Chief Justice’s Court

Serial No. 46

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

***

WRIT – C No. 9642 of 2022

Ved Prakash Chauhan .... Petitioner

Through:- Mr. V.K. Jaiswal, Advocate

Vs.

State of U.P. and others .... Respondents

Through:- Mr. Ramanand Pandey, Additional Chief Standing

Counsel for respondent Nos. 1 and 4 and Ms. Anjali

Upadhya, Advocate for respondent Nos. 2 and 3

CORAM : HON’BLE RAJESH BINDAL, CHIEF JUSTICE

HON’BLE PIYUSH AGRAWAL, JUDGE

ORDER

RAJESH BINDAL, C.J.

1. The present writ petition has been filed by the petitioner

praying for quashing of the order dated April 29, 2019 passed by respondent

No.1, by which the application filed by the petitioner for release of his land,

in exercise of power under Section 48 of the Land Acquisition Act, 1894

1

was rejected. Further prayer has been made in the alternative to provide

benefits to the petitioner in terms of the Full Bench judgment of this Court in

Gajraj and others Vs. State of U.P. and others

2

.

THE FACT

2. Briefly, the pleaded facts are that the petitioner claims that he

was the owner of land measuring 0.9960 hectare, forming part of Khasra No.

649 situated in Village Gulistanpur, Pargana Dadri, Tehsil Sadar, District

Gautam Budh Nagar. The notification under Section 4 of the Act proposing

to acquire the aforesaid land was issued on September 5, 2007. It was

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2 Writ-C No. 9642 of 2022

followed by a notification issued under Section 6 of the Act invoking powers

under Section 17 of the Act, on February 27, 2008. Challenging the aforesaid

acquisition, the petitioner filed Civil Misc. Writ Petition No. 15845 of 2008.

The aforesaid writ petition along with a bunch of writ petitions led by Civil

Misc. Writ Petition No. 20156 of 2009, titled as Smt. Rajni and others Vs.

State of U.P. and others were decided by a common judgment by this Court,

dated May 30, 2011. The acquisition was quashed with reference to the

landowners, who had not accepted the compensation with liberty to the State

to follow the procedure in terms of Section 5-A of the Act. As far as the

landowners, who had accepted the compensation, liberty was granted to

them to file representations to the State Government for release of their land

under Section 48 of the Act. Such representations, if filed within one month,

were to be decided expeditiously. It is claimed that the petitioner filed the

representation dated June 24, 2011. As the same was not decided, the

petitioner filed a fresh writ petition bearing Writ-C No. 21192 of 2016 which

was disposed of vide order dated May 10, 2016 with a direction to

respondents therein to decide the representation filed by the petitioner. The

petitioner again submitted a reminder dated June 4, 2016 for decision of his

earlier representation. Vide impugned order dated April 29, 2019, the claim

of the petitioner for release of land in terms of Section 48 of the Act was

rejected. Further reference was made to the judgment of the Full Bench of

this Court in Gajraj’s case (supra), as confirmed by Hon’ble the Supreme

Court, wherein the landowners were directed to be given certain benefits in

addition to the compensation as assessed by the Land Acquisition Officer.

SUBMISSIONS

3. In the aforesaid factual matrix, the argument raised by learned

counsel for the petitioner was that the land having not been utilised and there

being violation of the procedural aspect with reference to the acquisition of

land whereby the petitioner had not been given opportunity to file objections

and the land having not been utilised, the same should have been released by

the State in exercise of powers under Section 48 of the Act.

3 Writ-C No. 9642 of 2022

4. It was further argued that, in the alternative, the petitioner being

similarly situated as were the landowners in Gajraj’s case (supra), he should

be given the benefits as were extended to the landowners in the aforesaid

Full Bench judgment of this Court.

5. On the other hand, learned counsel for the State submitted that

release of land or exercise of power under Section 48 of the Act is not a

matter of right vested with the landowners. It is merely a power given to the

State. In the case in hand, the claim of the petitioner was examined. He had

never been aggrieved of the acquisition as he had received the entire

compensation without any objection. It is even evident from the

representation filed by the petitioner where he undertook to return the

compensation received by him. The land having vested in the State free from

all encumbrances, cannot be released.

6. As far as the claim of the petitioner regarding grant of benefits

as were given to the landowners in the Gajraj’s case (supra) is concerned, the

same are not admissible to the petitioner for the reason that in his case, the

acquisition stood upheld vide judgment of this Court in Civil Misc. Writ

Petition No. 15845 of 2008, titled as Ved Prakash Vs. State of U.P. and

others, and he was and could not be a party to the litigation in Gajraj’s case

(supra). He was never aggrieved by the judgment in his case upholding the

acquisition as the same was not challenged any further.

7. It was further argued that for challenge to the order passed by

respondent No.1 – the Principal Secretary dated April 29, 2019, is otherwise

also highly belated, as the writ petition was filed nearly three years

thereafter.

8. Heard learned counsel for the parties and perused the paper

book.

ANALYSIS OF SUBMISSIONS AND PRECEDENTS

9. After hearing learned counsel for the parties, we do not find any

case is made out for interference in the present writ petition. Firstly, the

same deserves to be dismissed on account of delay and laches. The

4 Writ-C No. 9642 of 2022

impugned order was passed by the Principal Secretary on April 29, 2019.

The writ petition was filed in this Court nearly three years thereafter on

March 5, 2022.

10. As to whether a litigant is entitled for any relief in case he

invokes the jurisdiction of this Court after a huge delay is now well settled.

The consistent view is that the writ petition is liable to be dismissed on

account of delay and laches.

11. In P. S. Sadasivasway Vs. State of Tamil Nadu

3

, wherein it has

been laid down that a person aggrieved by an order of promoting a junior

over his head should approach the court at least within six months or at the

most a year of such promotion. It is not that there is any period of limitation

for the Courts to exercise their powers under Article 226 nor is it that there

can never be a case where the Courts cannot interfere in a matter after the

passage of a certain length of time, but it would be a sound and wise

exercise of discretion for the Courts to refuse to exercise their extraordinary

powers under Article 226 in the case of persons who do not approach it

expeditiously for the relief.

12. In New Delhi Municipal Council Vs. Pan Singh and others

4

, the

Court has opined that though there is no period of limitation provided for

filing a writ petition under Article 226 of the Constitution of India, yet

ordinarily a writ petition should be filed within a reasonable time. In the said

case the respondents had filed the writ petition after seventeen years and the

court, as stated earlier, took note of the delay and laches as relevant factors

and set aside the order passed by the High Court which had exercised the

discretionary jurisdiction.

13. In State of Uttaranchal and another Vs. Sri Shiv Charan Singh

Bhandari and others

5

, Hon'ble the Supreme Court, while considering the

issue regarding delay and laches observed that even if there is no period

prescribed for filing the writ petition under Article 226 of the Constitution of

India, yet it should be filed within a reasonable time. Relief to a person, who

3(1975) 1 SCC 152

4(2007) 9 SCC 278

52013 (6) SLR 629

5 Writ-C No. 9642 of 2022

puts forward a stale claim can certainly be refused on account of delay and

laches. Anyone who sleeps over his rights is bound to suffer.

14. In Chennai Metropolitan Water Supply and Sewerage Board

and others Vs. T. T. Murali Babu

6

, Hon'ble the Supreme Court opined as

under:-

"13. First, we shall deal with the facet of delay. In Maharashtra

State Road Transport Corporation v. Balwant Regular Motor

Service, Amravati and others, AIR 1969 SC 329, the Court

referred to the principle that has been stated by Sir Barnes

Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd,

Abram Farewall, and John Kemp, (1874) 5 PC 221, which is as

follows:-

"Now the doctrine of laches in Courts of Equity is not an

arbitrary or a technical doctrine. Where it would be

practically unjust to give a remedy, either because the

party has, by his conduct, done that which might fairly be

regarded as equivalent to a waiver of it, or where by his

conduct and neglect he has, though perhaps not waiving

that remedy, yet put the other party in a situation in which

it would not be reasonable to place him if the remedy

were afterwards to be asserted in either of these cases,

lapse of time and delay are most material. But in every

case, if an argument against relief, which otherwise

would be just, is founded upon mere delay, that delay of

course not amounting to a bar by any statute of

limitations, the validity of that defence must be tried upon

principles substantially equitable. Two circumstances,

always important in such cases, are, the length of the

delay and the nature of the acts done during the interval,

which might affect either party and cause a balance of

6(2014) 4 SCC 108

6 Writ-C No. 9642 of 2022

justice or injustice in taking the one course or the other,

so far as relates to the remedy."

15. In State of M. P. and others etc. etc. vs. Nandlal Jaiswal and

others etc. etc., AIR 1987 SC 251, the Court observed that it is

well settled that power of the High Court to issue an appropriate

writ under Article 226 of the Constitution is discretionary and

the High Court in exercise of its discretion does not ordinarily

assist the tardy and the indolent or the acquiescent and the

lethargic. It has been further stated therein that if there is

inordinate delay on the part of the petitioner in filing a petition

and such delay is not satisfactorily explained, the High Court

may decline to intervene and grant relief in the exercise of its

writ jurisdiction. Emphasis was laid on the principle of delay

and laches stating that resort to the extraordinary remedy under

the writ jurisdiction at a belated stage is likely to cause

confusion and public inconvenience and bring in injustice.

16. Thus, the doctrine of delay and laches should not be lightly

brushed aside. A writ court is required to weigh the explanation

offered and the acceptability of the same. The court should bear

in mind that it is exercising an extraordinary and equitable

jurisdiction. As a constitutional court it has a duty to protect the

rights of the citizens but simultaneously it is to keep itself alive

to the primary principle that when an aggrieved person, without

adequate reason, approaches the court at his own leisure or

pleasure, the court would be under legal obligation to scrutinize

whether the lis at a belated stage should be entertained or not.

Be it noted, delay comes in the way of equity. In certain

circumstances delay and laches may not be fatal but in most

circumstances inordinate delay would only invite disaster for

the litigant who knocks at the doors of the court. Delay reflects

inactivity and inaction on the part of a litigant “a litigant who

has forgotten the basic norms, namely, "procrastination is the

7 Writ-C No. 9642 of 2022

greatest thief of time" and second, law does not permit one to

sleep and rise like a phoenix. Delay does bring in hazard and

causes injury to the lis. ... A court is not expected to give

indulgence to such indolent persons who compete with

`Kumbhakarna' or for that matter 'Rip Van Winkle'. In our

considered opinion, such delay does not deserve any indulgence

and on the said ground alone the writ court should have thrown

the petition overboard at the very threshold."

15. In State of Jammu & Kashmir vs. R. K. Zalpuri and others

7

,

Hon'ble the Supreme Court considered the issue regarding delay and laches

in raising the dispute before the Court. It was opined that the issue sought to

be raised by the petitioners therein was not required to be addressed on

merits on account of delay and laches. The relevant paras thereof are

extracted below:-

"27. The grievance agitated by the respondent did not deserve to

be addressed on merits, for doctrine of delay and laches had

already visited his claim like the chill of death which does not

spare anyone even the one who fosters the idea and nurtures the

attitude that he can sleep to avoid death and eventually proclaim

"Deo gratias - thanks to God”.

28. Another aspect needs to be stated. A writ court while

deciding a writ petition is required to remain alive to the nature

of the claim and the unexplained delay on the part of the writ

petitioner. Stale claims are not to be adjudicated unless non-

interference would cause grave injustice. The present case, need

less to emphasise, did not justify adjudication. It deserves to be

thrown overboard at the very threshold, for the writ petitioner

had accepted the order of dismissal for half a decade and

cultivated the feeling that he could freeze time and forever

remain in the realm of constant present."

7(2015) 15 SCC 602

8 Writ-C No. 9642 of 2022

16. The aforesaid view was followed by Hon'ble the Supreme Court

in Union of India and others Vs. Chaman Rana

8

.

17. Subsequently, a Constitution Bench of Hon'ble the Supreme

Court in Senior Divisional Manager, Life Insurance Corporation Vs. Shree

Lal Meena

9

, considering the principle of delay and laches, opined as under:-

“36. We may also find that the appellant remained silent for

years together and that this Court, taking a particular view

subsequently, in Sheel Kumar Jain v. New India Assurance

Company Limited, (2011) 12 SCC 197 would not entitle stale

claims to be raised on this behalf, like that of the appellant. In

fact the appellant slept over the matter for almost a little over

two years even after the pronouncement of the judgment.

37. Thus, the endeavour of the appellant, to approach this Court

seeking the relief, as prayed for, is clearly a misadventure,

which is liable to be rejected, and the appeal is dismissed.”

18. Recently, in Bharat Coking Coal Ltd. and others Vs. Shyam

Kishore Singh

10

, the issue regarding the delay and laches, was considered by

Hon'ble the Supreme Court and a petition filed belatedly, seeking change in

the date of birth in the service record, was dismissed.

19. Relying on T. T. Murali Babu’s case (supra) and R. K. Zalpuri’s

case (supra), same view has been expressed by Hon’ble the Supreme Court

in Union of India and others Vs. N. Murugesan and others

11

, observing:

“We have already dealt with the principles of law that may have

a bearing on this case. … there was an unexplained and studied

reluctance to raise the issue .... Hence, on the principle

governing delay, laches … Respondent No. 1 ought not to have

been granted any relief by invoking Article 226 of the

Constitution of India.”

8(2018) 5 SCC 798

9(2019) 4 SCC 479

10(2020) 3 SCC 411

11(2022) 2 SCC 25

9 Writ-C No. 9642 of 2022

20. As far as the claim of the petitioner for grant of benefits in

terms of the Full Bench judgment of this Court in Gajraj’s case (supra) is

concerned, in our opinion, the same also deserves to be rejected. It is a case

in which, after the process of acquisition was complete and the award had

also been announced by the Land Acquisition Officer, challenge to the

acquisition was made. The issues were gone into by the Division Bench of

this Court vide judgment dated May 30, 2011 in Smt. Rajni and others’ case

(supra) and a bunch of writ petitions including the writ petition filed by the

petitioner, was decided. In the case of landowners who had not accepted the

compensation, the acquisition was quashed. However, for those who had

received the compensation, merely liberty was granted to them to file

representation to the State for release of the land under Section 48 of the Act.

It is undisputed case of the petitioner that he had received the compensation.

The judgment of this Court was not challenged any further. Meaning

thereby, it attained finality. Rather, the case set up by the petitioner is that in

pursuance of the aforesaid judgment, he filed representation to the State for

release of the land.

21. The notification vide which the land of the petitioner was

acquired, was not subject matter of consideration by the Full Bench of this

Court in Gajraj’s case (supra). Meaning thereby, neither the petitioner was

party to the litigation in Gajraj’s case (supra) nor the acquisition in question

was under consideration therein. The petitioner is merely seeking the

benefits as were given to the landowners in Gajraj’s case (supra). As to

whether the petitioner is entitled to the benefits given by the Full Bench in

Gajraj’s case (supra) was considered by a Division Bench of this Court in

Runwell India Pvt. Ltd. Vs. State of U.P. and others

12

, and it was opined that

the same is not to be taken as a precedent in terms of the observations made

by Hon’ble the Supreme Court in Savitri Devi Vs. State of U.P.

13

. The

relevant paragraphs therefrom is extracted below:-

“35. The grounds urged on behalf of petitioners for claiming

10% developed land subject to ceiling limit of 2,500 square

12Writ-C No. 14113 of 2017, decided on May 31, 2022

13(2015) 7 SCC 21

10 Writ-C No. 9642 of 2022

meters, though appears to be attractive at the first flush, but are

devoid of substance. The submission is that subsequent to the

Full Bench judgement of this Court in Gajraj's case (supra),

some of the land owners/tenure holders challenged the same

before the Supreme Court. All the Civil Appeals/Special Leave

Petitions were clubbed together and decided by a common

judgement dated 14.02.2015, as Savitri Devi's case (supra),

wherein, in paragraph no. 50, it has been held that in view of the

peculiar circumstances, the order passed by the High Court

would not form precedent for future cases. The observation

made in paragraph no. 50 in Savitri Devi's case (supra) reads as

under:-

“50. Keeping in view all these peculiar circumstances,

we are of the opinion that these are not the cases where

this Court should interfere under Article 136 of the

Constitution. However, we make it clear that directions

of the High Court are given in the aforesaid unique and

peculiar/specific background and, therefore, it would not

form precedent for future cases.” (emphasis supplied)

36. Subsequent to the judgment in Savitri Devi's case (supra),

the Supreme Court in Khatoon’s case (supra)

14

, while

considering the question as to whether the appellants therein are

entitled to claim additional abadi land in lieu of their acquired

land in terms of the judgement in Gajraj's case (supra) and

upheld in Savitri Devi's case (supra), has held as under:-

“49. That apart, there is no basis for the appellants to

press in service the principle underlined in Article 14 in

such cases for the simple reason that firstly, Article 14

does not apply to such cases; and secondly, there is no

similarity between the case of those landowners, who

filed the writ petitions and the present appellants, who

14(2018) 14 SCC 346

11 Writ-C No. 9642 of 2022

did not file the writ petitions. Though the High Court, in

Gajraj’s case (supra) decided the rights of both categories

of landowners but the cases of both stood on a different

footing. It is for these reasons, the appellants were not

held entitled to take benefit of condition No. 3 (a) and (b)

of the case of Gajraj (supra) which was meant for the writ

petitioners therein but not for the appellants. However,

the appellants were held entitled to take the benefit of

only condition No. 4 (a) and (b) of the said judgment and

which they did take by accepting the additional

compensation payable at the rate of 64.70%.

50. In our view, therefore substantial justice was done

to all the landowners including the appellants, as

observed in para 49 of Savitri Devi’s case (supra).”

22. For the reasons mentioned above, the petitioner is not even

entitled to the benefits as were extended to the landowners in Gajraj’s case

(supra).

23. As far as challenge to the order dated April 29, 2019 passed by

the Principal Secretary, rejecting the claim of the petitioner for release of

land under Section 48 of the Act is concerned, the provisions of Section 48

of the Act are extracted below:-

“48. Completion of acquisition not compulsory, but

compensation to be awarded when not completed. - (1) Except

in the case provided for in section 36, the Government shall be

at liberty to withdraw from the acquisition of any land of which

possession has not been taken.

(2) Whenever the Government withdraws from any such

acquisition, the Collector shall determine the amount of

compensation due for the damage suffered by the owner in

consequence of the notice or of any proceedings thereunder, and

shall pay such amount to the person interested, together with all

12 Writ-C No. 9642 of 2022

costs reasonably incurred by him in the prosecution of the

proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as

may be, to the determination of the compensation payable under

this section.”

24. A perusal of the aforesaid provision shows that the Government

is at liberty to withdraw from acquisition any land of which possession has

not been taken. In the case in hand, the notification under Section 4 of the

Act was issued on September 5, 2007, which was followed by a notification

issued under Section 6 of the Act invoking powers under Section 17 of the

Act, on February 27, 2008. It is evident from the impugned order that after

the process of acquisition was complete, the possession thereof was taken by

the State and was handed to the Greater Noida Development Authority on

March 19, 2008. It is further mentioned in the impugned order that the land

in question is situated in the middle of the acquired land and is part of the

planning. The challenge to the acquisition was made before this Court and

the acquisition was upheld by this Court. In terms of Section 16 of the Act,

the land stood vested in the State free from all encumbrances. It is the

undisputed case of the petitioner himself that he had received the

compensation of land, which he offered to return in case the land is released

from acquisition. The possession of the land was taken by the State

immediately after the process of acquisition was complete. Once the

possession of the land is taken, the release thereof in exercise of powers

under Section 48 of the Act may not be possible.

25. The issue as to what is meant by “possession of the land by the

State after its acquisition” has also been considered by a Constitution Bench

of Hon’ble the Supreme Court in Indore Development Authority Vs.

Manoharlal and others

15

. It is opined therein that after the acquisition of land

and passing of award, the land vests in the State free from all encumbrances.

The vesting of land with the State is with possession. Any person retaining

the possession thereafter has to be treated trespasser. When large chunk of

15AIR 2020 SC 1496

13 Writ-C No. 9642 of 2022

land is acquired, the State is not supposed to put some person or police force

to retain the possession and start cultivating on the land till it is utilized. The

Government is also not supposed to start residing or physically occupying

the same once process of the acquisition is complete. If after the process of

acquisition is complete and land vests in the State free from all

encumbrances with possession, any person retaining the land or any re-entry

made by any person is nothing else but trespass on the State land. Relevant

paragraphs 244, 245 and 256 are extracted below:

“244. Section 16 of the Act of 1894 provided that

possession of land may be taken by the State Government

after passing of an award and thereupon land vest free

from all encumbrances in the State Government. Similar

are the provisions made in the case of urgency in Section

17(1). The word "possession" has been used in the Act of

1894, whereas in Section 24(2) of Act of 2013, the

expression "physical possession" is used. It is submitted

that drawing of panchnama for taking over the possession

is not enough when the actual physical possession

remained with the landowner and Section 24(2) requires

actual physical possession to be taken, not the possession

in any other form. When the State has acquired the land

and award has been passed, land vests in the State

Government free from all encumbrances. The act of

vesting of the land in the State is with possession, any

person retaining the possession, thereafter, has to be

treated as trespasser and has no right to possess the land

which vests in the State free from all encumbrances.

245. The question which arises whether there is

any difference between taking possession under the Act

of 1894 and the expression "physical possession" used in

Section 24(2). As a matter of fact, what was contemplated

under the Act of 1894, by taking the possession meant

14 Writ-C No. 9642 of 2022

only physical possession of the land. Taking over the

possession under the Act of 2013 always amounted to

taking over physical possession of the land. When the

State Government acquires land and drawns up a

memorandum of taking possession, that amounts to

taking the physical possession of the land. On the large

chunk of property or otherwise which is acquired, the

Government is not supposed to put some other person or

the police force in possession to retain it and start

cultivating it till the land is used by it for the purpose for

which it has been acquired. The Government is not

supposed to start residing or to physically occupy it once

possession has been taken by drawing the inquest

proceedings for obtaining possession thereof. Thereafter,

if any further retaining of land or any re-entry is made on

the land or someone starts cultivation on the open land or

starts residing in the outhouse, etc., is deemed to be the

trespasser on land which in possession of the State. The

possession of trespasser always inures for the benefit of

the real owner that is the State Government in the case.

xxxx

256. Thus, it is apparent that vesting is with possession

and the statute has provided under Sections 16 and 17 of

the Act of 1894 that once possession is taken, absolute

vesting occurred. It is an indefeasible right and vesting is

with possession thereafter. The vesting specified under

Section 16, takes place after various steps, such as,

notification under Section 4, declaration under Section 6,

notice under Section 9, award under Section 11 and then

possession. The statutory provision of vesting of property

absolutely free from all encumbrances has to be accorded

full effect. Not only the possession vests in the State but

all other encumbrances are also removed forthwith. The

15 Writ-C No. 9642 of 2022

title of the landholder ceases and the state becomes the

absolute owner and in possession of the property.

Thereafter there is no control of the landowner over the

property. He cannot have any animus to take the property

and to control it. Even if he has retained the possession or

otherwise trespassed upon it after possession has been

taken by the State, he is a trespasser and such possession

of trespasser enures for his benefit and on behalf of the

owner.” (emphasis supplied)

26. Keeping in view the above enunciation of law by Hon’ble the

Supreme Court in Indore Development Authority’s case (supra), in the case

in hand, on the undisputed facts on record, it can safely be opined that in the

present case, the acquisition proceedings stood completed. The award was

announced, the compensation was received by petitioner, possession was

taken by the State, hence the land vested in the State free from all

encumbrances. Hence, no occasion arises for invocation of Section 48 of the

Act for release of the land.

Conclusion

27. For the reasons mentioned above, the writ petition lacks merit

and is, accordingly, dismissed.

(Piyush Agrawal, J.) (Rajesh Bindal, C.J.)

Allahabad

May 4, 2022

AHA

Whether the order is speaking : Yes/No

Whether the order is reportable : Yes/No

√/No