BERI, C. J. - (1.) THESE 17 appeals are directed against an order of the learned Single Judge who had dismissed the writs petitions wherein the validity of the Land Acquisitions Act and the acquisitions made thereunder were challenged.
(2.) WITHIN the Municipal limits of Jaipur there are two villages named Bhojpura and Chak Sudershanpur. Lands belonging to the appellants were notified for acquisition by the State of Rajasthan for the planned development of the city of Jaipur at the behest of the Urban Improvement Board (abbreviated as 'u. IB. ') Jaipur. On 29-7-1959 the Chairman of the U. I. B. visited the site accompanied by the Land Acquisition Officer Mr. K. G. Gupta and passed verbal orders that steps be taken for its acquisition. On December 8, 1959 the Secretary, Local Self Government, was requested to issue a notification under sec. 4 of the Rajasthan Land Acquision Act, 1953 (hereinafter called "the Acquisition Act". A notice under sec. 4 of the Acquisition Act was issued on May 13, 1953, which was published in the Rajasthan Rajpatra on June 9, 1960. No objection was made under sec. 5a disputing the existence of the public purpose as notified in sec. 4 of the Acquisition Act. Accordingly a notification under sec. 6 of the Acquisition Act was published in the Rajasthan Rajpatra on May 11, 1961. Soon thereafter on July 18, 1961 notices under sec. 9 of the Acquisition Act were issued to the persons interested. 65 claims were presented before the Land Acquisition Officer including the one by the predecessor-in-title of the appellant Surajmal. The Officer made an award on January 9, 1954 which is Ex. R. 3 on the record. It was amended on July 9, 1964. Early in 1977 notices were issued to the appellants to take compensation, hand over the possession and further to take possession of such parcels of land which were allotted to some of them. This is Ex. 3 in Surajmal's case. Similar notices were issued in other cases. Etitions under Art. 226 of the Constitution of India were presented challenging the notifications issued under secs. 4, 6 and 9 of the Acquision Act mainly because they were violative of the fundamental rights of the petitioners. In the pEtitions, from which appeals No. 323 and 324 of 1971 are before us, even the Award Ex. R. 3 given by the Land Acquisition Officer was assailed and sought to be quashed. The State of Rajasthan and the U. I. B. , which had by then become the Urban Improvement Trust, by their joint answer, while admitting the salient facts regarding the issuing of notifications, contested each and every ground raised by the petitioners. They advanced additional pleas against the petitioners on the grounds of delay, estoppel and res judicata. The learned Single Judge found that the petitioners were guilty of inordinate delay and that there was no reasonable ground to condone the same. Holding that the writ petitions could be dismissed on this score alone, he however examined the contentions of the petitioners and held that there was no force in the plea that the acquisition of the petitioners' lands should have been made under the Rajasthan Urban Improvement Act (here in after called 'the Improvement Act') rather than under the Acquisition Act because the acquisition proceedings were commenced before the Urban Improvement Trust, Jaipur was constituted. For the same reason he rejected the argument that advantageous compensation under the Improvement Act was available to the petitioners. Repelling the arguments advanced on behalf of the petitioners that the State had practised discrimination in the matter of acquisition vis-a-vis certain influential persons, the learned Single Judge observed that those persons were not similarly situated. He also opined that what the State needed was the lands for the planned development of the city of Jaipur and not the area where the houses were situated. The plea of the petitioners that the State had given favourable treatment to certain persons not only by giving them lands but also loans to construct the building was rejected on the ground that there was no conscious discrimination. The argument that the notifications under secs. 4 and 6 of the Acquisition Act were invalid because they were signed by the Secretary not belonging to the Department of Revenue as required by the rules of business framed under Art. 166 (3) of the Constitution of India, was repelled by the learned Single Judge on the ground that there was a circular issued by the Chief Secretary pursuant to a decision of the Cabinet that the notifications relating to the acquisition may be signed by the department concerned and because the U. I. B. was supervised by the Local Self Government the notifications were properly signed by the Secretary, Local Self Government. This was also correct on the principles of joint responsibility. As a result the learned Single Judge dismissed the petitions on merits as well. He, however, partly allowed writ petitions Nos. 150, 188 and 182 of 1970 on the ground that the Khasra numbers of the lands relating to these writ petitions were not mentioned in the Notification under sec. 4 of the Acquisition Act. Writ petition No. 1719 of 1970 was allowed because the notices in this case were issued against Naga who was already dead at the time of the issuance of the notice. Excepting to this extent all the petitions were dismissed. Out of the 28 petitioners 17 have preferred these special appeals and as the arguments raised are common we propose to dispose them together by one judgment. Mr. R. K. Garg, appearing for the appellant No. 310/61, urged that there was no delay in presenting the petitions because what was sought to be protected was right to possess which was threatened on 7-1-1970; that the notification under sec. 4 was a mere proposal; that the one under sec. 6 was only a declaration and both could be undone by recourse to the provisions of sec. 48 of the Acquisition Act. He further relied on Government's letter dated 12-10-1964 which suspended the progress of the process of acquisition and lastly he urged that there could be no waiver of the fundamental rights and thus there could be no delay in the presentation of the petitions which were based on their violation. Mr. S. M. Mehta adopted Mr. Garg's arguments and added that the learned Single Judge having examined the petition on merits the plea of delay lost its force Reliance was placed by both the learned counsel on State of Madhya Pradesh vs. Bhailal Bhai (l); Tilokchand Motichand vs. H. B. Munshi (2); Kamlabai vs. T. B Desai (3); Union of India vs. Kamlabhai (4); Dau Dayal vs. State of U. P. 5) Dalpathbhai Hemchand vs. Chansma Muncipality (6); E. & T. Agencies vs. S. I Trust (7); Dinshaw vs. State of Hyderabad (6); Appa Rao vs. Secy of State (9); Neelkanth Mali vs. Jagannath Singh (lo) and Rukhmabai vs. Laxminarayan (ll ). Mr. S. K. Tiwari, learned counsel for the respondents, supported the judgment of the learned Single Judge and urged that even if we were to count the period from the date of the notification under sec. 6, namely, May 11, 1961, the petitions would be barred by time under Art. 120 of the old Limitation Act, which is the extreme limit as laid down in Tilokchand's case (2 ). He invited our attention to 'rabindra Nath vs. Union of India (12); Durga Prasad vs. Chief Controller, I. & E. (13) and laid stress on certain passages of Madhya Pradesh vs. Bhailal Bhai (l); I. M. Patel vs. Ahmedabad Municipality (14); Mohd. Habibullah vs. Spl. Dy. Collector (15) Tirthalal De vs. The State of West Bengal (16) and Kamini Kumar vs. State of West Bengal (17 ). He also urged that no benefit could be derived by the appellants on account of the letter dated 12-10-1964 because it was not communicated to any of the appellants. He placed reliance on Simpsons Motor Sales (London) Ltd. vs. Hendon Corporation (18) and Simpsons Motor Sales (London) Ltd. vs. Hendon (19 ). The first question which, therefore, falls for our decision is one of delay in the presentation of the petitions from which these 17 appeals arise. In order to appreciate the rival contentions a recall of the relevant dates will be useful. The notification under sec. 4 of the Acquisition Act (Ex. 1) was published on June 9, 1966. Survey of the land in question was made thereafter but we do not know the exact date. No objection was filed under sec. 5a of the Acquisition Act by any of the appellants questioning the public purpose. The notification under sec. 6 of the Acquisition Act (Ex. 2) was published on May 11, 1961. The notification under sec. 9 of the Acquisition Act to the persons interested was sent on July 18, 1961. 65 claims were filed including the one by the predecessor-in-title of Surajmal appellant. In the notification under sec. 9 the Land Acquisition Officer, Public Works Department, Jaipur asked the persons interested to hand over their land. Some of the claimants were willing to hand over their lands to the Overseer, Improvement Trust, but they were allowed to retain the possession of those lands with them in capacity of a licensee. The Land Acquisition Officer announced his award (Ex. R. 3) on January 9, 1964 and the amended award (Ex. R. 4) on July 9, 1964. The notice for demand of possession (Ex. 3) was issued on January 7, 1970 and the writ petitions were submitted on January 23, 1970. The law relating to the delay in the matter presenting petitions under Art. 32 came to be considered by their Lordships of the Supreme Court in Tilokchand's case (2 ). The following excerpts from their Lordships lucid judgments do deserve a recall: - "in India we have the Limitation Act which prescribes different periods of limitation for suits, petitions or applications. There are also residuary Articles which prescribe limitation in those cases where no express period is provided. If it were a matter of a suit or application, either an appropriate article or the residuary article would have applied. But a petition under Art. 32 is not a suit and is also not a petition or an application to which the Limitation Act applies. To put curbs in the way of enforcement of Fundamental Rights through legislative action might well be questioned under Art. 13 (2 ). The reason is also quite clear. If a short period of limitation were prescribed the Fundamental Right might well be frustrated. Prescribing too long a period might enable stale claims to be made to the detriment of other rights which emerge. If then there is no period prescribed what is the standard for this Court to follow : I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. l am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of six months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely no of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction. " Sikri, J. , as he then was, was of opinion that : "if a claim is barred under the Limitation Act, unless there are exceptional circumstances, prima facie it is a stale claim and should not be entertained by this Court. But even if it is not barred under the Indian Limitation Act, it may not be entertained by this Court if on the facts of the case there is unreasonable delay. For instance, if the State had taken possession of property under a law alleged to be void, and if a petitioner comes to this Court 11 years after the possession was taken by the State, I would dismiss the petition on the ground of delay, unless there is some reasonable explanation. The fact that a suit for possession of land would still be in time would not be relevant at all. It is difficult to lay down a precise period beyond which delay should be explained. I favour one year because this Court should not be approached lightly, and competent legal advice should be taken and pros and cons carefully weighed before coming to this Court. It is common knowledge that appeals and representations to the higher authorities take time ; time spent in pursuing these remedies may not be excluded under the Limitation Act, but it may ordinarily be taken as a good explanation for the delay. " Bachawat, J. while dealing with this case expressed his opinion in the following language "the writ under Art. 32 issues as a matter of course if a breach of a fundamental right is established. Technical rules applicable to suits like the provisions of sec. 80 of the Code of Civil Procedure are not applicable to a proceeding under Art. 32. But this does not mean that in giving relief under Art. 32 the Court must ignore and' trample under foot all laws of procedure, evidence, limitation, res judicata and the like. " He further observed that : "the extraordinary remedies under the Constitution are not intended to enable the claimant to recover monies, the recovery of which by suit is barred by limitation, where the remedy in a writ application under Art. 32 or Art. 226 corresponds to a remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the Court in its writ jurisdiction acts by analogy to the statute, adopts the statute as its own rule of procedure and in the absence of special circumstances imposes the same limitation on the summary remedy in the writ jurisdiction. . . . . . . . The Court will almost always refuse to give relief under Art. 226 if the delay is more than the statutory period of limitation. (See AIR 1964 S. C. 1006 ). " Mitter J. in this connection observed as follows : "the Limitation Acts do not in terms apply to claims against the State in respect of violation of fundamental rights. A person complaining of infraction of any such right has one of three courses open to him. He can either make an application under Art. 226 of the Constitution to a High Court or he can make an application, to this Court under Art. 32 of the Constitution or he can file a suit asking for appropriate reliefs. The decision of various High Courts in India have firmly laid down that in the matter of the issue of a writ under Article 226 the Courts have a discretion and may in suitable cases refuse to the person approaching it even though on the merits the applicant has a substantial complaint as regards violation of fundamental rights. Although the Limitation Act does not apply, the Courts have refused to give relief in cases of long unreasonable delay. As noted above in Bhailal Bhai's case, 1964 - 6 S. C. R. 261 (AIR 1964 S. C. 1006) (supra), it was observed that the 'maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can he measured'. On the question of delay, we see no reason to hold that a different test ought to be applied when a party comes to this Court under Art. 32 from one applicable to applications under Art. 226. There is a public policy behind all statutes of limitation and according to Halsbury's Laws of England (3rd Ed. Vol. 24) Art. 330 at page 181 : "the Courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely, (\) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim and (3) that persons with good causes of action should pursue them with reasonable diligence. " These excerpts enumerate fundamental principles in the exercise of discretion in the matter of presentation of petitions and what is good for petitions u/art. 32 is equally applicable to petitions under Art. 226 of the Constitution of India. It is clear from these excerpts that the law does not prescribe a time limit for granting relief under Art. 226 but on the ground of public policy and to eliminate the hardship that delay works on the interest of parties and their rights, the courts have in their discretion imposed a restriction on the exercise of these powers. The Limitation Act provides a safe guide line for judging the staleness of a demand, for after all the Limitation Act expresses the standard which the community through its chosen representatives has accepted to be the norm to determine whether a litigant has been lethargic or not. The very fact that in Tilokchand's case (2) the sales-tax paid under a law which was declared invalid was not ordered to be refunded goes to show that the Supreme Court declined to exercise its jurisdiction only because the demand was antiquated. Likewise in Rabindra Nath's case (12) in para 34 their Lordships observed - "the highest Court in this land has been given original jurisdiction to entertain petitions under Art. 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Art. 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay. " In Durga Prasad's case (13) their Lordships of the Supreme Court further clarified that "'even where there is an alleged breach of fundamental rights the grant of relief is discretionary. Such discretion has to be exercised judiciously and reasonably. " We are, therefore, clear in our minds that save in exceptional cases if a petitioner comes to a court of law after the period of limitation prescribed for a particular relief the court would ordinarily decline to grant it on the ground of delay and it does not make any difference whether the relief is claimed in regard to the violation of fundamental rights or otherwise. Mr. Garg, however, strenuously urged that what he was seeking was to protect his right of possession and that was threatened only by Ex. 3 dated January 7, 1970 and judging it from that point of time his petition was well within time. We are unable to agree. The notifications under secstion 4 and 6 have been the subject matter of challenge throughout the petition and even before us. The threat for the acquisition of the land was notified as early as June 9, 1960 and it was confirmed by another notification dated May 11, 1961. What has happened in this case is that the appellants participated in the land acquisition proceedings; they took a chance to get what they could and when in the meantime the prices shot up they have now come to assail the acquisition proceedings and the award nearly 9 years after the notifications. Dau Dayal's case (5), on which stress was laid by Mr. Garg, is clearly distinguishable because in that case the petition was filed almost a year after the publication of the notification under sec. 6 of the Act and no award had been made by that time. It was on this account that the learned Single Judge rejected the plea of latches.
(3.) WE might also notice a case of our own court Purshotam Lal vs. The State of Rajasthan (20) where Tyagi J. declined to interfere because the notification under sec. 6 was challenged 4 years after its issuance. The matter was agitated before us in appeal but we had dismissed the appeal in limini. (See D B. Appeal No. 265/1972, decided on July 25, 1972 ). The matter was taken up before their Lordships of the Supreme Court Special Leave Petition No. 2250/72 and it was decided on 22-9-1972. Their Lordships of the Supreme Court dismissed the special leave petition. In the case before us the petitions have been preferred about 9 years after the notification u/s. 6 as already noticed and it is a case which is worse than that of Purshottamlal 20 ). Another argument which was raised to explain delay was that the Secre-tary to the Government in the Local Self Department sent a letter on 12-10-1960 to the Secretary, Improvement Trust saying that till the master plan of the city of Jaipur was finalised no land should be acquired for the planned development of Jaipur city. The letter further added that the land acquisition proceedings, which were already in progress, should be adjourned or stayed till then. This argument has no substance for two reasons. The first is that the letter is of October 1964 whereas the award was finally made by the Land Acquisition Officer in July 1964 and this letter did not govern the acquisition proceedings with which we are concerned. Secondly, we are impressed by the argument advanced before us by the learned Deputy Government Advocate that because the contents of this letter were never communicated to the appellants, they cannot, therefore, treat it as an excuse for explaining the delay. In Simpsons Motor Sales' case (18) their Lordships held that unless the contents of the letter were addressed to the appellant he could not take advantage and construe it as an expression of an intention for abandonment. It is no body's case that this latter was addressed to the appellants and therefore no advantage can be taken by them from it. We are, therefore, in complete agreement with the learned Single Judge that the appellants presented the petitions under Art. 226 of the Constitution after inordinate delay and even under the ordinary law of limitation the claim of the appellants would have been barred by time. These appeals, therefore, should fail on this ground but the learned Single Judge having examined the arguments on merits we might as well examine them briefly. The first argument is based on the ground discrimination. It was urged that in Rajasthan there were number of laws relating to the acquisition of land. They provided different measures for compensation and it was open to the State to apply any one of them at any time and such a state of law was fraught with discrimination. The laws referred to us were the Rajasthan Land Acquisition Act, 1953, the Rajasthan Urban Improvement Act, 1959 and the Rajasthan Housing Scheme (Land Acquisition) Act (Act No. 40 of 1960 ). A long debate was raised before us on this aspect of the case at the time of arguments in appeals but after the conclusion of the arguments and before the judgment in these appeals was pronounced the Government issued an Ordinance No. 7 of 1972. An application was moved on behalf of the respondents late in December, 1972 that the said Ordinance has a direct bearing on the points in controversy in these appeals and the appeals may be listed for hearing. An answer was filed by the appellants on January 17, 1972 and the learned counsel for the parties were heard again on January 31, 1973. Sec. 5 of the Ordinance No. 7 of 1972, reads - "5. Validation of certain acquisitions - (1) Notwithstanding any judgment, decree or order of any court to the contrary and anything contrary in the principal Act, no acquisition of land made or purporting to have been made for the purpose of improvement or for any other purpose under the Principal Act before the commencement of this Ordinance and no proceedings for acquisition for the said purposes pending at the time of commencement of this Ordinance and no action taken or thing done (including any order, determination, declaration or decision made, agreement entered into, or notification published) in connection with such acquisition or the pending proceedings, shall be deemed to be invalid or ever to have become invalid on the ground that the proceedings of such acquisition or the pending proceedings were initiated, proceeded with or completed under and in accordance with the provisions contained in the Rajasthan Land Acquisition Act, 1953 (Act No. 24 of 1953), hereinafter referred to as the Acquisition Act, and not under and in accordance with the principal Act, (2) Notwithstanding any judgment, decree or and such pending proceedings shall be continued and completed under and in accordance with the provisions of the Acquisition Act and shall not be liable to any challenge anywhere on the ground that they were continued and completed under and in accordance with the Acquision Act and not under and in accordance with the Principal Act, order of any court to the contrary, no acquisition of land made for the purpose of improvement or for any other purposes under the principal Act before the commencement of this ordinance and no proceedings for acquisition for the said purposes pending at the time of commencement of this Ordinance, and no action taken or thing done (including any order, determination or decision made, agreement entered into or notification published) in connection with such acquisition or pending proceedings shall be deemed to be invalid or ever to have become invalid on the ground that the notice under sub-sec. (2) of the Principal Act was issued, or objections under sub-sec. (3) thereof were received and heard and findings thereon were given by one officer or authority, so authorised and the final order of acquisition was made without hearing and published by another authorised officer or authority for and on behalf of the State Government and such pending proceedings shall be continued and compele-ted as above and shall not be liable to any challenge anywhere on the ground that the notice under sub sec. (2) of the Principal Act was issued or objections under sub-sec. (3) thereof were received and heard findings thereon were given by one officer or authority, so authorised; and the final order of acquisition was made without hearing and published by another officer or authority for and on behalf of the State Government. " The effect of this section so far as the cases before us are concerned is that notwithstanding the existence of the Urban Improvement Act, 1959, referred to as the principal Act, no proceeding if taken under the Rajasthan Land Acquisition Act, 1953 will be invalid or to have been ever invalid. Confronted with the situation the learned counsel for the appellants argued that the Ordinance was invalid inasmuch as it violates Art. 213 of the Constitution as no circumstances existed which rendered it necessary for the Governor to take immediate action. Reliance was placed on Lakhi Narayan Das vs. The Province of Bihar (21) and R. C. Cooper vs. Union of India (22 ). In other words the argument of Mr. S. M. Mehta was that sec. 5 of the Ordinance travelled beyond the Preamble of the Ordinance and, therefore, it was invalid because it does not fulfil the condition of the Governor's satisfaction as required by Art. 213 of the Constituting. In R. Sultan vs. The Government of Andhra Pradesh (23) the learned Judges observed as follows : "it is true that before the Governor promulgates Ordinances, the Governor must be satisfied that circumstances exist which render it necessary for him to take immediate action. He may promulgate such Ordinance as the circumstances appear to him to require. It will thus be seen that firstly whether circumstances exist which render it necessary for him to take immediate action is left to the subjective satisfaction of the Governor and secondly what Ordinance should be issued in the circumstances is also left to the Governor. It is plain that the judge of the circumstances on the basis of which the Governor promulgates Ordinance is the Governor. " In Lakhi Narayan's case (21) their Lordships of the Federal Court had observed that the Governor was not bound to expound the reasons for his satisfaction as to the existence of such circumstances. We are not prepared to hold that the Preamble necessarily controls the scope of the Ordinance. In the case before us the acquisition had already been made under the Acquisition Act and it is not necessary for us to investigate whether sec. 5 of the Ordinance is wider in its ambit than the Preamble permits. "the proper function of a preamble, says Lord Thring, is to "explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood". The necessity of understanding presupposes some kind of ambiguity and when there is none it is hardly necessary to have resort to a preamble. In the Sussex Peerage Claim [ (1144) 11 Cl. & F. 85, 143] the judges enunciated the rule regarding the office of a Preamble as follows : "if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer, is a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress". But the Earl of Halsbury has said, "if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment". In regard to the objection relating to the Rajasthan Housing Scheme (Land Acquisition) Act there is two-fold answer. The first is a concession made by Mr. S. K. Tiwari, learned Deputy Government Advocate that the compensation regarding the acquisition of land in the appeals before us was calculated by reference to the notification under sec. 6 of the Acquisition Act and was regulated by sec. 23 thereof and was in no manner influenced by the Rajasthan Housing Scheme (Land Acquisition) Act (No. 40 of 1960 ). On this concession the learned counsel for the appellants abandoned the argument of discrimination on account of the Rajasthan Housing Scheme (Land Acquisition) Act (No. 40 of 1960 ). The second argument is that the notification under sec. 4 in the case before us was issued on June 9, 1969 where the Rajasthan Housing Scheme (Land Acquisition) Act (No. 40 of 1960) came into force on November, 9 1960, and therefore this Act was not in existence at the time of the notification under sec. 4 and no freezing of the prices under Act 40 of 1960 was relevant for dispute before us. ;