Allahabad High Court
Smt. Pushpa Devi vs State Of U.P. And 3 Others on 5 May, 2022
Bench: Rajesh Bindal, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD *** WRIT-C No.- 10967 of 2022 Smt. Pushpa Devi ..... Petitioner Through :- Mr. Vikrant Rana, Advocate v/s State of U.P. and others ...... Respondents Through :- Mr. Rajeev Singh, Standing Counsel for respondent Nos. 1 to 3 and Ms. Anjali Upadhya, Advocate for respondent No.4 CORAM : HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE PIYUSH AGRAWAL, JUDGE ORDER
1. Challenge in the present writ petition is to the notifications dated March 17, 2009 and November 9, 2009 issued under Sections 4 and 6 of the Land Acquisition Act, 1894, respectively.
2. Learned counsel for the petitioner, placing reliance upon a judgment of this Court dated May 23, 2014 passed in Writ-C No. 3217 of 2010, filed by petitioner's husband, seeks to address that the acquisition in question having been quashed by this Court in the aforesaid case, the petitioner deserves to be granted the same relief. In order to explain the delay in filing the writ petition, he submitted that the petitioner had no knowledge about the acquisition. The moment she came to know, the present petition was filed as the State was seeking to take possession of the land.
3. After hearing learned counsel for the petitioner, in our view, the present petition deserves to be dismissed on account of delay and laches.
4. As to how a petition, filed after huge delay, has to be dealt with has been considered by the Courts on number of occasions and the opinion expressed is that these petitions are required to be dismissed at the threshold.
5. In New Delhi Municipal Council Vs. Pan Singh and others, (2007) 9 SCC 278, the Supreme Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the Court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
6. In State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others 2013 (6) SLR 629, Hon'ble the Supreme Court, while considering the issue regarding delay and laches observed that even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. Relief to a person, who puts forward a stale claim can certainly be refused relief on account of delay and laches. Anyone who sleeps over his rights is bound to suffer.
7. In Chennai Metropolitan Water Supply and Sewerage Board and others Vs. T. T. Murali Babu, (2014) 4 SCC 108, Hon'ble the Supreme Court opined as under:-
"13. First, we shall deal with the facet of delay. In Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC 329, the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd (1874) LR 5 PC 221, which is as follows: (Balwant Regular Motor Service case, AIR 1969 SC 329, AIR pp. 335-36, para 11) "11. ... ''Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in, either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy' (Lindsay Petroleum Co. case, (1874) LR 5 PC 221, PC pp. 239-40)"
15. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 : AIR 1987 SC 251, the Court observed: (SCC p. 594, para 24) "24. ... it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic."
It has been further stated therein that: (Nandlal Jaiswal case, (1986) 4 SCC 566 : AIR 1987 SC 251, SCC p. 594, para 24)
24. ... If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction."
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant "a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17. ... A court is not expected to give indulgence to such indolent persons - who compete with "Kumbhakarna" or for that matter "Rip Van Winkle". In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
8. In State of Jammu & Kashmir Vs. R. K. Zalpuri and others, (2015) 15 SCC 602, Hon'ble the Supreme Court considered the issue regarding delay and laches in raising the dispute before the Court. It was opined that the issue sought to be raised by the petitioners therein was not required to be addressed on merits on account of delay and laches. The relevant paras thereof are extracted below:-
"27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "deo gratias - "thanks to God".
28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserves to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present."
9. The aforesaid view was followed by Hon'ble the Supreme Court in Union of India and others Vs. Chaman Rana, (2018) 5 SCC 798.
10. Subsequently, a Constitution Bench of Hon'ble the Supreme Court in Senior Divisional Manager, Life Insurance Corporation of India and others Vs. Shree Lal Meena, (2019) 4 SCC 479, considering the principle of delay and laches, opined as under:-
"37. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheelkumar Jain v. New India Assurance Co. Ltd., (2011)12 SCC 197 would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment.
38. Thus, the endeavour of the appellant, to approach this Court seeking the relief, as prayed for, is clearly a misadventure, which is liable to be rejected, and the appeal is dismissed."
11. Recently, in Bharat Coking Coal Ltd. and others Vs. Shyam Kishore Singh, (Civil Appeal No.1009 of 2020, decided on 5.2.2020), the issue regarding the delay and laches, was considered by Hon'ble the Supreme Court and a petition filed belatedly, seeking change in the date of birth in the service record, was dismissed.
12. Relying on T.T. Murali Babu's case (supra) and R.K. Zalpuri's case (supra), same view has been expressed by Hon'ble the Supreme Court in Union of India and others Vs. N. Murugesan and others, (2022) 2 SCC 25 observing:
"We have already dealt with the principles of law that may have a bearing on this case. ... there was an unexplained and studied reluctance to raise the issue. ... Hence, on the principle governing delay, laches, ... Respondent 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India. ..."
13. In the case in hand, after hearing learned counsel for the parties and taking the above authorities into account, in our opinion, the petitioner is not entitled to any relief. The argument that the petitioner had no knowledge about the acquisition of land, is totally misconceived, if seen in the light of the fact that the writ petition, of which reference has been made to claim parity, was filed by none else than the husband of the petitioner with reference to the land owned by him. It cannot be believed that the husband will not know that there is another portion of land recorded in the name of his wife which has also been acquired, even if it is taken that the petitioner may be illiterate or semi-literate. In any case, the same cannot be taken to be a reasonable explanation for condoning huge delay in filing the present writ petition. In the case in hand, the land was acquired way back in the year 2009 and the award was announced in the year 2011.
14. The petitioner claims that she is still in physical possession of the land which was acquired in the year 2009 even after its acquisition.
15. The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by a Constitution Bench of Hon'ble the Supreme Court in Indore Development Authority Vs. Manoharlal and others, AIR 2020 SC 1496. It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extracted below:
"244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.
245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and draws up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.
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256. Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under Section 16, takes place after various steps, such as, notification under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner." (emphasis supplied)
16. Keeping in view the above enunciation of law by Hon'ble the Supreme Court in Indore Development Authority's case (supra), in the case in hand, on the undisputed facts on record, it can safely be opined that the acquisition proceedings stood completed. The award was also announced and the land vested in the State with possession, free from all encumbrance.
17. For the reasons mentioned above, we do not find any merit in the present petition. The same is, accordingly, dismissed.
Allahabad
05.05.2022
AHA/Shiraj
(Piyush Agrawal, J.) (Rajesh Bindal, C.J.)
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes✓/No