Shanthaiah vs The Commissioner and Others

B.V. Nagarathna, J.—Petitioner has assailed preliminary notification issued under section 17 of the Bangalore Development Authority Act, 1976 dated 15.4.2002 (Annexure-B to the writ petition) as well as declaration and final notification dated 31.10.2002 issued by the State/respondent No. 8 (Annexure-C to the writ petition). By those notifications, respondents-authorities sought to acquire inter alia petitioner''s land bearing survey No. 164/3, situated at Ullalu Village, Yeshwanthapura Hobli, Bangalore North Taluk, measuring 20 guntas.

According to petitioner, he is the owner of the said land as he had inherited it from his father and that his name has been entered in the revenue records including R.T. Cs. That respondent No. 1 issued preliminary notification dated 15.4.2002 and thereafter, respondent No. 8 issued final notification dated 31.10.2002, inter alia acquiring the aforesaid land for the formation of Sir M. Vishweshwaraiah Layout. According to him, his name was notified in the acquisition notifications but no notice was issued to him and he did not get an opportunity to object to the impugned acquisition. As he was not aware of the acquisition, he did not know about the formation of layout and that very recently when respondent tried to interfere with his possession of the aforesaid land, he became aware about the acquisition and has hence assailed the acquisition notifications.

I have heard learned counsel for petitioner and learned Additional Government Advocate for State/respondent No. 8 and perused the material on record.

During the course of submission, petitioner''s counsel pointed out that though his name had been indicated as the khatedar of the land in question, no notice was issued to him, as a result, he was not aware of the acquisition of his land for the formation of Sir M. Vishweshwaraiah Layout and therefore the respondent authorities cannot take possession of his land for the purpose of formation of a road in the said Layout. He therefore contended that in the absence of issuance of notice to the petitioner, acquisition of the land in question is bad in law.

I have considered these submissions in light of the material on record.

At the outset, it is noted that preliminary notification is dated 15.4.2002 and final notification and declaration is dated 31.10.2002. But this writ petition is filed on 23.2.2015 assailing those notifications. Even if for a moment, it is to be assumed that petitioner was not aware of the acquisition, he cannot claim ignorance with regard to formation of Sir M. Vishweshwaraiah Layout. In fact, learned counsel for petitioner has produced photographs showing the status of the land in question and the surrounding area. On perusal of the same, it becomes clear that respondents-authorities have developed the layout. There has been formation of tarred road, erection of electric poles and other conveniences which show that the area is well developed with sufficient amenities and facilities. Presently work has commenced on the land in question. Petitioner who is stated to be the owner of the land in question, cannot claim ignorance about the acquisition made by the respondents-authorities for the formation of Layout. It is not a case where the petitioner was not residing near the land in question or he was away from Bangalore or abroad. Petitioner is a very much resident of Ullalu village where the land in question is situated and Layout has been formed a decade ago in the same village. At this stage, petitioner cannot say that he was ignorant about the acquisition of the land for the purpose of formation of Sir M. Vishweshwaraiah Layout. The writ petition filed in February 2015 assailing preliminary and final notifications of the year 2002 has to be rejected only on the ground of delay and latches, by placing reliance on the judgments of the Hon''ble Supreme Court.

In this context, a plethora of decisions of the Hon''ble Supreme Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution cannot extend its hands to such persons who approach the Court after several years can be relied upon. In fact, the Apex Court has held in several decisions that stale claims ought not to be entertained by High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The recent decisions in that regard are as follows:--

"a) In a recent decision of the Apex Court reported in State of Orissa and Another Vs. Mamata Mohanty, (2011) 112 CLT 46 : (2011) 2 SCALE 377 : (2011) 3 SCC 436 : (2011) 2 SCC(L&S) 83 : (2011) 2 SCR 704 : (2011) AIRSCW 1992 : (2011) AIRSCW 1332 the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction, however, the Doctrine of Limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches.

b) In the case of Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar and Others, AIR 2011 SC 2161 : (2011) 5 SCALE 423 : (2011) 5 SCC 607 : (2011) 7 SCR 468 : (2011) 4 UJ 2475 : (2011) AIRSCW 3033 : (2011) 3 Supreme 569 , the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the writ court under Article 226 of the Constitution of India. The same reads as follows;

"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."

c) Similarly, the Apex Court in the case of Sawaran Lata etc. Vs. State of Haryana and Others, AIR 2010 SC 1664 : (2010) 3 JT 602 : (2010) 4 SCC 532 : (2010) 4 SCR 40 has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and laches should not be encouraged.

d) In Tamil Nadu Housing Board, Chennai Vs. M. Meiyappan and Others, (2011) 1 CTC 714 : (2010) 12 JT 29 : (2011) 1 RCR(Civil) 12 : (2010) 11 SCALE 411 : (2010) AIRSCW 7130 : (2010) 7 Supreme 441 , when the acquisition proceedings were challenged 10 years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.

e) In Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, AIR 2008 SC 1494 : (2008) 3 CLT 40 : (2008) 2 JT 280 : (2008) 2 SCALE 271 : (2008) 4 SCC 695 : (2008) AIRSCW 1574 : (2008) 1 Supreme 646 , the Apex Court has followed its earlier decisions in the case of Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, (1996) 6 AD 761 : AIR 1997 SC 482 : (1996) 8 JT 16 : (1996) 6 SCALE 379 : (1996) 11 SCC 501 : (1996) 5 SCR 551 Supp : (1996) AIRSCW 3871 : (1996) 7 Supreme 26 by observing as follows:

"After the award under Section 11 of the Act was made by the Collector he is empowered under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well settled law that taking possession of the land is by means of a memorandum (Panchnama) prepared by the Land Acquisition Officer and signed by Panch witnesses called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer."

It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.

f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in Banda Development Authority, Banda Vs. Moti Lal Agarwal and Others, (2011) 5 JT 106 : (2011) 3 RCR(Civil) 530 : (2011) 5 SCALE 173 : (2011) 5 SCC 394 : (2011) 4 UJ 2109 : (2011) AIRSCW 2835 : (2011) 3 Supreme 473 as the filing of the writ petition was 9 years after the declaration was issued under Section 6(1) of the Act and the delay of 6 years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was held that in a challenge made to the acquisition of land for the purpose of public purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.

g) Reference can also be made to another decision of the Apex Court reported in State of Rajasthan and Others Vs. D.R. Laxmi and Others, (1996) 7 AD 562 : (1996) 9 JT 327 : (1996) 7 SCALE 316 : (1996) 6 SCC 445 : (1996) 6 SCR 221 Supp : (1997) 1 UJ 445 in the case of State of Rajasthan and Others v. D.R. Lakshmi and others, wherein it has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India.

h) Similarly, in the case of The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, AIR 2000 SC 671 : (1999) 10 JT 336 : (2000) 1 SCALE 124 : (2000) 2 SCC 48 : (1999) 5 SCR 197 Supp : (2000) AIRSCW 197 : (2000) 1 Supreme 146 it has been opined thus:--

"The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay."

i) In fact in S.S. Balu and Another Vs. State of Kerala and Others, AIR 2009 SC 1994 : (2009) 122 FLR 54 : (2009) 2 JT 26 : (2009) 1 SCALE 723 : (2009) 2 SCC 479 : (2009) 1 SCC(L&S) 388 : (2009) 1 SCR 196 : (2009) 2 SLJ 480 : (2009) AIRSCW 1644 , it has been held that delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the courts in time.

j) To a similar effect is the decision of the Hon''ble Supreme Court in A.P. Industrial Infrastructure Corporation Ltd. Vs. Chinthamaneni Narasimha Rao and Others, (2011) 4 RCR(Civil) 831 : (2011) 10 SCALE 460 : (2012) AIRSCW 651 : (2011) AIRSCW 5047 ."

The aforesaid judgments are squarely applicable to the present case.

At this stage, learned counsel for petitioner states that compensation has been determined in respect of the land in question.

In the circumstances, writ petition is rejected on the ground of delay and latches. Petitioner is at liberty to seek disbursement of compensation or enhancement of the same in accordance with law.