SYED MAQBOOL ALI v.

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

APRIL 04, 2011 [R.V. Raveendran and A.K. Patnaik, JJ.]

[2011] 4 SCR 238

The Order of the Court was delivered by

O R D E R

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

2. Certain lands in village Sarai Badli and Ibrahimpur, Danda, Pargana  

Kora, District Fatehpur, UP, were acquired 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 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  Ibrahimpur  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 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 Addl. District  Magistrate (Land Acquisition) informed that there  

was  a possibility  of  the  acquired  lands being  left  out  and the  road 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 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 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 Acquisition Act, 1894 (‘Act’ for short), if he wanted enhancement  

of compensation. The review petition filed by the appellant was 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 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 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 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 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  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  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 compensation for an acquired land. The  

matter 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  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-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, 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  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 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 is  

primarily a civil dispute to be decided by a civil court, or 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   

Ltd. v. Vardan Linkers – 2008(12) SCC 500].

7. High Courts should also be cautious in entertaining writ 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 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  

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 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 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 open to the State to contest the matter on all ground available to it.