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Judgment
Arun Mishra, J.
The petitioner in this writ petition is assailing the acquisition of the land and prays for quashing the award P. 9 passed on 11-5-1989.
The instant writ petition was preferred before this Court on 18-2-1991. The petitioner has come up with the case that notification u/s 4 of the Land Acquisition Act, 1894 was issued on 8-8-1987 and u/s 6 on 20-11-1987. Petitioner no. 1 society thought that land of the petitioner may not be required and will be released in favour of the petitioner society but to their surprise an award has been passed on 11-5-1989 and sent to the Collector for approval on next day on 12-5-1989, it was approved. Possession of the land has not been taken over by the Housing Board or the S.D.O. Petitioner further submits that award is liable to be set aside on the sole ground that until and unless the pending matter is decided under the provisions of the Urban Land Ceiling Act and the land acquired, no proceedings under the Land Acquisition Act can be initiated. The action is totally without jurisdiction. All proceedings are barred under the provisions of section 42 of Urban Land Ceiling and Regulation Act, 1976, which reads as under:
Act to override other Laws. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other Law for the time being in force or any custom, usage or agreement or decree or order of a Court, tribunal or other authority.
It is submitted by petitioner that section 42 of Urban Land Ceiling Act has overriding effect over all other Laws. The acquisition of land has the same purpose for which the petitioner society is striving for. The object of Land Acquisition Act and the Urban Land Ceiling Act is nothing but one i.e. to use the land for public purpose. Under one, it is vesting i.e. Urban Land Ceiling Act and under the Land Ceiling Act it is acquisition but the procedure for depriving the land owner is the same that is by payment of compensation. The compensation is required to be paid under both the Acts until and unless the matter is decided under the Urban Land Ceiling Act. The proceedings under Land Acquisition Act are premature. Any action taken by issuance of notification under sections 4 and declaration u/s 6 of the Land Acquisition Act cannot make the award legal inasmuch as the whole proceedings are vitiated and non est being contrary to the provisions of section 42 of the Urban Land Ceiling Act. It was open to the State Govt. to exempt the land u/s 20 of the Urban Land Ceiling Act. Petitioners did not get any notice of passing of the award and petitioners have come to know about the award only recently and after knowing the same the petitioners applied for copy of the award on 14-2-1991. The award is absolutely silent regarding the market value of the land and how it has been arrived at. The consideration mentioned in section 23 of the Land Acquisition Act has not been adhered too. Petitioner in the writ petition has posed for consideration the question whether the acquisition proceedings under the Land Acquisition Act can be justified as long as the proceedings u/s 20 of the Urban Land Ceiling Act, are pending before the State Govt. Further question raised is if the land is to vest in the State, the said land can be allotted without the aid of land acquisition proceedings in favour of any co-operative society and if it can be allotted to any co-operative society, why not to the petitioner society. The land acquisition proceedings are further vitiated as the objections of the petitioner were not considered. The question of urgency is not borne out from the order passed by the Land Acquisition Officer. The Land Acquisition Officer has not applied his mind whether the provisions of section 17(i) read with section 17(4) should be invoked in issuing the notification u/s 4 of the Land Acquisition Act. The satisfaction of the Commissioner cannot be accepted as the satisfaction of the Land Acquisition Officer for deciding the question of urgency under the Land Acquisition Act. It is further submitted by the petitioner that members of the petitioner society belong to middle class, weaker section of the society retired government employees, low paid and workers as such deprivation of the land will frustrate the scheme for providing the houses to the said class of persons. The award is non est. On all these grounds writ petition has been filed before this Court.
In the return filed by M.P. Housing Board it is contended by M.P. Housing Board that since the award has been passed, writ petition is not maintainable. Writ petition is filed belatedly. Possession of the land was handed over to the M.P. Housing Board on 25-1-1990. Possession certificate is filed as R-4/1. Panchnama of taking possession is R-4/2. M.P. Housing Board has deposited the entire amount of compensation on 27-5-1989 as per R-4/3. M.P. Housing Board has prepared a Housing scheme under which the houses are to be constructed which are allotted to the weaker section of the society as well as for the Bhopal Gas Tragedy victims.
Shri J.P. Sanghi, learned Sr. counsel for the petitioners, has urged that no scheme was prepared as required u/s 33 of the M.P. Grah Nirman Adhiniyam, 1976. He has placed reliance on decision of this Court in M.P. No. 638/88, Rajendra Prasad Arya vs. State of M.P. Shri J.P. Sanghi submits that land could not be acquired for the purpose of housing under the Land Acquisition Act until and unless the land is diverted and proceedings are pending. The Housing Board has already constructed the houses nearby the land in question. As such purpose stands satisfied and there is no need for acquisition.
All the submissions raised by learned counsel for the petitioners are not forming part of the factual matrix or the grounds raised in the petition. However, I propose to deal with them later.
Firstly writ petition is entirely misconceived as prayer made is to quash the award dated 11-5-1989. There is no prayer made in the writ petition to quash the notification issued u/s 4 and declaration issued u/s 6 of the Land Acquisition Act. Until and unless prayer is made to quash the notification u/s 4 and declaration u/s 6, in my opinion, writ petition to quash the award only is not maintainable.
Writ petition is not maintainable as it has been filed belatedly. The notification for land acquisition was issued u/s 4 on 8-8-1987 and declaration u/s 6 issued on 20-11-1987. It is not the case set up that local publicity was not given. Thus, petitioner very well knew of the acquisition proceedings by virtue of proceedings taken under sections 4 and 6 of the Land Acquisition Act. The award was passed on 11-5-1989. Writ petition has been filed after one year seven months of passing of the award. Since award has been passed and the notification has not been assailed, writ petition has been filed after more than 3 years of the notification u/s 4, suffers from laches. The Apex Court has held that such delay is fatal to the maintainability of the writ petition.
The challenge to the notification u/s 4 is to be made expeditiously as held by the Apex Court in Hari Singh and Others Vs. State of U.P. and Others, and in Municipal Corporation of Greater Bombay vs. The Industrial Development Investment Co. Pvt. Ltd. and ors., AIR 1996 SCW 3871 the Apex Court has laid down that:-
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 loathe 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.
In State of Tamil Nadu and others etc. Vs. L. Krishnan and others etc., delay of 4 years was held to be fatal to maintainability of writ petition and in Reliance Petroleum Ltd. Vs. Zaver Chand Popatlal Sumaria and Others, the Apex Court held that delay alone is fatal to maintainability of writ petition challenging land acquisition.
In The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, , the Apex Court has held that once award is passed acquisition of the land cannot be challenged. The Apex Court has held:
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 vs. Dy. Secy. to the Govt. of T.N.) this Court observed as below:
The admitted position is that pursuant to the notification published u/s 4(1) of the Land Acquisition Act, 1894 (for short ''the Act'') in GOM No. 1392 Industries dated 17-10-1962, total extent of 6 acres 41 cents of land in Madhavaram Village, Saidapet Taluk, Chengalpattu District in Tamil Nadu was acquired under Chapter VII of the Act for the manufacture of Synthetic Rasina by Tvl. Reichold Chemicals India Ltd., Madras. The acquisition proceedings had become final and possession of the land was taken on 30-4-1964. Pursuant to the agreement executed by the company, it was handed over to Tvl. Simpson and General Finance Co. which is a subsidiary of Reichold Chemicals India Ltd. It would appear that at a request made by the said company, 66 cents of land out of one acre 37 cents in respect of which the appellants originally had ownership, was transferred in GOMs No. 816 Industries dated 24-3-1971 in favour of another subsidiary company. Shri Rama Vilas Service Ltd., the 5th respondent which is also another subsidiary of the Company had requested for two acres 75 cents of land; the same came to be assigned on leasehold basis by the Government after resumption in terms of the agreement in GOMs No. 439 Industries dated 10-5-1985. In GOMs No. 546 Industries dated 30-3-1986, the same came to be approved of. Then the appellants challenged the original GOMs No. 1392 Industries dated 17-10-1962 contending that since the original purpose for which the land was acquired had ceased to be in operation, the appellants are entitled to restitution of the possession taken from them. The learned Single Judge and the Division Bench have held that the acquired land having already vested in the State, after receipt of the compensation by the predecessor in title of the appellants, they have no right to challenge the notification. Thus the writ petition and the writ appeal came to be dismissed.
Similar view is taken by the Apex Court in C. Padma and Others Vs. Dy. Secretary to the Govt. of T.N. and Others, . Thus, the writ petition is devoid of merit and is liable to be dismissed.
Learned counsel for the petitioner has submitted that scheme was not framed. Thus, the acquisition is bad in law. There is no factual basis laid down in the writ petition. There is no averment made that scheme was not framed in the absence of factual averment or even a ground being taken in that regard in the petition. Petitioner cannot be allowed to urge the submission raised by learned Senior counsel appearing on behalf of petitioner.
The submission raised that the land is agricultural land and could not be acquired without diversion for the purpose of Housing is totally misconceived. In my opinion, agricultural land can also be acquired for the purpose of Housing even without the diversion under the Land Acquisition Act.
The submission raised that purpose of housing stands satisfied as for victims of Bhopal Gas tragedy houses have been constructed has also not been raised in the writ petition. Housing is the national need and acquisition for the purpose in question is proper.
The grounds raised in the writ petition, the main challenge is on the strength of section 42 of Urban Land Ceiling Act, in my opinion, the provisions of Urban Land Ceiling Act and section 42 do not come in the way of the land acquisition being made under the provisions of the Land Acquisition Act. Section 42 does not bar the acquisition under the Land Acquisition Act.
The submission raised that land can be allotted to the society under the Urban Land Ceiling Act u/s 20 also does not bar/curtail the jurisdiction/power under the Land Acquisition Act which is an independent Act.
With respect to the invocation of the urgency clause the ground raised is that satisfaction should have been recorded by the Land Acquisition Officer not by the Commissioner. This ground is untenable. The satisfaction has to be reached by appropriate Govt. u/s 17 that power has been conferred upon on the Commissioner and Commissioner has rightly reached the satisfaction. It is not for the Land Acquisition Officer to record the satisfaction in that regard.
Thus, the grounds raised are totally untenable so also raised by the learned Senior counsel for the petitioner. I find absolutely no ground to make any interference in the acquisition proceedings.
Writ petition is dismissed. Costs on parties. Security if deposited be refunded to the petitioner.