Rana Co-operative Housing Society vs State of U.P. and Others

R.A. Sharma, J.—A notice of the draft Improvement Scheme u/s 357 of U.P. Nagar Mahapalika Adhiniyam, 1959 (hereinafter referred to as the 1959 Act) was published in April, 1962 inviting objections. The final notification of the sanctioned scheme u/s 361 of the said Act was published on 5.10.1963. In 1973 the U.P. Urban Planning and Development Act (hereinafter referred to as the Development Act) was enacted and Kanpur Development Authority was constituted thereunder. By Section 59 of the Development Act, Chapter XIV of the 1959 Act consisting of Sections 343 to 384 was suspended and the provisions of Sections 6 and 24 of the U.P. General Clauses Act were made applicable to such suspension as if the suspension amounted to repeal of the said enactment and in particular all proceedings relating to acquisition of land for improvement schemes under the 1959 Act were saved. It was further provided that anything done or any action taken including any notification issued or scheme made under the 1959 Act shall continue in force and be deemed to have been done or taken under the provisions of the Development Act unless and until it is superseded by anything done or any action taken under the later Act. Notices u/s 9 of the Land Acquisition Act were issued in 1979 to the land-holders, who filed their objections. The award was made on 25.2.1982 and possession of land was taken on 27.2.1982. At that very time, the landholders including the Petitioner received compensation without any protest. Neither the acquisition nor the award was challenged by the Petitioner and the same had become final.

On 17.2.1973 a notification u/s 20 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as the 1965 Act), proposing to acquire certain plots of land was published. A final notification u/s 32 of the 1965 Act was published on 27.12.1980. Petitioner claims that part of the land covered by the aforesaid scheme framed under 1959 Act is also covered by the above notification issued under 1965 Act. But it has been denied by the Kanpur Development Authority. In 1982 the Petitioner filed a Writ Petition No. 10880 of 1982 against the said notification issued under 1965 Act before this Court. The said writ petition along with a number of other writ petitions were heard together and decided by a common judgment by a Division Bench on 3.10.1985, which is in 1986 UPLBEC 185. This Court allowed in part the aforesaid Writ Petition No. 10880 of 1982 and some other writ petitions and the notification u/s 32 of the 1965 Act, so far as it related to the land of those Petitioners, was set aside. This Court also gave liberty to the Petitioners therein to make representation to the Parishad within six weeks containing the undertaking to abide by the conditions contained in the Government Orders dated July 27, 1967 and April 9, 1980 and to furnish relevant material required thereunder. The Parishad was directed to reconsider, if such a representation is made, whether the land covered under those writ petitions be acquired. Mr. Ashok Khare, learned Counsel for the Petitioner has stated that even though the Petitioner has moved the representation before the Parishad; but no decision has been taken thereon so far and on the other hand, an award has been made on 23.9.1986, which has been challenged by a separate Writ Petition No. 4503 of 1988, which is pending in this Court. Although the Writ Petition No. 4503 of 1988 was connected with the instant case; but as the controversy in these two cases were different and no arguments were made in Writ Petition No. 4503 of 1988, we have delinked these cases and directed the Writ Petition No. 4503 of 1988 to be listed later on before appropriate Bench.

In April, 1989 the Petitioner made a representation u/s 17 of the Development Act before the State Government for restoration of its acquired land to it. It appears that the Petitioner also sent some more similar representations. The Government does not appear to have passed any order on the said representations. The Petitioner, therefore, filed this writ petition in 1992 claiming the following reliefs:

(i) to issue a writ, order or direction in the nature of mandamus directing the Respondent No. 1 to decide the Petitioner''s representations dated Annexures I, II, III, IV and V to this writ petition;

(ii) to issue and ad interim writ of mandamus directing the Respondents not to interfere with the possession of the Petitioner over the land in dispute during the pendency of the present writ petition;

(iii) to issue any other suitable writ order or direction which this Hon''ble Court may deem fit and proper in the circumstances of the present case;

(iv) to award the cost of the petition to the Petitioner.

In the writ petition, the Petitioner has not impleaded the Kanpur Development Authority (hereinafter referred to as the K. D. A.). But in 1993 it moved an application for amending the writ petition by impleading the K. D. A. as Respondent No. 6 and also for adding certain grounds and prayers. This Court vide its order dated 15.4.1993 permitted the Petitioner to implead the K. D. A. as Respondent No. 6 and also granted an interim order restraining the K. D. A. from holding any auction of the land in question. The said interim order is quoted below:

Learned counsel for the Petitioner is permitted to add K. D. A. as Respondent No. 6.

Notice is accepted by Sri Lalji Sinha for Respondent Nos. 2 to 6. For Respondent No. 1 learned standing counsel has accepted notice.

Learned standing counsel and Sri Lalji Sinha are granted one month time for filing counter-affidavit. Rejoinder-affidavit may be filed within three weeks thereafter. List this petition for admission along with Civil Writ Petition No. 5095 of 1993.

Until further orders the Respondents are restrained from dispossessing the Petitioner from the land in dispute and are also restrained for holding any auction of the land not already auctioned and if some part of it has already been auctioned, it shall not be confirmed unless already confirmed.

Learned Counsel for the Petitioner has challenged the validity of the acquisition of the land under the scheme framed under the 1959 Act. Learned Counsel for the K. D. A. has, apart from disputing the submission of the learned Counsel for the Petitioner, also raised the following preliminary objections against the maintainability of this writ petition:

(i) Petitioner is guilty of excessive delay and laches;

(ii) after the award has been made and the possession of the land has been taken, it is not open to the Petitioner to challenge the acquisition of the land; and

(iii) the Petitioner is guilty of concealment of material facts on account of which it is not entitled to any relief.

Before going into the merit of the controversy, it is appropriate to decide the preliminary objections at the threshold.

In the instant case, the final notification was published in 1963. Notice u/s 9 of the Land Acquisition Act was given to the landholders in 1979 and the award, determining the compensation of the acquired land including the land of the Petitioner was made on 25.2.1982 and the possession of the land was taken by the State on 27.2.1982. It is also admitted that the tenure-holders including the Petitioner have received the compensation immediately after the award was made willingly and without any protest. This writ petition was filed by the Petitioner in 1992, i.e., about thirty years after the final notification, which was published in 1963 and about ten years after the award was made and the possession of the land was taken in 1982. The Petitioner is, therefore, guilty of excessive delay and laches. In Hari Singh and Others Vs. State of U.P. and Others, . the Supreme Court dismissed the writ petition, challenging the validity of the acquisition proceedings, filed after about two and half years. In Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, , the Supreme Court declared that if the acquisition proceedings have been allowed to go on and reach terminus in the award and possession is taken in pursuance thereof, the interested persons cannot challenge thereafter the acquisition proceedings. The relevant extract from the said decision of the Supreme Court is reproduced below:

Therefore, the validity of the notification u/s 126 of the M.R.T.P. Act or declaration u/s 6 of the Act needs necessarily to be impugned by interested persons and have it quashed before the award proceedings become final and conclusive u/s 12(1). If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vested in the State free from all encumbrances, the slumbering interested person would be told off the gates of the Court that his grievance should not be entertained.

The same rule was reiterated in paragraphs 24 to 29 of the same judgment, which are also reproduced below:

In State of Tamil Nadu v. L. Krishnan, a Bench of three Judges of this Court had 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, 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 the 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, 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 Ramjas Foundation v. Union of India, 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 laches was held to be ground to dismiss the writ petition. Accordingly this Court allowed the appeal and dismissed the writ petition.

In Ram Chand v. Union of India, another Bench of three Judges of this Court had held that because of inordinate delay in approaching the court after the 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 v. Union of India; Aflatoon v. Lt. Governor of Delhi; Indrapuri Griha Nirman Sahkari Samiti Ltd. v. State of Rajasthan; H.D. Vora v. State of Maharashtra and Girdharan Prasad Missir v. State of Bihar.

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 loath to quash the notification. 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 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.

The Petitioner is obviously guilty of excessive delay in filing this writ petition. This petition is, therefore, liable to be dismissed on this ground alone. The first preliminary objection is accordingly accepted.

The second preliminary objection is also liable to be accepted. It is admitted that the award determining the compensation of the acquired land including the land of the Petitioner was made on 25.2.1982 and the possession of the land was taken by the State on 27.2.1982. It is also admitted that the tenure-holders including the Petitioner have received the compensation immediately after the award was made without any protest. In State of Haryana and others Vs. Dewan Singh and others, , the Supreme Court has held that after the award has been made, the acquisition proceedings cannot be questioned. In General Manager, Telecommunication and Anr. v. Dr. Madan Mohan Pradhan and Ors. (72) 1996 ACC , the Supreme Court has laid down that after the possession of the land has been taken, the validity of the notification acquiring the said land cannot be challenged. The same rule has been reiterated in Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, , relevant extract of which has already been reproduced hereinbefore. In the instant case, the Petitioner has voluntarily accepted the compensation pursuant to an award made on 25.2.1982. It has challenged the acquisition proceedings ten years thereafter. Such a course is not open to it.

The K. D. A. in its counter-affidavit has stated that it has developed the disputed land and has prepared a layout plan carrying out 81 plots and has also provided a number of roads. It has further been stated that after due publicity, the K. D. A. has auctioned 30 plots and the bidders have deposited 25% of the amount and the sales were confirmed by the Vice Chairman and letters to that effect have been issued to them. It is thereafter that the Petitioner applied for amendment of the writ petition and has obtained an interim order from this Court on 15.4.1993. It is also stated that apart from the present writ petition, the Petitioner and others have filed about ten civil suits in the civil courts for the similar relief and have also applied for interim injunction and those suits are still pending; but no interim stay has been granted by the civil court.

Apart from the fact that the Petitioner is guilty of excessive delay in filing the writ petition, the K. D. A. has invested a huge amount in developing the land In dispute and has also constructed roads. The Interest of third parties, who have purchased the land at public auction conducted by the K. D. A., are also involved. In such a situation, even if there is no delay in filing this writ petition, this Court cannot interfere in exercise of its discretionary power under Article 226 of the Constitution.

The Petitioner is also guilty of concealment of material facts. It filed this writ petition in 1992. In 1982 the award was given and the Petitioner has accepted the compensation voluntarily without protest. The possession of the land was also taken in 1982 by the State. But all these facts were not disclosed in the writ petition. It deliberately concealed them, otherwise it could not have got the interim order, which was granted by this Court on 15.4.1993. Had these facts been disclosed in the writ petition, this Court in all probability would have dismissed this writ petition at the threshold in 1993 itself. It is settled that this Court should not exercise discretion under Article 226 of the Constitution in favour of a person, who is guilty of concealment of material facts. The third objection of the learned Counsel for the Respondents is also accepted.

In this connection, learned Counsel for the Petitioner has submitted that as the Petitioner is still in actual possession of the land and is ready to refund the compensation, this writ petition is not liable to be dismissed on the basis of the preliminary objections. This submission is devoid of merit and cannot be accepted. The preliminary objections go to the root of the matter and if this Court is of the view that this petition is not to be entertained on the ground mentioned in the preliminary objections, the position will not improve even if the Petitioner is in possession of the land and is ready to refund the compensation. As we are not inclined to entertain this writ petition on account of the preliminary objections, which we have accepted, it is not necessary for this Court to decide the question of possession. It may, however, be mentioned that in view of the assertions by the K. D. A. in its counter-affidavit to the effect that possession of the land has been given to it, in support whereof it has filed the possession certificate, the question of possession is a seriously disputed question of fact. The question of refund of the compensation, which was voluntarily accepted by the Petitioner does not arise. In any case by refunding the compensation, the Petitioner cannot acquire the right to challenge the acquisition of the land by filing a highly belated writ petition. Moreover, as mentioned earlier, it is not open to the Petitioner to challenge the acquisition proceedings after the award has been made and the compensation has been received pursuant thereto.

In the end, the learned Counsel for the Petitioner has prayed for direction to the State Government to decide the Petitioner''s representations under the proviso to Section 17 of the Development Act filed in 1989 for restoration of the land to it. The grievance of the Petitioner is that possession of the land was taken in 1982 but the same has not been used for the purpose for which it was acquired and, therefore, the Government is bound to pass an order under the said proviso for restoration of the land to it. Learned Counsel for the K. D. A. has, however, disputed the said submission on the ground that neither Section 17 is applicable to the present case nor the conditions precedent laid down in the proviso to the said section are satisfied. It is not necessary for this Court to go into these questions at this stage, because it is for the Government to take the decision on the representations of the Petitioner in accordance with law. If the representations have not been decided so far, it is clearly a case of undue delay in deciding the same.

For the reasons given above, this writ petition is dismissed except to the extent that the Government of U.P. is directed to decide the Petitioner''s representations (Annexures 1 to 5 to the writ petition), if not already decided, in accordance with law after giving reasonable opportunity of being heard to all the concerned parties within a period of three months from the date of presentation of certified copy of this order. Order, which may be passed, shall be communicated to the parties within two weeks of the decision. In view of the facts and circumstances of the case, there shall be no order as to costs.