DAU DAYAL Vs. STATE OF UTTAR PRADESH
LAWS(ALL)-1965-4-3
HIGH COURT OF ALLAHABAD
Decided on April 27,1965

DAU DAYAL Appellant
VERSUS
STATE OF UTTAR PRADESH Respondents





Cited Judgements :-

V RAJENDRAN VS. GOVERNMENT OF TAMIL NADU [LAWS(MAD)-2011-1-78] [REFERRED TO]
Surajmal VS. State of Rajasthan [LAWS(RAJ)-1973-4-7] [REFERRED TO]
RAM NARAIN SINGH VS. STATE OF BIHAR [LAWS(PAT)-1977-8-9] [REFERRED TO]
NAROTTAM DUTT VS. STATE OF HARYANA [LAWS(P&H)-1973-8-51] [REFERRED]


JUDGEMENT

Asthana, J. - (1.)THE petitioners are the enure holders of plots No. 74,.99 acres in area and Nos. 58, 59 and 73, 2.6 acres in area situate in mauza Hamirpur, Pargana Hamirpur, district Hamirpur. It appears that the said plots lie almost in the abadi of Hamirpur Town. A Co-operative Society known as the Co-operative Housing Society Limited has been formed by certain persons whose object is to construct residential houses for its members on no profit, no loss basis. THE said society applied to the State Government to acquire land for it for the purpose of fulfilling its object of constructing houses. By a notification under Sub-section (1) of Section 4 of the Land Acquisition Act, 1894, dated July 8, 1957 published in the Utter Pradesh Gazette, dated 13th July 1957, the Collector of Hamirpur notified for general information that the abovesaid plot No. 74,.99 acres in area was needed for a public purpose. This notification against the heading 'for what purpose required' mentioned for construction of buildings by Cooperative Housing Society Limited, Hamirpur. A similar notification with regard to the above-said plots numbers 58, 59 and 73, dated 9-1-1957 was published in the Utter Pradesh Gazette, dated 19-1-1957. THE Co-operative Society being a company within the meaning of Land Acquisition Act, proceedings were taken by the State Government under Part VII of that Act. On enquiries made by the Collector certain recommendations were made, a draft agreement as required by the provisions of Part VII was prepared and executed. THEn in the Uttar Pradesh Gazette, dated 18-8-1961 the said agreements were published. In the gazette of the same date two notifications under Section 6 of the Land Acquisition Act were published, one in respect of plot No. 74,.99 acres in area, and the other in respect of plots numbers 58, 59 and 73, 2.6 acres in area. In these notifications it was declared that the land was needed for public purpose. THEre was no mention in either of the notification that the land was needed for a company. Again in both the notifications against the heading 'for what purpose required' it was mentioned "for the construction of building by Cooperative Housing Society Ltd.". THEre is nothing on the record before me as to what further proceedings were carried on in regard to the acquisition. THE petitioner filed the present writ petition on 15-2-1964 before this Court challenging the acquisition proceedings in regard to plot No. 74 and the other three plots Nos. 58, 59 and 73. In paragraph 9 of the petition it was stated that the petitioners have received no notice under Section 9 of the Land Acquisition Act so far but the respondents, that is, the State of Uttar Pradesh and the Collector of Hamirpur the Land Acquisition Officer and the Co-operative Housing Society Limited threatened to take the land of the petitioners in pursuance of the aforesaid acquisition proceedings. From these allegations in the petition it appears that the petitioners came to this Court when they found that the authorities were taking steps to dispossess them. THE acquisition has been challenged by the petitioners on the ground that the acquisition proceedings were wholly ultra vires of the Land Acquisition Act; that the acquisition was bad as the provisions of Sub-section (5) of Section 41 were not complied with; that the acquisition was neither for public purpose nor was it useful to the public, and it merely amounted to the compulsory transfer of the ownership of the land of the petitioners to some other private persons. Later on an application was filed raising further grounds of law which has been granted THE further grounds which have been raised arc that the notifications under Section 6 of the Laud Acquisition Act show the acquisition of the land for public purpose and since no part of the compensation has come from the State the notifications were bad in law; that the acquisition in effect being for the company the provisions of Part VII or the Act not having been complied with, the acquisition was bad, and that the Collector had no power to issue a notification under Section 4 of the Land Acquisition Act, it was for the State Government to issue that notification, thus all the proceedings in regard to the acquisition are bad in law.
(2.)IN the counter affidavit which has been filed on behalf of the State it has been asserted that the land acquired was needed for the company, that is, for the Co-operative Housing Society Limited, Hamirpur, which is engaged in a work which would prove beneficial and useful to the general public. It is accepted by the State Government that whole of the amount of compensation would be paid by the said Society together with all the other expenses and costs incurred in connection with the acquisition proceedings. The suggestion that the notifications under Sections 4 and 6 of the Act were ultra vires or invalid hag been refuted. It is also asserted that all the necessary requirements of Part VII of the Land Acquisition Act have been complied with. On behalf of the Society in the counter affidavit it is asserted that in the housing scheme there is provision of a children park and a library and other amenities which would be useful to the public. A plea has also been raised in the counter-affidavit on behalf of the Society that the petition has been filed in this Court after undue delay and the petitioner is guilty of laches. A technical plea has also been raised that the petition is incompetent as it is not open to the petitioner to challenge two separate acquisitions by one writ petition. Some other assertions have also been made in the counter affidavit on behalf of the Society on the same line as those contained in the counter affidavit filed on behalf of the State.
I have heard Sri Daya Shankar Srivastava holding the brief of Sri S. C. Khare on behalf of the petitioner, Sri V. K. S. Chaudhry on behalf of the Co-operative Housing Society Limited. Hamirpur, opposite party No. 4 and Sri Gopi Nath, Junior Standing Counsel on behalf of the State, Collector of Hamirpur and the Land Acquisition Officer, Hamirpur, opposite parties 1, 2 and 3, respectively. Before I consider the material grounds of attact raised on behalf of the petitioner impugning the validity of the acquisition proceedings I think it proper to dispose of certain objections raised on behalf of the Co-operative Society, opposite party No. 4 which are of a preliminary nature.

It was contended that one petition was incompetent as the State had taken two separate proceedings for the acquisition of the lands of the petitioner which is borne out by two separate notifications issued under Section 4 of the Land Acquisition Act and corresponding separate notifications under Section 6 of that Act. The learned counsel for the petitioner conceded that two separate petitions ought to have been filed but submitted that in accordance with the practice followed in this Court at the time when this petition was filed the petitioners were advised to file one petition challenging both the acquisition proceedings inasmuch as the parties, the facts and the grounds on which the challenge was based was the same in both the cases The learned counsel to meet the technicality of the taw as now laid down by this Court has further deposited court-fee stamp worth Rs. 50 which has been accepted by me. Thus the court-fee which has been paid now amounts to Rs. 100 which is sufficient for two separate writ petitions. Since the case of the petitioner for challenging the acquisition proceedings separately taken by the Government is a common case I have dispensed with the formality of filing a separate petition. This objection on behalf of the opposite parties, therefore, is no longer effective.

(3.)AS to the objection that the petition has been filed almost a year after the publication of the notifications under Section 6 of the Act and no sufficient cause has been made out explaining the delay, I am of the view that this objection has no substance. In such matters it should always be borne in mind that there is no rule of law laying down any period of limitation for filing of petitions under Article 226 of the Constitution. The question of delay or laches is only one of the circumstances which this Court while exercising its discretion under Article 226 of the Constitution takes into consideration. Again it may be observed that whether in a particular case the petitioner forfeits the exercise of discretion in its favour on account of laches or undue delay would depend on the peculiar circumstances of that case, nature of the executive action prejudicing its rights and the nature of the relief which this Court can give under Article 226 of the Constitution. I am not aware of any hard and fast rule laid down in this respect by this Court or by the Supreme Court which is applicable universally in all circumstances. The learned counsel for the Society takes the starting point from the date of the publication of the notification under Section 6 of the Land Acquisition Act. The effect of a notification under Section 6 is that a declaration is made that he land is needed either for public purpose or for a company and nothing more. Though such a notification would cast a cloud on the future right of the person whose land is needed and to a limited extent affect his right of transfer or otherwise to deal with that land but it offers 10 impediment with his rights of property for keeping that land in his possession and enjoying its benefits. I do not think I can blame a citizen if he does not rush to the Court immediately or soon after the publication of a notification under Section 6 of the Land Acquisition Act for it may even be withdrawn. After the publication of a notification under Section 6 of the Act many other proceedings as provided under the Act have to be gone into and completed before the title of the person affected is extinguished. The person whose land is the subject-matter of such a notification can wait till his title is extinguished or till any overt action takes place on the part of the State or its officers amounting to interference with his rights of possession. AS already pointed out above the petitioners have averred that though no notice under Section 9 of the Act has been served upon them the opposite parties threatened to disturb their possession on the disputed plots of land. It is clear from this averment that the petitioners came to the Court when they found that the opposite parties were ready to take overt action amounting to interference with his rights of property. It is not disputed by the learned Junior Standing Counsel that no proceedings under Section 9 of the Act had yet been completed in connection with the impugned acquisition. It is not a case in which recourse was taken to the provisions of Section 17 of the Land Acquisition Act requiring the Collector to take possession before announcing the award. Viewed from this point it can be said that when the petitioner came to this Court in February 1962 there was no actual interference with any of his rights of possession over the disputed plots and he could afford even to wait further till he was asked to deliver possession and that could not have been done till proceedings under Section 9 had been completed after service of notice to the petitioner which admittedly had not been done till February 1962 when this petition was filed. Moreover, it would be seen that under the provisions of the Land Acquisition Act the land acquired does not vest in the State or in the company till the stage is reached when the Collector under Section 16 of the Act gets the power to take possession of the land acquired which thereupon vests absolutely in the Government. The Collector is empowered to take possession only when he has made an award under Section 11 of the Act. No award was made admittedly under Section 11 of the Act in connection with the impugned acquisition even till February 1962 when this petition was presented before the Court. The title in the disputed plots still vested in the petitioner. He came to this Court in order to protect his rights, when he found that threat to his right of possession and quiet] enjoyment was imminent and real. There is no material before me showing that earlier than few months before February 1962 any overt action was taken by the opposite parties which would have amounted to interference with any of the rights of possession of the petitioner in the disputed plots and he kept silent without doing anything.
The learned counsel for the opposite party then put his argument on the footing that me petitioner seeks to have the impugned notifications under Section 6 of the Act quashed and therefore, the petitioner ought to have approached this Court within a reasonable time of the publication of those notifications. The petition before me is actually not a petition bringing up the record of any case for being quashed by a writ of certiorari. The petitioner, in my opinion, can obtain effective relief without this Court actually quashing the impugned notifications. As far as I can see the use of the word 'quash' in respect of such notifications is not quite appropriate if the meaning to be given to that word in this connection is what it bears in the sphere of law of certiorari. It is sufficient for the petitioner to demonstrate before this Court that the notifications were illegal or bad in law and his rights in the disputed plots could not be extinguished or interfered with in pursuance of those notifications. The effective relief which he would get would be in the nature of mandamus or direction that the opposite parties shall not take any further action in pursuance of those notifications which have been found to be in law so as to affect the right and title of the petitioner in the disputed plots. Right of the petitioner would be effectively safeguarded if this Court issues a direction commanding the opposite parties not to take any further proceedings based on the impugned notifications under the Act and not to disturb the possession of the petitioner in respect of the disputed plots. The petitioner is entitled to protect himself from any threatened or future injury to his rights at the hands of the opposite parties on the basis of the impugned notifications which he contends are illegal and bad in law. Nothing therefore turns on the question that the petitioners seek to have the impugned notifications quashed and they have come to this Court for seeking that relief after undue delay. I, therefore, disagree with the contention of the learned counsel for the opposite party No. 4 that the petitioners are guilty of laches and should not be heard by this Court and this petition should be thrown out on that score alone.

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