A.L. Vellaichanly vs The State of Tamil Nadu and Another

E. Padmanabhan, J.—The petitioner has filed the present writ petition praying for the issue of writ of certiorari to call for the records of the respondents in G.O.Ms.No. 474, Housing and Urban Development, dated 30.5.1990, issued by the first respondent u/s 4( 1) of the Land Acquisition Act and the declaration made u/s 6 of the Land Acquisition Act in G.O.Ms.No. 1007, Housing and Urban Development Department, dated 21.6.1991 published in the Tamil Nadu Government Gazette extraordinary dated 25.6.1991 and quash the same insofar as it relates to the lands, owned by the petitioner comprised in survey No. 390/4 in Sholinganallur village.

Heard, Mr. K.S. Viswanathan, learned Counsel appearing for the petitioner and Mr. V. Selvanayagam, Government Advocate (Land Acquisition) on his taking notice for the respondents.

On notice from this Court, the Government Advocate placed the file and also furnished the particulars on instructions from the second respondents.

Section 4(1) Notification was published pursuant to G.O.Ms.No. 474, Housing and Urban Development Department, dated 30.5.1990. Section 4(1) Notification was published in Government Gazette on 30.6.1990 and it was published in the local dailies on 16.6.1990. The substance of Section 4(1) Notification was also published in the locality on 2.7.1990. Enquiry u/s 5-A of the Act was conducted on 5.9.1990 and the objections were forwarded to the Tamil Nadu Housing Board on 6.11.1990. The remarks of the Housing Board were submitted on 3.1.1991 and the same was forwarded to the land owners on 29.1.1991. Thereafter, enquiry under Rule 3(B) was conducted on 27.2.1991. As no objection has been received, the Land Acquisition Officer submitted his report.

Thereafter, a Declaration u/s 6 was issued in G.O.Ms.No. 1007, Housing and Urban Development, dated 21.6.1991 and the same was published in the Government Gazette on 26.8.1991 and in the local dailies on 26.8.1991 and in the locality on 1.7.1991. Award has also been passed.

In the present writ petition, Mr. K.S. Viswanathan, learned Counsel for the petitioner mainly contended that more than one year has elapsed between Section 4(1) Notification and Section 6 declaration. This contention cannot be accepted, as Section 6 Declaration in the present case has been made on 26.8.1991 and it is well within one year from 1.7.1991 on which date the substance of Section 4(1) Notification was published in the locality. This contention of the petitioner cannot be accepted. The learned Counsel for the petitioner further contended that number of writ petitions were filed challenging the very same acquisition. It is not a ground in favour of the petitioner.

This Court is not in a position to entertain this writ petition as there is inordinate delay and the laches on the part of the petitioner will be is fatal.

In this respect, the learned Government Advocate relied upon the judgment of the Apex Court reported in State of Tamil Nadu and others etc. Vs. L. Krishnan and others etc., . In the said judgment, the Apex Court held thus:

There is yet another and a very strong factor militating against the writ petitioner. Not only did they fail to file and objections in the enquiries held u/s 5-A, they also failed to act soon after the declarations u/s 6 were made. As stated above, the declaration u/s 6 were made in the year 1978 and the present writ petitions were filed only sometime in the year 1982-83 when the awards were about to be passed. It has been pointed out in Aflatoon AIR 1974 S.C. 3077 that laches of this nature are fatal. Having held that the public purpose specified in the notification concerned therein is not vague. Mathew, J made the following observations (At pp. 2080-81)" Assuming for the moment that the public purpose was not sufficiently specified in the notification, did the appellants made a grievance of it at the appropriate time? If the appellant had really been prejudiced by the non-specification or the public purpose for which the plots in which they were interested were needed, they should have taken steps to have the notification quashed on the ground within a reasonable time. They did move in the matter even after the declaration u/s 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when the notice u/s 9 were issued to them....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 u/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 u/s 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sit on the fence and allowed the Government to contemplate the acquisition proceedings on the basis that the notification u/s 4 and the declaration u/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 and Motichand and Others Vs. H.B. Munshi and Another, and Rabindranath Bose and Others Vs. The Union of India (UOI) and 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 co-operative housing societies. To quash the notification at this stage would disturb the rights of third parties who are not before the court.

The above observations speak for themselves and are fatal to the writ petitioners.

Subsequently also the Apex Court in Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, analysed the entire case law and held that delay in filing the writ petition is fatal. The Apex Court held thus:

The next question is: whether the High Court was right in issuing the writ after long lapse of time? The respondents, admittedly, approached the High Court after a delay of 4 years; that too after award was made and possession was taken from the owner. It is seen that the declaration was published as long back as on May, 3, 1979. Earlier to that after the draft plan was published, notice was given to all the parties. The respondents, who claim to be the tenants, had not raised the little finger in making any objection to the proposed scheme or the revised plan. The award was made on February 24, 1983; possession was taken on March 4, 1983, and on the same day it stood transferred to the B.M.C. The writ petition came to be filed thereafter on July 4, 1983. The learned single Judge dismissed the writ petition on the ground of laches.

In State of Tamil Nadu v. L. Krishnar, (1996) 1 SCC 250 , a Bench of three Judges of this Court has held that "the delay in challenging notification was fatal and the writ petitions were liable to be dismissed "on the ground of laches." Exercise of power under Article 226 of the Constitution, after award was made, was held to have been wrongly made. Delay to make award was not a ground to quash the acquisition proceedings.

In State of Orissa. v. Dhobei Sethi (1995) 5 Scale. 1881, it was held that on account of laches on the part of the petitioners, the writ petition was liable to be dismissed. It was also held therein that subsequent purchaser cannot raise any objection for the validity of the acquisition. The High Court was therefore, held unjustified in issuing the writ and quashing the notification and declaration under Sections 4(1) and 6 respectively.

In State of Maharashtra v. Digambar (4) Scale 98 : AIR 1995 S.C.W. 3116 another Bench of three Judges directed dismissal of the writ petition on the ground of laches and held that the High'' Court had not judiciously and reasonably exercised its discretion in passing the notification u/s 4(1) of the Act.

In the The Ramjas Foundation and Others Vs. Union of India and Others, , a Bench of three Judges had held that mere retaining the possession or delay on the part of the authority to pass award are not grounds to challenge the notification u/s 4(1) and declaration u/s 6 and the latches was held to be ground to dismiss the writ petition. Accordingly this Court allowed the appeal and dismissed the writ petition.

In Ram Chand and Others Vs. Union of India (UOI) and Others, , another Bench of three Judges of this Court had held that because of inordinate delay in approaching the Court after entire process of acquisition was over pursuant to notification u/s 4(1) and declaration u/s 6, the court was not justified in quashing the same. Same view was reiterated in Bhoop Singh Vs. Union of India and others, ; Aflatoon and Others Vs. Lt. Governor of Delhi and Others, , Indrapuri Griha Nirman Sahakari Samiti Ltd. Vs. The State of Rajasthan and Others, , H.D. Vora Vs. State of Maharashtra and Others, and Pt. Girdharan Prasad Missir v. State of Bihar (1980) 2 S.C.C. 83 : AIR 1979 NOC. 191.

It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the court should be cloathed to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification u/s 4(1) and declaration u/s 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 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.

There is no escape for the petitioner in the light of the said pronouncement of the Apex Court.

However, Mr. K.S. Viswanathan, learned Counsel for the petitioner vehemently contended that already writ petitions are pending challenging the very same Notification and this writ petition should not be dismissed in limine. To satisfy myself I sent for the records. As already held, the Declaration has been made within one year from the 4(1) Notification. The petitioner cannot rely upon the earlier writ petitions filed by others as the acquisition in relation to various survey numbers related to various parties and merely because some of them have filed writ petitions, immediately after issue of Section 6 Declaration that cannot be a ground for the petitioner nor it can be an excuse. There is no explanation at all for the delay and the laches on the part of the petitioner will be fatal.

In the circumstances, this petition is dismissed. No costs. Consequently, W.M.P.Nos. 25612 and 25613 of 1997 are dismissed.