R.A.No.77 of 2009 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.M.A.No.3911 of 2009 and R.A.No.77 of 2009 in CWP No.13650 of 1996 Date of decision: 12.8.2009 Balbir Singh and others ....Petitioners vs. State of Punjab and others. ..Respondents CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR. HON'BLE MR.JUSTICE S.D.ANAND. --- Present: Mr.Sanjeev Sharma, Senior Advocate, with Mr.Shekhar Verma, Advocate, for applicant- respondent No.2. Ms.Reeta Kohli, Addl.A.G.Punjab, for non applicant respondent No.1. Mr.M.L.Sarin,SeniorAdvocate, with Mr. Mukand Gupta, Advocate for the non-applicant petitioners -- J.S.KHEHAR,J. (Oral) 1. In the peculiar facts which emerged during the course of hearing, we have chosen to pass a common order so as to decide the application for condonation of delay, as also, the review application, as common facts would have to be taken into consideration while passing both orders. 2. It is necessary to notice that for the determination of the present controversy, we will have to examine two processes of acquisition, whereby, the land of the non applicant petitioners, was sought to be acquired. In the first process of acquisition, a notification under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) was R.A.No.77 of 2009 2 issued on 12.12.1974 seeking to acquire 384.86 acres of land for the public purpose of setting up a residential urban estate at Bathinda. The land sought to be acquired included the land owned by the petitioners. For carrying out the process of acquisition, the State Government after having considered the objections raised by all interested parties issued a notification under section 6 of the Act, dated 21.1.1978, crystalising its intention to acquire 341.79 acres of land (out of the total area of 384.86 acres, depicted in the notification dated 12.12.1974). The Land Acquisition Collector, thereafter announced his award on 22.3.1978. In respect of the instant acquisition process, CWP No.869 of 1981 filed by one Parkash Singh,first came up for consideration. The aforesaid writ petition was allowed by an order dated 20.2.1983. A Letters Patent Appeal preferred by the State Government, against the order passed in CWP No.869 of 1981, was dismissed on 4.10.1983. Other writ petitions possibly 38 of them relating to the same acquisition proceedings, were allowed of by this Court in terms of the order passed in CWP No.869 of 1981 decided on 22.2.1983 i.e., in terms of the judgment rendered in Parkash Singh's case (supra). 3. Out of the four petitioners in CWP No. 13650 of 1996 (i.e., the petition out of which the instant review application has arisen), petitioner No.1 had also filed CWP No.5125 of 1983, challenging the acquisition process referred to in the foregoing paragraph, and the other three petitioners i.e. petitioner Nos.2 to 4 had filed CWP No.5740 of 1985, challenging the notifications which were subject matter of consideration in CWP No.869 of 1981 i.e., the notifications dated 12.12.1974 and 21.1.1978. Both the writ petitions, referred to hereinabove, filed by the petitioners, were allowed by a Division Bench of this Court on 8.12.1983 in R.A.No.77 of 2009 3 terms of the order passed by this Court in CWP No.869 of 1981, decided on 22.2.1983 i.e., in terms of the decision rendered by this Court in Parkash Singh's case (supra). 4. Dissatisfied with the decision rendered by the Writ Court, as also with the order passed by the Letters Patent Bench (noticed hereinabove), in Parkash Singh's case, the State government preferred a petition for Special Leave to Appeal, against the order passed by this Court in CWP No.869 of 1981, and the subsequent order passed by the Letters Patent Bench before the Supreme Court. Having granted the petition for Special Leave to Appeal, the Supreme Court allowed Civil Appeal Nos. 2218-20 and 2222-30 of 1984, and thereby, set aside the judgment rendered by this Court in CWP No.869 of 1981, and by the Letters Patent Bench. In sum and substance, the order rendered by this Court in Parkash Singh's case (supra) was set aside. 5. We have noticed hereinabove, that the judgment rendered in Parkash Singh's case (supra), was taken into consideration for allowing the two writ petitions filed by the non-applicant petitioners. Despite the same, a petition for Special Leave to Appeal bearing No.5167 of 1984 filed by the State Government against the order passed in the writ petition filed by petitioner No.1 (CWP No.5125 of 1983), was dismissed by the Supreme Court. Other connected petitions filed before the Apex Court along with the one filed against the order passed by this Court in favour of the other three petitioners (CWP No.5740 of 1985) were also dismissed by the Supreme Court along with the petition for Special Leave to Appeal bearing No.5167 of 1984. R.A.No.77 of 2009 4 6. On account of the fact that the process of acquisition, initiated by the State Government, based on the notifications dated 12.12.1974 and 2l.1.1978, had been set aside, the State Government issued a fresh notification under section 4 of the Act, to acquire the same land again. At this juncture, the aforesaid notification was issued on 20.7.1993, again for the public purpose of setting up residential urban estate at Bathinda. In carrying out the process further, a declaration was issued by the State Government on 19.7.1994,under section 6 of the Act. Herein again, the land of the non-applicant petitioners who had earlier filed CWP Nos.5125 of 1983 and 5740 of 1985, was sought to be acquired. This is the second process of acquisition, referred to at the beginning of the instant order. 7. The second process of acquisition, was challenged by the petitioners by filing CWP No.13650 of 1996. The instant challenge was based on the fact, that in spite of having issued notifications under sections 4 and 6 of the Act, no award was announced by the State government under Section 11 of the said Act, within the time-frame expressed under section 11-A of the Act, namely, within a period of two years. The State Government accepted the aforesaid factual position acknowledging that the Land Acquisition Collector, had not announced any award within the period of two years from the date of issuance of the notification under section 6 of the Act. On account of the aforesaid acknowledged infirmity, the acquisition proceedings initiated through the aforesaid two notifications dated 20.7.1993 and 19.7.1994, were set aside by this Court, through an order passed in CWP No.15953 of 1996. Subsequently, CWP No.13650 of 1996 filed by the applicant-petitioners, was also allowed on 20.2.1997, on the same grounds. Resultantly, the notifications dated 20.7.1993 and R.A.No.77 of 2009 5 19.7.1994, were set aside. 8. It is not a matter of dispute, that the State Government did not challenge the order dated 20.2.1997 passed in CWP No.13650 of 1996, and that, the aforesaid order attained finality. 9. In spite of having recorded the sequence of facts, emerging out of the two acquisition processes hereinabove, it would be necessary to chronologically deal with another sequence of facts. 44 review applications were filed at the hands of the State Government in the order passed by the Supreme Court in petition for Special Leave to Appeal bearing Nos.5167 of 1984, and the other cases disposed of along with it (referred to hereinabove). It is not in dispute, that amongst 44 review applications filed by the State Government, it sought a review of the order passed in favour of petitioner No.1 (whereby the Supreme Court had dismissed a challenge raised to the order passed by this Court in CWP No.5125 of 1983). Similarly, a review application was filed in the order passed in favour of petitioner Nos. 2 to 4 (whereby the Apex Court had dismissed a challenge raised against the order passed by this Court in CWP No.5740 of 1985). It is also not in dispute, that the aforesaid review applications filed by the State Government in 1999 (Review Application No.987 of 1999-in case of petitioner No.1, and Review Application No. 992 of 1999-in case of petitioner Nos. 2 to 4) came to be allowed on 21.11.2001. In sum and substance therefore, the challenge raised by the petitioners to the notifications dated 12.12.1974 and 21.1.1978, whereby their land was acquired, ultimately failed. 10. It would be pertinent to mention, that as a consequence of determination of the Supreme Court by its order dated 21.11.2001 (in R.A.No.77 of 2009 6 Review Application Nos.987 and 992 of 1999), the State Government commenced to take possession of the acquired land from the petitioners (based on the notifications dated 12.12.1974 and 21.1.1978). This effort at the hands of the State Government, was sought to be opposed by the non- applicant petitioners, on the strength of the order passed in CWP No.13650 of 1996 (based on the notifications dated 20.7.1993 and 19.7.1994). Whereas, as is apparent from the sequence of facts narrated above, the basis of claiming possession consequent upon the disposal of Review Application Nos. 987 and 992 of 1999, were the earlier notifications dated 12.12.1974 and 21.1.1978 whereby the land of the petitioners had been acquired. In order to prevent the State Government from giving effect to the orders passed by the Supreme Court in the aforementioned review applications, proceedings under the Contempt of Courts Act, 1971, are also stated to have been initiated by some landowners similarly situated as the non-applicant petitioners. 11. The Bathinda Development Authority in its effort to gain possession of the acquired land, based on the orders passed by the Supreme Court, as also to escape from any liability under the Contempt of Courts Act, 1971, has filed the instant review application, as also a number of other review applications based on the same facts. 12. In order to examine the claim raised by the applicants through the instant review application, it would be our responsibility to determine, whether or not, the order passed by this Court disposing of CWP No.13650 of 1996, filed by the petitioners was incorrect or defective. It is only thereupon, that the Court will be in an effective position to examine, whether such a defect as the one which has prompted the applicants in R.A.No.77 of 2009 7 filing the instant review application,can be remedied through the process adopted by the applicants. Such a determination would necessarily require consideration, whether the instant review application is within the parameters stipulated under Order XLVII rule 1 of the Code of Civil Procedure. During the course of hearing of the instant review application, learned counsel for the Bathinda Development Authority, did not point out even a single defect in the order passed by this Court on 20.2.1997. It is still the conceded position, that no award was announced by the Land Acquisition Collector within a period of two years, from the date of the declaration issued by the State Government under Section 6 of the Act, on 19.7.1994 (i.e., in the second acquisition process, referred to above). Thus viewed, we are satisfied that there is no merit in the instant review application filed by the applicant seeking a re-consideration of the order dated 20.2.199, passed by this Court in CWP No.13650 of 1996. 13. During the course of hearing, Mr.M.L.Sarin, learned counsel for the non-applicant petitioners interrupted the passing of the order, insisting that we record the preliminary objections raised by the non- applicant petitioners. Although we are of the view that recording of the objections would be an effort in futility as the review application filed by the Bathinda Development Authority had been held to be devoid of any merit ( in so far as the challenge raised to to the order dated 20.2.1997, in CWP No.13650 of 1996, was concerned), we are recording the objections raised by learned counsel. Firstly, it was submitted that there was a delay of 4223 days in filing the instant review application. It is submitted, that under no circumstance, the aforesaid delay can be condoned. Secondly, it is the contention of the learned counsel for the non applicant petitioners, that there R.A.No.77 of 2009 8 is no explanation forthcoming to explain the bona-fides for filing the present review application. Thirdly, it is pointed out that the instant review application has been filed by a party which was not before this Court in CWP No.13650 of 1996. It is therefore submitted, that the Bathinda Development Authority, has no jurisdiction to file the instant review application. Lastly, it is contended, that in order to succeed, the applicant must demonstrate that the claim raised by the applicant falls within the parameters laid down under Order XLVII rule 1 of the Code of Civil Procedure. In the absence thereof, the applicant cannot succeed. We have recorded these submissions on account of the insistence by the learned counsel. However, in view of the conclusions drawn by us in the foregoing paragraph, none of these issues is relevant, or needs to be decided at our hands. 14. Despite our conclusions in the background of the factual position arising out of the two acquisition proceedings, as also the litigation between the parties, we consider it just and appropriate, so as to avoid further litigation between the parties, in exercise of the extraordinary jurisdiction vested in us under Article 226 of the Constitution of India to issue directions in the nature of a clarification, based exclusively on binding judicial orders passed in the course of litigation initiated by the non- applicant petitioners themselves. Undoubtedly, vital rights of the landowners before us are involved, and they would adopt all means available to them in law to continue to hold on to their lands. But then, the majesty of law must be maintained, and must be given effect to. We are recording the instant directions/clarification, in spite of the submission of the learned counsel for the non-applicant petitioners', that we have no R.A.No.77 of 2009 9 authority to do so. The instant clarification is being recorded to place the factual, as well as, the legal position in the right perspective, to meet the ends of justice, and to avoid unnecessary litigation and to give effect to orders passed by the Supreme Court. We are satisfied, that the land of the petitioners, sought to be acquired in the first process of acquisition (through the notifications dated 12.12.1974 and 21.1.1978) has attained finality. The Apex Court in the process of disposing of Review Application Nos.987 and 992 of 1999,upheld the action of the State Government in acquiring the land of the non-applicant petitioners. Through the instant directions/clarification we only propose to give effect to the aforesaid determination. As noticed hereinabove, the action of the Bathinda Development Authority, in seeking to gain possession of the acquired land, based on the aforesaid determination, had resulted in the filing the instant review application, possibly on account of the proceedings initiated under the Contempt of Courts Act, 1971, by persons similarly situated as the non- applicant petitioners herein. This action of the Bathinda Development Authority, to gain possession of the acquired land, cannot be interfered with, and must be upheld for the simple reason, that the Supreme Court has upheld the action of the respondents in acquiring the petitioners' land. Therefore, we are doing nothing more than giving effect to the order passed by the Supreme Court in Review Application Nos.987 and 992 of 1999. In the absence of the instant clarification, the non-applicant petitioners may go on endlessly, to defeat the legitimate claim of the Bathinda Development Authority. 15. It is also essential to notice here, that our decision to pass an order of the nature recorded hereinabove, was made known to the learned R.A.No.77 of 2009 10 counsel representing the non-applicant petitioners. His sole objection to the same is being noticed hereinafter. In assisting us on the issue, learned counsel for the non applicant petitioners raised a legal plea suggesting that our decision to issue any directions/clarification, would not be in consonance with law. It is the vehement contention of the learned counsel for the non-applicant petitioners, that the first acquisition proceedings (based on the notifications dated 12.12.1974 and 21.1.1978) will be deemed to have lapsed consequent upon the issuance of subsequent notifications, seeking to acquire the same land (dated 20.7.1993 and 19.7.1994). In order to support his contention, learned counsel for the non applicant petitioners placed reliance on the decision rendered by the Supreme Court in Raghunath and others v. State of Maharashtra and others, AIR 1988 Supreme Court 1615. The Court's pointed attention was invited to paragraph 9 of the aforesaid judgment. Paragraph 9 is accordingly being extracted hereunder:- “ Before concluding, we must refer to one circumstance which was brought to our notice by learned counsel for the petitioners and which has also been noticed in the judgment of the High Court. It appears that, between the date of withdrawal of the earlier writ petition (namely, 23rd August, 1983) and the issue of the second declaration under S.6 (namely, 4-4-1985), the Government had issued a fresh notification under S.4 for the acquisition of certain lands. The lands in the two notifications under S.4 do not completely overlap but it appears that some fields are common in both. No declaration under S.6 appears to have been issued in furtherance of the second notification under S.4 when the High Court heard the matter. Learned counsel for the petitioner points out that, at least in respect of such of the lands comprised in the S.4 notification dated 22-6-1982 as are R.A.No.77 of 2009 11 also covered by the subsequent notification under S.4, it is legitimate to infer that the State Government has superseded the earlier notification by the latter one. This contention is clearly well founded. We would, therefore. Like to make it clear that in respect of the lands covered by the first notification under S.4 which are also covered by or comprised in, the second notification under S.4, further proceedings regarding acquisition should be taken, in accordance with law, only in pursuance of the latter notification and the proceedings initiated in respect of such lands by the first notification dated 22-8-1982 should be deemed to have been superseded”. It is not possible for us to accept the contention advanced by the learned counsel for the non applicant petitioners, that in the facts and circumstances of the present case, the judgment rendered by the Supreme Court in Raghunath's case (supra) would be applicable . In Raghunath's case (supra) during the subsistence of the earlier notifications the State Government chose to issue another set of notifications so as to acquire the same land. In the factual background of the aforesaid case, it was sought to be concluded, that the subsequent notifications would be deemed to have been issued in supersession of the earlier notifications. That is not so, in so far as the present controversy is concerned. At the time when the second set of notifications (dated 20.7.1993 and 19.7.1994) were issued, the action initiated by the State Government based on the first set of notifications (dated 12.12.1974 and 21.1.1978) had been set aside, inasmuch as, the writ petitions filed by the non-applicant petitioners in this Court, challenging the aforesaid acquisition process, had been accepted, and the said acquisition had been set aside. In other words, the earlier set of notifications whereby the land was sought to be acquired did not subsist when the later set of R.A.No.77 of 2009 12 notifications were issued. However, consequent upon the decision rendered by the Supreme Court, in upholding the first process of action ( by allowing Review Application Nos.987 and 992 of 1999) the validity and legality of the said acquisition process came to be affirmed. The challenge raised by the non-applicant petitioners themselves to the first acquisition process had failed. In the facts of the present case, it will therefore not be proper to draw the same inference as was drawn in Raghunath's case (supra). We are, therefore, of the view that there is no merit in the instant submissions of the learned counsel for the non-applicant petitioners. We, therefore, clarify that there is nothing illegitimate about the action of the Bathinda Development Authority in taking possession of the land acquired through the first acquisition process. We, therefore, accordingly direct that it shall be open to the Bathinda Development Authority to take possession of the land acquired on the basis of the first acquisition process (i.e., through the notifications dated 12.12.1974 and 21.1.1978). 16. Disposed of in the aforesaid terms. ( J.S.Khehar) Judge (S.D.Anand) Judge August 12, 2009 rk