Akbarsab and Others vs The Secretary, Revenue Department and Others

Aravind Kumar, J.—Heard Shri S.G. Kadakatti, learned counsel appearing for petitioners. Shri Ravi V. Hosamani, learned AGA appearing for respondent Nos. 1 and 2 and Shri B.S. Sangati for respondent No. 3.

Petitioner is calling in question the order dated 16.10.1981 Annexure - C passed by 2nd respondent - Land Tribunal, Bailhongal. There is a delay of 34 years in filing this writ petition. It is no doubt true that for questioning an order passed by Authorities under Article 226 of Constitution of India, there is no limitation. However, such right is required to be exercised within a reasonable time. As otherwise, party approaching the Court belatedly would not be entitled for relief. In order to find out as to whether there is any explanation offered to by the petitioner, the grounds urged in this writ petition has been perused by this Court same would indicate that there is not even a whisper in writ petition as to why petitioners have not challenged the impugned order for the past 34 years.

At paragraph 5, it has been stated that petitioners have continued to be in possession and enjoyment of land in question and only in month of September 2012, when they applied for copies of RTCs and after obtaining the same, they came to know about entry having been made in respect of land in question in the name of 3rd respondent and as such, they have challenged said order passed by Tribunal. Hon''ble Apex Court in catena of cases have held delay defeats equity and Article 226 of Constitution of India should not be exercised when there is inordinate delay and that too when it is unexplained.

Hon''ble Apex Court in the case of Aflatoon and Others Vs. Lt. Governor of Delhi and Others, has held that the writ petitions are liable to be dismissed on the ground of latches and delay when said plea is raised. It has been held by Hon''ble Apex Court in the said case to the following effect.

"11. Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of their conduct in not challenging the validity of the, notification even after the publication of the declaration under s. 6 in 1966. Of the two writ petitions, one is filed by one of the appellants. 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 s. 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the, acquisition proceedings on the basis that the notification under s. 4 and the declaration under s. 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 (see Tilokchand Motichand and Others v. H.B. Munshi and Another; and Rabindranath Bose and Others v. Union of India & Others.

From the counter affidavit filed on behalf of the Government, it is clear that the Government have allotted a large portion of the land after the acquisition proceedings were finalised to Cooperative lousing societies. To quash the notification at this stage would disturb the rights of third parties who are not before the Court."

It has been held by Hon''ble Apex Court in the case of Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, that by taking into consideration all factors pragmatic view has to be viewed while examining the issue of delay. It has been held:

"15. Insofar as the contention regarding the possession having not been taken is concerned, the respondents submit that the possession of the land in dispute has already been taken. Be that as it may, the award in respect of the land having become final, the State Government is vested with the powers to take possession of the land concerned and, therefore, there is no reason to disbelieve the claim of the State Government that the possession had been taken before the filing of the writ petition. Moreover, the appellants sought enhancement of compensation by filing reference application under Section 18 of the Land Acquisition Act, 1894. Simultaneously, the appellants filed writ petition before the High Court of Rajasthan after passing of the award.

This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd., where K. Ramaswamy, J. speaking for a Bench consisting of His Lordship and S.B. Majmudar, J. held : (SCC p. 520, para 29.)

"29. It is thus well-settled law that when there is inordinate delay infilling 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."

In the concurring judgment, S.B. Majmudar, J. held as under : (Industrial Development Investment case, SCC pp. 522-523 para 35)

"35...... Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent conduct. The Division Bench of the High Court had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State Government for being handed over to the Corporation. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches. "

Similarly, in the case of State of Rajasthan & Ors. v. D.R. Laxmi following the decision of this Court in Municipal Corporation of Greater Bombay (supra) it was held :(D.R. Laxmi Case, SCC p. 452, para 9)

"9..... 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."

To the similar effect is the judgment of this Court in the case of The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, this Court, following the decision of this Court in the case of C. Padma v. Dy. Secy. to the Govt. of T.N. held : (Shah Hyder Case, SCC p. 55, para 17)

"17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma v. Dy. Secy. to the Govt. of T.N.)"

The Hon''ble Apex Court in the case of Union of India (UOI) and Others Vs. Suksha International and Nutan Gems and Another, has held that when there is unexplained delay in filing writ petition and same is raised as a defence, it would be incumbent upon the Court to adjudicate the same at the first instance itself namely as to whether delay has been satisfactorily explained or not and whether same is to be condoned or not. It has been held by Hon''ble Apex Court in above said judgment to the following effect:

"11. Shri Subba Rao would say that the reference in the order by learned Single Judge to the contention on the point of delay as bar to relief had nothing to do with the specific contention of the appellants'' that there was inordinate and unexplained delay in approaching the Court. This, learned counsel submits, would be clear, by a reference to the aspect of the delay dealt with and considered in WP 2477 of 1984, on which the learned Single Judge relied. The order of the same learned Single Judge in WP 2477 of 1984, in which the particular aspect of delay is considered is at para 8 of that order. That para in the order in WP 2477 of 1984 reads:

"Mr. Joshi, learned counsel for the respondents, submitted that the petitioners were not entitled to relief because of delay. It is not possible to agree. After the redemption certificate on 16th November, 1983, application for revalidation and OGL endorsement was made within four months therefrom on 12th March, 1984. There is, in the circumstances, no such delay as to warrant its ejection on that ground. The contention thus fails and is rejected."

Shri Subba Rao submits that the delay referred to in the above paragraph is the delay in seeking revalidation and endorsement after 11 the issue of redemption certificate and not the delay in filing the writ petition and that in both the present cases the plea of delay in filing the writ petitions has not received due consideration by the High Court. Shri Subba Rao referred to a number of pronouncements of this Court, to substantiate that such unexplained delay particularly in matters dealing with import licences would bar relief and that un-explained delay, by itself and without more, is a factor disentitling a person to relief He submitted that absence of prejudice to the opposite party, by itself, would not justify delay and that in the context of grant of import licences passage of time brings with it, as here, problems of conflicting policy considerations. Where change of policy would impart crucial significance to the delays, Courts, learned counsel says, should insist upon even a higher degree of promptitude. He, accordingly, submitted that the writ petitions should be dismissed on the ground alone of delay in filing them.

This contention of the appellant cannot be brushed aside. If appellants had raised a specific plea of delay as a bar to the grant of relief-and the delays in the present cases, having regard to the nature of the subject-matter, were not inconsiderable-it was perhaps necessary for the High Court to have specifically dealt with the plea. The aspect of delay adverted to by the learned Single Judge in the course of the order was a different one.

However, we think it would be somewhat unfair for the respondents, who have succeeded in the High Court, to decide this question without an opportunity to them to satisfy the Court as to the reasons, if any, for the delay and as to the sufficiency of such reasons. We assume that the plea had been taken before the High Court by the appellants as this submission of the learned counsel for the appellant was not controverted. We think it would be appropriate that the appellants'' appeals before the High Court are remitted to the High Court for such consideration as the Appellate Bench may now bestow on this contention of the appellants. If the appellate bench is persuaded to view that the delay is satisfactorily explained it may proceed to confirm the orders of the learned Single Judge, subject, of course, to the question of permissibility of the importable items to be determined in the light of the pronouncements of this Court referred to at contention (c). If, on the contrary, the delay is held by the Division Bench to be such as to disentitle respondents to relief, the Division Bench may proceed to allow the appeals and dismiss the writ-petitions. All other controversies in the appeal shall be held to have been concluded in favour of the respondents."

Keeping in mind the dicta laid down by Hon''ble Apex Court in the above referred cases, when the facts on hand are examined, it would not detain this Court for long to reject the contention of Shri S.G. Kadakatti, inasmuch as there is no explanation whatsoever offered by the petitioner for not approaching this Court in challenging the impugned order which was passed about 34 years back. It is not in dispute that revenue records namely ROR stands in the name of respondent No. 3 from the appointed dated i.e., 01.03.1974 till date. In fact, petitioners themselves are admitting in paragraph 5 of writ petition that name of 3rd respondent is being reflected in RTC extracts in respect of land in question from 1973-74. Yet they did not take steps to challenge the same. Petitioners have not paid taxes. No steps have been taken by petitioners to substantiate their right or possession of the land in question for past 34 years and no prudent person can be expected to act in this manner. As such, this Court is of the considered view that present writ petition is liable to be dismissed on the ground of delay and latches. Accordingly, writ petition is hereby dismissed.