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CASE NO.: Appeal (civil)  1081 of 2008

PETITIONER: Swaika Properties Pvt. Ltd. & Anr.

RESPONDENT: State of Rajasthan & Ors.

DATE OF JUDGMENT: 07/02/2008

BENCH: ASHOK BHAN & DALVEER BHANDARI

JUDGMENT: J U D G M E N T [Arising out of S.L.P.(C)No.16910 of 2006]

ASHOK BHAN, J.

1.      Leave granted. 2.      Challenge in the present appeal is to the order passed on 04th September 2006 in D.B .  Special Appeal (W) No.134 of 2006 by a Division Bench of the High Court of Rajasthan  dismissing the appeal filed by the appellants whereby the Division Bench has upheld the  judgment and order passed by a learned Single Judge of the same High Court dismissing  the writ petition filed by the appellants thereby upholding the acquisition proceedings in  respect of the land of the appellants. 3.      In order to appreciate the grievance of the appellants, facts leading to the filing  of the  appeal are necessary to be indicated. 4.      Notice under Section 52(2) [which is equivalent to Section 4 of the Land Acquisition   Act, 1894] of the Rajasthan Urban  Improvement Act 1959 (for short, ’the Act’) was  issued on  

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 2 - 25th June 1975 for acquiring the land of the appellants bearing Khasra No.383 measuring  14 bighas and 16 biswas situated at Madrampura, Jaipur, Rajasthan.  As per the said  notice, land was sought to be acquired for improvement and purposes of Jaipur Town \026  extension of Civil Lines Area for construction of buildings.  On 23rd August 1975, another  notice was issued by the State under Section 52(2) of the Act indicating the purpose of  acquisition of land for extension of civil lines and planning of housing scheme.   Appellants, on 08th September 1975, filed objections to the acquisition of their land.  The  appellants also submitted their representation from time to time.  The Land Acquisition  Officer, however, rejected the objections.  On 08th February 1984, the Government issued  declaration under Section 52(1) of the Act [which is equivalent to Section 6 of the Land  Acquisition Act, 1894].  Pursuant to the said declaration, notice under Section 52(5) of the   Act was issued asking the appellants to hand over possession of the land.   5.      After these notices were issued, the appellants filed Writ Petition No.5972 of 1984  before the High Court of Calcutta.  A learned Single Judge of the High Court of Calcutta,  while issuing rule nisi, granted stay of the acquisition proceedings and restrained the  respondents from taking possession of the land.  Aggrieved against the said order the  respondents filed Special   Leave   Petition   before   this  Court,  inter  alia,  

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 3 - challenging the jurisdiction of the Calcutta High Court to entertain the writ petition.   Since the Special Leave Petition was filed against an interim order, this Court did not go  into the merits of the case and while granting leave, by order dated 08th April 1985, set

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aside the order of the Calcutta High Court and held that the Calcutta High Court did not  have the territorial jurisdiction to entertain the writ petition in respect of a land situat ed  in the State of Rajasthan.  Thus, the proceedings before the Calcutta High Court came to  an end.  6.      On 17.02.1987, possession of the land in question is alleged to have been taken by t he  respondents and the same was handed over to Jaipur Development Authority.  However,  according to the the appellants, possession was not taken.  7.      The appellants filed Writ Petition No.1507 of 1987 in the High Court of Rajasthan  which was withdrawn by them on 10th March 1989 with liberty to file a fresh writ  petition.   8.      On 26th June 1989, the Land Acquisition Officer passed the award and forwarded the  same for approval to the State Government.  According to the respondents, the State  Government accorded its approval on 29th July 1989 which was declared by the Land  Acquisition Officer on 30th July 1989 in accordance with law. 9.      In the meantime, the appellants filed S.B.Civil Writ Petition No.2911 of 1989 seekin g  quashing of Notification dated 08th February 1984 and  also  notice dated 17th/18th  February 2007  

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 4 - by which the possession is alleged to have been taken.  One of the objections taken by the  respondents before the High Court was that the writ petition could not be entertained  after  taking over of the possession of the land and handing over the same to Jaipur  Development Authority and the award having been passed in respect of the said land in  accordance with law.  It was also alleged that the award was not the subject-matter of the  writ petition.  It was also pointed out that the appellants were simultaneously pursuing  Reference Application for enhancement of compensation.  Ultimately, a learned Single  Judge of the High Court of Rajasthan, accepting the submissions of the respondents,  dismissed the writ petition holding that the there was a genuine public purpose behind  initiating the acquisition proceedings.   10.     Being aggrieved, the appellants carried the matter in appeal before the Division Ben ch  of the High Court of Rajasthan.  The Division Bench, agreeing with the view taken by the  learned Single Judge, dismissed the appeal and held that since the  appellants had filed an  application under Section 18 of the Land Acquisition Act, 1894 for enhancement of the  compensation they are not entitled to  the relief sought for in the writ petition.  The said   order is under challenge before us. 11.     A preliminary objection has been taken by the respondents  to  the  effect  that  th e   appeal  is liable to be  

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 5 - dismissed on the ground of the delay on the part of the appellants to challenge the  acquisition proceedings.  It is also submitted that the acquisition of the land cannot be  challenged after taking over of the possession and after the award having become final.   In support of this submission, the respondents have relied upon a number of judgments of  this Court. 12.     Counsel for the appellants, however, strenuously contended that there was no delay o n  the part of the appellants in filing the writ petition challenging the acquisition  proceedings.  He submitted that soon after the notice under Section 52(5) was issued by  by the respondents, the appellants filed writ petition before the High Court of Calcutta  which stood dismissed pursuant to an order of this Court, as noted above.  Thereafter the  appellants filed another writ petition before the High Court of Rajasthan which was  withdrawn.  Within a period of four months thereof, i.e., on 05th July 1989, another writ  petition bearing No.2911 of 1989 was filed.  Counsel also submitted that these acts of the  appellants demonstrate that there was no delay on the part of the appellants to seek  redressal of their grievance.  It was contended that actual possession of the land was never  

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taken by the respondents on 17th/18th February 1987. 13.     We do not find any substance in the submissions of the counsel for the appellants.   No  doubt, the appellants had filed  

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 6 - a writ petition before the Calcutta High Court challenging the acquisition proceedings,  but the said writ petition was dismissed by this Court on 08th April 1985 holding that the  Calcutta High Court did not have the territorial jurisdiction to entertain the writ  petition.  Thereafter, till 1987 the appellants did not challenge the acquisition proceeding s  and the  writ petition was filed by it before the Rajasthan High Court which had the  territorial jurisdiction in the matter and the same was withdrawn which was again filed  within the next four months thereof, meaning thereby, during the interregnum the  appellants slept over the matter.   However, the appellants have not been able to give any  explanation for the same.  Insofar as the contention regarding the possession having not  been taken is concerned, the respondents submit that the possession of the land in dispute  has already been taken.  Be that as it may, the award in respect of the land having  become final, the State Government is vested with the powers to take possession of the  land concerned and, therefore, there is no reason to disbelieve the claim of the State  Government that the possession had been taken before the filing of the writ petition.   Moreover, the appellants sought enhancement of compensation by filing reference  application under Section 18 of the Land Acquisition Act, 1894.  Simultaneously, the  appellants filed writ petition before the High  Court  of Rajasthan after passing of the  award.   

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 7 - This Court has repeatedly held that a writ petition challenging the notification for  acquisition of  land, if filed after the possession having been taken, is not maintainable.  In  the case of Municipal Corporation of Greater Bombay v. Industrial Development  Investment Co. Pvt. Ltd. & Ors. (1996) 11 SCC 501 where K. Ramaswamy, J. speaking  for a Bench consisting of His Lordship and S.B. Majmudar, J. held :

"It is thus well-settled law that when there is inordinate delay in filing the  writ petition and when all steps taken in the acquisition proceedings have  become final, the Court should be loath to quash the notifications.  The High  Court has, no doubt, discretionary powers under Article 226 of the  Constitution to quash the notification under Section 4(1) and declaration  under Section 6.  But it should be exercised taking all relevant factors into  pragmatic consideration.  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 case is hardly a ground for interference.  The Division Bench of the High  Court was not right in interfering with the discretion exercised by the  learned Single Judge dismissing the writ petition on the ground of laches."

14.     In the concurring judgment, S.B. Majmudar, J. held as under :

"..... Such a belated writ petition, therefore, was rightly rejected by the  learned Single Judge on the ground of gross delay and laches.  The  respondent-writ petitioners can be said to have waived their objections to   the  acquisition  on  the  ground  of extinction of  

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 8 - public purpose by their own inaction, lethargy and indolent conduct.  The  Division Bench of the High Court had taken the view that because of their

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inaction no vested rights of third parties are created.  That finding is  obviously incorrect for the simple reason that because of the indolent conduct  of the writ petitioners land got acquired, award was passed, compensation  was handed over to various claimants including the landlord.  Reference  applications came to be filed for larger compensation by claimants including  writ petitioners themselves.  The acquired land got vested in the State  Government and the Municipal Corporation free from all encumbrances as  enjoined by Section 16 of the Land Acquisition Act.  Thus right to get more  compensation got vested in diverse claimants by passing of the award, as well  as vested right was created in favour of the Bombay Municipal Corporation  by virtue of the vesting of the land in the State Government for being handed  over to the Corporation.  All these events could not be wished away by  observing that no third party rights were created by them.  The writ petition  came to be filed after all these events had taken place.  Such a writ petition  was clearly stillborn due to gross delay and laches. ...."

15.     Similarly, in the case of State of Rajasthan & Ors. v. D.R. Laxmi & Ors. (1996) 6 SC C  445 following the decision of this Court in the case of  Municipal Corporation of Greater  Bombay (supra) it was held :

".... 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 case, is hardly a  ground for interference.  The Division Bench of the High Court was not right  in interfering with the discretion exercised by the learned Single Judge  dismissing the writ petition on the ground of laches. ...."

S.L.P.(C)No.16910 of 2006 ..... (contd.) - 9 - 16.     To the similar effect is the judgment of this Court in the case of Municipal Council ,  Ahmednagar & Anr. v. Shah Hyder Beig & Ors. (2000) 2 SCC 48 this Court, following  the decision of this Court in the case of C. Padma v. Dy. Secy. to the Govt. of T.N. (1997)  2 SCC 627 held :

"In any event, after the award is passed no writ petition can be filed  challenging the acquisition notice or against any proceeding thereunder.   This has been the consistent view taken by this Court and in one of the recent  cases (C. Padma v. Dy. Secy. to the Govt. of T.N.) ...."

17.     In the present case also, the writ petition having been filed after taking over the  possession and the award having become final, the same deserves to be dismissed on the  ground of delay and laches.  Accordingly, the order of the learned Single Judge and that  of the Division Bench are affirmed to the extent of dismissal of the writ petition and the  special appeal without going into the merits thereof.  This appeal also deserves to be  dismissed without going into the merits of the case and is dismissed as such.  No costs.