WP (C) No. 8059-61/2006 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 8059-61/2006 & CM No.5973 /2008 Reserved on : July 16th, 2008 % Date of Decision : August 12th, 2008 PAWAN KUMAR & ORS. ..... Petitioners Through: Mr. P.N. Lekhi, Sr. Advocate with Mr. Samar Bansal, Advocate. versus GOVT. OF NCT & ORS. ..... Respondents Through: Mr. Sanjay Poddar, Advocate for R-5/LAC. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE MANMOHAN 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Yes the digest? J U D G M E N T MANMOHAN, J : 1. The present writ petitions have been filed seeking a declaration that the intended possession by the Respondents of the Petitioners’ land comprising of Khasras No. 35/9/1 and 35/9/2 admeasuring 3600 sq. yd. situated within the Revenue Estate of Village Samaypur, Delhi (hereinafter referred to as the said land) is not for any public purpose and not required for acquisition. The Petitioners have also sought a prayer of Mandamus directing the Respondent – Land Acquisition WP (C) No. 8059-61/2006 Page 2 of 21 Collector not to interfere with the peaceful possession, use and enjoyment of the said land. 2. Briefly stated the material facts of this case are that the Petitioners, who are father and two sons, are joint owners of the said land. 3. On 27th July, 1984, a notification under Sections 4 read with sub-sections (1) and (4) of Section 17 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘said Act’) was issued by the Respondent for acquisition of 2122 bighas and 15 biswas of land, which included the said land, for the purpose of planned development of Delhi. 4. As the proposed acquisition was under the urgency provision of Section 17(4) the right to file objections under Section 5A was dispensed with. On 27th July, 1984, a declaration under Section 6 of the said Act was also simultaneously issued. Pursuant to the notice under Section 9 of the said Act, the Petitioners filed their objections in August 1984 stating that they were carrying on their business on the said land as well as the entire land was built up with the adjoining land being used for industrial purpose. WP (C) No. 8059-61/2006 Page 3 of 21 5. On 27th March 1985, Respondents announced an award wherein it was stated that the Respondents had taken possession of 2119 bighas out of 2122 bighas except for three Khasra numbers out of which two belonged to the Petitioners. 6. According to the Petitioners, thereafter for twenty two years no attempt was made by the Respondents or any other agency to disturb the peaceful, continuous and settled possession of the Petitioners over the said land. 7. It is alleged that on 5th May, 2006 officials of Respondent No.4 without any notice came to the Petitioners’ land and started demolishing the structure thereupon. While the Petitioners alleged that their possession over the acquired land was never taken away, the Respondents in their counter affidavit state that after removal of unauthorized construction carried out by the Petitioners, the Respondents handed over physical possession of Petitioners’ land to DDA, which was the ultimate beneficiary of the acquired land. 8. Aggrieved by the Respondents’ action to dispossess the Petitioners from their land, the Petitioners filed the present writ petition in 2006 seeking the relief as mentioned hereinabove. On 10th May, 2006, this Court was pleased to direct the parties to maintain WP (C) No. 8059-61/2006 Page 4 of 21 status quo with regard to the construction and possession as on that date. 9. Mr. P.N. Lekhi, learned Senior Counsel for the Petitioners submitted that the power to take possession on urgent basis under Section 17 (1) of the said Act can be exercised only in the circumstances mentioned in sub-section (2) of Section 17 of the said Act namely owing to sudden change in the channel of any navigable river or other unforeseen urgency or for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road connection or electricity. Consequently, Mr. Lekhi contended that in the present case there were no facts warranting invocation of Section 17(1) of the said Act. 10. Mr. Lekhi next submitted that as in the present case the Collector had not tendered 80% of the compensation amount to the Petitioners before endeavouring to take possession of the said land, the acquisition by virtue of sub-section (3A) of Section 17 of the said Act was illegal. 11. Mr. Lekhi further submitted that though the discretion to acquire a land vests in the State, but the said power has to be exercised in accordance with law. He submitted that the power to acquire and to WP (C) No. 8059-61/2006 Page 5 of 21 take possession cannot be exercised contrary to the object sought to be achieved by the said Act. He further submitted that as in the present case Respondents sought to take possession of the said land after twenty two years of the urgency power having been exercised under Section 17 of the said Act, the exercise of said power was arbitrary, irrational, malafide and discriminatory. In this connection, Mr. Lekhi referred to the judgment of the Apex Court in M/s. Monarch Infrastructure (P) Ltd. Vs. Commissioner, U.M.C. reported in AIR 2000 SC 2272 para 11 wherein it has been held that administrative action of the Government is liable to be set aside if it is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is malafide. Mr. Lekhi also referred to the Wednesbury principle, according to which, Court has the power to set aside administrative actions if they were either illegal or irrational or vitiated by procedural irregularity. In this context, Mr. Lekhi relied upon the judgment of Supreme Court in Om Kumar & Ors. Vs. Union of India reported in AIR 2000 SC 3689. 12. Mr. Lekhi also submitted that action of the Respondents in attempting to take possession of Petitioners’ land under the pretext of a notification issued twenty two years ago under Section 17 of the said Act amounted to colourable exercise of power and fraud on power. He submitted that Section 17 (1) of the said Act empowered WP (C) No. 8059-61/2006 Page 6 of 21 the Collector to take possession of the land 15 days after a notification of urgency has been issued. Mr. Lekhi submitted that the legislative intent was to invoke this power only in rare cases of real urgency where public interest does not brook any delay in completing the acquisition. Mr. Lekhi also referred to sub-section (4) of Section 17 which empowered the appropriate government to direct that provisions of Section 5A of the said Act shall not apply to the notified land. Since in the present case the Government had exercised its power under Section 17 (4), the Petitioners were deprived not only of their valuable right of filing the objections under section 5A but also of their right of hearing before the Collector. Mr. Lekhi laid great emphasis on the importance of rights arising out of Section 5A of the said Act, as according to him the said right was akin to a fundamental right. In this context Mr. Lekhi referred to the judgment of Supreme Court in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai & Ors. reported in (2005) 7 SCC 627 at 635. Mr. Lekhi also referred to the judgment of the Andhra Pradesh High Court in C. Suryanarayana Vs. State of Andhra Pradesh reported in AIR 1983 Andhra Pradesh 17. In that case the High Court held that if after dispensing with enquiry under Section 5A, on the ground of urgency, possession was not taken for a period of three years it would certainly lead to a conclusion that there was no real urgency justifying the dispensation of enquiry under Section 5A WP (C) No. 8059-61/2006 Page 7 of 21 and that the acquisition authorities had acted mechanically. The relevant portion of para 7 of the said judgment is reproduced hereinbelow for ready reference :- “It is therefore clear that the power to dispense with the enquiry envisaged by S. 5-A can be exercised only when there is such an urgency to take immediate possession of the land as not to brook the delay of even 30 days notice being issued to enable the persons interested to file objections to the acquisition itself, and the determination of such objections, by the Collector. If therefore after dispensing with the enquiry under S. 5-A under the plea of urgency, possession is not taken even after a lapse of nearly three years, that would certainly be a factor leading to the conclusion that there was no real urgency justifying the dispensing with of the enquiry under Sec.5-A and that the Acquisition Authorities acted mechanically…… If the person entitled to remain in possession is to be immediately dispossessed there should unquestionably be such an urgency to take immediate possession of the land which alone justifies the invocation of the power under sub-section (4) of S. 17 as not to brook the delay of even a summary enquiry. That power cannot be lightly exercised.” 13. Mr. Lekhi also relied upon observations to a similar effect in Smt. Laxmi Devi Vs. State of Orissa reported in AIR 1990 Orissa 196 and Satyendra Kumar Vs. Union of India reported in 53 (1994) DLT 181 para 6. Mr. Lekhi also referred to the judgments of the Apex Court in Sanjeev Nagar Medical & Health Employees’ Cooperative Housing Society Vs. Mohd. Abdul Wahab and Others reported in (1996) 3 SCC 600 at 605; State of Punjab Vs. Gurdial Singh reported in (1980) 2 SCC 471 paras 16 and 17. WP (C) No. 8059-61/2006 Page 8 of 21 14. Mr. Lekhi submitted that as the Land Acquisition Act was an expropriatory legislation, its provisions should be strictly construed as it deprives a person of its land without his consent. In support of this proposition, Mr. Lekhi again relied upon para 29 of the Apex Court’s judgment in Hindustan Petroleum Corporation Ltd. referred to hereinabove. 15. Mr. Lekhi lastly submitted that the expression urgency in Section 17(1) cannot be partly good and partly bad like the curate’s egg. In this context, Mr. Lekhi relied upon judgments of the Apex Court in Union of India & Ors. Vs. Shakuntala Gupta (Dead) by LRs reported in (2002) 7 SCC 98 para 15 and in Vithal and Others Vs. State of Karnataka and Others reported in (2004) 10 SCC 162 para 14. 16. In response, Mr. Sanjay Poddar, learned Counsel for the Respondent firstly referred to the prayers in the present Writ Petitions to contend that no relief had been sought for quashing of notification issued under Sections 4, 6 and sub-sections (1) and (4) of Section 17 of the said Act. Mr. Poddar submitted that in the absence of such a prayer, Petitioners would not be entitled to any relief from this Court. WP (C) No. 8059-61/2006 Page 9 of 21 17. In the alternative, Mr. Poddar submitted that if the notification issued under Sections 4, 6 and 17 of the said Act was presumed to be impugned in the present proceedings, then the present writ petition would be liable to be dismissed on the ground of laches as the said notification had been issued in the year 1984 and the State Government after considering the objections filed under Section 9 of the said Act had passed a detailed Award on 27th March, 1985. According to Mr. Poddar, the Petitioners could not impugn either the notification or the Award after a lapse of twenty two years. In this context, Mr. Poddar relied upon following judgments:- a) State of Rajasthan & Ors. Vs. D.R. Laxmi & Ors. reported in (1996) 6 SCC 445 paras 3, 6 and 7; b) Babu Ram & Ors. Vs. Union of India & Ors. reported in 125 (2005) Delhi Law Times 259 paras 7, 8, 15 to 24; c) Rajiv Prem (Sh.) Vs. UOI & Ors. reported in 2006 VIII AD (Delhi) 268 paras 14, 15, 16 and 21; and d) Santosh Kumar & Ors. Vs. Union of India & Ors. reported in 2006 VII AD (Delhi) 7 18. Mr. Poddar further contended that as the Respondents had demolished the structure of the Petitioners on 5th May, 2006 and thereafter not only taken possession of the Petitioners’ land but had also handed over the same to Delhi Development Authority, the present writ petition was not maintainable. In this context, Mr. Poddar WP (C) No. 8059-61/2006 Page 10 of 21 referred to the counter-affidavits filed by the Land Acquisition Collector and by the Delhi Development Authority. He also referred to the demolition report, demolition photographs as well as the possession proceedings annexed to the said counter-affidavit. Consequently, Mr. Poddar submitted that a writ petition challenging acquisition notification, after possession of the said land had been taken, is not maintainable. He submitted that the effect of taking possession under Section 16 of the said Act is that a curtain is drawn so far as land acquisition proceedings are concerned and the land goes outside the purview of the Land Acquisition Act. In this context, Mr. Poddar referred to and relied upon the judgments of the Apex Court in Swaika Properties Pvt. Ltd. & Anr. Vs. State of Rajasthan & Ors. reported in 2008 (2) SCALE 271 paras 12 & 13; State of Rajasthan Vs. D.R. Laxmi & Ors. referred to hereinabove and Ajit Singh & Ors. Vs. Union of India reported in 89 (2001) Delhi Law Times 495 para 8. 19. Mr. Poddar next submitted that assuming without admitting that if the State has not deposited 80% of compensation as mandated by sub-section (3A) of Section 17 of the said Act, then also the taking of possession by the Respondent would not become illegal as the only consequence of such a default would be that the State would be liable to pay interest under Section 34 of the said Act. In this context, WP (C) No. 8059-61/2006 Page 11 of 21 Mr. Poddar relied upon a judgment of a Division Bench of this Court in Deepak Resorts & Hotels P. Ltd. & Anr. Vs. UOI & Ors. reported in (2008) V AD (Delhi) 466. 20. Mr. Poddar further referred to the counter-affidavit and the documents on record to contend that under the impugned notification 2122 bighas and 15 biswas of land was sought to be acquired and taken over for Planned Development of Delhi namely for Rohini Residential Scheme which was meant to give shelter to public in a systematic manner in Delhi. Mr. Poddar referred to the Award dated 27th March, 1985 to contend that out of 2122 bighas and 15 biswas, possession of land admeasuring 2119 bighas was taken and handed over to Delhi Development Authority on 21st August, 1984. The possession of Petitioners’ land was immediately not taken over in 1984 as it comprised of illegal built up structures, inasmuch, as the said land was agricultural land and no construction could have been raised thereon. In any event, he referred to DDA’s counter-affidavit to state that the said land was urgently required for construction of two major proposed roads of Rohini Project of which one is 45 mtrs wide and other is 60 mtrs. wide. 21. Mr. Poddar further contended that the Petitioners were well aware of the acquisition proceedings as would be apparent from the WP (C) No. 8059-61/2006 Page 12 of 21 objections filed under Section 9 of the said Act. He submitted that even if there was delay in completing the acquisition proceedings and in taking possession of the land, such a delay would not vitiate the acquisition and turn the clock back. In this context, he relied upon a Division Bench judgment of this Court in Balwan Singh & Ors. Vs. Land Acquisition Collector & Ors. reported in 144 (2007) Delhi Law Times 851. 22. In rejoinder, Mr. Lekhi submitted that the present petition was not barred by laches. He submitted that there was no time limit for filing a writ petition. According to Mr. Lekhi, the test is not the physical running of time but whether due to delay in approaching the court third party rights have been prejudiced. The court is to see whether laches on the part of the Petitioners are such as to disentitle the Petitioners from the relief claimed by them. He submitted that the test to be adopted by the Court is whether it would in all the circumstances be unconscionable for a party to be permitted to assert its beneficial rights. In this context, Mr. Lekhi relied upon judgment of the Apex Court in State of U.P. & Ors Vs. Raj Bahadur Singh & Anr. reported in (1998) 8 SCC 685 para 2, M/s. Delhi Rohtas Light Railway Company Ltd. Vs. District Board Bhojpur reported in (1992) 2 SCC 598 para 13, U.P. Pollution Control Board Vs. WP (C) No. 8059-61/2006 Page 13 of 21 Kanoria Industrial Ltd. reported in (2001) 2 SCC 549 para 24 and Cattley Vs. Pollard, (2007) 2 All ER 1086 paras 151 to 154. 23. Mr. Lekhi reiterated that the Petitioners were still in possession of the said land and further the Petitioners could not be dispossessed by virtue of Section 17 notification issued twenty two years ago. 24. Mr. Lekhi clarified that the Respondents had not cited even a single judgment condoning the delay in taking possession after issuance of Section 17 notification. Mr. Lekhi clarified that judicial pronouncement by the Apex Court only referred to and condoned the delay in taking possession under Sections 4 and 6 of the Land Acquisition Act and not under Section 17 of the said Act. 25. In our considered view, in the absence of any initial challenge to acquisition notifications issued under Section 4 and 17 as well as the subsequent Award, the Petitioners are not entitled to any relief as prayed for. In fact, the Petitioners due to the long time gap between the filing of the present writ petition and issuance of Sections 4, 6 and 17 notifications were disentitled to challenge the same. 26. As far as the issue of laches is concerned, it is well settled law that when there is inordinate delay in filing a writ petition and when all WP (C) No. 8059-61/2006 Page 14 of 21 steps taken in the acquisition proceedings have become final, the Court would be extremely hesitant to quash the notifications. This Court, no doubt, has the discretionary powers under Article 226 of the Constitution to quash acquisition notification but the said power has to be exercised after taking into consideration all relevant factors. Mr. Lekhi’s argument that as no third party rights had been created in this case the writ was maintainable, in our view, cannot be the sole ground for interference by this Court. In fact, in State of Rajasthan and Ors. Vs. B.R. Laxmi & Anr. reported in (1996) 6 SCC 445 the High Court had, notwithstanding the completion of the acquisition proceedings, interfered with the same on the ground that no third party rights had been created. In appeal, the Supreme Court reversed the judgment holding that the High Court should not have exercised its powers to quash the proceedings when the award had been made and the possession of the land had been taken over. Discretionary power of the Court under Article 226 of the Constitution, observed their lordships, had to be exercised taking the relevant facts into pragmatic consideration. The following passage in this regard is apposite : “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 WP (C) No. 8059-61/2006 Page 15 of 21 case, is hardly a ground for interference. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. 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 or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances.” 27. The test regarding laches is also no longer res integra. In Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig & Ors. reported in (2002)2 SCC 48 where on a petition challenging acquisition of land after twenty one years from the date of notification and sixteen years after making of award and taking of possession, the High Court had cancelled the notification and directed making over of the vacant possession of the acquired land, the Supreme Court set aside the High Court’s decision and dismissed the petition only on the ground of delay in filing the same by observing :- “….It is now a well-settled principle of law that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil WP (C) No. 8059-61/2006 Page 16 of 21 proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, “delay defeats equity” has is fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favour a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise.” 28. In Reliance Petroleum vs. Zaver Chand Popatlal Sumaria, (1996) 4 SCC 579 (paras 8 and 12) it has been held that if the writ petitioners’ intention was to challenge the acquisition proceedings, they should have done so immediately at least after the publication or declaration under Section 6 or immediately after the receipt of notice under Section 9 of the Land Acquisition Act. Since the petitioners in the said case waited till the Award was passed before filing their petition, the Apex Court held that it only showed that the object of the said petitioners was just to get maximum price for the land acquired. WP (C) No. 8059-61/2006 Page 17 of 21 29. Therefore, the legal position that emerges is that while High Courts have the jurisdiction and power to entertain a petition under Article 226 of the Constitution, it would be sound exercise of that discretion, if the Court refuses to interfere with land acquisition proceedings in cases where the land owners have allowed the authorities to complete the said proceedings and challenge the same at a belated stage. In the present case, the Petitioners have allowed the proceedings to go on under the same notification and award in their neighbourhood thereby accepting, by their silence, the validity