Pawan Kumar & Ors. vs Govt. Of Nct & Ors
2008 Latest Caselaw 1317 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 8059-61/2006 & CM No.5973 /2008

                                         Reserved on : July 16th, 2008

%                                Date of Decision : August 12th, 2008

PAWAN KUMAR & ORS.                  ..... Petitioners
                Through:            Mr. P.N. Lekhi, Sr. Advocate with
                                    Mr. Samar Bansal, Advocate.

                     versus

GOVT. OF NCT & ORS.                 ..... Respondents
                  Through:          Mr. Sanjay Poddar, Advocate for
                                    R-5/LAC.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1. Whether Reporters of local papers may be
   allowed to see the judgment?                             Yes
2. To be referred to the Reporter or not?                   Yes
3. Whether the judgment should be reported in               Yes
   the digest?


                     JUDGMENT

MANMOHAN, J :

1. The present writ petitions have been filed seeking a declaration

that the intended possession by the Respondents of the Petitioners'

land comprising of Khasras No. 35/9/1 and 35/9/2 admeasuring 3600

sq. yd. situated within the Revenue Estate of Village Samaypur, Delhi

(hereinafter referred to as the said land) is not for any public purpose

and not required for acquisition. The Petitioners have also sought a

prayer of Mandamus directing the Respondent - Land Acquisition

Collector not to interfere with the peaceful possession, use and

enjoyment of the said land.

2. Briefly stated the material facts of this case are that the

Petitioners, who are father and two sons, are joint owners of the said

land.

3. On 27th July, 1984, a notification under Sections 4 read with

sub-sections (1) and (4) of Section 17 of the Land Acquisition Act,

1894 (hereinafter referred to as 'said Act') was issued by the

Respondent for acquisition of 2122 bighas and 15 biswas of land,

which included the said land, for the purpose of planned

development of Delhi.

4. As the proposed acquisition was under the urgency provision of

Section 17(4) the right to file objections under Section 5A was

dispensed with. On 27th July, 1984, a declaration under Section 6 of

the said Act was also simultaneously issued. Pursuant to the notice

under Section 9 of the said Act, the Petitioners filed their objections in

August 1984 stating that they were carrying on their business on the

said land as well as the entire land was built up with the adjoining

land being used for industrial purpose.

5. On 27th March 1985, Respondents announced an award

wherein it was stated that the Respondents had taken possession of

2119 bighas out of 2122 bighas except for three Khasra numbers out

of which two belonged to the Petitioners.

6. According to the Petitioners, thereafter for twenty two years no

attempt was made by the Respondents or any other agency to disturb

the peaceful, continuous and settled possession of the Petitioners

over the said land.

7. It is alleged that on 5th May, 2006 officials of Respondent No.4

without any notice came to the Petitioners' land and started

demolishing the structure thereupon. While the Petitioners alleged

that their possession over the acquired land was never taken away,

the Respondents in their counter affidavit state that after removal of

unauthorized construction carried out by the Petitioners, the

Respondents handed over physical possession of Petitioners' land to

DDA, which was the ultimate beneficiary of the acquired land.

8. Aggrieved by the Respondents' action to dispossess the

Petitioners from their land, the Petitioners filed the present writ

petition in 2006 seeking the relief as mentioned hereinabove. On 10th

May, 2006, this Court was pleased to direct the parties to maintain

status quo with regard to the construction and possession as on that

date.

9. Mr. P.N. Lekhi, learned Senior Counsel for the Petitioners

submitted that the power to take possession on urgent basis under

Section 17 (1) of the said Act can be exercised only in the

circumstances mentioned in sub-section (2) of Section 17 of the said

Act namely owing to sudden change in the channel of any navigable

river or other unforeseen urgency or for the purpose of maintaining

any structure or system pertaining to irrigation, water supply,

drainage, road connection or electricity. Consequently, Mr. Lekhi

contended that in the present case there were no facts warranting

invocation of Section 17(1) of the said Act.

10. Mr. Lekhi next submitted that as in the present case the

Collector had not tendered 80% of the compensation amount to the

Petitioners before endeavouring to take possession of the said land,

the acquisition by virtue of sub-section (3A) of Section 17 of the said

Act was illegal.

11. Mr. Lekhi further submitted that though the discretion to acquire

a land vests in the State, but the said power has to be exercised in

accordance with law. He submitted that the power to acquire and to

take possession cannot be exercised contrary to the object sought to

be achieved by the said Act. He further submitted that as in the

present case Respondents sought to take possession of the said land

after twenty two years of the urgency power having been exercised

under Section 17 of the said Act, the exercise of said power was

arbitrary, irrational, malafide and discriminatory. In this connection,

Mr. Lekhi referred to the judgment of the Apex Court in M/s. Monarch

Infrastructure (P) Ltd. Vs. Commissioner, U.M.C. reported in AIR

2000 SC 2272 para 11 wherein it has been held that administrative

action of the Government is liable to be set aside if it is arbitrary or

discriminatory or the policy adopted has no nexus with the object it

seeks to achieve or is malafide. Mr. Lekhi also referred to the

Wednesbury principle, according to which, Court has the power to

set aside administrative actions if they were either illegal or irrational

or vitiated by procedural irregularity. In this context, Mr. Lekhi relied

upon the judgment of Supreme Court in Om Kumar & Ors. Vs.

Union of India reported in AIR 2000 SC 3689.

12. Mr. Lekhi also submitted that action of the Respondents in

attempting to take possession of Petitioners' land under the pretext of

a notification issued twenty two years ago under Section 17 of the

said Act amounted to colourable exercise of power and fraud on

power. He submitted that Section 17 (1) of the said Act empowered

the Collector to take possession of the land 15 days after a

notification of urgency has been issued. Mr. Lekhi submitted that the

legislative intent was to invoke this power only in rare cases of real

urgency where public interest does not brook any delay in completing

the acquisition. Mr. Lekhi also referred to sub-section (4) of Section

17 which empowered the appropriate government to direct that

provisions of Section 5A of the said Act shall not apply to the notified

land. Since in the present case the Government had exercised its

power under Section 17 (4), the Petitioners were deprived not only of

their valuable right of filing the objections under section 5A but also of

their right of hearing before the Collector. Mr. Lekhi laid great

emphasis on the importance of rights arising out of Section 5A of the

said Act, as according to him the said right was akin to a fundamental

right. In this context Mr. Lekhi referred to the judgment of

Supreme Court in Hindustan Petroleum Corporation Ltd. Vs.

Darius Shapur Chenai & Ors. reported in (2005) 7 SCC 627 at

635. Mr. Lekhi also referred to the judgment of the Andhra Pradesh

High Court in C. Suryanarayana Vs. State of Andhra Pradesh

reported in AIR 1983 Andhra Pradesh 17. In that case the High

Court held that if after dispensing with enquiry under Section 5A, on

the ground of urgency, possession was not taken for a period of three

years it would certainly lead to a conclusion that there was no real

urgency justifying the dispensation of enquiry under Section 5A

and that the acquisition authorities had acted mechanically. The

relevant portion of para 7 of the said judgment is reproduced

hereinbelow for ready reference :-

"It is therefore clear that the power to dispense with the enquiry envisaged by S. 5-A can be exercised only when there is such an urgency to take immediate possession of the land as not to brook the delay of even 30 days notice being issued to enable the persons interested to file objections to the acquisition itself, and the determination of such objections, by the Collector. If therefore after dispensing with the enquiry under S. 5-A under the plea of urgency, possession is not taken even after a lapse of nearly three years, that would certainly be a factor leading to the conclusion that there was no real urgency justifying the dispensing with of the enquiry under Sec.5-A and that the Acquisition Authorities acted mechanically......

If the person entitled to remain in possession is to be immediately dispossessed there should unquestionably be such an urgency to take immediate possession of the land which alone justifies the invocation of the power under sub-section (4) of S. 17 as not to brook the delay of even a summary enquiry. That power cannot be lightly exercised."

13. Mr. Lekhi also relied upon observations to a similar effect in

Smt. Laxmi Devi Vs. State of Orissa reported in AIR 1990 Orissa

196 and Satyendra Kumar Vs. Union of India reported in 53

(1994) DLT 181 para 6. Mr. Lekhi also referred to the judgments of

the Apex Court in Sanjeev Nagar Medical & Health Employees'

Cooperative Housing Society Vs. Mohd. Abdul Wahab and

Others reported in (1996) 3 SCC 600 at 605; State of Punjab Vs.

Gurdial Singh reported in (1980) 2 SCC 471 paras 16 and 17.

14. Mr. Lekhi submitted that as the Land Acquisition Act was an

expropriatory legislation, its provisions should be strictly construed as

it deprives a person of its land without his consent. In support of this

proposition, Mr. Lekhi again relied upon para 29 of the Apex Court's

judgment in Hindustan Petroleum Corporation Ltd. referred to

hereinabove.

15. Mr. Lekhi lastly submitted that the expression urgency in

Section 17(1) cannot be partly good and partly bad like the curate's

egg. In this context, Mr. Lekhi relied upon judgments of the Apex

Court in Union of India & Ors. Vs. Shakuntala Gupta (Dead) by

LRs reported in (2002) 7 SCC 98 para 15 and in Vithal and Others

Vs. State of Karnataka and Others reported in (2004) 10 SCC 162

para 14.

16. In response, Mr. Sanjay Poddar, learned Counsel for the

Respondent firstly referred to the prayers in the present Writ Petitions

to contend that no relief had been sought for quashing of notification

issued under Sections 4, 6 and sub-sections (1) and (4) of Section 17

of the said Act. Mr. Poddar submitted that in the absence of such a

prayer, Petitioners would not be entitled to any relief from this Court.

17. In the alternative, Mr. Poddar submitted that if the notification

issued under Sections 4, 6 and 17 of the said Act was presumed to

be impugned in the present proceedings, then the present writ

petition would be liable to be dismissed on the ground of laches as

the said notification had been issued in the year 1984 and the State

Government after considering the objections filed under Section 9 of

the said Act had passed a detailed Award on 27th March, 1985.

According to Mr. Poddar, the Petitioners could not impugn either the

notification or the Award after a lapse of twenty two years. In this

context, Mr. Poddar relied upon following judgments:-

a) State of Rajasthan & Ors. Vs. D.R. Laxmi & Ors. reported in (1996) 6 SCC 445 paras 3, 6 and 7;

b) Babu Ram & Ors. Vs. Union of India & Ors. reported in 125 (2005) Delhi Law Times 259 paras 7, 8, 15 to 24;

c) Rajiv Prem (Sh.) Vs. UOI & Ors. reported in 2006 VIII AD (Delhi) 268 paras 14, 15, 16 and 21; and

d) Santosh Kumar & Ors. Vs. Union of India & Ors. reported in 2006 VII AD (Delhi) 7

18. Mr. Poddar further contended that as the Respondents had

demolished the structure of the Petitioners on 5th May, 2006 and

thereafter not only taken possession of the Petitioners' land but had

also handed over the same to Delhi Development Authority, the

present writ petition was not maintainable. In this context, Mr. Poddar

referred to the counter-affidavits filed by the Land Acquisition

Collector and by the Delhi Development Authority. He also referred

to the demolition report, demolition photographs as well as the

possession proceedings annexed to the said counter-affidavit.

Consequently, Mr. Poddar submitted that a writ petition challenging

acquisition notification, after possession of the said land had been

taken, is not maintainable. He submitted that the effect of taking

possession under Section 16 of the said Act is that a curtain is drawn

so far as land acquisition proceedings are concerned and the land

goes outside the purview of the Land Acquisition Act. In this context,

Mr. Poddar referred to and relied upon the judgments of the Apex

Court in Swaika Properties Pvt. Ltd. & Anr. Vs. State of Rajasthan

& Ors. reported in 2008 (2) SCALE 271 paras 12 & 13; State of

Rajasthan Vs. D.R. Laxmi & Ors. referred to hereinabove and Ajit

Singh & Ors. Vs. Union of India reported in 89 (2001) Delhi Law

Times 495 para 8.

19. Mr. Poddar next submitted that assuming without admitting that

if the State has not deposited 80% of compensation as mandated by

sub-section (3A) of Section 17 of the said Act, then also the taking of

possession by the Respondent would not become illegal as the only

consequence of such a default would be that the State would be

liable to pay interest under Section 34 of the said Act. In this context,

Mr. Poddar relied upon a judgment of a Division Bench of this Court

in Deepak Resorts & Hotels P. Ltd. & Anr. Vs. UOI & Ors.

reported in (2008) V AD (Delhi) 466.

20. Mr. Poddar further referred to the counter-affidavit and the

documents on record to contend that under the impugned notification

2122 bighas and 15 biswas of land was sought to be acquired and

taken over for Planned Development of Delhi namely for Rohini

Residential Scheme which was meant to give shelter to public in a

systematic manner in Delhi. Mr. Poddar referred to the Award dated

27th March, 1985 to contend that out of 2122 bighas and 15 biswas,

possession of land admeasuring 2119 bighas was taken and handed

over to Delhi Development Authority on 21st August, 1984. The

possession of Petitioners' land was immediately not taken over in

1984 as it comprised of illegal built up structures, inasmuch, as the

said land was agricultural land and no construction could have been

raised thereon. In any event, he referred to DDA's counter-affidavit to

state that the said land was urgently required for construction of two

major proposed roads of Rohini Project of which one is 45 mtrs wide

and other is 60 mtrs. wide.

21. Mr. Poddar further contended that the Petitioners were well

aware of the acquisition proceedings as would be apparent from the

objections filed under Section 9 of the said Act. He submitted that

even if there was delay in completing the acquisition proceedings and

in taking possession of the land, such a delay would not vitiate the

acquisition and turn the clock back. In this context, he relied upon a

Division Bench judgment of this Court in Balwan Singh & Ors. Vs.

Land Acquisition Collector & Ors. reported in 144 (2007) Delhi

Law Times 851.

22. In rejoinder, Mr. Lekhi submitted that the present petition was

not barred by laches. He submitted that there was no time limit for

filing a writ petition. According to Mr. Lekhi, the test is not the

physical running of time but whether due to delay in approaching the

court third party rights have been prejudiced. The court is to see

whether laches on the part of the Petitioners are such as to disentitle

the Petitioners from the relief claimed by them. He submitted that the

test to be adopted by the Court is whether it would in all the

circumstances be unconscionable for a party to be permitted to assert

its beneficial rights. In this context, Mr. Lekhi relied upon judgment of

the Apex Court in State of U.P. & Ors Vs. Raj Bahadur Singh &

Anr. reported in (1998) 8 SCC 685 para 2, M/s. Delhi Rohtas Light

Railway Company Ltd. Vs. District Board Bhojpur reported in

(1992) 2 SCC 598 para 13, U.P. Pollution Control Board Vs.

Kanoria Industrial Ltd. reported in (2001) 2 SCC 549 para 24 and

Cattley Vs. Pollard, (2007) 2 All ER 1086 paras 151 to 154.

23. Mr. Lekhi reiterated that the Petitioners were still in possession

of the said land and further the Petitioners could not be dispossessed

by virtue of Section 17 notification issued twenty two years ago.

24. Mr. Lekhi clarified that the Respondents had not cited even a

single judgment condoning the delay in taking possession after

issuance of Section 17 notification. Mr. Lekhi clarified that judicial

pronouncement by the Apex Court only referred to and condoned the

delay in taking possession under Sections 4 and 6 of the Land

Acquisition Act and not under Section 17 of the said Act.

25. In our considered view, in the absence of any initial challenge

to acquisition notifications issued under Section 4 and 17 as well as

the subsequent Award, the Petitioners are not entitled to any relief as

prayed for. In fact, the Petitioners due to the long time gap between

the filing of the present writ petition and issuance of Sections 4, 6 and

17 notifications were disentitled to challenge the same.

26. As far as the issue of laches is concerned, it is well settled law

that when there is inordinate delay in filing a writ petition and when all

steps taken in the acquisition proceedings have become final, the

Court would be extremely hesitant to quash the notifications. This

Court, no doubt, has the discretionary powers under Article 226 of the

Constitution to quash acquisition notification but the said power has

to be exercised after taking into consideration all relevant factors.

Mr. Lekhi's argument that as no third party rights had been created in

this case the writ was maintainable, in our view, cannot be the sole

ground for interference by this Court. In fact, in State of Rajasthan

and Ors. Vs. B.R. Laxmi & Anr. reported in (1996) 6 SCC 445 the

High Court had, notwithstanding the completion of the acquisition

proceedings, interfered with the same on the ground that no third

party rights had been created. In appeal, the Supreme Court

reversed the judgment holding that the High Court should not have

exercised its powers to quash the proceedings when the award had

been made and the possession of the land had been taken over.

Discretionary power of the Court under Article 226 of the Constitution,

observed their lordships, had to be exercised taking the relevant facts

into pragmatic consideration. The following passage in this regard is

apposite :

"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 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."

27. The test regarding laches is also no longer res integra. In

Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig &

Ors. reported in (2002)2 SCC 48 where on a petition challenging

acquisition of land after twenty one years from the date of notification

and sixteen years after making of award and taking of possession,

the High Court had cancelled the notification and directed making

over of the vacant possession of the acquired land, the Supreme

Court set aside the High Court's decision and dismissed the petition

only on the ground of delay in filing the same by observing :-

"....It is now a well-settled principle of law that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil

proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has is fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favour a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise."

28. In Reliance Petroleum vs. Zaver Chand Popatlal Sumaria,

(1996) 4 SCC 579 (paras 8 and 12) it has been held that if the writ

petitioners' intention was to challenge the acquisition proceedings,

they should have done so immediately at least after the publication or

declaration under Section 6 or immediately after the receipt of notice

under Section 9 of the Land Acquisition Act. Since the petitioners in

the said case waited till the Award was passed before filing their

petition, the Apex Court held that it only showed that the object of the

said petitioners was just to get maximum price for the land acquired.

29. Therefore, the legal position that emerges is that while High

Courts have the jurisdiction and power to entertain a petition under

Article 226 of the Constitution, it would be sound exercise of that

discretion, if the Court refuses to interfere with land acquisition

proceedings in cases where the land owners have allowed the

authorities to complete the said proceedings and challenge the same

at a belated stage. In the present case, the Petitioners have allowed

the proceedings to go on under the same notification and award in

their neighbourhood thereby accepting, by their silence, the validity

of the impugned notification and award. In our view, it is too late in

the day for the Petitioners to now turn around and to challenge the

same after the Collector has made his Award and dispossessed the

owners on the basis thereof. We are of the view that the test of

laches is the same in a petition challenging the validity of Section 4

and 6 Notifications or that of a Section 17 Notification.

30. Unlike Andhra Pradesh judgment in C. Suryanarayana referred

to hereinabove, in the present case there was no delay in taking

possession under the impugned notifications as out of 2122 bighas 15

biswas of acquired land, Respondents had taken immediate possession

of 2119 bighas of land or 99.80 per cent of the acquired land. Over the

years Rohini Residential Scheme for which the impugned notifications

had been issued, has also been implemented. Since all these

developments have happened in the Petitioners' neighbourhood under

the same impugned notification, it was not permissible to the Petitioners

to sit on the fence, allow the Government to complete the acquisition

proceedings and develop the area on the basis of notifications issued

under Section 4 and 17 of the said Act and then attack the same after

twenty two years. Consequently, in our view the present petition is

barred by laches and there is no delay on the part of the Respondents

in taking possession of land under the impugned notification and Award.

31. In any event, delay, if any, in taking possession of Petitioners'

land was primarily on account of illegal construction carried out by the

Petitioners and thus the Petitioners cannot take advantage of their own

wrong.

32. Moreover, as rightly pointed out by Mr. Lekhi, the expression

'urgency' cannot be partly good and partly bad. Since, possession of

more than 99.80 per cent of the land acquired under the impugned

notifications had been taken over immediately by the Respondents, it

cannot be held that Section 17 (1) exercised by the Respondents was a

fraud on the statute or a colourable exercise of power or that the

acquisition authorities had acted mechanically.

33. From the demolition report, photographs on record as well as the

possession proceedings annexed with the counter-affidavits, we are of

the view that the Respondents had taken possession of the Petitioners'

land under Section 16. Even if we accept Mr. Lehi's contention that the

petitioners are in actual physical possession of the property we may

note that the Apex Court in Balmokand Khatri Educational and

Industrial Trust, Amritsar vs. State of Punjab & Ors. (1996) 4 SCC

212 and in the case of Tamil Nadu Housing Board vs. A Viswam

(Dead by Lrs), (1996) 8 SCC 259 has held "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 the

panchas and taking possession and giving delivery to the beneficiaries

is the accepted mode of taking possession of the land. Subsequent

thereto, the rentention of possession would tantamount only to illegal or

unlawful possession". Further, a Coordinate Division Bench of this

Court in Nagin Chand Godha vs. UOI & Ors. reported in 2003(70)

DRJ 721 (in para 10) has held that "suffice it to say that after symbolic

possession is taken, if the petitioner is enjoying the possession, he is

enjoying the possession as a trustee on behalf of the public at large and

that by itself cannot be considered to be ground to contend that

possession is not taken. It is the duty of the person who is occupying

the property to look after the property and to see that the property is not

defaced or devalued by himself or by others. He cannot subsequently

come to the Court to say that actual possession is not taken and

therefore he should be protected and land be denotified."

34. Consequently, in the present case since the respondents have at

least taken symbolic possession, a curtain has been drawn so far as

land acquisition proceedings are concerned and the land has gone

outside the purview of the Land Acquisition Act.

35. We are also of the opinion that as the said land is urgently

required for infrastructure facility and the neighbouring area has been

developed by the statutory authorities under the same notifications,

leaving out the Petitioners' land would be inequitable. In fact, the

Petitioners' land would 'stick out like a sore thumb' in a fully developed

colony.

36. We are further of the view that sub-sections (1) and (2) of Section

17 of the said Act are independent provisions. Sub-section (2) provides

that on certain sub-species of urgency, immediate possession of land

can be taken when without even waiting for the 15 days period as

provided for in sub-section (1). In our considered opinion there is no

reason to read sub-section (2) into sub-section (1).

37. As far as Mr. Lekhi's submission that the impugned notification is

contrary to sub-section (3A) of Section 17 is concerned, a Coordinate

Bench of this Court in Deepak Resorts & Hotels P. Ltd. & Anr. Vs.

UOI & Ors. referred to hereinabove has following a judgment of the

Apex Court in Satendra Prashad Jain & Ors. Vs. State of U.P.

reported in (1993) 4 SCC 369 held that if the State has not deposited

80 per cent of the compensation as mandated by sub-section (3A) of

Section 17 of the said Act, then also the taking of possession by the

Respondent would not become illegal and the only consequence of

such a default would be that the State would be liable to pay interest

under Section 34 of the said Act.

38. Consequently the present writ petition is dismissed and the status

quo order granted by this Court is vacated but with no order as to costs.

MANMOHAN, J

MUKUL MUDGAL, J th August 12 , 2008 rn