OWP/881/2018 of MOHAR SINGH AND ORS. Vs STATE TH.REVENUE DEPTT.AND ORS. on 30 December 2022

JUDGEMENT

Per Oswal-J

1. The petitioners claiming to have common cause and interest, through the medium of this writ petition, have jointly questioned the final award bearing No. SDM/CR/A-350 dated 12.02.2009 as also the notifications issued under sections 4, 6, 7, 9 and 9A of the Land Acquisition Act, 1990 (for short the Act) by virtue of which the land owned by the petitioners has been acquired for construction of rail track by invoking the provision of section 17 of the Land Acquisition Act and further prayer has been made for prohibiting the respondents from taking over the possession of the land owned and possessed by the petitioners or in the alternative the compensation be paid to the petitioners as per the Central Land Acquisition Act, on the following grounds:

a)that the respondent No. 2 never conducted any proceedings and granted any opportunity of being heard to the petitioners, as the notice under section 4 of the Act was never served upon the petitioners and award has been passed in a mechanical manner; any opportunity of being heard to the petitioners, as the notice under section 4 of the Act was never served upon the petitioners and award has been passed in a mechanical manner; b)that the petitioners are seriously prejudiced by the action of the respondent No. 2 based on non-application of mind and without complying with the mandate of section 5-A of the Act and further that the provision of section 17 of the Act has been invoked by the Collector but the possession is still with the petitioners, therefore, it was incumbent upon the respondent No. 2 to afford right of hearing to the petitioners, which cannot be taken away and it should not be ritual in nature but there must be effective hearing; respondent No. 2 based on non-application of mind and without complying with the mandate of section 5-A of the Act and further that the provision of section 17 of the Act has been invoked by the Collector but the possession is still with the petitioners, therefore, it was incumbent upon the respondent No. 2 to afford right of hearing to the petitioners, which cannot be taken away and it should not be ritual in nature but there must be effective hearing;

c)that the respondent No. 1 instead of sending the file back to the Collector, as the procedure was not followed, issued the notification purportedly under section 6 of the Act. It is stated that the notice under section 4(1) of the Act is neither served upon the petitioners in terms of section 43 of the Act and valuable right of the petitioners to lodge their objections to the proceedings under the Act has been taken away, nor the notices under section 9 of the Act have been served upon the petitioners, thus, the entire proceedings are vitiated under law. Collector, as the procedure was not followed, issued the notification purportedly under section 6 of the Act. It is stated that the notice under section 4(1) of the Act is neither served upon the petitioners in terms of section 43 of the Act and valuable right of the petitioners to lodge their objections to the proceedings under the Act has been taken away, nor the notices under section 9 of the Act have been served upon the petitioners, thus, the entire proceedings are vitiated under law.

2. Respondents have filed the objections, wherein the respondent No. 2 has stated that the land measuring 127 kanals 18 marlas situated at village Sarthalkote, Tehsil Arnas has been acquired for public purpose i.e. construction of approach road to Rail Track for Northern Railways by the then Collector Land Acquisition (SDM), Mahore by issuing Final Award stated that the land measuring 127 kanals 18 marlas situated at village Sarthalkote, Tehsil Arnas has been acquired for public purpose i.e. construction of approach road to Rail Track for Northern Railways by the then Collector Land Acquisition (SDM), Mahore by issuing Final Award No. SDM/CR/A-350 dated 12.02.2009 under the provisions of the Land Acquisition Act. It is further stated that prior to that, notification under section 4(1) of the Act has been issued vide No. SDM/CR/R/A-709-720 dated 18.02.2006 and notification under section 9 and 9A of the Act was issued vide notification No. SDM/CR/A-610-12 dated 31.03.2008, which was acknowledged by the interested persons including the petitioners by way of thumb impressions and signatures. Further a corrigendum vide No. SDM/CR/A-160-171 dated 17.11.2006 was also issued and published in Urdu Newspaper dated 25.11.2006 by virtue of which, khasra Nos. 93(2k-0M), 175/146/100 min (13K-10M), 175/146/100 (24K-16M), 175/146/100 (11K-17M), 37 min (11K-16M), 37min (09K-13M), 165/124/65 min (06k-08m) and 165/124/65 min (05K-08M) were included/notified for the above said purpose. Further, it is averred that the notices were served upon the land owners/interested persons to file their objections within stipulated period but objections have not been filed by the said persons and the acquisition was approved by the Revenue Department vide notification No. 195-RD of 2007 dated 19.11.2007.

Respondent No. 3 in its response has stated that the present petition is hopelessly time barred and as such, deserves outright rejection and further that the petitioners have not arrayed Ministry of Railway, New Delhi as party respondent. Respondent No. 3 has also taken a similar stand as that of the respondent No. 2 thereby stating that the land was acquired after following due procedure prescribed by law and it is further stated that the possession of the acquired land at the time of filing petition was with the owner(s) but the same stood taken over by the respondent No. 3 in the year, 2019 and after taking over the possession of the land it is being put to active use for traffic and is in possession of M/s Kokan Railway Corporation Limited, an agency/instrumentality of the Ministry of Railways, New Delhi.Mr. G. S. Thakur, learned counsel for the petitioners, vehemently argued that no notice was ever served upon the petitioners under section 4 and 9 of the Act and as such, the acquisition proceedings and consequently the award passed in pursuance thereof are bad in law. He has placed reliance upon the judgment of the Apex Court in Madhya Pradesh Housing Board and another v Mohd Shafi[1], and J&K Housing Board v. Kunwar Sanjay Krishan Kaul[2].

5. On the contrary, Ms. Monika Kohli, learned Sr. AAG representing respondent Nos. 1 and 2 argued that the compensation is lying with the respondent No. 2 and the petitioners were/are not willing to receive the same.

Mr. Harshwardan Gupta, learned counsel representing respondent No. 3 vehemently argued that the present petition is time barred and as such, the same is not maintainable. He further argued that the notification under section 9 of the Act was served upon the land owners as well as interested persons including the petitioners and despite that no one challenged the acquisition proceedings but challenged the award after more than nine years of its issuance.

7. Heard and perused the record.

8. Admittedly, award dated 12.02.2009 (supra) was issued by respondent No. 2 and the present writ petition has been filed by the petitioners in the month 11992 (2) SCC 168

2(2011) 10 SCC 714

of May, 2018 i.e. after more than nine years of the issuance of the award. From the record annexed with the petition by the petitioners themselves, it is evident that the notice under section 9 and 9A of the Act was issued and the interested persons/land owners were asked to file their objections regarding measurement, title and quantum of compensation. A perusal of the record reveals that the petitioner No. 1, father of petitioner No. 3 and father of petitioner No. 5 have signed on the backside of the notification issued under section 9 and 9A of the Act dated 31.03.2008. It is stated in the writ petition that no notice was served either under section 4 or section 9 of the Act upon the petitioners. The said averment is contrary to the record placed on record by the petitioners and is duly substantiated by the original record produced for perusal of the court.

This clearly shows that petitioner No. 1, father of petitioner No. 3 and father of petitioner No. 5 were having the knowledge of the acquisition proceedings but no challenge was thrown to the acquisition proceedings on the ground of non compliance with the procedure prescribed under the Act and rather they allowed the acquisition proceedings to be completed leading to the issuance of the final award. Even after issuance of the award on 12.02.2009, no challenge was thrown to the award for nine years. It is only after more than nine years, the present petition has been filed. Interestingly, only a bald assertion has been made in para-6 of the petition that the petitioner No. 1 being member of the village Numberdar had no knowledge about the acquisition, whereas fact remains that he has signed the notification dated 31.03.2008. It is also stated in ground-b that it is only now that the petitioners came to know about the acquisition from the office of respondent No. 2. This assertion is belied by the notification issued under section 9 and 9A of the Act dated 31.03.2008. The respondent No. 3 has raised the issue of delay and laches and there is substance in the assertion made by the respondent No. 3, as it is evident from the record that the petitioners were having knowledge of acquisition proceedings right from the year, 2008 and despite that the petitioners did not approach the court within a reasonable time and filed this writ petition only after more than nine years for giving life to their dead claim.

No doubt that no period of limitation has been provided for filing a writ petition under Article 226 of the Constitution of India but the constitutional courts have devised a self imposed restraint that the jurisdiction under Article 226, which is an extraordinary, equitable discretionary jurisdiction should not be exercised in favour of the persons, who approach the court after a long lapse of time without offering any cogent explanation for the delay. Though no hard and fast rule or a straight jacket formula can be adopted for considering the issue of delay and laches but each case is to be decided on its own facts and circumstances.

In the instant case, as we have already examined that the petitioners were aware of the acquisition proceedings in the year 2008 and even did not challenge the award within the reasonable time after the issuance of award in the year 2009 but approached this Court after more than nine years and as such, we are of the view that the petitioners are guilty of delay and laches, more particularly when the compensation stood already deposited with the respondent No. 2. It would be advantageous to take note of observations made by Supreme Court in Banda Development Authority v.

Moti Lal Agarwal[3], as under:

“16. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of BDA and the State Government, the High Court was duty-bound to take cognizance of the long time gap of nine years between the issue of declaration under Section 6(1) and filing of the writ petition, and declined relief to Respondent 1 on the ground that he was guilty of laches because the acquired land had been utilised for implementing the residential scheme and third-party rights had been created. The unexplained delay of about six years between the passing of award and filing of the writ petition was also sufficient for refusing to entertain the prayer made in the writ petition.

17. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self-imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallised 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.”

12. InSawaran Lata v. State of Haryana[4], Apex Court upheld the order of dismissal of writ petition filed after seven years of the publication of notification under section 4 in the year 2001 and five years after the issuace of the award in the year 2004.

13. InLarsen & Toubro Ltd. v. State of Gujarat, (1998) [5], Apex Court has held as under:

“21. This Court has repeatedly held that writ petition challenging the notifications issued under Sections 4 and 6 of the Act is liable to be dismissed on the ground of delay and laches if challenge is not made within a reasonable time. This Court has said that the petitioner cannot sit on the fence and allow the State to complete the acquisition proceedings on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notifications on the grounds which were available to him at the time when these were published as otherwise it would be putting a premium on dilatory tactics. Writ petition (SCA No. 5149 of 1989) is thus barred by laches as well.”

3 (2011) 5 SCC 394

4(2010) 4 SCC 532

54 SCC 387

14. In view of all what has been said and discussed above, we do not find it to be a fit case to show indulgence to revive the stale claim of the petitioners and as such, the present petition is dismissed. The compensation lying with the respondent No.2 be released in favour of the persons entitled, in accordance with law.

( PUNEET GUPTA)(RAJNESH OSWAL) JUDGE JUDGE

Jammu 30.12.2022 Rakesh

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No