Delhi High Court
Sh. Rajiv Prem vs Union Of India (Uoi) And Ors. on 15 September, 2006
Author: B.N. Chaturvedi
Bench: T.S. Thakur, B.N. Chaturvedi
JUDGMENT B.N. Chaturvedi, J.
Page 3333
1. Subject of challenge in the present writ petition are acquisition proceedings in relation to land comprised in Khasra No.1895(4-16); 1897/1/2(1-11); 1898/2(4-7); 1896/(1-19); 1896/2/1(0-1) and 1896/1/2(2-7) admeasuring a total area of 12 bighas 2 biswas situated in the Revenue Estate of Village Chhatarpur, Delhi, owned and possessed by the petitioner on purchase thereof in the year 1992.
2. The acquisition proceedings commenced on a notification under Section 4 of the Land Acquisition Act (for short the 'Act') being issued on 25.11.1980. The persons interested, who had objections to the acquisition of their land as notified, were required to file their objections in writing within 30 days of the publication of the said notification. Objections under Section 5A of the Act were accordingly filed by the erstwhile owners of the land in question. However, according to the petitioner, without affording any opportunity of hearing, the Land Acquisition Collector submitted a report Along with his recommendations to the Lieutenant Governor and the Lieutenant Page 3334 Governor mechanically and without application of mind accorded his approval by a non speaking order dated 5.6.1985 for issuance of a notification under Section 6 of the Act. Pursuant thereto, a notification under Section 6 of the Act was issued on 7.6.1985 declaring that the scheduled lands, including petitioner's land, were required to be taken over by the Government at public expense for a public purpose namely, for planned development of Delhi. An award was eventually made on 4th December, 1987. No compensation was however, ever offered or paid to the petitioner or his predecessors-in-interest. It is alleged that the petitioner on being threatened to be dispossessed from the land, filed the present petition inter alia praying for issue of an appropriate writ or direction in the nature of Certiorari, quashing and setting aside the acquisition proceedings including the award dated 4th December, 1987.
3. Apart from the grounds pleaded in the writ petition, the petitioner filed an additional affidavit, during the course of proceedings, pleading therein that the notification under Section 4 exempted following categories of land from its applicability :
A. Government land;
B. The land already notified either under Section 4 or under Section 6 of the Land Acquisition Act, 1894 and C. The land in respect of which building plans were sanctioned by the Municipal Corporation of Delhi before 5th November, 1980.
4. A building plan for construction of a farm house on the land in question was, claims the petitioner, sanctioned by the Municipal Corporation of Delhi vide their sanction letter dated 23rd February, 1977, much prior to the issue of notification under Section 4 of the Act. Accordingly, pleads the petitioner, his land enjoyed exemption under the notification under Section 4 of the Act and in the circumstances, no declaration under Section 6 in respect of his land could have been issued nor an award for acquisition thereof could have been made. It is asserted that the land in question having been specifically excluded from the purview of notification under Section 4 being in the nature of land under Category C, declaration under Section 6 and all subsequent acquisition proceedings inclusive of award are void ab initio and without authority of law, hence liable to be quashed/set aside.
5. At the hearing, leaving apart grounds of challenge to the acquisition proceedings as set out in the writ petition, Sh. Ravinder Sethi, learned Senior counsel appearing for the petitioner singularly focused on exposing the vulnerability of declaration under Section 6 of the Act as also further proceedings leading to passing of the award. The notification under Section 4 of the Act, excluding land in respect of which building plans had been sanctioned before 5.11.1980, served as a launching pad for the argument that a notification under Section 4 of the Act being sine qua non, in the absence of such a notification, signifying the intent of the acquiring authority, neither declaration under Section 6 of the Act could have been issued nor subsequent proceedings culminating into passing of the award could have followed. In the context, Division Bench decisions of this Court in Darya Datta Chawla v. Union of India and Ors.; , Page 3335 Ram Avtar Bhageria and Ors. v. UOI and Ors. in CW No. 2995/2001 decided on 31.7.2002, Sandeep Kakkar and Ors. v. Union of India and Ors.; 111 (2004) Delhi Law Times 291 (DB) and Kidarnath Mohindernath v. Union of India and Ors. in WP (C) No. 2019/1986 decided on 10th March, 2006 were relied upon to maintain and enforce the plea as aforementioned.
6. Ms. Geeta Luthra, learned Counsel appearing for the respondents, on the other hand, pointed out that the erstwhile land owners in their objections under Section 5A omitted to disclose the existence of any sanctioned building plan in respect of the land, to claim exclusion thereof from the purview of notification under Section 4 of the Act. She contended that the plea in this regard being raised for the first time by the petitioner by filing an additional affidavit after lapse of about 17 years from the date of issue of declaration under Section 6 of the Act, the same is highly belated rendering his petition being barred by inordinate delay and laches. A Division Bench decision of this Court in Radha Soami Sat Sang Beas and Ors. V. Delhi Administration and Anr. in Civil Writ Petition No. 1282/1978 rendered on 15th October, 2004 and upheld by the Supreme Court, was cited to contend that the petition is liable to be dismissed on this count alone. It was, in addition, argued that the erstwhile land owners having omitted to assail the validity of declaration under Section 6 and subsequent proceedings including the award, the petitioner, being a purchaser subsequent to the issue of such declaration and passing of the award, has no locus standi to maintain the petition challenging the same.
7. Clause (c) of the notification under Section 4 of the Act exempts such land in respect of which building plans were sanctioned by the Municipal Corporation of Delhi before 5th November, 1980. The petitioner, apart from his additional affidavit filed on 6th May, 2002, placed on record a copy of sanction letter dated 23rd February, 1977 with a copy of sanctioned building plan to show that the land in question qualified for exemption from acquisition in terms of notification under Section 4 of the Act. The respondents, inspite of an opportunity being granted, failed to file their counter to the additional affidavit. Thus, correctness of petitioner's assertion in his additional affidavit that a building plan in respect of the land in question stood duly sanctioned by Municipal Corporation of Delhi vide sanction letter dated 23rd February, 1977 cannot be doubted.
8. Existence of a notification under Section 4 of the Act is a basic legal requirement to sustain the validity of any acquisition proceedings. Declaration under Section 6 and subsequent proceedings leading to passing of an award would be rendered void and without jurisdiction in the absence of a preliminary notification under Section 4 of the Act. The case on hand, in view of a sanctioned building plan, qualified for exemption from acquisition under the preliminary notification which in turn rendered the issue of declaration under Section 6 and all subsequent proceedings leading to passing of the award void and without jurisdiction. Indeed, the finding so recorded is in accord with the consistent view flowing from various decisions of this Court including those referred to on behalf of the petitioner at the Page 3336 hearing. For the petitioner this would, however, not mark the end of the journey as even if the declaration under Section 6 and all subsequent proceedings including passing of the award are held void, the same would ultimately turn out to be inconsequential unless the petitioner is able to show that he approached this Court, within a reasonable time to get the same invalidated. In State of Rajasthan and Ors. v. D.R. Laxmi and Anr.; , the Supreme Court clearly laid down :
...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
9. Clearly, the petitioner moved this Court after a long gap of about 17 years from the date of issue of declaration under Section 6. To be successful in his action, the petitioner is thus required to satisfactorily explain the inordinate delay in filing the petition. The decisions referred to on behalf of the petitioner in support of his petition pertained either to cases where the aggrieved party had approached the court within a reasonable time or there was no challenge to the maintainability of the writ petitions on the ground of delay and laches. In none of these cases the issue of delay and laches was raised and examined. The same are thus of no avail to the petitioner in staving off the difficulty being encountered by him on account of inordinate delay on his part in filing the petition.
10. Noticeably, the declaration under Section 6 was issued on 7th June, 1985 whereupon erstwhile land owners had filed their objections under Section 5 A of the Act wherein it was never disclosed that a building plan had been sanctioned, with respect to the land in question, prior to 5th November, 1980 and that the land was not covered within the purview of the notification under Section 4 of the Act. The objections so filed were disposed of in due course and an award was eventually passed in respect of the petitioner's land on 4th December, 1987. The original land owners transferred their entire land on 22nd March, 1990 in favor of another person even after the award had been passed in respect thereto. The land was further transferred in favor of the petitioner on 14th January, 1992. The petitioner did not approach the court for about 10 years and it was only in the year 2002 that he finally decided to file the present petition. An unsuccessful attempt was made on behalf of the petitioner to explain belated filing of the petition by pleading that since the original owners of the land had filed objections under Section 5A of the Act, by virtue of a Division Bench decision in Balak Ram v. Union of India; which was held to be a judgment in rem and the acquisition proceedings stood quashed not only qua the persons who had Page 3337 filed the writ petitions challenging the acquisition proceedings but also qua others who had not done so, there was no occasion to move the court earlier in view of that decision. The decision in Balak Ram's case (supra) was followed by another decision of this Court in Balbir Singh V. Union of India (WP (C) No. 1639/1989) wherein a direction was issued for the return of the land to the owners thereof subject to their depositing the amount of compensation received by them. Such direction appeared to have had been based on an assumption that the judgment delivered by this Court in Balak Ram's case (supra) had the effect of quashing the notifications in question for the entire area included therein. The view taken in that respect was affirmed even by the Supreme Court in Delhi Development Authority v. Sudan Singh and Ors.; . Then came another decision of Supreme Court in Abhey Ram V. UOI; wherein the question if the decision in Balak Ram's case (supra) was a judgment in rem or judgment in personam was examined and in the ultimate analysis it was held to be a judgment in personam only. The correct legal position in regard to the application of decision of this Court in Balak Ram's case (supra) thus stood finally settled and there remained no scope for any mis-impression in regard to true legal effect of that decision in relation to the persons who had yet not approached the Court for appropriate relief against acquisition of their land inspite of being aggrieved in that regard. The petitioner took yet another 5 years after decision in Abhey Ram's case (supra) to approach this Court by way of present writ petition.
11. A similar explanation to explain delay for over 25 years from the date of notification under Section 4 of the Act with reference to the decision in Balak Ram's case (supra) was pleaded in Godfrey Philips India Ltd. v. Union of India and Ors.; 2005 (85) DRJ 491 but a Division Bench of this Court on a detailed analysis, relying on a number of Supreme Court decisions, negatived the same in the following terms :
23.It is evident from the above that the legal position in regard to the judgment of this Court in Balak Ram's case stood authoritatively determined by the Supreme Court in the year 1997 with the pronouncement of the judgment in Abhey Ram's case (supra). Even assuming that the judgments of this Court in Balak Ram and Balbir Singh cases as also the decision of the Supreme Court in Sudan Singh's case (supra) could create an impression in the minds of the land owners that the acquisition of their lands stood quashed without their having filed any petition yet that impression should have been dispelled by the decision of the Supreme Court in Abhey Ram's case delivered in the year 1997 itself. There was no justification for the inaction of the land owners after the delivery of the judgments in Abhey Ram and Gurdip Page 3338 Singh Uban's cases. If the submission made, on behalf of the petitioners, that the decision delivered in Balak Ram's case enured for the benefit of all land owners was accepted and their inaction explained on the theory that the decision of Balak Ram's case was a judgment in rem, all the same, the petitioners ought to have come to the Court soon after Abhey Ram's case was decided in the year 1997 instead of waiting for another 8 years thereafter to file the petitions in 2005. There is, in that view of the matter, no merit in the contention that the decision in Balak Ram's case provided any justification for the petitioners to remain inactive in the matter
12. Like in Godfrey Philips India Ltd. (supra) where the petitioner approached the Court after about 8 years of the decision of the Supreme Court in Abhey Ram's case (supra), the petitioner herein waited for another five years before filing the present petition in the year 2002. Such delay remains unexplained.
13. Citing a Supreme Court decision in Competent Authority v. Bangalore Jute Factory and Ors. 2005 (9) Scale 493, Sh. Sethi contended that where the notification under Section 6 lacked legitimacy by virtue of petitioner's land being not covered within the purview of preliminary notification and was thus bad in law, delay in filing the writ petition could not be held fatal. The case under reference was one pertaining to compulsory acquisition of land under Section 3A of the National Highways Act, 1956 wherein the notification issued was not in compliance of statutory requirement of giving a brief description of the land sought to be acquired thereby incapacitating the aggrieved persons from filing their objections against acquisition. The notification was in the circumstances, held invalid. A plea against maintainability of writ petition on the ground of delay was negatived in view of notification failing to meet the statutory requirement and thus being held bad in law. Noticeably, it was a case distinguishable on facts where unlike the present case the writ petition challenging the notification dated 11th June, 1998 came to be filed in September 2001 and the petitioners were able to satisfactorily explain the reasons for delay in filing the same.
14. In Aflatoon and Ors. v. Lt. Governor of Delhi and Ors.; ; in , where there was a challenge to the validity of the notification under Section 4 of the Act on the ground that the same did not specify the particular purpose for which the acquisition was necessitated, the Supreme Court declined to interfere on the ground of delay in approaching the Court. It was observed :
...There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is a sine non qua for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the Page 3339 acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners
15. In Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig and Ors.; (2002) 2 SCC 48 where on a petition challenging acquisition of land after 21 years from the date of notification and 16 years of 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 by reason of delay in filing the same, 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 its 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 favors 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 (Also see Senjeevanagar Medical and Health Employees Cooperative Housing Society v. Mohd. Abdul Wahab and Ors.; ; Municipal Corporation of Greater Bomaby v. Industrial Development Investment Co. Pvt. Ltd.; ; Northern India Glass Industries v. Jaswant Singh and Ors.; , Larsen and Toubro Ltd. v. State of Gujarat and Ors.; , Vishwas Nagar Evacuees Plot Purchasers Association and Anr. v. Under Secretary, Delhi Administration and Ors.; .
Page 3340
16.In the present case the erstwhile land owners did not challenge the acquisition proceedings. The first transferee of the land in question also did not raise any grievance in that regard which implies that the petitioner's predecessors-in-interest acquiesced to the proceedings and even if the petitioner had locus to assail the validity of the proceedings he also failed to take any steps in that regard from the year of purchase of the land in 1992 until 2002 when he ultimately filed the present writ petition.
17. The ground of challenge to notification under Section 6 of the Act was very much available from the very date of its issue. However, not only that the petitioner's predecessors-in-interest omitted to challenge the same even for the petitioner it took about 10 years from the year of purchase of the land by him to move the Court.
18. With reference to a Division Bench decision of this Court in Govt. of NCT of Delhi, L. and B.D. v. Poonam Gupta and Anr.; 2006 (86) DRJ 73 (DB), it was argued on behalf of the petitioner that the acquisition of the land is complete only on possession of the acquired land being taken over by the appropriate Government under Section 16 of the Act and so long the possession is not taken an aggrieved party may challenge a void order. The decision in Poonam Gupta's case (supra) was clearly rendered on a different set of facts where proceedings under Section 85 of the Delhi Land Reforms Act 1954 for declaration of Bhumidari rights were pending before the SDM, in view of issue of notifications under Sections 4 and 6 of the Act in relation to the land with respect to which declaration of Bhumidari rights was sought, the decision of the SDM/RA came to be challenged as being without jurisdiction and it was in that context held that the land is acquired under the Act only when possession of the notified land is taken and not before that and that since proceedings before SDM/RA got completed before the possession of the land was taken, he had not ceased to have jurisdiction to decide the matter. This decision cannot be held to imply that irrespective of availability of ground of challenge that the declaration under Section 6 and all subsequent proceedings including making of award were void, as the possession of the land had not yet been taken pursuant to the award, the petitioner had an option in law to approach the court to challenge the acquisition proceedings till such time his possession was not threatened. Even if the declaration under Section 6 and subsequent proceedings culminating into passing of award were void, the petitioner was in any event required to move the Court within a reasonable time to get the same invalidated and could not have waited until he was threatened to be dispossessed. Thus, possession of the land in question being not taken pursuant to the award dated 4th December, 1987, cannot be a ground to overcome the adverse effect generated on account of belated challenge to the acquisition proceedings by the petitioner.
19. In Ramjas Foundation and Ors. V. Union of India and Ors.; 1993 Supp (2) SCC 20 where neither an award had been made nor possession of the land under process of acquisition had been taken, the Supreme Court held that the same could not be used to explain the delay in challenging the notifications Page 3341 under Sections 4 and 6 of the Act. It was noted that the grounds to attack the notifications under Sections 4 and 6 of the Act were available at the time of publication of such notifications but the appellants kept on sitting on the fence and did not take any steps to challenge the notifications.
20. In another decision of the Supreme Court in Delhi Development Authority V. Shyam Sunder Khanna and Ors.; 2004 (72) DRJ 356 (SC) where writ petition challenging acquisition proceedings was filed before the High Court after about 18 years of issue of declaration under Section 6 on the plea that petitioner's property being evacuee property was excluded from the purview of notification under Section 4 of the Act, inclusion of such property in the declaration under Section 6 of the Act and all subsequent proceedings including making of award were void and the High Court allowed the writ petition holding that in view of Section 4 notification excluding evacuee property, all subsequent proceedings were void and petitioner was not debarred from challenging the acquisition proceedings even belatedly, the Supreme Court referring to its earlier decisions in Vishwas Nagar Evacuees Plot Purchasers Association and Anr. v. Under Secretary, Delhi Administration and Ors.; and Ramjas Foundation (supra) set aside the order and dismissed the writ petition holding that the High Court was in error in entertaining such a belated writ petition.
21. Thus keeping in view that the petition on hand suffers from inordinate delay and laches, which has not been satisfactorily explained, the same is liable to be dismissed notwithstanding that declaration under Section 6 and subsequent proceedings thereto including award in relation to the land in question were void. Viewed in the light of law laid down by the Apex Court in its various decisions, from time to time, no escape route is left for a person playing a wait and see game.
22.There is yet another hurdle crossing the way of the petitioner in his voyage to sail through the impending acquisition proceedings where only possession of the land remains to be taken pursuant to the award dated 4th December, 1987. Even in the face of acquisition, which had reached near completion where only possession of the land was to be taken pursuant to the award, the petitioner, being fully aware of the risk of losing the land in question, gambled and purchased the same. Being a purchaser subsequent to the notifications under Sections 4 and 6 of the Act and even after making of the award he has no locus standi to challenge the validity of the acquisition proceedings particularly when his predecessors-in-interest did not do so and had acquiesced to the acquisition proceedings. In Star Wire (India) Ltd. V. State of Haryana and Ors.; where the petitioner challenged the acquisition proceedings by virtue of purchase of the property subsequent to notification under Section 4, the Supreme Court observed thus :
Page 3342 In this case, admittedly, the petitioner has purchased the property covered by the notification under Section 4(1) after it was published and, therefore, its title is a void title. It has no right to challenge the acquisition proceedings much less the award. The Division Bench of the High Court has exhaustively reviewed the case-law to negate the claim of the petitioner. We do not find any illegality in the judgment of the High Court warranting interference
23. Another decision of Supreme Court in U.P. Jal Nigam v. Kalra Properties (P) Ltd. and Ors.; sets forth the same legal position. (See also State of U.P. v. Pista Devi; (1986) 4 SCC 251; Gian Chand v. Gopala and Ors.; ; Mahavir and Anr. v. Rural Institute of Amrawati and Anr.; and Ajay Krishan Shinghal and Ors. V. Union of India and Ors.; ).
24. In the result thus, the petition being barred by delay and laches and the petitioner being bereft of locus to challenge the acquisition proceedings, the petition fails and it is dismissed accordingly with no order as to costs.