aniltej Singh Dhaliwal AIR 1998 SC 983 and R.S. Saini Vs. State of Punjab & Ors (1999) 8 SCC 90).

76. The truth or correctness of the material will not be questioned by the Court nor will it go into the adequacy of the material. Even if some of the materials on which the action is taken is found to be irrelevant, the Court would still not interfere so long as there is some relevant material sustaining the order. (Vide Constitution Bench judgements in Rameshwar Prasad & Ors. Vs. Union of India & Ors., AIR 2006 SC 980; and Raja Ram Pal Vs. Hon'ble Speaker Lok Sabha & Ors., (2007) 3 SCC 184).

77. In Bombay Dyeing & MFG Co. Ltd. (3) Vs. Bombay Environmental Action Group & Ors., AIR 2006 SC 1489, the Apex Court considered the scope of judicial review in a case of urban development, maintaining the ecological balance and after considering all aspects of town planning, came to the conclusion that in case of an executive action, the Court can look into and consider several factors, namely:-

(i) whether the discretion conferred upon the statutory authority had been properly exercised;

(ii) whether exercise of such discretion is in consonance with the provisions of the Act;

(iii) whether while taking such action, the executive Government had taken into consideration the purport and object of the Act;

(iv) whether the same subserved other relevant factors which would affect the public at large;

(v) whether the principles of sustainable development which have become part of our constitutional law have been taken into consideration; and

(vi) whether in arriving at such a decision, both substantive due process and procedural due process had been complied with.

78. In Sawarn Singh Vs. State of Punjab, AIR 1976 SC 232 while dealing with such a issue, the Court held as under:-

"In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merit either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the court is satisfied that the authority would have passed the order on the basis of the relevant and existing ground, and the exclusion of irrelevant or non-existing ground could not have affected the ultimate decision." (Emphasis added).

79. A similar view has been reiterated by the Hon'ble Apex Court in Dwarka Das Bhatia Vs. The State of Jammu and Kashmir, AIR 1957 SC 164; State of Orissa & Ors Vs. Bidyabhushan Mohapatra, AIR 1963 SC 779; The State of Maharashtra Vs. Babulal Kriparam Takkamore & Ors, AIR 1967 SC 1353; Binny Ltd. Vs. Their Workmen & Anr., AIR 1972 SC 1975 and P.D. Agrawal Vs. State Bank of India & Ors., AIR 2006 SC 2064.

80. In view of the above, it is apparent that if the order passed by an Authority is based on a consideration of certain relevant material and some other irrelevant and non-existing material, the order can be sustained, provided the relevant existing material was sufficient for formation of such an opinion. Thus, if the order can be passed on relevant and existing grounds, the consideration of irrelevant or non-existent material becomes immaterial.

However, the aforesaid legal proposition applies only in a case where the Authority has to pass an order on objective satisfaction. It carves out an exception that such a proposition would not apply where the decision is to be taken by the Authority on subjective satisfaction.

81. In Dhirajlal Girdharilal Vs. Commissioner of Income-Tax, AIR 1955 SC 271, the Hon'ble Apex Court considered an argument that if the Authority had passed an order based upon its own imagination or surmises or conjectures, though there was some other relevant and existing grounds also, the order would stand vitiated. The Court observed as under:-

"It is well established that when a Court of facts acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. So such a finding is vitiated because of the use of inadmissible material................"

82. In Zora Singh Vs. J.M. Tandon, AIR 1971 SC 1537, the Court considered a similar issue and held as under:-

"The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari, the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into question of the sufficiency of evidence." (Emphasis added)

83. In Smt S.R. Venkataraman Vs. Union of India & Anr., AIR 1979 SC 49, the Hon'ble Supreme Court held as under:-

"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstances. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another."

84. Thus, in case where the order is based on subjective satisfaction, consideration of irrelevant or non-existent material becomes fatal and vitiates the order itself. Such a view stands fortified by the judgments of the Hon'ble Supreme Court in Keshav Talpade Vs. Emperor, AIR 1943 FC 1; Shibban Lal Vs. State of Uttar Pradesh, AIR 1954 SC 179; Rameshwar Lal Vs. State of Bihar, AIR 1968 SC 1303; Puspadevi Vs. M.L. Wadhavan, AIR 1987 SC 1748; and Vashisth Narain Vs. State of Uttar Pradesh, AIR 1990 SC 1272.

85. Same remains the position where the Authority fails to consider the vital facts, for the reason that if the material or vital facts which would influence the mind of the Authority one way or the other, are not placed or are not considered by the Authority, it would vitiate the subjective satisfaction. The Authority must exercise due care and caution and act fairly and justly in exercise of its powers. However what is a vital fact would depend on the facts of each case. Therefore, only those matters alone should be regarded as vital which are reasonably likely to affect the decision of the Authority. Non- consideration of the vital fact may taint the satisfaction of the Authority. (Vide Tushar Govindji Vs. Union of India, AIR 1985 SC 511; Sitaram Vs. State of Rajasthan, AIR 1986 SC 1072; and Ahmed Nissar Vs. State of Tamil Nadu, AIR 1999 SC 3897).

86. In Swadeshi Cotton Mills Co. Ltd. Vs. State Industrial Tribunal, U.P. & Ors., AIR 1961 SC 1381, a Constitution Bench of Hon'ble Supreme Court considered a case where forming the opinion after considering the material was not recited in the order and held as under:-

"........The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made.

.........The presumption as to the regularity of public acts would apply in such a case; but as soon as the order is challenged and it is said that it was passed without the conditions precedent being satisfied the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with......"

87. Therefore, where the recital of a particular fact is not there on the face of the order, the order would not become illegal ab initio rather a further burden would be thrown on the authority passing the order to satisfy the Court by other means that the conditions precedent were complied with.

88. The issue as to whether the acquisition of the land is permissible by the Government for a purpose which is not in conformity of the land use shown in the Master Plan, was considered by the Constitution Bench of the Hon'ble Supreme Court in Aflatoon & Ors. Vs. Lt. Governor of Delhi & Ors., AIR 1974 SC 2077, wherein the Supreme Court held as under:-

"23. The planned development of Delhi had been decided upon by the Government before 1959,viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready (See the decision in Patna Improvement Trust v. Smt. Laxmi Devi, AIR 1963 SC 1077. In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property, acquisition generally precedes development. For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority."

89. A Division Bench of this Court in M/s. Technical Associates Pvt. Ltd. Vs. State of U.P. & Ors., 1984 ALJ 1093, also took a similar view observing that where the land had partly been earmarked for industrial purpose and partly as greenbelt, it can be acquired for housing scheme as the Master Plan can be altered/amended by the State Government subsequent to the acquisition of the land. The only restriction in law is that the land should not be used in contravention of the Master Plan existing on the date of its use.

90. In Kendriya Karamchari Evam Mitra Sahkari Avas Samiti Ltd. & Anr. Vs. State of U.P. & Anr., 1988 UPLBEC 645, another Division Bench of this Court considered a similar issue and held that amendment of a Master Plan is permissible with the approval of the State Government under Section 13 of the U.P. Urban Planning and Development Act, 1973 and the area shown as a greenbelt can be altered or modified by changing the Master Plan even subsequent to the acquisition of the land. The law does not require modification of the Master Plan prior to initiation of the proceedings for acquisition as acquisition generally precedes development and, therefore, the land can be acquired in anticipation of the approval of the State Government for change of land use in the Master Plan prepared by the Development Authority. The Court further observed as under:-

"..............Where, therefore as here, the circumstances justify that possession should be taken immediately, that is, before it is too late, the Government could invoke the urgency clause even prior to according sanction to the proposed amendment of the Master Plan. Further, the authority competent to sanction the proposed amendments in the Master Plan is the same, namely, the Government which was to take the decision regarding acquisition of land as well for a housing scheme under a planned development covered by Section 17 (1-A) of the Land Acquisition Act and consequently the Government could take the decision under Section 17(4) even before sanctioning the proposed amendments to the Master Plan."

91. In view of the above, it is evident that there is no prohibition in law to acquire the land for the public purpose which is not in conformity or in consonance with the purpose shown in the Master Plan as the acquisition can be made in anticipation of amendment/modification of the Master Plan.

92. In view of the aforesaid settled legal propositions, it emerges that the land can be acquired for public purpose; the expression 'public purpose' cannot be defined by giving a specific definition as there is no straitjacket formula. The facts and circumstances of each case have to be seen to find out whether there is any public purpose. Right to property is a constitutional/statutory/human right of an individual person. A person interested has a right to file objections under Section 5-A of the Act though such a right is limited for pointing out that the purpose for which the land is acquired is not a public purpose or the land of the said person is not suitable for that purpose or the area of the land sought to be acquired would be excessive for serving the said purpose as the land cannot be acquired for some other collateral purpose. Such objections form the basis of an enquiry under Section 5-A of the Act. In exceptional circumstances where there is a grave urgency or unforeseen emergency, the Government is competent to invoke the urgency powers contained under Sections 17 (1) and 17 (2) of the Act and take possession before making the Award. The Government is also competent to take a decision that in order to avoid further delay, the enquiry envisaged under Section 5-A of the Act can be dispensed with, but for taking such a decision, there must be existing and relevant material before the Government and it must apply its mind as to whether the urgency is such that persons interested are to be deprived of their right to file objections under Section 5-A of the Act. The recital of such an opinion in the order is not necessary, if the reasons have been recorded in this regard in the official records. It is a case of subjective satisfaction of the Government and once the Government forms the opinion and dispenses with the enquiry under Section 5-A of the Act, the Court, in its limited jurisdiction of judicial review, cannot declare the acquisition proceedings bad if there is pre or post notification delay or lethargy on the part of the officials of the State Government. There is no prohibition in law for acquiring the land for a public purpose, which is not in conformity with the land use shown in the Master Plan, as the Master Plan can be amended/modified by the Government. Acquisition of the land for a use other than the use for which it had been earmarked in the Master Plan can be initiated in anticipation of approval to the proposed amendment/modification of the Master Plan by the State Government.

93. The question raised by learned counsel for the respondents is that the rest area was not acquired in the year 1987 because at the time of measurement it was less and thus it was left. Virtually the possession was taken on the total area on the spot which was less area under question and the amount of compensation was not paid due to the reason that the area was not available on the spot. Subsequent on the regular intervention of the petitioner and in compliance of the order of the Court the respondents have paid reasonable compensation which was calculated according to rules. The facts had not been disclosed by the petitioner in the petition and the counsel for the respondents has submitted that the petitioner has not come before the Court with clean hands.

94. When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.

95. In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:

"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."-

96. Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-

"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers. (Emphasis added)"

97. In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-

"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."

98. Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.

99. In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court.

100. In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:-

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."

101. In Abdul Rahman Vs. Prasony Bai & Anr., AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case.

102. The petitioner in the petition has submitted that the amount which was paid by the Lucknow Development Authority, respondents, through cheque as a compensation of the land was taken by the petitioner on a very strong protest. Whatever the case may be, it is an admitted fact that the amount has been awarded and paid to the petitioner. The question that the amount of compensation was not paid in accordance with commercial rate or at the rate of Rs.22,000/- per square meter is not tenable at present because the possession had already been taken at the time of acquisition of the land. Now at present and before filing of the present writ petition the amount of compensation has already been paid to the petitioner. The calculation of the compensation has been made by the Land Acquisition Officer in accordance with existing rules but the petitioner is claiming higher compensation which is not tenable in the eyes of law. The version of the petitioner is that the amount of the compensation which was paid by the respondents was determined unilaterally without settling the matter with the petitioner in an arbitrary manner. The version of the petitioner is that the possession of the land has been taken illegally by the respondents without undertaking appropriate proceedings under law and the compensation has not been determined through the settlement at the prevailing price of the above plot and thus the possession should be restored to the petitioner and the petitioner is ready to pay back the amount which has been paid to the petitioner. This Court vide order dated 10.01.2017 had directed the parties to settle the dispute amicably but the demand of higher amount of compensation was declined by the Land Acquisition Officer and further since the matter has been finally decided and the possession has been taken, the consideration paid and the matter was again brought before the Court for decision. The petitioner while filing short rejoinder affidavit on 01.03.2017 had submitted that the award should be determined in accordance with new Act because the plot /land of the petitioner was taken in possession and utilized in raising a residential colony does not call for a fresh proposal for acquisition of land. Now by filing the rejoinder affidavit the petitioner has accepted that the acquisition has taken place long back and the third party right/right of the person who has occupied the residence has created. Section 24 of the new Act provides that where no award under Section 11 of the Act has been made then all provisions of this Act relating to determination of compensation shall apply. Section 24 of 2013 Act envisages mainly two situations- (1) where land acquisition proceedings had already been initiated under the old Act and award was passed till the date the new Act came into force, and (2) where the award has been passed but neither the owner has been dispossessed nor the compensation has been paid.

103. If we examine the present case in light of above two conditions, it will be clear that the possession had been taken by the respondents after proceeding under the Land Acquisition Act and the amount of compensation has already been paid to the petitioner.

104. The petitioner has prayed the relief that the possession of the land should be restored to him or to provide a suitable plot. The question is as to whether the possession has been taken by the respondents or not. By filing the rejoinder affidavit, it is admitted case that the possession has already been taken by the respondents and residential colony has been constructed and allotted and third party right has accrued on the spot. Learned counsel for the respondents has submitted that the land which has been acquired by the State vests in the Government because physical possession has been taken by the State. Acquired land has been utilized for implementing residential scheme and third party right has been accrued. The unexplained delay of about 30 years in filing the writ petition is argued by learned counsel for the respondents for refusing to entertain the prayer made in the writ petition.

105. 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. In State of Madhya Pradesh v. Bhailal Bhai - AIR 1964 SC 1006, the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held:

"...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 take 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.

...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."

106. In matters involving challenge to the acquisition of land for public purpose, the 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 utilized for the public purpose.

107. In Ajodhya Bhagat v. State of Bihar - (1974) 2 SCC 501, the Court approved dismissal by the High Court of the writ petition filed by the Appellant for quashing the acquisition of his land and observed:

The High Court held that the Appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The Appellants alleged that it was a paper transaction. The High Court rightly rejected that contention. Secondly, the High Court said that the Trust invested several lakhs of rupees for the construction of roads and material for development purposes. The Appellants were in full knowledge of the same. The Appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petitions and hold up the acquisition proceedings for more than a generation. The High Court rightly exercised discretion against the Appellants. We do not see any reason to take a contrary view to the discretion exercised by the High Court.

(emphasis supplied)

108. In State of Rajasthan v. D.R. Laxmi - (1996) 6 SCC 445, the Court referred to Administrative Law H.W.R. Wade (7th Ed.) at pages 342-43 and observed:

"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...."

109. In Girdharan Prasad Missir v. State of Bihar - (1980) 2 SCC 83, the delay of 17 months was considered as a good ground for declining relief to the Petitioner.

110. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. - (1996) 11 SCC 501, the Court held:

"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."

111. In Urban Improvement Trust, Udaipur v. Bheru Lal - (2002) 7 SCC 712, the Court reversed the order of the Rajasthan High Court and held that the writ petition filed for quashing of acquisition of land for a residential scheme framed by the Appellant-Urban Improvement Trust was liable to be dismissed on the ground that the same was filed after two years.

112. In Ganpatibai v. State of M.P. - (2006) 7 SCC 508, the delay of 5 years was considered unreasonable and the order passed by the High Court refusing to entertain the writ petition was confirmed. In that case also the Petitioner had initially filed suit challenging the acquisition of land. The suit was dismissed in 2001. Thereafter, the writ petition was filed. The Court referred to an earlier judgment in State of Bihar v. Dhirendra Kumar - (1995) 4 SCC 229 and observed:

"In State of Bihar v. Dhirendra Kumar this Court had observed that civil suit was not maintainable and the remedy to question notification under Section 4 and the declaration under Section 6 of the Act was by filing a writ petition. Even thereafter the Appellant, as noted above, pursued the suit in the civil court. The stand that five years after the filing of the suit, the decision was rendered does not in any way help the Appellant. Even after the decision of this Court, the Appellant continued to prosecute the suit till 2001, when the decision of this Court in 1995 had held that suit was not maintainable."

113. In Sawaran Lata v. State of Haryana - (2010) 4 SCC 532, the dismissal of writ petition filed after seven years of the publication of declaration and five years of the award passed by the Collector was upheld by the Court and it was observed:

"In the instant case, it is not the case of the Petitioners that they had not been aware of the 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 the 1894 Act 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 the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the Petitioners could not have knowledge of the acquisition proceedings."

114. In the instant case, the acquired land was utilized for implementing Kanpur Road Nagar Prasar Yojna inasmuch as after carrying out necessary developments i.e. construction of roads, laying electricity, water and sewer lines, the Lucknow Development Authority carved out plots constructed residential area for the public, invited applications for allotment of plots and flats from the public and allotted the same to the eligible persons. In this process, the Lucknow Development Authority has incurred huge expenditure and also a third party right has accrued. In this scenario, the delay of more than 25 years from the date of publication of the declaration issued under Land Acquisition Act is sufficient to decline the equitable relief. More soever, in the circumstances where the amount of compensation has already been paid and the petitioner is demanding the higher rate of award for which he has alternative remedy to file reference before the competent court. The question of possession has been agitated by the petitioner in sometimes he has stated that at the time of declaration of acquisition proceedings possession had not been taken but further in the supplementary rejoinder affidavit he has submitted that the possession has been taken by the respondents.

115. What should be the mode of taking possession of the land acquired under the Act? This question was considered in Balwant Narayan Bhagde v. M.D. Bhagwat - (1976) 1 SCC 700. Untwalia, J. referred to the provisions contained in Order XXI Rules 35, 36, 95 and 96 of the Code of Civil Procedure, decisions of different High Courts and opined that even the delivery of so called "symbolical" possession is delivery of "actual" possession of the right, title and interest of the judgment-debtor. Untwalia, J. further observed that if the property is land over which there is no building or structure, then delivery of possession over the judgment-debtor's property becomes complete and effective against him the moment the delivery is effected by going upon the land. The Learned Judge went on to say:

"When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there should be no question of resisting or impeding the taking of possession. Delivery or giving of possession by the owner or the occupant of the land is not required. The Collector can enforce the surrender of the land to himself under Section 47 of the Act if impeded in taking possession. On publication of the notice under Section 9(1) claims to compensation for all interests in the land has to be made; be it the interest of the owner or of a person entitled to the occupation of the land. On the taking of possession of the land under Section 16 or 17(1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of Section 16 or 17 means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in civil law. But the question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the owner or the occupant of the land is dispossessed. Once possession has been taken the land vests in the Government."

(emphasis supplied)

116. Bhagwati J., (as he then was), speaking for himself and Gupta, J. disagreed with Untwalia, J. and observed:

"...We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking "symbolical" possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land.We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the Appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it."

(emphasis supplied)

117. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab - (1996) 4 SCC 212, the Court negatived the argument that even after finalization of the acquisition proceedings possession of the land continued with the Appellant and observed:

"It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the Appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession."

118. In P.K. Kalburqi v. State of Karnataka , the Court referred to the observations made by Bhagwati, J. in Balwant Narayan Bhagde v. M.D. Bhagwat (supra) that no hard and fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land and observed that when there is no crop or structure on the land only symbolic possession could be taken.

119. In NTPC v. Mahesh Dutta - (2009) 8 SCC 339, the Court noted that Appellant NTPC paid 80 per cent of the total compensation in terms of Section 17(3A) and observed that it is difficult to comprehend that after depositing that much of amount it had obtained possession only on a small fraction of land.

120. In this case, no hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land but if the acquired land is vacant, the act of the State authorities visited and after measurement took the possession, raised construction, allotted land to the allottees. This is a proved fact of taking possession after acquisition. In this way, we found that the action of the State authorities concerned to go to the spot and preparing the map and after taking the actual possession, the acquired land has been taken and handed over to the Lucknow Development Authority and subsequent thereof Lucknow Development Authority has allotted the land after following the due process and acquisition proceedings are complete.

121. In light of above facts, the relief, as claimed by the petitioner in the writ petition for restoring back the land under question or providing other suitable plot to the petitioner in lieu thereof or to pay higher compensation than the compensation already paid to the petitioner is not maintainable on the basis of all discussed above. We are of the view that the petition lacks merit and deserves to be dismissed. Accordingly, the writ petition is dismissed. No order as to costs.

 

 
Date :-  17.05.2017
 
(Sheo Kumar Singh-I, J.)     (Shri Narayan Shukla, J.)
 
A. Katiyar