IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1359 of 1997 ----- Against the Judgment and Order dated 29.9.1997 passed by a Bench of this Court in C.W.J.C.No.2624/97 ----- 1. The State of Bihar through the Secretary, Deptt. Of Revenue and Land Reforms ( Directorate Land Acquisition), Govt. of Bihar, Patna. 2. Secretary, Department of Water Resources, Govt. of Bihar, Sinchai Bhawan, Patna. 3. Engineer-in-Chief-cum- Special Secretary, Department of Water Resources (Irriagation) Government of Bihar, Sinchai Bhawan Patna. 4. The Collector, patna. 5. The Additional Collector Revenue, Patna. 6. Special Land Acquisition Officer, Flood Protection Project, Patna... Appellants Versus Anil Kumar Gupta son of late Anandi Prasad, resident of village- Bihta Police Station- Bihta, District Patna. ......... Respondent Counsel for the Appellant :- Mr. Prabhat Kumar Singh,S.C.21 Mr. Ravi Kumar & Mr. Amitabh Bhardwaj,Advocates Counsel for Respondent ; Mr. Pushkar Narain Shahi, Mr. Vinay Krishna Tripathi, Mr. Vijay Kumar Sinha, Mr. Rajesh Mohar & Mr. Nishant Choudhary,Advocates. P R E S E N T THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH, THE HON’BLE MR. JUSJTICE J.N. SINGH --------- Shiva Kirti Singh,J. The parties have been heard in detail. 2. It is one of those cases in which two rival contentions advanced on behalf of rival parties compete for acceptance by the court on the basis of almost admitted facts. On behalf of writ petitioner ( respondent herein) a simple submission was advanced that the declaration under Section 6 of the Land Acquisition Act (hereinafter referred to as ` the Act’) was issued after more than a year from the date of the publication made under Section 4 of the Act - 2 - and hence, the acquisition proceeding being Land Acquisition Case No. PLA 1/93-94-115 covering about 3.05 acres of petitioner’s land situated at Bihta, District Patna must be quashed. Accepting this contention and repelling the rival submission the writ petition bearing C.W.J.C.No. 2624 of 1997 was allowed by the judgment and order under appeal dated 29-9-1997. The rival contention advanced on behalf of the appellant, the State of Bihar is that writ jurisdiction should not be exercised in favour of the writ petitioner because challenge was made to the execution proceeding after un-reasonable delay and before the filing of the writ petition on 17-3-1997 the acquisition proceeding had made considerable progress leading to enquiry and passing of award by Collector under Section 11 of the Act. Further submission on behalf of State is that no doubt formal certificate of possession to the requisitioning department was given on 19-3-1997 but admittedly the actual physical possession of the acquired land was already with the concerned department since long and hence on account of making of award and admitted possession, the title in the acquired land including the disputed land already stood vested in the State of Bihar prior to filing of the writ petition; therefore, on account of catena of decisions by the Supreme Court, the Writ Court should not have interfered so as to quash the land acquisition proceeding with a direction to the State Government to hand over vacant possession of the disputed land to the petitioner. 3. Learned Standing Counsel No.21, Mr. Prabhat Kumar Singh has submitted on behalf of the appellant, the State of Bihar, that he does not dispute the legal proposition that Section 6 of the Act is mandatory and a declaration made beyond the period prescribed under the proviso to Section 6 will seriously affect the legality of the declaration and the subsequent proceeding. This stand was in response to case of the writ petitioner that Section 6 of the Act is - 3 - mandatory and a declaration under this provision beyond the permissible time is illegal and void, for which reliance is placed upon a judgment of the Supreme Court in the case of Ashok Kumar Vrs. State of Haryana (2007) 3 SCC 470 . But he has advanced two submissions in support of the appeal. Firstly, it has been submitted that even if a declaration under Section 6 of the Act is delayed beyond the permissible period, such illegality or even voidness in the declaration may not be of any consequence because the writ court should not interfere in the acquisition proceeding if the title in the acquired land has vested in the State on account of making of award and taking over of possession. In support of this proposition learned Standing Counsel No. 21 has placed reliance upon several judgments of the Apex Court particularly, in the following cases : 1. (1991) 4 SCC 1 ( State of Punjab and others Vrs. Gurudev Singh. (2) AIR 1993 S.C. 852 (Ramjas Foundation Vrs. Union of India), (3) (1996) 6 SCC 445 (State of Rajasthan Vrs. D.R. Laxmi) and (4) ( 2007 ) 5 SCC 211 (Pune Municipal Corporation Vrs. State of Maharashtra). 4. Secondly, learned counsel for the appellant, submitted that with the leave of the court granted by order dated 19-12-2006 a supplementary affidavit was filed in this appeal to bring on record certain additional evidence which consist of documents available in the record of the acquisition proceeding which have been marked as Annexures - 1 to 11. He argued that from the materials on record which are not disputed, it is clear that a corrigendum to preliminary notification under Section 4 of the Act was published on 1-7-94 in the District Gazette ( annexure-4 to the supplementary affidavit). According to learned counsel for the appellant, the effect of such corrigendum would be that correct publication of notice under section 4(1) of the Act would be not from 16-3-1994 but from the date of corrigendum i.e. 1-7-94. He further submitted that since the declaration under Section 6 of the Act is dated 13-6-95( - 4 - Annexure-5 to the supplementary affidavit), it is within one year from the date of corrected publication under section 4(1) of the Act. In other words, the submission on behalf of appellants is that one year period under the proviso to Section 6 should be counted from 1-7-94, the date of the corrigendum in the district gazette and not from 16-3-94, the original publication under section 4(1) of the Act. It was also argued that limitation of 1 year is prescribed for the declaration under Section 6(1) and not for its publication as per Section 6(2) of the Act. For this proposition, reliance was placed upon Supreme Court Judgment in the case of S.H. Rangappa Vrs. State of Karnataka ( (2002) 1 PLJR (SC)1. On that basis it was submitted that since declaration under Section 6 (1) was made on 13-6-1995, it was well within 1 years of corrected publication under Section 4(1) made on 1.7.1994. 5. On behalf of sole respondent, the writ petitioner, both the contentions noticed above have been seriously disputed. In reply to the first contention, the stand of the respondent is that the delay in seeking remedy through writ petition must depend upon the facts of each case and in the present case, on facts the writ court has rightly held that there was no inordinate delay and further such delay will not be fatal because it has not given rise to third party interest. Relying upon judgment of the Supreme Court in the case of Ashok Kumar Vrs. State of Haryana ( supra ), it was submitted that since Section 6 of the Act is mandatory and its violation results into declaration being void , a court has merely to notice the voidness and on that basis the subsequent proceeding must be quashed. 6. In reply to the second contention, it was submitted on behalf of the respondent that a subsequent publication by way of corrigendum to the original notification under section 4(1) of the Act must relate to the date of original notification. It was further submitted that in any case the time bar created by - 5 - Provision of Section 6 of the Act cannot be permitted to be extended by an executive action such as by a subsequent publication under Section 4(1) of the Act. 7. On facts, it was highlighted that although declaration under section 6 was on 13.6.95, the last publication as per Section 6(2) was on 12.10.1995 in the District Gazette and therefore, more than one year had passed even from 1.7.1994, the date of corrigendum. However, the judgment in the case of S.H. Rangappa ( supra ) could not be distinguished and hence the material date would be 13.6.95 and not 12.10.95 for calculating the period of 1 year from publication of notification under Section 4(1) of the Act. 8. On behalf of appellants, the legal proposition as flowing from the judgment of the Apex Court in the case of Ashok Kumar (supra) has not been doubted or disputed. But their stand, as noticed above, is by way of first submission that through a catena of judgments it has been established that even illegal and void orders of the nature involved in this case are capable of legal consequences and the party aggrieved is required to approach the court for relief of declaration that the order against him is inoperative and not binding upon him and in appropriate cases such relief may be denied. For this proposition reliance was placed upon the judgment in the case of State of Punjab Vrs. Gurudev Singh (supra ) . In that judgment the Apex Court has relied upon a judgment in the case of Smith Vrs. East Elloe Rural District Council ( All E.R.. 871) and also quoted the following passage from Administrative Law by Professor Wade in Paragraph-9 of the judgment which reads thus : “9.. Apropos to this principle, Prof. Wade states : “ the principle must be equally true even where the `brand’ of invalidity” is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the court. Prof. Wade sums up these principles: “ The - 6 - truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the `void’ order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another.” 9. Elaborating the first submission further, learned counsel for the appellants placed reliance upon the judgment of the Supreme Court in the case of Ramjas Foundation Vrs. The Union of India to submit that this judgment by a Bench of three Judges, referred to a Constitution Bench judgment of the Supreme Court in the case of Aflatoon Vrs. Lt. Governor, Delhi ( 1974 AIR SC 2077) and clarified that delay in challenging the notification under Sections 4 or 6 of the Act would be fatal not only where the petitioners had allowed the Government to complete the acquisition proceeding but also where the petitioner’s had sat on the fence and did not take any steps to vindicate their cause of action which arose as soon as such notifications were issued. 10. Learned counsel for the appellants next relied upon judgment of the Supreme Court in the case of State of Rajasthan Vrs. D.R. Laxmi, ( (1996) 6 SCC 445. It was submitted that in this judgment by three Judges, the Court accepted that local publication of substance of Section 4(1) of the notification is mandatory but taking note of various earlier decisions it was held that though the order may be void, if the party does not approach the court within reasonable time, which is always a question of fact and have the order invalidated, the discretion of the court has to be exercised in a reasonable manner and in appropriate case the court may decline to grant the relief, even if it holds that the order was void. In that case interference made by the High Court was held to be not justified and hence the appeal of the State was allowed mainly on the ground that the acquisition had become final. In paragraph-7 of - 7 - the judgment relevant provisions of the Act were noticed and then reliance was placed upon an earlier judgment of the Supreme Court in the case of Senjeevanagar Medical and Health Employees’ Cooperative Society Vrs. Mohd. Abdul Wahab ( ( 1996 ) 3 SCC 600) for the proposition that the property under acquisition having already vested in the appellants, in the absence of any power under the Act the title of the appellants could not be divested and valid title could not be defeated. Such view was in the light of provisions under Section 48(1) of the Act under which the State Government is empowered to withdraw from the acquisition only before possession is taken. 11. The next case relied upon by learned counsel for the appellants Pune Municial Corporation Vrs. The State of Maharashtra (supra) is for the same proposition as noticed earlier that no order passed by a competent authority can be ignored unless in an appropriate proceeding a finding is recorded that it is illegal, void and not in consonance with law. That case was under the provisions of the Urban Land ( Ceiling and Regulation) Act of Maharashtra. 12. In reply on behalf of respondent ( writ petitioner ), the fact that certificate of possession with regard to 3.05 acres of the acquired land was prepared and handed over by the Special Land Acquisition Officer, Patna to the Executive Engineer of Sone Flood Protection Division, Bihta on 19-3-97 has been highlighted to submit that legal possession of the appellants over the disputed land would commence from 19-3-97 i.e. after filing of the writ petition before the designated officer of the court on 17-3-97 and since the writ petition was filed before the appellants were vested with title over the acquired land, the delay involved in challenging the declaration under section 6 of the Act which was published in Newspapers on 29-6-95 and in the District Gazette on 12-10- 95 cannot be treated as fatal. In the writ petition an attempt has been made to explain the delay in preferring the writ petition after one year and 9 months - 8 - from newspaper publication of declaration under section 6 of the Act on the ground that certified copies of order sheet were not supplied. However, it is not in dispute that the respondent had knowledge of paper publication of notification under section 6 of the Act and he chose to sit on fence till the award was made on 31-1-1997. Notice under section 12 of the Act was served on the appellants on 5-3-97 and thereafter the writ petition was filed on the ground that declaration under section 6 of the Act was beyond the time permitted by law. Hence the delay has not been shown to be reasonable. According to Supreme Court Judgment in the case of State of Rajasthan Vrs. D.R. Laxmi (supra), the fact that no third party rights were created is not a good ground for interference once the land was vested in the State. 13. On behalf of respondent strenuous effort was made to show that writ petition challenging void notifications or declarations under sections 4,6 or 12 of the Act were not interfered with in the cases cited by learned counsel for the appellants only because in all those cases not only the award had been made but possession had also been taken over and hence those cases are of no help to the appellants because in the present case the certificate of possession was given after two days of the filing of the writ petition. 14. In the light of rival submissions noticed above and the case laws noticed, it is found that law is now well settled that in appropriate case the delay itself may amount to laches and acquiescence warranting dismissal of writ petition challenging orders and notifications passed in land acquisition proceedings simply on the ground of un-explained delay. But besides the aforesaid general principle relating to delay, in the context of land acquisition proceeding the Apex Court has consistently taken the view that once title is vested in the State on account of acquisition, writ proceeding is not appropriate for quashing orders or notification even where they suffer from patent illegality and may be - 9 - void. In such cases of delay the Apex court has held that the general principle of delay not being fatal unless third parties are affected, is of no consequence. The only relevant issue in such cases, therefore, is whether the petitioner has sat on the fence for a considerable long period after the cause of action had already arisen and writ petition could have been preferred to assail the illegality or voidness in any order or proceeding. Besides accepting the general effect of delay by sitting on the fence, more legalistic view adopted by the Apex Court is of no interference with earlier orders and notifications etc. in a land acquisition proceeding if the land owner i.e. the petitioner, had already been divested of his title in the land . In such cases the appropriate remedy is only to seek adequate compensation. Admittedly, in this case the petitioner has resorted to reference under Section 18 of the Act which is pending. 15. Although the aforesaid principles are quite clear as they are based upon the judgment of the Apex Court in cases arising out of land acquisition proceeding, the applicability of aforesaid principles in this particular case raises one difficulty on account of claim of the respondent that although the award was passed before filing of the writ petition, possession in a lawful manner must be deemed to have passed only when the certificate dated 19-3-97 (annexure-11 to the supplementary affidavit) was issued. In order to resolve this issue, it is necessary to notice certain facts peculiar to this case. These facts are as per averments in the writ petition itself which have been noticed in the order under appeal and are also supported by State’s supplementary affidavit filed in this appeal annexing relevant documents from the record. It is the case of the writ petitioner (respondent herein) that 3.05 acres of disputed land was occupied by the Advance Planning and Investigation Division of Irrigation Department of the State Government in the year 1975. Some steps were taken to acquire the land temporarily under Section 35 of the Act but no acquisition - 10 - proceeding was held as per law. To get back possession over the land the writ petitioner filed a writ petition bearing C.W.J.C.No. 10621 of 1992 seeking a direction to the State Government to remove its structures from the land and to free it from its occupation. The writ petition was allowed by the judgment and order dated 27-8-93. The State of Bihar preferred a S.L.P. (Civil) No. 585/94 which was disposed of by the Supreme Court by order dated 4-3-94 ( Annexure-3 to the writ petition). The Supreme Court did not find any error of law in the order of the High Court but it observed that if the public purpose subsists, the order of the High Court will not come in the way of the Government to take appropriate action under section 4(1) of the Act. It noticed that in fact such a notification was issued on January 1, 1993 but the same suffered from defects. The Apex Court allowed four weeks time to the State of Bihar to take such steps as are available at law and for a period of four weeks there was a direction not to dispossess the appellants. It was clarified that if no action is taken in the meanwhile, on expiry of four weeks from that date the respondent would be at liberty to get the High Court order enforced. Admittedly pursuant to such order a notice initiating the present land acquisition case was issued on 5-3-94 on the basis of a notification dated 3-3-94 under section 4(1) of the Act. The said notification was published in Patna District Gazette on 16-3-94 and in the Newspapers on 4-4-1994. As noticed earlier a corrigendum to the gazette publication was issued on 1-7-94. 16. Admittedly, as a result of the present land acquisition proceeding the State of Bihar continued in possession over the land in dispute. It was in such possession on the date of award which was made on 31-1-1997. 17. In view of facts noticed above a decision is required to be made whether on the basis of prior possession, the appellants could acquire title before the writ petition was filed on 17-3-1997 or whether such title was - 11 - acquired only when the certificate of possession was issued on 19-3-97. 18. For adjudication on the aforesaid issue it is necessary to notice Section 16 of the Act. It reads as follows :- “ Power to take possession - When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vests absolutely in the Government, free from all encumbrances” On a plain reading of the aforesaid provision it is found that the Collector becomes entitled in law to have possession over the land as soon as he makes an award under section 11 of the Act.. It is further clear that as soon as possession is acquired after the award, the land vests absolutely in the Government, free from all encumbrances. 19. From the wordings of Section 16 it is clear that title passes to the Government from the land holder along with the possession after an award is made under section 11. In the present case admittedly the possession of the Government was continuing from before and hence the land vested absolutely in the Government when the Collector made the award under section 11 of the Act and became legally entitled for possession. The fact that a certificate in prescribed proforma was issued by the Collector to the concerned department at a later date would not stand in the way of the land vesting in the Government on account of award under section 11 of the Act coupled with possession. The effect of statutory provision under section 16 of the Act would come into play as soon as factum of possession is established or continued after making of award by the Collector. It is further important to be kept in mind that the Collector under the Act may take some time in issuing the certificate to the requisitioning department but that can not mean that Collector or the Government could not have possession prior to issuance of certificate. 20. In view of aforesaid discussions it is found that the writ petition was preferred by the respondent after more than one year and nine months of the - 12 - paper publication of declaration under Section 6 of the Act. During this period he had the cause of action but chose to sit on fence. It is further found that his explanation for not challenging the declaration under section 6 of the Act soon after it was made is not satisfactory and reasonable. It is also found that in the facts of the case on account of possession being with the Government from before and the award made by the Collector on 31-1-97 the land had vested absolutely in the Government prior to filing of the writ petition. In view of such findings the writ petition has to be dismissed. The order under appeal is accordingly set aside and the writ petition is dismissed. In the facts of the case it is not found necessary to discuss