Navin R. Kamani vs State of Rajasthan and Others

V.K. Singhal, J.—A preliminay objection has been taken by the learned Counsel for the respondents that the writ petition has been filed on 16th April 1994 and, therefore it suffers from laches. Besides this, it has also been submitted that the petitioners have no locus standi in as much as in the revenue record the land does not stand in the name of (he petitioners and that there is mis-statement of fact in the writ petition.

The contention of the learned Counsel for the respondents is that the general principle of three years of limiation should be taken as the normal rule for preferring the writ petition under Article 226 of the Constitution, cannot be accepted. The decision in the case of Land Acquisition Officer V Mohammed Amir Khan 1986 (1) SCC 3 has also no application to the facts of the present case as it pertains to the preamendment period and the question of delay laches was not considered in that case by the Hon''ble Supreme Court. The High Court decided the writ petition and the appeals by special leave to appeal were dismissed by the Apex Court. In the case of Mohammed Usman v. Union of India AIR 1986 Raj. 156, it was observed by this court that an illegality committed by any party should not be allowed to prevail and the relief should not be denied only on the ground that there is delay in filing the writ petition. If during the period of delay, if any interest/right is accrued in favour of the third party or the third party creates the vested right, then the delay cannot be condoned as it will adversely affect the party, in whose favour the rights are vested. But where no vested right has accured in favour of a third party it can be an important consideration for condoning the delay, if any, in filing the writ petition. These observations were made in respect of a dispute regarding the sale effected and the dispute was sub-judice before the Apex Court in a civil case wherein it was observed that it is advisable to the government to follow the decision. The principles which have been laid down in this decision cannot be said to be applicable in respect of land to acquisition proceedings where the land acquired by the State Government either in public interest or for the purpose of government or for like reason and some time even emergency powers are exercised u/s 17(4) of the Act. This Court has considered the delay even of three months as un-reasonable on the basis of which the writ petition was dismissed.

Looking to the scheme of the Act, I consider that the period of about two years cannot be considered to be reasonable one for which no satisfactory explanation has been given. If the interpretation of the learned Counsel for the petitioner is accepted, then the result would be that in the matter of land acquistion the writ petition would be filed after the possession is taken and everything has come to an end within a period of three years. The action has to be taken by the aggrieved person at the proper time without wasting any time and if the proceedings are allowed to continue, then it would be considered that either he has waived his right or he is not aggrieved by such an action. The matter with regard to land acquisition has the effect on the society in general and the action is beign taken in public interest. In such a case the aggrieved person has to be very conscious and alert for challenging any right immediately rather than taking shelter of other acts where the public interest is not involved. In these circumstances, the submission of the learned Counsel for the petitioner that there should be laches resulting in conforming the right on other side has no substance in the matter of land acquisition proceedings.

The land in dispute is in respect of Khasra No. 1 and 26 of the village Khokhawas Tehsil Sanganer, Distt. Jaipur. The notification u/s 4 was issued on 4.2.1991 and the declaration u/s 6 was issued on 27.3.1992. The report u/s 5A of the Land Acquisition Officer is dated 3.2.1992. It is further submitted that the award dated 18.4.1994 has not been challenged and it has attained finality and, therefore, the notification issued u/s 4 or declaration u/s 6 cannot be challenged in these proceedings. The submission of the learned Counsel for the petitioner is that the writ petition was filed before the award dated 18.4.1994 and, therefore, he has to explain the delay only from the date of issue of declaration. It is subitted that the declaration u/s 6 dated 27.3.1992 by way of public notice was issued on 2.5.1992 and, therefore it is only from that date, that he has to explain the delay and laches. It is submitted that the delay by itself is not fatal for maintenance of writ, and it is only in cases of laches that the writ petition could be dimissed. The word ''laches'' contemplates gross negligence on the part of the petitioner indicating waiver on his part and accretion of right in other party. There is no gross negligence or waiver on the part of the petitioners and there is no accretion of the right on the other party. It is submitted that the petitioners were residing at Bombay and could not have any notice or knowledge of public notice of May, 1992 and therefore the petition should not be dismissed on the ground of delay. It is also submitted that by the amendment of 1984 in the Land Acqusition Act, the time bound programme has been legislated and in accordance with the provisions of Section 11A, an award has to be passed with in a period of two years from the date of declaration u/s 6. It is for the Land Acquisition Officer of pass an award with in the stipulated period or not and if the award is not passed in that case the petitioner cannot be said to be aggrieved, it is only when the award is passed, within a period of two "years the petitioner can be said to be aggrieved and, therefore, the period should be counted from that date i.e. after exprity of two years from the date of declaration.

In case of State of Punjab and Others v. Hari Om Co-operative House Building Society Ltd. Amritsar 1987 SCC 687 , it was observed that the writ petition challenging acquisition proceedings filed long after publication of notifications under Sections 4 and 6 is liable to be dismissed on the ground of delay. In the case of Hari Singh and Others Vs. State of U.P. and Others, , where the writ petition was filed in July 1982 questioning the notification issued in January, 1980 after a delay of more then 21/2 years, it was held that it is liable to be dismissed on the ground of laches only. In this case also the petitioner pleaded that they did not know about the notification published in the gazette and came to knew for the first time when the notice u/s 9(3) of the Act was issued. The fact that there was no publication in the licality of the public notice was not pleaded and large number of persons who owned the remaining plots have not challenged the acquisition proceedings. In the case of Indrapuri Grah Nirman Sahkari Samiti Ltd., V The State of Rajasthan & Others AIR 1974 SC 2085, it was observed that any challenge to the notification u/s 4 and declaration u/s 6 should be made within a reasonable time. The length of delay is an Important circumstances because of the nature of the acts done during the Interval on the basis of the notification and declaration. In the case of Aflatoon and Others Vs. Lt. Governor of Delhi and Others, it was observed that a valid notification u/s 4 is a sing 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 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 as permium on dilatory tactics. In the case of Sohan Lal & Others v. State of Haryana & Others 1989 LACC 329, where the notification u/s 4 was issued on 1.9.81 and declaration u/s 6 was issued on 5.11.1982 and notice u/s 9 was issued on 11.7.1984 and no award was passed and it was held by Punjab and Haryana High Court that the delay on the part of claimants in coming t6 the court to challenge acquisition proceedings, disentitles them to any relief in view of Supreme Court judgments. The court has also considered the question with regard to delay and (sic) judgments were taken not of.

I have considered over the matter. The provisions of the Land Acquisition Act were substantially changed in 1984 when the said legislation contemplated a time bound programme. After the issue of ntification u/s 4 in all the three modes prescribed therein, the declaration has to be issued within one year from the last mode prescribed under S.C. 4. Section 11A of the Land Acquisition Act comtemplates that the award has to be passed within a period of two years from the date of declaration and the last date of such declaration has to be taken note of. The explanation to Section 6 has excluded the time during which the proceedings remained under stay after the issue of notification u/s 4. Similaraly, section 11A has provided that the period during which the proceedings remained under stay have to be excluded in computing the period of limitation. Section 18 is the remedy where the dispute with regard to measurement of land, amount of compensation to the person to whom it is payable or apportionment of compensation amongst the various persons interested, could be raised or adjudicated. By virtue of the provisions of section 6 in explanation - I, it is clear that the notification issued u/s 4(1) could have been challenged immediately as the period of time for issuing the declaration under Section6 is only one year after the issue of notification u/s 4(1). The exclusion of the period during which the notification u/s 4(1) as stayed by any competent court clears the legislative intention that the notification could be challenged independently of any objection to the declaration which may be subsequently issued under Section6. One is not required to wait for the declaration to issued for challenging the validity of the notification u/s 4(1). If the notification u/s 4(1) is not challenged immediately and the land owner allows the enquiry to be completed u/s 5A it would mean that he never objected to the validity of the notification u/s 4. The Explanation-1 to Section 6 provides that in computing any period referred to in the first proviso during which any action or proceedings were taken in pursuance of the notification issued u/s 4(1) is stayed by an order of the court, shall be excluded. This shows the ligislative intent that at one time the time bound programme is contemplated for acquisition of land, after the issue of the notification u/s 4 and declaration has to be issued within one year and the award is to be made within a period of two years, it is expected from the land owner to raise objection immediately after the notification u/s 4(1) is issued.

Similarly, after the declaration u/s 6 it has to be challenged immediately and one is not required to wait till the notice is issued u/s 9 or award is passed under Sec 11 Section 11A has also excluded the period during which the declaration issued u/s 6 is stayed by any court. This also shows that the land owner has to immediately challenge the declaration issued u/s 6 and it could be a separate action by way of filing of suit or writ petition etc. Even there could be two suits or writ proceedgins for challenging the notification u/s 4 and declaration u/s 6. The various decisions which have been cited are in respect of the period before the amendment which have been brought by Act No. 68 of 1984 in the Land Acquisition Act, 1894, and even under those decisions it has been laid down by the Apex Court that the proceedings u/s 4 or declaration u/s 6 must be challenged within a reasonable time. After the amendment in the Land Acquisition Act by Act No. 68 of 1984 which lays down the time bound programme for passing of the order and taking the action the only interpretation which could be taken is that the notification u/s 4 could be challenged within a reasonable time, but before the issue of declaration u/s 6. There may be a situation where the notification u/s 4 as well as declaration u/s 6 is challenged only name primit then in such a situation the notification u/s 4 and declaration u/s 6 must be challenged immediately after the issue of the notification and declaration separately and before award is passed, as the declaration u/s 6 is issued after the satisfaction of the State Goverment on receiving the report u/s 5A(2) of the Act. If the award is challenged on any of the grounds mentioned above, then the only remedy is to challenge it by way of writtent application to be submitted to the Collector, as provided u/s 18 to the Act. The award cannot be challenged on the basis of any illegality in the notice issued u/s 4 or illegality in the declaration u/s 6, as the legislature has contemplated the action u/s 4 and 6 separately which could be challenged at the appropriate time. If any person challenges the declaration u/s 6, after unreasonable delay or the lapse of two years i.e. the award is passed u/s 11, then it would be giving the premium on the dialatory tactice adopted by the claimant in not challenging the notification u/s 4 or declaration u/s 6 promptly. In State of Mysore and Others Vs. V.K. Kangan and Others, chalenging the notification Issued u/s 4 after filing objection u/s 5 was not considered proper. It was observed that validity of notification u/s 4 has to be challenged within reasonable time.

The award u/s 11 has reference to (1) area of land; (2) The compensation which could be allowed for the land; (3) the apportionment of the said compensation amongst the persons interested in the land. This is very basis for adudication of award in the proceedings by way of reference u/s 18 and, therefore, the remedy against objections on any of the points is by way of refernece u/s 18. The validity of the notification u/s 4 or declaration u/s 6 which is being challenged has to be before the award itself. Now the question arises as to within which time, the notification u/s 4 or declaration u/s 6 should be challenged. It has been held by the Hon''ble Suipreme Court that the challenge should be within a reasonable time. What is the reasonable time is a question of fact and may differ from case to case. In the present case the writ petitioner was filed on 16.4.1994 whereas the declaration u/s 6 was issued in March/May 1992. The petitioenr has not stated specifically as to why the notification issued u/s 4 or the declaration u/s 6 have not been challenged within reasonable time.

A verbal argument was raised that the petitioners are living outside Jaipur and, therefore, there is no knowledge or information. That cannot be basis because the law cannot be different for persons who are residing outside the State of Rajasthan in respect of any acquisition proceedgins, nor non compliance of the provisions of Section 9 would confer any right on the petitioners to challenge it at any point on the ground that neither any notice u/s 9(3) has been served nor any notice u/s 9(1) has been published. The provisions of Section 9 have been considered directory in nature and, therefore, the petitioners cannot get any benefit for approaching late under Article 226 of the Constitution. The period of about 2 years which has been taken by the petitioners cannot be said to be reasonable or satisfactorily explained and, therefore, the objection which has been raised by the learned Counsel for the respondents is upheld. Even to examine the contention of the learned Counsel for the petitioner record of the respondents was called for and from a perusal of the said record it is found that the notice u/s 9 was sent to Navin R Kamani and acknowledgement for receiving the letter, Shri S.N. Kamani has signed on 9.2.1993. So is the position in respect of Smt. Susmita N. Kamani. A reply was filed by Susmita N. Kamani on July 20, 1993 through her advocate Mr. S. Kasliwal and time of one month was sought. Aswin P Parekh has also submitted the reply on February 2, 1993 through his advocate Mr. Kasliwal to the notice issued u/s 9 and has sought one month''s time. The award has been passed on April 18,1994. The other questions are not adjudicated since I do not find that the present one is a fit case for invoking extra ordinary jursidiction after such a long delay.

The contention that there should be gross neglience on the part of the petitioners indicating waiver of their rights or conferring any right in favour of other party has also no substance as under the acquisition proceedings time bound programme is contemplated and if the petitioners or the land owner is not challenging the action within reasonable time the gross negligence as required under the criminal law is not to be examined. The only thing which has to be seen is the delay which has to be satisfactorily explained. Inaction itself can be equated to laches.

The Constitution (Forty-fourth Amendment) Act, 1978 has taken away the right to property from the Fundamental Rights under Article 19(1)(f) and as a consequence thereof the right to property has ceased to be a fundamental right.

Consequently, the writ petition suffers from delay as well as laches and is, therefore, dismissed.