Case: ANIL KUMAR GUPTA Vs. STATE OF BIHAR AND OTHERS

1. Leave granted. 2. This is an appeal for setting aside the judgment of the Division Bench of Patna High Court whereby the appeal filed by the Respondents was allowed and the order passed by the learned Single Judge quashing the acquisition of the Appellants land was set aside. 3. In furtherance of order dated 01.02.1976 issued by the State Government u/s 35 of the Land Acquisition Act, 1894, the possession of 2.66 acres land belonging to the Appellant was taken and handed over to the Advance Planning and Investigating Division for the temporary use of Sone Embankment Division. 4. Although, in terms of Section 35, the maximum period for which temporary occupation of the land was three years but without passing any fresh order u/s 35 of the Act, the State Government continued to occupy the Appellants land. 5. CWJC No. 10621 of 1992 filed by the Appellant for issue of a mandamus to the Respondents to vacate the land and hand over possession thereof to him was allowed by the Division Bench of the High Court vide order dated 27.08.1993. In that order, the total area of land is mentioned as 2.82 acres. 6. Civil Appeal No. 1689 of 1994 filed by the Respondents was disposed of by this Court on 04.03.1994. This Court declined to interfere with the direction given by the High Court but gave liberty to the Respondents to take steps as may be available to them under the law. While doing so, this Court took cognizance of the fact that a defective notification was issued on 01.01.1993 for the acquisition of the Appellants land. 7. At this stage, we may mention that on having come to know about the proposed acquisition of his land vide notification dated 01.01.1993, the Appellant filed objections u/s 5A. However, further action was not taken in the matter and the State Government is said to have taken a decision to vacate the land and shift the office of the Sone Embankment Division to the Government premises at Maner. 8. One day before disposal of the civil appeal filed by it before this Court, the State Government issued Notification dated 03.03.1994 u/s 4(1) of the Act for the acquisition of the Appellants land measuring 3.05 acres. The same was published in the official gazette dated 16.03.1994 and in two newspapers on 04.04.1994. After one year and three months of publication of the notification in the official gazette and one year, two months and nine days of publication thereof in two newspapers, the State Government issued declaration dated 12.06.1995 u/s 6(1), which was published in the newspapers on 29.06.1995 and in the official gazette dated 12.10.1995. The Land Acquisition Officer passed award dated 31.01.1997. Notice u/s 12 was issued to the Appellant oh 05.03.1997 and possession certificate is said to have been issued on 19.03.1997. 9. In the meanwhile, the Appellant filed writ petition No. 2624 of 1997 questioning the acquisition proceedings. One of the grounds taken by the Appellant was that the notification issued u/s 6(1) was nullity because it was issued beyond the period of one year prescribed under proviso (ii) to Section 6(1). 10. The Respondents contested the writ petition mainly on the ground that the same was belated. 11. The learned Single Judge noticed the factual matrix of the case and held that the declaration issued u/s 6(1) was nullity and the delay of one year and few months in filing the writ petition was inconsequential. He accordingly quashed the acquisition proceedings. 12. The Division Bench of the High Court did not find any patent error in the exercise of discretion by the learned Single Judge not to decline relief to the Appellant on the ground of delay but held that he was guilty of laches by observing that no explanation has been offered for the time gap between the date of publication of the declaration issued u/s 6(1) and filing of the writ petition. The Division Bench also opined that in view of Section 16 of the Act, the acquired land will be deemed to have been vested in the State Government and it was beyond the pale of challenge. 13. We have heard Shri L.N. Rao, learned senior counsel appearing for the Appellant and Shri Manish Kumar, Learned Counsel appearing for the Respondents and carefully perused the record. 14. Since the parties have not placed on record copies of notification dated 01.01.1993 issued u/s 4(1) and order dated 06.04.1993 to which reference has been made in the order passed by the Division Bench of the High Court in CWJC No. 10621 of 1992, we do not consider it necessary to examine in detail whether there was any real public purpose for the acquisition of the Appellants land after the State Government is said to have been taken a decision to shift the office of the Sone Embankment Division to the Government premises at Maner. 15. We shall now examine whether the Appellant was guilty of laches and the Division Bench of the High Court had rightly set aside the order passed by the learned Single Judge on that ground. In this context, it is apposite to observe that the farmers of the Constitution have not prescribed any period within which a petition can be filed under Article 226 of the Constitution of India. However, in the last six decades, the superior Courts have evolved several rules of self imposed restraint which are required to be kept in view by the High Courts while exercising power under Article 226. One of these rules is that the High Court will not come to the aid of a person who approaches the Court with delay and no explanation is offered for the same - State of Madhya Pradesh Vs. Bhailal Bhai and Others, and Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, . In the first of two cases, the Constitution Bench observed that even though no period of limitation has been prescribed for filing writ petition under Article 226 of the Constitution, the Court will come to the rescue of only those who are vigilant and a petition filed after expiry of the period of limitation prescribed for filing a suit will not be entertained unless cogent explanation is offered for the same. In the second case, Hidayatullah, Chief Justice who concurred with R.S. Bachawat and G.K. Mitter, JJ. expressed the view that there is no upper or lower limit for filing a writ petition and each case has to be decided on its own facts. The learned Chief Justice further observed that even if the petition is filed beyond the period of limitation prescribed for filing a suit, the Court may entertain the petition provided that the Petitioner gives satisfactory explanation or may decline relief in a case where the petition is filed within limitation but the explanation for the delay is not satisfactory. 16. The factual matrix of this case shows that from 1992, the Appellant has been prosecuting his cause for securing possession of the land. He succeeded in that venture when the writ petition filed by him was allowed by the Division Bench of the High Court and in the appeal filed by the Respondents, this Court declined to interfere with the direction given by the High Court. In the second round of acquisition, the award was passed by the Land Acquisition Officer on 31.01.1997 and the writ petition was filed within one month and 11 days thereafter. Therefore, the Division Bench was clearly wrong in holding that the Appellant was guilty of laches. 17. The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. He can question the notification issued u/s 4(1) on the ground of violation of the mandate contained therein like publication of the notification in the official gazette and/or two newspapers including the one in the regional language, failure of the Collector to cause public notice of the substance of the notification to be given at convenient places in the locality. He can challenge the declaration issued u/s 6(1) on the ground of non-compliance of Section 5A(1) and/or (2) or violation of proviso (ii) to Section 6(1). In a given case, the land owner can also challenge the notice issued u/s 9 and the award passed u/s 11 on the ground that he had not been heard or that the acquisition proceedings are nullity. He can also challenge the award if it is not made within the period prescribed u/s 11 A. The vesting of land in the Government can be challenged on the ground that the possession had not been taken in accordance with the prescribed procedure. The invoking of urgency clause contained in Section 17 can be questioned on the ground that there was no real urgency. There may be many more grounds on which the land owner can challenge the acquisition proceedings. Insofar as the Appellant is concerned, he had challenged the acquisition proceedings immediately after passing of the award and pleaded that the declaration issued u/s 6(1) was liable to be declared nullity because of violation of the time limit prescribed in proviso (ii). This being the position, it is not possible to approve the view taken by the Division Bench of the High Court that the writ petition was belated. 18. The finding recorded by the Division Bench of the High Court that the land had vested in the Government and, therefore, it was not open to the Appellant to challenge the same is also erroneous. Admittedly, possession of the Appellants land was taken u/s 35 which empowers the Government to temporarily occupy waste or arable land for a period of three years. For the sake of reference, that section is reproduced below: 35. Temporary occupation of waste or arable land, procedure when difference as to compensation exists: (1) Subject to the provisions of Part VII of this Act, whenever it appears to the [appropriate Government] that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such terms as it shall think fit, not exceeding three years from commencement of such occupation. (2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof, for such term as aforesaid, and for the materials (if any) to be taken there from, pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments, as shall be agreed upon in writing between him and such persons respectively. (3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court. 19. The use of the expression not exceeding three years from commencement of such occupation leaves no manner of doubt that with effect from 31.1.1979 i.e. the date on which three years period counted from 01.02.1976 ended, continued occupation of the Appellants land by the Respondents became illegal per se. 20. We may now advert to the main question as to whether the declaration issued u/s 6(1) was nullity because the same was issued after expiry of the period of one year specified in proviso (ii) to that Section. This issue is no longer res integral and must be treated as settled by the judgments of this Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, Ashok Kumar and Others Vs. State of Haryana and Another, and a recent judgment in Devender Kumar Tyagi and Ors. v. State of UP. and Ors. (2011) 9 SCC 164. In Padma Sundara Raos case (supra), the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued u/s 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single Judge had rightly held that the declaration issued u/s 6(1) was non-est. 21. Learned Counsel for the Respondents relied upon corrigendum dated 01.07.1994 and argued that if the period of one year is counted from the date of corrigendum then the declaration issued u/s 6(1) cannot be treated as beyond the period of one year. We are unable to accept the submission of Learned Counsel for two reasons. Firstly, it has not been shown whether the corrigendum had been published in the manner prescribed u/s 4(1). Secondly, the corrigendum was issued only for correcting the typographical mistakes in the gazette publication of the notification issued u/s 4(1). Such corrigendum will relate back to the date on which notification u/s 4(1) was issued and the same cannot be relied upon for recording a finding that the declaration u/s 6(1) was issued within the period prescribed under proviso (ii) to that Section 22.

Decision reasoning: 1[ds]14. Since the parties have not placed on record copies of notification dated 01.01.1993 issued u/s 4(1) and order dated 06.04.1993 to which reference has been made in the order passed by the Division Bench of the High Court in CWJC No. 10621 of 1992, we do not consider it necessary to examine in detail whether there was any real public purpose for the acquisition of the Appellants land after the State Government is said to have been taken a decision to shift the office of the Sone Embankment Division to the Government premises at Maner.In this context, it is apposite to observe that the farmers of the Constitution have not prescribed any period within which a petition can be filed under Article 226 of the Constitution of India. However, in the last six decades, the superior Courts have evolved several rules of self imposed restraint which are required to be kept in view by the High Courts while exercising power under Article 226. One of these rules is that the High Court will not come to the aid of a person who approaches the Court with delay and no explanation is offered for the same - State of Madhya Pradesh Vs. Bhailal Bhai and Others, and Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, . In the first of two cases, the Constitution Bench observed that even though no period of limitation has been prescribed for filing writ petition under Article 226 of the Constitution, the Court will come to the rescue of only those who are vigilant and a petition filed after expiry of the period of limitation prescribed for filing a suit will not be entertained unless cogent explanation is offered for the same. In the second case, Hidayatullah, Chief Justice who concurred with R.S. Bachawat and G.K. Mitter, JJ. expressed the view that there is no upper or lower limit for filing a writ petition and each case has to be decided on its own facts. The learned Chief Justice further observed that even if the petition is filed beyond the period of limitation prescribed for filing a suit, the Court may entertain the petition provided that the Petitioner gives satisfactory explanation or may decline relief in a case where the petition is filed within limitation but the explanation for the delay is not satisfactory.16. The factual matrix of this case shows that from 1992, the Appellant has been prosecuting his cause for securing possession of the land. He succeeded in that venture when the writ petition filed by him was allowed by the Division Bench of the High Court and in the appeal filed by the Respondents, this Court declined to interfere with the direction given by the High Court. In the second round of acquisition, the award was passed by the Land Acquisition Officer on 31.01.1997 and the writ petition was filed within one month and 11 days thereafter. Therefore, the Division Bench was clearly wrong in holding that the Appellant was guilty of laches.17. The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. He can question the notification issued u/s 4(1) on the ground of violation of the mandate contained therein like publication of the notification in the official gazette and/or two newspapers including the one in the regional language, failure of the Collector to cause public notice of the substance of the notification to be given at convenient places in the locality. He can challenge the declaration issued u/s 6(1) on the ground of non-compliance of Section 5A(1) and/or (2) or violation of proviso (ii) to Section 6(1). In a given case, the land owner can also challenge the notice issued u/s 9 and the award passed u/s 11 on the ground that he had not been heard or that the acquisition proceedings are nullity. He can also challenge the award if it is not made within the period prescribed u/s 11 A. The vesting of land in the Government can be challenged on the ground that the possession had not been taken in accordance with the prescribed procedure. The invoking of urgency clause contained in Section 17 can be questioned on the ground that there was no real urgency. There may be many more grounds on which the land owner can challenge the acquisition proceedings. Insofar as the Appellant is concerned, he had challenged the acquisition proceedings immediately after passing of the award and pleaded that the declaration issued u/s 6(1) was liable to be declared nullity because of violation of the time limit prescribed in proviso (ii). This being the position, it is not possible to approve the view taken by the Division Bench of the High Court that the writ petition was belated.18. The finding recorded by the Division Bench of the High Court that the land had vested in the Government and, therefore, it was not open to the Appellant to challenge the same is also erroneous. Admittedly, possession of the Appellants land was taken u/s 35 which empowers the Government to temporarily occupy waste or arable land for a period of three years.19. The use of the expression not exceeding three years from commencement of such occupation leaves no manner of doubt that with effect from 31.1.1979 i.e. the date on which three years period counted from 01.02.1976 ended, continued occupation of the Appellants land by the Respondents became illegal per se.This issue is no longer res integral and must be treated as settled by the judgments of this Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, Ashok Kumar and Others Vs. State of Haryana and Another, and a recent judgment in Devender Kumar Tyagi and Ors. v. State of UP. and Ors. (2011) 9 SCC 164.  In Padma Sundara Raos case (supra), the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued u/s 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single Judge had rightly held that the declaration issued u/s 6(1) was non-est.We are unable to accept the submission of Learned Counsel for two reasons. Firstly, it has not been shown whether the corrigendum had been published in the manner prescribed u/s 4(1). Secondly, the corrigendum was issued only for correcting the typographical mistakes in the gazette publication of the notification issued u/s 4(1). Such corrigendum will relate back to the date on which notification u/s 4(1) was issued and the same cannot be relied upon for recording a finding that the declaration u/s 6(1) was issued within the period prescribed under proviso (ii) to that Section 22.