IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.fCl No. 3780/2000 Date of Decision: November , 2005 # ANANG PAL SINGH & ORS Petitioners ! Through Mr. Ravinder Sethi, Sr. Adv. with Mr. D.K. Rustagi, Mr. Nikhil Srivastava, Advs. versus $ UNION OF INDIA &ORS. ...... Respondents ^ Through: Mr. Sanjay Poddar with Mr.Sachin Nawani, Adv. for R-1,2 & 3 Ms. Avnish Ahlawat with Ms. Poomima Sethi, Advs. for Respondent No. 4 Mr. M.M. Kalra, Adv. for Respondent No. 5 Ms. Tripti Kohli, Adv. for Respondent No. 7 % CORAM: HON'BLE MR. JUSTICE T.S. THAKUR HON'BLE MR. JUSTICE BADAR DURREZ AHMED 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? T.S. THAKUR. J. In this petition for a writ of certiorari, the petitioner assails the validity of a preliminary notification dated 12.08.1997 issued under section 4 of the Land Acquisition Act and a declaration dated 10.09.1997 issued under section 6 thereof. A mandamus directing the respondents not to interfere with the actual physical possession of the petitioners over the land in WP(C)No.3780/2000 • page 1 of26 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified dispute or to demolish the structures existing on the same has also been prayed for. The factual backdrop in which the petition has been filed may be summarised as under: 2. In terms of a notice issued by the Indian Oil Corporation in December, 1994, applications for appointment as a dealer of a company owned retail outlet at Ghewra Morh in West Delhi were invited from eligible persons. On the basis of recommendations of the Oil Selection Board, the retail outlet ^ , dealershipin questionwas offeredto petitionerNo. 1. The letter issued by the Corporation in this regard proposed to develop, for the said petitioner, a retail outlet at Ghewra Morh and provide the same to him with certain facilities such as a suitable plot of land duly developed as an outlet with an office building, storage tank and pump etc. The Corporation appears to have, in that direction, approached the Delhi Development Authority for • allotment of a plot in its favour in the above area which request did not fructify as no such allotment came through. According to the petitioners, the Corporation advised them to procure a private piece of land to enable the Corporation to develop the proposed retail outlet in pursuance whereof petitioners Nos. 2 and 3 who happen to be the family members of petitioner No. 1 purchased a piece of land measuring 4 bighas and 11-V2biswas in khasra Nos. 79/21/1 and 85/1/1 situate in the revenue estate of WP{C) No. 3780/2000 page 2 of26 Village Ghewra, Delhi. While the land so purchased had yet to be developed into a retail outlet, respondent No. 2 issued a notification dated 12.08.1997 under Section 4 read with Section 17(1) and sub-section 4 of the Land Acquisition Act notifying for acquisition the lands mentioned therein including the land purchased by the petitioners. The proposed acquisition was said to be for the purpose of setting up a Sports School near Ghewra Morh as a part of "Planned Development of Delhi". ^ 3. The petitioners'case, as set out in the writ petition,is that the Indian Oil Corporation had, in terms of a letter dated 28.08.1997 requested the Government of Delhi to spare the land purchased by the petitioners from acquisition as the proposed retail outlet was meant to serve the need for such an outlet in that area. The petitioners also claim to have made a representation to the Chief Minister of National Capital Territory of Delhi seeking 35 ' exemption from acquisition of their piece of land. The authorities appear to have remained unmoved by the said representations as the acquisition proceedings went on to culminate in the issue of a declaration under Section 6 of the Act on 10.09.1997. An award was thereafter made on 09.09.1999 determining compensation payable to the owners of the land acquired from them. Aggrieved by the said notifications and the award, the petitioners have filed the present writ petition, as WP(C}No. 3780/2000 page3 of26 U: already indicated earlier. 4. The petition has been contested by the respondents on several grounds including the ground that the possession of the land in question having already been taken over pursuant to the award made by the Collector, no challenge to the acquisition proceedings was maintainable. According to the respondents, the land stood vested in the State absolutely w.e.f. 13.11.1997 when its possession was taken over by the Collector. The writ ^ . petitionwas, in that view,liableto be dismissedon the groundof unexplained delay and laches. 5. Mr. Ravinder Sethi, learned senior counsel appearing for the petitioners, argued that the impugned notification under Section 17(4) of the Land Acquisition Act was illegal in as much as the same was unsupported by any order from the competent authority dispensing with the conduct of an inquiry under Section 5A thereof. Relying upon the decision of the Supreme Court in Union of India vs. Mukesh Hans (2004) 8 SCC 14, Mr. Sethi contended that the mere issue of a notification invoking Section 17(4) of the Act was not enough to dispense with the conduct of such an inquiry. What was important, according to the learned counsel, was that the inquiry was dispensed with in pursuance of an order passed by the competent authority after due and proper application of mind. No such order had, WP(C)No. 3780/2000 page 4 of26 w according to the learned counsel, been passed in the instant case. Heavy reliance was placed by Mr. Sethi upon the decision of this court in Chaman Lai Malhotra Vs. UOI (WP(C) 400211997 ), disposed of on 08.08.2005in support of the submission that this court had already declared the impugned notification and the proceedings taken on the basis thereof to be illegalon the ground that the inquiry under Section 5Aof the Land Acquisition Acthad not been validly dispensed with. He submitted that the ground I urged by the petitioners in the present case having been examined in the Chaman Lai Malhotra's case (supra) and accepted, it would be incongruous for this Court to decline a similar relief to the petitioners in the present proceedings. 6. On behalf of the respondents, it was per contra argued byMr. Poddarthat the petitionerswere not entitledto any relief in the present proceedingsas the grievancemade by them was staleand highlybelated. It was urgedthat a notificationmaybe validqua some ofthe ownerswhile it may be held to be invalid qua the others. In order to have the acquisitionproceedings quashed, it was essentialfor the land owners aggrievedof the same to approach the court at the appropriate stage which the petitionershad not done. They had, accordingto Mr. Poddar, acquiescedin the proceedingsand remainedon the fence till possessionof the land was taken over from them. There was, WP{C)No. 3780/2000 ^ according to the learned counsel, been passed in the instant case. Heavy reliance was placed by Mr. Sethi upon the decision of this court in Chaman Lai Malhotra 1^5. UOT (WP(C) 400211997 ), disposed of on 08.08.2005 in support of the submission that this court had already declared the impugned notification and the proceedings taken on the basis thereof to be illegal on the ground that the inquiry under Section 5Aof the Land Acquisition Act had not been validly dispensed with. He submitted that the ground . urged by the petitioners in the present case having been examined in the Chaman Lai Malhotra's case (supra) and accepted, it would be incongruous for this Court to decline a similar relief to the petitioners in the present proceedings. 6. On behalf of the respondents, it was per contra argued by Mr. Poddar that the petitioners were not entitled to any relief in the present proceedings as the grievance made by them was stale and highly belated. It was urged that a notification may be valid qua some of the owners while it may be held to be invalid qua the others. In order to have the acquisition proceedings quashed, it was essential for the land owners aggrieved of the same to approach the court at the appropriate stage which the petitioners had not done. They had, according to Mr. Poddar, acquiesced in the proceedings and remained on the fence till possession of the land was taken over from them. There was, WP(C) No. 3780/2000 page 5 of26 according to Mr.Poddar, no cogent explanation for the petitioners' silence till July, 2000 when they should have rushed to the Court immediately after the impugned notification under Section 4 and 17(1) and (4) of the Act were issued in August, 1997. They had not stirred into action even on the issue of a declaration under Section 6 of the Act in September, 1997 or the making of the award in September, 1999. They had challenged the proceedings belatedly eight months after the taking over of the , possession from them pursuant to the award made by the Collector. Relying upon a number of decisions of the Supreme Court and those of this court, Mr. Poddar strenuously argued that the present was not a fit case in which the court ought to interfere at the instance of a party who had allowed the acquisition proceedings to go on, acquiesced in the same and belatedly challenged the action on a ground that was available to him even ' on the date when the impugned notification was issued. 7. The law does not prescribe any definite period of limitationwithinwhicha petitionunderArticle226 may be filed by a citizen aggrieved by any action of the State or its instrumentalities.The extra ordinaryjurisdictionexercisedby the superior courts in the country remains unaffected and untrammeledbythelawoflimitationwhichis apieceofordinary legislation. The nature, contentand the very source of power WP(C}No. 3780/2000 page6of26 w Hi V. exercised by a writ court being superior to any other remedy available under an ordinary piece of legislation, it is but natural that the exercise of any such superior power cannot be controlled by the ordinary law of limitation which bars a remedy without extinguishing the right. Having said so, it is necessary to re-state the well settled proposition of law that the jurisdiction vested in the High Courts under Article 226 is discretionary in nature. A writ court may not exercise its jurisdiction just- because it is lawful to do so. It may refuse assistance or relief in cases, where the Court finds the conduct of the petitioner before it to be blameworthy. Lack of bonafides and diligence also provide reasons for the Court to decline relief in appropriate cases. Decisions rendered by the Supreme Court and touching the nature of the writ jurisdiction exercised by the High Courts are a legion. These decisions recognise that the jurisdiction exercised by the writ courts is not only discretionary but equitable also and if the person invoking the same does not approach the Court within a reasonable period, the Court may deny relief to him. That is because delay defeats equity. The courts have, therefore, declined relief in cases where the litigant seeking the same was found to have been indolent. Suffice it to say that judicial pronouncements have evolvedcertain self-imposedrestraintsfor the exercise of writ jurisdiction by the High Court which WP(C)No. 3780/2000 page7of26 restraints have hardened into rules regulating sound exercise of discretion by such courts. 8. There is a plethora of decisions on the approach which a writ court has to adopt when examining a challenge to the proceedings for acquisition of land. The common thread that runs through all these pronouncements is that delay in challenging acquisition of land for public purpose is viewed with greater concern than in cases involving enforcement of other rights or remedies. The philosophy underlying that approach obviously is that where the acquisition is for a public purpose, an owner cannot sit back, allow the authorities to take steps under the Act and proceed from one stage to the other, but come to the court after the entire process has been completed. The owner- litigant aggrieved of the proposed acquisition is put to proof of the reasons why he remained sleeping over the matter and failed to challengewhat was, accordingto him, illegal at the earliest possibleopportunity.Inthelonglineofdecisionsthathavebeen cited before us at the bar, we have cases where the Court has declined to interfere with acquisition proceedings even when delaywas just about a year and a half. We also have decisions where the land owner had allowed the authorities to make an award after issue of a declaration under Section 6. The Court found no reason why the owner should have kept quite and WP(C)No. 3780/2000 8of26 V' ^5 allowed the Collector to make the award if the inquiry under Section 5A or the declaration under Section 6 was bad. We have similarly cases where the parties came to the Court after they were dispossessed pursuant to the award. The Court found no reason to interfere with the acquisition proceedings if a party had remained silent while a declaration under Section 6 was made and an award under Section9 published. It was, on the authority of these decisions, argued by Mr. Poddar that the dispossession of the land owners was by itself sufficient to result in dismissal of a petition as if the dispossession of the owner would have the effect of denuding the writ court of its jurisdiction to issue a writ. We have carefully gone through the decisions which have been extensively read before us at times more than once. We, however, find it difficult to read into the said decisions any such proposition of law. The power to issue a writ is constitutional in ^ • nature. It embraceswithinitselfthe powerofjudicialreviewof executive and legislative actions which is a basic feature of the constitution. Even the Parliament cannot, by a constitutional amendment, take awaythat power ofreviewleave alone do so by an ordinarylegislation. The decisionsofthe Supreme Courthave added content and efficacyto the power exercisable by the High Courts under Article 226. It is, therefore, difficult to countenance the argument that such decisions have had the effect of WP(C)No. 3780/2000 page9of26 emasculating the High Courts of their power under Article 226. Mr. Poddar's submission that the decisions relied upon by him render the High Courts powerless in the matter after possession of the land is taken over does not appear to be an accurate statement of law. To bring home that truth, all that one need to do is to read the decisions in the context and perspective in which they have been rendered and ought to be understood. 9. Before we refer to the decisions cited before us by , learned counsel for the parties, we need to determine whether the possession of the land had been actually taken over by the authorities. That is because one of the contentions which Mr.Sethi urged before us was that actual physical possession had never been taken over by the petitioners. He contended that the land in question could vest with the petitioners only if the actual physical thereof was taken over and not what, according to Mr.Sethi, tantamounted to only "paper possession". Reliance was placed by Mr.Sethi upon the decisions of the Supreme Court in Balwant Naravan Bhasde v. M.D. Bhaswat & Ors. (1976) 1 SCC 700 and R.L. Tain (D) bv LRS. v. PDA & Ors. (2004) 4 SCC 79. It was also argued that the alleged taking over of the possession was without compliance with the requirements of sub-section 3A of Section 17 of the Act in as much as 80% of the compensation payable to the owners was not offered to them. This, according WP{C)No. 3780/2000 page10of26_ •sj A,. to the learned counsel, was a circumstance that proved that possession of the land was never taken over. 10. The writ petition does not make any assertion leave alone a clear and emphatic one to the effect that possession of the land in question had continued with the owners. On the contrary, the petitioners had prayed for a mandamus directing return of the possession of the land to them if the court came to the conclusion that the same had in fact been taken over by the respondents. That prayer runs as follows: "(d) If this Hon'ble court comes to the conclusion that the possession has been taken by the respondents then in that event, this Hon'ble Court be pleased to direct the respondents by issuing appropriate writ, orders or directions for restoring the possession of the land in question to the petitioners." 11. In the absence of any assertion that the petitioners have continued to be in possession of the land and in the light of the prayer for return of possession to them, it is difficult to see how the petitioners can claim that the taking over of the possession by the authorities was mere 'paper work' hence ineffectual in law. That apart, the assertion of the respondents that possession of the land in dispute was taken over by the authorities on 13^ November, 1997 has not been denied by the petitioners by filing a rejoinder. There is no explanation forthcoming from the petitioners for this omission. The WP(C)No. 3780/2000 page11of26 V petitionershave,no doubt,madean efforttointroducebywayof an amendment an assertion to the effect that the physical possession of the land always remained with them and that the authorities had never taken physical possession thereof, but the said applicationwasfiledonlyin May, 2005,i.e.,nearlyfiveyears after the filing of the writ petition. In the absence of any rejoinder to the counter affidavit filed by the respondents and in the absence of any assertion in the writ petition as originallyfiled regarding the possession being with the petitioners, the mere filing of an application for amendment would be of no avail. 12. The other circumstance proving that possession of the land was in fact taken over by the Government is the contemporaneous record and the kabza karvai prepared at the time of taking of possession. A reading of the proceedings held on 13^ November, 1997 shows that land measuring 191 bigha ^ ^ 18.5biswaslyingvacanthasbeentakenoverbybeatofdrumon that date. Possession of khasra No. 85/27 was not taken over since a factory building stood in the same. There is, in our opinion, no reason for us to disbelieve the veracity of these proceedings especially when the same are supported by a legal presumption that official acts were regularly performed. 13. Last but not the least of the circumstances which proves the taking of possession on the spot is the fact that WP{C}No. 3780/2000 page12 of26 V possession of land owned by Sh.C.L. Malhotra had also been taken overon 13"^November,1997althoughtherewas an interim order from this court in WP(C) No. 4002/1997 ,dated 24^ September,1997 directing the parties to maintain status quo. Aggrieved by his dispossession in contravention of the said order, Sh.Malhotra had filed a contempt petition as a result whereof possession of the land owned by him was returned to him on 19^ February, 1999. This clearly shows that the proceedings held on . 13^ November, 1997 were not only paper work but had resulted in dispossession of the owners in a manner knoAAznto law. 14. The Supreme Court has in General Manager, Telecommunication and Am. v. Dr. Madan Mohan Pradhan 1995 Supp. (4) see 268 declared that taking of possession of land by drawing up of a memo was a method recognised by law. The following passage from that decisions makes that point good: "It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognised usual practice in all the acquisition proceedings." 15. The decision of the Supreme Court in Balwant Narayan's case (supra) reliance whereupon was placed by Mr.Sethi does not state the legal position differently. On the contrary, the said decision also recognises that the mode of taking possession would be to do same act which would indicate WP(C)No. 3780/2000 page 13 of26 that the authority has taken possession. Such act may be in the form of declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. The following passage is, in this regard, apposite: "It is,therefore, clear that taking of possession within the meaning of Section 16 or 17(1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in civil law. But the question is what is the mode of taking possession ? The Act is silent on the point. Unless the possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration bv beat of drum or otherwise or bv hanging a written declaration on the spot that the authority has taken possession of the land. The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary. No further notice beyond that under Section 9(1) of the Act is required. When possession has been taken, the OAAmer or the occupant of the land is dispossessed. Once possession as been taken the land vests in the Government." (emphasis supplied) 16. In R.L.Jain's case (supra), the question which the court was examining was whether possession taken prior to the issue of a notification under Section 4 of the Act could be recognised as possession taken under the Act so as to entitle the owners to claim interest for such period. The Court answered that question WP(C)No. 3780/2000 page14of26 \y • in the negativeandheldthatifthe landownerwas dispossessed withouttheissueofanotificationunderSection4, he caninitiate proceedingsfor recoveryof the possessionand for paymentof rent or damages. The mode of takingpossessionunderthe Act did riot call for considerationin that case. Relianceupon that decision, therefore, is of no avail to the petitioners. The argumentthatsince80% ofthe estimatedcompensationwas not paidto the petitioners,the possessioncouldnothavebeentaken ^ or that non-paymentof such paymentis a circumstancethat disprovestaking over of possessionon the spot must also be noticed only to be rejected. It is true that Section 17(3-A) postulatesthat owner will be offeredan amount equivalentto 80% of the estimated compensation for the land before the Governmenttakes possessionofit underSection17(1) but even when80% ofthatestimatedcompensationhasnotbeenpaid,the y. takingoverofpossessionorthevestingofthelandcannotbe said to be illegal. The decisionof the Supreme Court in Satendra PrasadJain and Others v. Stateof U.P. And Othetrss (1993) 4 SCC 369isa sufficientauthorityfor that proposition. The Courthasin that case observed: "In the instant case, even that 80 per cent ofthe estimated compensation was not paid to the appellants although Section 17(3-A) required that it shouldhave been paid beforepossession of the said land was taken but that does not WP(C)No. 3780/2000 page15of26 . / s mean that the possession was taken illegally or that the said land did not thereupon vest in the first respondent." 17. The respondent's version in any case is that 80% of the estimated compensation was offered but was not received by the petitioners which was a sufficient compliance with the provisions of Section 17(3-A). Be that as it may, the non-payment or non- receipt of the compensation in terms of Section 17(3-A)does not hold the key to finding out whether possession was or was not taken over by the authorities. The non-receipt of the compensation in any case is not a circumstance which can militateagainstthe takingoverofpossessionbythe authorities. 18. Let us now examine, in the context of the pronouncementsofthe SupremeCourt,whetherthe petitioners can assail the validityof the acquisitionsproceedingsafter the making of the award and their dispossessionfi:om the land in question. Tn Aflatnnn and Ors. v. Lt. GnvpTnorofDelhi&Ors.MR 1974 SC 2077, one of the questionsthat fell for consideration before their lordships was whether the petitioners could be allowedto challengethe validityof the notificationseven