Full Judgment Text
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CASE NO.:
Appeal (civil) 1081 of 2008
PETITIONER:
Swaika Properties Pvt. Ltd. & Anr.
RESPONDENT:
State of Rajasthan & Ors.
DATE OF JUDGMENT: 07/02/2008
BENCH:
ASHOK BHAN & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
[Arising out of S.L.P.(C)No.16910 of 2006]
ASHOK BHAN, J.
1. Leave granted.
2. Challenge in the present appeal is to the order passed on 04th September 2006 in D.B
.
Special Appeal (W) No.134 of 2006 by a Division Bench of the High Court of Rajasthan
dismissing the appeal filed by the appellants whereby the Division Bench has upheld the
judgment and order passed by a learned Single Judge of the same High Court dismissing
the writ petition filed by the appellants thereby upholding the acquisition proceedings in
respect of the land of the appellants.
3. In order to appreciate the grievance of the appellants, facts leading to the filing
of the
appeal are necessary to be indicated.
4. Notice under Section 52(2) [which is equivalent to Section 4 of the Land Acquisition
Act, 1894] of the Rajasthan Urban Improvement Act 1959 (for short, ’the Act’) was
issued on
S.L.P.(C)No.16910 of 2006 ..... (contd.)
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25th June 1975 for acquiring the land of the appellants bearing Khasra No.383 measuring
14 bighas and 16 biswas situated at Madrampura, Jaipur, Rajasthan. As per the said
notice, land was sought to be acquired for improvement and purposes of Jaipur Town \026
extension of Civil Lines Area for construction of buildings. On 23rd August 1975, another
notice was issued by the State under Section 52(2) of the Act indicating the purpose of
acquisition of land for extension of civil lines and planning of housing scheme.
Appellants, on 08th September 1975, filed objections to the acquisition of their land. The
appellants also submitted their representation from time to time. The Land Acquisition
Officer, however, rejected the objections. On 08th February 1984, the Government issued
declaration under Section 52(1) of the Act [which is equivalent to Section 6 of the Land
Acquisition Act, 1894]. Pursuant to the said declaration, notice under Section 52(5) of the
Act was issued asking the appellants to hand over possession of the land.
5. After these notices were issued, the appellants filed Writ Petition No.5972 of 1984
before the High Court of Calcutta. A learned Single Judge of the High Court of Calcutta,
while issuing rule nisi, granted stay of the acquisition proceedings and restrained the
respondents from taking possession of the land. Aggrieved against the said order the
respondents filed Special Leave Petition before this Court, inter alia,
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challenging the jurisdiction of the Calcutta High Court to entertain the writ petition.
Since the Special Leave Petition was filed against an interim order, this Court did not go
into the merits of the case and while granting leave, by order dated 08th April 1985, set
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aside the order of the Calcutta High Court and held that the Calcutta High Court did not
have the territorial jurisdiction to entertain the writ petition in respect of a land situat
ed
in the State of Rajasthan. Thus, the proceedings before the Calcutta High Court came to
an end.
6. On 17.02.1987, possession of the land in question is alleged to have been taken by t
he
respondents and the same was handed over to Jaipur Development Authority. However,
according to the the appellants, possession was not taken.
7. The appellants filed Writ Petition No.1507 of 1987 in the High Court of Rajasthan
which was withdrawn by them on 10th March 1989 with liberty to file a fresh writ
petition.
8. On 26th June 1989, the Land Acquisition Officer passed the award and forwarded the
same for approval to the State Government. According to the respondents, the State
Government accorded its approval on 29th July 1989 which was declared by the Land
Acquisition Officer on 30th July 1989 in accordance with law.
9. In the meantime, the appellants filed S.B.Civil Writ Petition No.2911 of 1989 seekin
g
quashing of Notification dated 08th February 1984 and also notice dated 17th/18th
February 2007
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by which the possession is alleged to have been taken. One of the objections taken by the
respondents before the High Court was that the writ petition could not be entertained
after taking over of the possession of the land and handing over the same to Jaipur
Development Authority and the award having been passed in respect of the said land in
accordance with law. It was also alleged that the award was not the subject-matter of the
writ petition. It was also pointed out that the appellants were simultaneously pursuing
Reference Application for enhancement of compensation. Ultimately, a learned Single
Judge of the High Court of Rajasthan, accepting the submissions of the respondents,
dismissed the writ petition holding that the there was a genuine public purpose behind
initiating the acquisition proceedings.
10. Being aggrieved, the appellants carried the matter in appeal before the Division Ben
ch
of the High Court of Rajasthan. The Division Bench, agreeing with the view taken by the
learned Single Judge, dismissed the appeal and held that since the appellants had filed an
application under Section 18 of the Land Acquisition Act, 1894 for enhancement of the
compensation they are not entitled to the relief sought for in the writ petition. The said
order is under challenge before us.
11. A preliminary objection has been taken by the respondents to the effect that th
e
appeal is liable to be
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dismissed on the ground of the delay on the part of the appellants to challenge the
acquisition proceedings. It is also submitted that the acquisition of the land cannot be
challenged after taking over of the possession and after the award having become final.
In support of this submission, the respondents have relied upon a number of judgments of
this Court.
12. Counsel for the appellants, however, strenuously contended that there was no delay o
n
the part of the appellants in filing the writ petition challenging the acquisition
proceedings. He submitted that soon after the notice under Section 52(5) was issued by
by the respondents, the appellants filed writ petition before the High Court of Calcutta
which stood dismissed pursuant to an order of this Court, as noted above. Thereafter the
appellants filed another writ petition before the High Court of Rajasthan which was
withdrawn. Within a period of four months thereof, i.e., on 05th July 1989, another writ
petition bearing No.2911 of 1989 was filed. Counsel also submitted that these acts of the
appellants demonstrate that there was no delay on the part of the appellants to seek
redressal of their grievance. It was contended that actual possession of the land was never
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taken by the respondents on 17th/18th February 1987.
13. We do not find any substance in the submissions of the counsel for the appellants.
No
doubt, the appellants had filed
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a writ petition before the Calcutta High Court challenging the acquisition proceedings,
but the said writ petition was dismissed by this Court on 08th April 1985 holding that the
Calcutta High Court did not have the territorial jurisdiction to entertain the writ
petition. Thereafter, till 1987 the appellants did not challenge the acquisition proceeding
s
and the writ petition was filed by it before the Rajasthan High Court which had the
territorial jurisdiction in the matter and the same was withdrawn which was again filed
within the next four months thereof, meaning thereby, during the interregnum the
appellants slept over the matter. However, the appellants have not been able to give any
explanation for the same. Insofar as the contention regarding the possession having not
been taken is concerned, the respondents submit that the possession of the land in dispute
has already been taken. Be that as it may, the award in respect of the land having
become final, the State Government is vested with the powers to take possession of the
land concerned and, therefore, there is no reason to disbelieve the claim of the State
Government that the possession had been taken before the filing of the writ petition.
Moreover, the appellants sought enhancement of compensation by filing reference
application under Section 18 of the Land Acquisition Act, 1894. Simultaneously, the
appellants filed writ petition before the High Court of Rajasthan after passing of the
award.
S.L.P.(C)No.16910 of 2006 ..... (contd.)
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This Court has repeatedly held that a writ petition challenging the notification for
acquisition of land, if filed after the possession having been taken, is not maintainable.
In
the case of Municipal Corporation of Greater Bombay v. Industrial Development
Investment Co. Pvt. Ltd. & Ors. (1996) 11 SCC 501 where K. Ramaswamy, J. speaking
for a Bench consisting of His Lordship and S.B. Majmudar, J. held :
"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 notifications. The High
Court has, no doubt, discretionary powers under Article 226 of the
Constitution to quash the notification under Section 4(1) and declaration
under Section 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."
14. In the concurring judgment, S.B. Majmudar, J. held as under :
"..... Such a belated writ petition, therefore, was rightly rejected by the
learned Single Judge on the ground of gross delay and laches. The
respondent-writ petitioners can be said to have waived their objections to
the acquisition on the ground of extinction of
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public purpose by their own inaction, lethargy and indolent conduct. The
Division Bench of the High Court had taken the view that because of their
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inaction no vested rights of third parties are created. That finding is
obviously incorrect for the simple reason that because of the indolent conduct
of the writ petitioners land got acquired, award was passed, compensation
was handed over to various claimants including the landlord. Reference
applications came to be filed for larger compensation by claimants including
writ petitioners themselves. The acquired land got vested in the State
Government and the Municipal Corporation free from all encumbrances as
enjoined by Section 16 of the Land Acquisition Act. Thus right to get more
compensation got vested in diverse claimants by passing of the award, as well
as vested right was created in favour of the Bombay Municipal Corporation
by virtue of the vesting of the land in the State Government for being handed
over to the Corporation. All these events could not be wished away by
observing that no third party rights were created by them. The writ petition
came to be filed after all these events had taken place. Such a writ petition
was clearly stillborn due to gross delay and laches. ...."
15. Similarly, in the case of State of Rajasthan & Ors. v. D.R. Laxmi & Ors. (1996) 6 SC
C
445 following the decision of this Court in the case of Municipal Corporation of Greater
Bombay (supra) it was held :
".... 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. ...."
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16. To the similar effect is the judgment of this Court in the case of Municipal Council
,
Ahmednagar & Anr. v. Shah Hyder Beig & Ors. (2000) 2 SCC 48 this Court, following
the decision of this Court in the case of C. Padma v. Dy. Secy. to the Govt. of T.N. (1997)
2 SCC 627 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 v. Dy. Secy. to the Govt. of T.N.) ...."
17. In the present case also, the writ petition having been filed after taking over the
possession and the award having become final, the same deserves to be dismissed on the
ground of delay and laches. Accordingly, the order of the learned Single Judge and that
of the Division Bench are affirmed to the extent of dismissal of the writ petition and the
special appeal without going into the merits thereof. This appeal also deserves to be
dismissed without going into the merits of the case and is dismissed as such. No costs.