(2011] 4 S.C.R. 238

SYED MAQBOOL ALI

STATE OF UTTAR PRADESH & ANR. (Civil Appeal Nos. 2913-2914 of 2011)

APRIL 04, 2011

[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

Land Acquisition Act, 1894 - s. 18 - Acquisition of lands for construction of road - Payment of compensation to certain C land owners - Appellant's case that his land was taken over without acquisition - Writ petition by the appellant almost two decades after the dispossession seeking direction for acquisition and payment of compensation - Dismissed by the High Court holding that the remedy lies u/s. 18 - Held: Not D justified - Application seeking reference to court uls. 18 would

lie only where the land-holder is aggrieved by the award made by the Land Acquisition Collector in regard to land acqutred under the Act - Application uls. 18 cannot be filed in regard to a land which was not acquired at all - Remedy of a land E holder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation, or approach the High Court by filing a wfit petition, if the action can be shown to be arbitrary, irrational, unreasonable, biased, malafide or without the authority of law, F and seek a direction that the land should be acquired in a manner known to law - When a writ petitioner makes out a case for invoking the extra-ordinary jurisdiction under Article 226 of the Constitution, the High Court would not relegate him to the alternative remedy of a civil court, merely because the G matter may involve an incidental examination of disputed questions of facts - High Court would see whether the person is seeking remedy in a matter which is a civil dispute or the matter relates to a dispute having a public law element or violation of any fundamental right or to any arbitrary and high-

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PRADESH & ANR.

handed action - Also, belated writ petitions, without proper A explanation for the delay, are liable to be dismissed - High Courts should also be cautious in entertaining such writ petitions - However, on facts, the High Court did not examine any of the relevant questions - Writ petition was dismissed after a pendency for seven years by a short order on a B baseless assumption about the existence of a non-existent alternative remedy - Thus, matter remitted to the High Court for consideration afresh - Delay/laches - Constitution of India,

1950 - Article 226.

ABL International Ltd. v. Export Credit Guarantee C Corporationof India Ltd 2004(3) SCC 553; Kisan Sahkari Chini Mills Ltd. v. Vardan Linkers 2008(12) SCC 500 - relied on.

Case Law Reference:

2004 (3) sec 553

2008 (12) sec 500

Relied on.

Relied on.

Para 6

Para 6

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.

E 2913-2914 of 2011.

From the Judgment & Order dated 9.7.2007 of the High Court of Judicature at Allahabad in W.P. No. 11212 of 2000 and order dated 22.2.2008 in Review Application No. 189319 of 2007 in W.P. No. 11212 of 2000.

Tameem Hashmi, Promila for the Appellant.

Shobha Dikshit, Shalini Kumar, Pardeep Misra for the Respondents.

The Order of the Court was delivered by G

ORDER

R. V. RAVEENDRAN J. 1. Leave granted.

2. Certain lands in village Sarai Badli and lbrahimpur, Danda, Pargana Kora, District Fatehpur, UP, were acquired B for construction of a six Kilometre road from Jahanabad to Garhi Jafraganj in the year 1982 and compensation was paid to the land owners in the year 1983.

3. In the year 1996, the appellant submitted a complaint c to the Lokayukta alleging that his plots (bearing No.87/5, 88,

90, and 232 in Sarai Badli and plot No.580/5 and 602/1 in lbrahimpur Danda) were included in the said acquisition; that in 1995 when he got his other lands measured, he found that his plots bearing Nos.27, 57, 58, 450, 451 and 452 (new

0 numbers 103, 90, 93/1, 232/2, 231/2 and 229/5) measuring

0.7068 Hectare had been illegally and unauthorisedly used for constructing the road. On enquiry by the Lok Ayukta, the Addi.

District Magistrate (Land Acquisition) informed that there was a possibility of the acquired lands being left out and the road E being constructed in the adjoining lands which were not acquired. On the other hand, the concerned Executive Engineer, PWD, informed the Lok Ayukta that the Khasra numbers in respect of which the appellant alleged encroachment and claimed compensation had never stood in his name and that even for the lands acquired in 1982, the F compensation was paid to Mohammed Hussain alias Bhola

and others and not to the appellant. The said complaint was however closed on 7.9.1999 as time barred, in view of the delay of 12 years in seeking relief. Thereafter, the appellant approached the High Court in the year 2000 seeking a G direction to the respondents to pay compensation in regard to the extra land used and occupied by respondents by diverting the road from its original alignment. The said writ petition was dismissed by order dated, 9.7.2007 on the ground that petitioner can have recourse to section 18 of the Land H Acquisition Act, 1894 ('Act' for short), if he wanted enhancement

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PRADESH & ANR. [R.V. RAVEENDRAN, J.]

of compensation. The review petition filed by the appellant was . A dismissed on 22.2.2008. The said orders are challenged in these appeals by special leave.

4. The respondents deny any encroachment or unauthorized use. They point out on account of the inordinate 8 delay in approaching the High Court, and the disputes/questions relating to identity of land, boundaries, title etc., the writ petition was not maintainable and liable to be dismissed.

5. The limited question that arises for our consideration is whether the High Court could have dismissed a writ petition C seeking a direction to acquire the land and pay compensation (on the ground that his land has been taken over without acquisition) by holding that the remedy lies under Section 18 of the Act. An application seeking reference to court under Section 18 of the Act would lie only where the land-holder is D aggrieved by the award made by the Land Acquisition Collector in regard to land acquired under the provisions of the Act, either with reference to quantum of compensation, or the measurements of the land, or the persons shown as being entitled to compensation. An application under section 18 of e the Act cannot be filed in regard to a land which was not acquired at all. The remedy of a land holder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation, or approach the High Court by filing a writ petition if the action can be shown to be F arbitrary, irrational, unreasonable, biased, malafide or without the authority of law, and seek a direction that the land should be acquired in a manner known to law. The appellant has chosen to follow the second course. The High Court was not therefore, justified in dismissing the writ petition on the ground G that the remedy was under section 18 of the Act. The order of the High Court, which is virtually a non-speaking order, apparently proceeded on the basis that appellant was seeking increase in compensatin for an acquired land. The matter

A therefore requires to be reconsidered by the High Court, on merits.

6. But that does not mean that the delay should be ignored or appellant should be given relief. In such matters, the person B aggrieved should approach the High Court, diligently. If the writ petition is belated, unless there is good and satisfactory explanation for the delay, the petition will be rejected on the ground of delay and laches. Further the High Court should be satisfied that the case warrants the exercise of the extra- C ordinary jurisdiction under Article 226 of the Constitution of the

India, and that the matter is one where the alternative remedy of suit is not appropriate. For example, if the person aggrieved and the State are owners of adjoining lands and he claims that the State has encroached over a part of his land, or if there is a simple boundary dispute, the remedy will lie only in a civil suit, D as the dispute does not relate to any highhanded, arbitrary or

unreasonable action of the officers of the State and there is a need to examine disputed questions relating to title, extent and actual possession. But where the person aggrieved establishes that the State had highhandedly taken over his land without E recourse to acquisition or deprived him of his property without authority of law, the landholder may seek his remedy in a writ petition. When a writ petitioner makes out a case for invoking the extra ordinary jurisdiction under Article 226 of the Constitution, the High Court would not relegate him to the F alternative remedy of a civil court, merely because the matter may involve an incidental examination of disputed questions of facts. The question that will ultimately weigh with the High Court is this : Whether the person is seeking remedy in a matter which ls primarily a civil dispute to be decided by a civil court, or G whether the matter relates to a dispute having a public law

element or violation of any fundamental right or to any arbitrary and high-handed action. (See the decisions of this court in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd - 2004(3) SCC 553 and Kisan Sahkari Chini Mills H Ltd. v. Vardan Linkers - 2008(12) SCC 500].

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PRADESH & ANR. [R.V. RAVEENDRAN, J.]

7. High Courts should also be cautious in entertaining writ A petitions filed decades after the dispossession, seeking directions for acquisition and payment of compensation. It is not uncommon for villagers to offer/donate some part of their lands voluntarily for a public purpose which would benefit them or the community - as for example, construction of an access B road to the village or their property, or construction of a village tank or a bund to prevent flooding/erosion. When they offer their land for such public purpose, the land would be of little or negligible value. But decades later, when land values increase, either on account of passage of time or on account of c developments or improvements carried out by the State, the land holders come up with belated claims alleging that their lands were taken without acquisition and without their consent.

When such claims are made after several decades, the State would be at a disadvantage to contest the claim, as it may not 0 have the records to show in what circumstances the lands were given/donated and whether the land was given voluntarily.

Therefore, belated writ petitions, without proper explanation for the delay, are liable to be dismissed. Be that as it may.

8. The High Court has not examined any of the relevant E questions. The High Court has dismissed the writ petition, after a pendency for seven years, by a short order on a baseless assumption about the existence of a non-existent alternative remedy.

9. We therefore allow these appeals, set aside the orders of the High Court and remit the matter to the High Court for fresh consideration and disposal of the writ petition in accordance with law. Nothing stated above shall be construed

as expression of any opinion on the merits of the matter. It is G open to the State to contest the matter on all ground available to it.

N.J.

Appeals allowed.