NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY versus HARKISHAN (DEAD) THROUGH LRS. & ORS.
[2017] 1 S.C.R. 572, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[2017] I S.C.R. 572 
A 
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY 
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v. 
HARKISHAN (DEAD) THROUGH LRS. & ORS. 
(Civil Appeal No. 5170 of 2010) 
JANUARY 27, 2017 
[A. K. SIKRI AND R. K. AGRAWAL, JJ.) 
Land Acquisition Act, 1894 - s. llA - Land acquisition 
proceedings - Notification uls. 4 rlw. s. 17 issued in January 
1991 - Declaration u/s. 6 rlw. s. 17 in January 1992 - Land-owners 
(respondents) challenged emergency provision - During pendency 
of the litigation possession of the land was taken over by the State 
and award (dated August 17, 1996) was passed - Finally the 
acquisition was upheld by Supreme Court - However, liberty was 
granted to file representation - Land-owners filed representation 
for release of Land u!.~. 48(1) which was rejected by State by order 
dated December 3, 1999 - Land-owners again challenged the order 
dated December 3, 1999 - This challenge also failed as the cases 
were dismissed by Supreme court in the year 2003 - Thereafter, in 
2004, land-lords challenged the award dated August 7, 1996 on 
the ground that it was passed beyond the period of limitation as 
prescribed u/s. llA - High Court agreed to the plea and directed to 
issue fresh notifications u/ss. 4 and 6 and thereafter to make award 
uls. II in order to cure the defect - On appeal, held: The land-lords 
having failed to challenge the award in the 1st and llnd round of 
litigation, the petition filed in the year 2004 challenging the mvard, 
is barred by the
doctrine of /aches and delays as also by the 
provisions under Or. JI, r. 2 CFC - Also as the urgency provision 
u/s. 17 was upheld by Supreme court and possession of the land 
was taken u/s. 17(1), s. JJA would not get attracted- Code of Civil 
Procedure, 1908 - Or. JI, r. 2 - Delay/Laches. 
Allowing the appeal, the Court 
HELD: 1. In the first round of litigation, when acquisition 
was challenged by the respondents, they failed in their attempt. 
At that time, not only declaration under Section 6 of the Act had 
been passed, the writ petitions were also dismissed by the High 
Court on August 24, 1995. Thereafter, possession of the land 
572
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY v. 
HARKISHAN (DEAD) THROUGH LRS. 
was taken on November 18, 1995. Subsequently, the award was 
also passed on August 17, 1996. This Court passed the judgment 
dated July 15, 1998 thereby affirming the judgment of the High 
Court. No doubt, event of the passing of the award dated August 
17, 1996 had taken place during pendency of the appeals in this 
Court. Fact remains that this was not questioned at the time of 
arguments advanced by the parties. The entire gamut of 
controversy was gone into by the court and the only permission 
which was given to the respondents was to make a suitable 
representation before the appropriate State authorities under 
Section 48(1) of the Act. [Para 10] [581-E-G] 
2. When the respondents made the representation, it was 
dealt with and rejected by the State Government vide order dated 
December 03, 1999. At tl)at time, award had been passed. 
However, in the second round of writ petitions preferred by the 
respondents, they chose to challenge only Office Order dated 
December 03, 1999 vide which their representation under Section 
48 of the Act had been rejected and it never dawned on them to 
challenge the validity of the award on the ground that the same 
was not passed within the prescribed period of limitation. Tlhus, 
in the second round of litigation also, the respondents· failed in , 
their attempt, inasmuch as, this Court put its imprimatur to the 
rejection order dated December 03, 1999
vide its judgment dated 
March 12, 2003. At that time, even the possession of land had 
been taken. If the respondents wanted to challenge the validity 
of the award on the ground that it was passed beyond the period 
of limitation, they should have done so immediately and, in any 
case, in the second round of writ petitions filed by them. Filing 
fresh writ petition challenging the validity of the award for the 
first time in the year 2004 would, therefore, not only be barred 
by the provisions of Order II Rule 2 of the Code of Civil 
Procedure, 1908, but would also be barred on the doctrine of 
!aches and delays as well. [Para 11] (581-H; 582-A-D] 
3. There is yet another serious infirmity in the impugned 
judgment. In the instant case, the land was acquired by invoking 
urgency clause under Section 17 of the Act and dispensing with 
the requirement of filing the objections under Section SA of the 
Act. This action on the part of the Government was upheld by 
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this Court in the first round of litigation. Once possession is 
taken under ·section 17(1) of the Act, Section llA is not even 
attracted and, therefore, acquisition proceedings would not lapse 
on failure to make award within the period prescribed therein. 
[Para 12) [582-E-F] 
B 
Saicndra Prasad Jain & Ors. v. State of Uttar Pradesh 
& Ors. (1993) 4 SCC 369 : 1993 (2) Suppl. SCR 336; 
Awadh Bihari Yadav & Ors. v. State of Bihar & Ors. 
(1995) 6 SCC 31 : 1995 (3) Suppl. SCR 197 - relied 
on. 
c 
Ved Prakash & Ors. v. Ministry of Industry, Luckno11• 
& Am: (2003) 9 SCC 542 - referred to. 
Case Law Reference 
f2003) 9 sec 542 
1993 (2) Suppl. SCR 336 
referred to 
relied on 
Para 1 
Para 12 
D 
1995 (3) Suppl. SCR 197 
relied on 
Para 12 
CIVIL APPELLATE JURISDICTION: CiviiAppeal No. 5170 
of2010. 
From the Judgment and Order dated 30.06.2009 of the High Court 
of Judicature at Allahabad in Civil Misc. Writ Petition No. 55426 of 
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2004. 
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Ravindra Kumar, Adv. for the Appellant. 
R. P. Bhatt, Sr. Adv., Aditya Shanna, Anil Kumar Sharma, 
K. S. Rana, Advs. for the Respgndents. 
The Judgment of the Court was delivered by 
A. K. SIKRI, J. I. This appeal has a chequered history. Matter 
pertains to the acquisition of the land of the respondents, which was 
acquired way back in the year 1990. Notification under Section 4 of the 
Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') proposing 
to acquire the land
of the respondents, as well as some other persons, 
was issued on January 05, 1991. It was followed by declaration under 
Section 6 issued on January 07, 1992. Even award, thereafter, was 
pronounced on August 17, 1996. The acquisition proceedings were 
challenged by the responden.ts by filing writ petition in the High Court, 
which was dismissed by the High Court, and the appeal there against 
was dismissed by this Court also on July 15, 1998. In this first round of 
litigation, while dismissing the appeal, this Court left open a little window
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY v. 
HARKISHAN (DEAD) THROUGH LRS. [A. K. SIKRI, J.] 
for the respondents herein by permitting them to make a representation 
to the ~tale Government under Section 48( I) of the Act. The respondents, 
thus, made a representation for release of the land, which was considered 
by the State Government. The State Government, however rejected the 
same vide orders dated December 03, 1999. Second round oflitigation 
started when this rejection ·was again challenged by the respondents by 
filing writ petitions. This time again attempts of the respondents failed 
as the writ petitions were dismissed by the High Court and those orders 
were affinned by this Courtvide judgment dated March 12, 2003, reported 
as Ved Prakash & Ors. v. Ministry of Industry, Lucknow & Anr.'. 
2. Undeterred by the aforesaid dismissals, the respondents started 
third round of litigation by approaching the High Court by way ofanother 
writ petition filed in the year 2004. This time, the validity of the award 
passed in the year 1996 was challenged on the ground that the said 
award was not passed within the period of two years as prescribed 
under Section I IA of the Act and, therefore, acquisition proceedings 
lapsed. In this attempt, the respondents have succeeded before the High 
Court inasmuch as vide its judgment dated June 30, 2009, the High Court 
has accepted the aforesaid contention of the respondents thereby allowing 
the writ petitions and directing the
Collector to issue fresh notifications 
under Sections 4 and 6 of the Act and thereafter make an award under 
Section 11 of the Act which, according to the High Court, will cure the 
defect that has crept in on account of delay in making the award beyond 
the period prescribed under Section 11 of the Act. It is this judgment 
which is assailed by the New Okhla Industrial Development Authority, 
at whose behest tlieland in question was acquired. 
3. Neat question of law which is raised is that the petition filed in 
the year 2004, after having lost twice, was not even maintainable as it 
suffered from unexplained delays and latches and was also barred by 
the provisions of Order II Rule 2 of the Code of Civil Procedure, 1908. 
For proper appreciation of this submission, we recount the events in 
some detail hereinafter. 
4. A notification dated January 05, 199 l was issued under the 
provisions of Section 4( 1) read with Section 17 of the Act, invoking 
urgency provisions, to acquire about 790 bighas (496 acres) of land in 
village Chalera Banger, Tehsil Dadri, District Gautam Budh Nagar, 
including the land belonging to the respondents herein, i.e. khasra No. 
1(2003)9 sec 542 
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279 (measuring 2-13-10 bigha) and khasra No. 280 (measuring 2-6-10 
bigha). The aforesaid notification was followed by issuance of declaration 
dated January 07, 1992 under Section 6 read with Section 17 of the Act. 
The respondents herein filed a writ.petition before the High Court of 
Jud;cature at Allahabad challenging the acquisition on the ground that 
the ernergency provision, thereby depriving them of their right to file 
objections under Section SA of the Act, was illegal. This writ petition, 
along with certain other writ petitions, was dismissed by the High Court 
by common judgment dated August 24, 1 995. Possession of the acquired 
land was taken over by the State Government and handed over to the 
appellant on November 18, 1995. 
5. Aggrieved with the judgment dated August 24, 1995, the 
respondents approached this Court by filing Special Leave Petition (Civil) 
No. 1874 of 1996, in which leave was granted and numbered as Civil 
Appeal No. 3263of1998. While this appeal was pending, in which there 
was no stay, the State Government went ahead to complete the acquisition 
process. An award dated August 17, 1996, in respect of all the acquired 
land vide declaration dated January 07, 1992, was passed by the Additional 
District Magistrate (Land Acquisition), Ghaziabad. 
6. The aforesaid appeal came up for final hearing in the year 
1998. By a common judgment dated July 15, 1998 passed in a batch
of 
civil appeals, lead case being Civil Appeal No. 3261of1998 (which 
batch included Civil Appeal No. 3263of1998 that was filed by respondent 
Nos. 1 to 3 herein), this Court, while dismissing the appeals, granted 
liberty to the respondents to file a representation under Section 48( 1) of 
the Act. Thus, acquisition was upheld, but at the same time, permission 
to file a representation was given. Relevant portion of the order, which 
is material for deciding this appeal, is reproduced below: 
"Section 4 Notification in the present cases is dated 5'h January, 
1991. It is followed by Section 6 Notification dated 7'h January, 
1992. In between the appellants went to the High Court and got 
status quo order since 31" March 1992. Results is that till today 
even after the expiry of 6 years and more, the land acquisition 
proceedings qua the appellants' lands have remained stagnant. It 
is also to be kept in view that the impugned notification under 
Section 6 of"the Act was issued for the purpose of planned 
development of District Ghaziabad through NOIDA and by the 
said notification, 496 acres ofland spread over hundreds of plot
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY v. 
HARKISHAN (DEAD) THROUGH LRS. [A. K. SIKRI, J.] 
numbers have been acquired. Out of 494.26 acres of land under 
acquisition, only the present appellants owning about 50 acres, 
making a grievance about acquisition of their lands have gone to 
the Court. Thus, almost 9/1 O'" of the acquired lands have stood 
validly acquired under the land acquisition proceedings and only 
dispute centers round I/10th of these acquired lands owned by 
the present appellants. It is a comprehensive project for the further 
planned development in the district. We are informed by learned 
senior counsel Shri Mohta for NO IDA that a lot of construction 
work has been done on the undisputed land under acquisition and 
pipelines and other infrastructure have been put up. That the 
disputed lands belonging to the appellants may have stray 
constructions spread over different pockets of his huge complex 
oflands sought to be acquired. That ifnotification under Section 
4(1) read with Section 17(4) is set aside qua these pockets of 
lands then the entire developmentactivity in the complex will come 
to a grinding halt and that would not be in the interest of anyone. 
... That we cannot permit upsetting the entire apple cart of 
acquisition of 500 acres only at the behest of 1/10th oflandowners 
whose lands are sought to be acquired. We may also keep in 
view the further salient fact that all the appellants have filed 
references for additional compensation
under Section 18 of the 
Act." 
7. Respondent Nos. I to 3, pursuant to the liberty granted by this 
Court, filed representation dated August 28, 1998 before the State 
Government. This representation was ultimately decided vide order dated 
December 03, 1999. By that order, the State Government rejected the 
representation filed by respondent Nos. I to 3. 
8. The respondents, and other similarly situated persons, whose 
representations had met the same fate, felt dissatisfied with the rejection. 
As a result, a number of writ petitions were filed by the erstwhile land 
owners challenging the order dated December 03, 1999 passed by the 
State Government whereby their representations had been rejected. All 
the writ petitions were clubbed together and dismissed by a common 
order passed by the High Court. Dissatisfied landowners, whose lands 
were acquired, again approached this Court. A number of special leave 
petitions were filed challenging the aforesaid dismissal of the writ petitions 
wherein leave was granted. Civil Appeal No. 999 of 2001 was treated 
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as the lead case. All the civil appeals, special leave petitions and the 
contempt petitions were dismissed by this Court by a common judgment 
.dated March 12, 2003. 
9. A perusal of this judgment would show that focus of this Court 
was on the validity of Office Order dated December 63, 1999 passed by 
B 
the State Government vide which representations of the respondents 
and others under Section 48( I) of the Act had been dismissed and 11fter 
examining the matter at length, this Court concluded that there was no 
infirmity in the order of the State Government rejecting the 
representations on the ground that it was not feasible to release the 
lands of the respondents and others from acquisition under Section 48(1) 
c . of the Act. The court referred to its earlier judgment dated July 15, 1998 
wherein challenge to the acquisition laid by the respondents was repelled 
but an opportunity was given to the respondents to make a representation 
under Section 48( I) of the Act. Extensively quoting from the earlier 
judgment, the Court found that all the aspects which the State Government 
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was supposed to consider, as per the directions given in the earlier 
judgment, were duly dealt with and considered by the State Government 
and there was no reason to interfere with the same. We would also like 
to reproduce some of the dis.cussion contained in the said judgment: 
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"19. The 1976 Act provides for the constitution
of an authority 
for the development of certain areas in the State. A notification 
was published in the Gazette dated 17-4-1976 under the Act 
declaring the area comprising the villages mentioned in the Schedule 
called the "New Okhla Industrial Development Area". Village 
Chalera Bangar is one of the villages included in the Schedule 
and the lands in question are in the same village. The function of 
the authority under Section 6 of the Act is to acquire the land in 
the notified area by the agreement or through the proceedings 
under the Land Acquisition Act, to prepare a plan for the 
development of the industrial area, to provide infrastructure for 
industrial, commercial and residential purposes, to regulate the 
erection of buildings and setting up of the industries and to lay 
down the purpose for which a particular site or plot of land shall 
be used, namely, for industrial, commercial or residential or for 
any other specified purpose in such area. Section 8 authorises the 
authority to issue directions such as the alignment of buildings on 
any site, the restrictions and conditions in regard to open spaces 
to be maintained in and around buildings and height and character
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY v. 
HARKISHAN (DEAD) THROUGH LRS. [A. K. SIKRI, J.] 
of buildings and the number of residential buildings that may be 
erected on any site. Section 9 imposes a ban on erection of building> 
in contravention ofregulations. As is evident from this section, no 
person could erect or occupy any building in the industrial 
development area in contravention of any building regulation made 
under the Act Regulation 4 of the Building Regulations shows 
that no person shall erect any building without obtaining a prior 
building permit thereof from the Chief Executive Officer in the 
manner provided. 
20. There is no material to show that the constructions and 
structures said to be existing in the abadi area were existing prior 
to the notification issued on 17-4-1976 as no village map or other 
documents show the same in the large area of abadi claimed by 
the appellants. Certain provisions of the U.P. Land Revenue Act 
are already extracted above. Looking to the said provisions, it is 
clear that field-books, maps, record-of-rights and annual register 
had to be maintained. There could be resurvey and revision of 
map and records. The argument was advanced on behalf of the 
appellants that abadi existing long back could not continue to be 
the same; over the years when families grew, population increased, 
necessarily corresponding abadi area also increased; new 
constructions and structures came up. If that be so then the same 
thing
could have been reflected in the records and the map 
maintained under the 1901 Act. Similarly, it is not shown that such 
structures or constructions were put up with the permission as 
required under the provisions of the Act and the Regulations. 
Section I 0 of the Act even provides for ordering proper 
maintenance of site or building if it appears to the authority that 
the condition or use ofany site or building is prejudicially affecting 
or is likely to affect the proper planning or the maintenance in any 
part of the industrial development area or the interest of the general 
public thereto requires that the authority could directthe transferee 
or occupier of the site or building to take steps within the period 
specified to maintain a site or building in such manner as may be 
specified. When the large area of about 496 acres of land was 
acquired for planned development of industrial area called the 
New Okhla Industrial Development Area and the object and 
purpos.e of the Act is sought to be achieved as provided in the 
Act, the authority has power to acquire the lands and to give 
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necessary direction or tak.e steps to maintain and regulate the 
sites and buildings in the area. The State authority having 
elaborately considered the evidence available on record found 
that the claim of the appellants as to abadi is spread over in a 
scattered manner in a large area apart from being whether that 
was an abadi or not and whether it was existing prior to the issue 
ofnotification in 1976. Having regard to all aspects, the.authority 
found that it was not feasible to release the lands of the appellants 
from acquisition under-Section 48(1) of the Act. As is evident 
even from the survey report that boongas, bitooras, thatched 
huts, thatched sheds etc. occupied a small area but were spread 
over a long distance. The photographs show that large area is 
open land even in the so-called abadi area, so an individual 
assuming could claim some area as abadi that cou Id be a small . 
area appurtenant to his residential house or a farm house or any 
cattle-shed etc. but the appellants claim for large area covering 
few acres of land as abadi, is untenable. All the more so, when it 
could not be legitimately claimed or asserted that they were 
regularly living in those structures of very kachatype. The nature 
of the construction, their age from its appearance etc. give an 
impression that they were hurriedly planted at later dates only to 
circumvent the land acquisition proceedings. 
21. As
already stated above, the competent authority in compliance 
with the directions given by this Court in Om Prakash case in the 
light of observations made therein having considered the evidence 
placed on record and after hearing the parties, recorded.findings 
and held that it was not feasible to release the lands of the appellants 
from acquisition. From the impugned judgment of the High Court 
it is clear that the High Court kept in view the scope and judicial 
review in dealing with the impugned order dated 3-12-1999, passed 
by the competent authority. In CIT v. !v[qhindra and Mahindra 
Ltd. [( 1983) 4 SCC 392] this Court, while stating that by now, the 
parameters of the Court's power of judicial review of administrative 
or executive action or decision and the grounds on which the Court 
can interfere with the same are well settled, proceeded to say 
further in para 11, thus: (SCC p. 402) 
"11.. .. Indisputably, it is a settled position that if the action or 
decision is perverse or is such that no reasonable body of 
persons, properly informed, could come to or has been arrived
\ 
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY v. 
581 
HARKISHAN (DEAD) THROUGH LRS. [A. K. SIKRI, J.] 
at by the authority misdirecting itself by adopting a wrong 
A 
·, 
approach or has been influenced by irrelevant or extraneous 
matters the Court would be justified in interfering with the 
same." 
In the same decisionit is also stated that in examining the validity 
of an order in such matters the test is to see whether there is any 
B 
infirmity in the decision"making process and not the decision itself. 
From this decision it is also clear that when choices are open to 
the authority it is for that authority to decide upon the choice and 
not for the court to substitute its view. The High Court keeping in 
view the scope of judicial review in such matters considered the 
respective contentions raised before it. On finding that the authority 
c 
passed the impugned order dated 3-12-1999 on proper 
consideration of the evidence placed before it and after hearing 
the parties in the light of the directions given and observations 
made by this Court in the case of Om Prakash did not consider it 
appropriate to interfere with the impugned order. We do not find 
D 
any good or valid reason so as to interfere with the impugned 
judgment of the High Court affirming the order passed by the 
authority." 
10. It becomes clear from the above that in the first round of 
litigation, when acquisition was challenged by the respondents, they failed 
E 
in their attempt. At that time,
not only declaration under Section 6 of the 
Act had been passed, the writ petitions were also dismissed by the High 
Court on August 24, 1995. Thereafter, possession of the land was taken 
on November 18, 1995. Subsequently, the award was also passed on 
August 17, 1996; This Court passed the judgment dated July 15, 1998 
thereby affirming the judgment of the High Court. No doubt, event of 
F 
the passing of the award dated August 17, 1996 had taken place during 
pendency of the appeals in this Court. Fact remains that this was not 
questioned at th~ time of arguments advanced by the parties. Even for a 
moment it is accepted that the subject matter of the civil appeals in the 
first round oflitigation in this Court was validity of notifications issued 
G 
under Sections 4 and 6 of the Act, what is to be borne in mind is that the 
entire gamut of controversy was gone into and the only permission which 
was given to the respondents was to make a suitable representation 
before the appropriate State authorities under Section 48( I) of the Act. 
11. More importantly, when the respondents made the 
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representation, it was dealt with and rejected by the State Government 
vide order dated December 03, 1999. At that time, award had been 
passed. However, in the second round of writ petitions preferred by the 
respondents, they chose to challenge only Office Order dated December 
03, 1999 vide which their representation under Section 48 of the Act had 
been rejected and it never dawned on them to challenge the validity of 
the award on the ground that the same was not passed within the 
prescribed period oflimitation. As noted above, in the second round of 
litigation also, the respondents failed in their attempt, inasmuch as, this 
Court put its imprimatur to the rejection order dated December 03, I 999 
vi de its judgment dated March 12, 2003. At that time, even the possession 
of land had been taken. If the respondents ~anted to challenge the. 
validity of the award on the ground that it was passed beyond the period 
oflimitation, they should have done so immediately and, in any case, in 
the second round of writ petitions filed by them. Filing fresh writ petition 
challenging the validity of the award for the first time in the year 2004 
would, therefore, not only be barred by the provisions of Order II Rule 2 
of the Code of Civil Procedure, 1908, but would also be barred on the 
doctrine of !aches and delays as well. 
12. There is yet another serious infirmity in the impugned judgment. 
In the instant
case, the land was acquired by invoking urgency clause 
under Section I 7 of the Act and dispensing with the requirement of filing 
the objections under Section SA of the Act. This action on the part of the 
Government was upheld by this Court in the first round of litigation. 
Once possession is taken under Section 17(1) of the Act, Section I IA is 
not even attracted and, therefore, acquisition proceedings would not lapse 
on failure to make award within the period prescribed therein. This is so 
held in Satendra Prasad Jain & Ors. v. State of Uttar Pradesll & 
Ors.', which view is affirmed in A.wadll Billari Y{l(fav & Ors. v. State 
of Biliar & Ors.' 
13. For all these reasons, we find fault with the approach of the 
High Court in entertaining the writ petitions, which were clearly barred 
in law, and allowing the same. The appeal is, accordingly, allowed setting 
aside the judgment of the High Court. 
No costs. 
Kalpana K. Tripathy 
Appeal allowed. 
2 (1993)4SCC369 
H 
' ( 1995) 6 sec 31