Dismissed

Puran Chand Arora v. the Jullundhur .Improvement Trust & Ors.

Punjab & Haryana HC23 Aug 2010CWP/6000/1985

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging land acquisition notifications issued in 1974 and 1975. The court held the petition was not maintainable due to gross delay of over 10 years and laches, noting the award was already passed and a reference under the Land Acquisition Act was pending.

What did the court decide?

The writ petition was dismissed; the Land Acquisition Tribunal was directed to decide the pending reference within four months.

Puran Chand Arora Vs the Jullundhur .Improvement… — Land Acquisition | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P. No. 6000 of 1985 (O&M) Date of Decision : August 23, 2010.

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Puran Chand Arora, Advocate, son of Shri Kanshi Ram r/o WX-49, Arora Ice Factory, Basti Nau, Jalandhar City.

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...... Petitioner

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Versus.

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The Jalandhar Improvement Trust, Jalandhar, through its Chairman, and others

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........ Respondents

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CORAM: HON’BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

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Present:Mr. Ashwani Kumar Chopra, Senior Advocate, with, Mr. Harminder Singh, Advocate, for the petitioner.

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Mr. Sukhbir Singh, Advocate, for respondent No. 1.

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Mr. Surinder Kapoor, Addl. A.G. Punjab, for respondents No. 2 and 3.

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AUGUSTINE GEORGE MASIH, J..

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This writ petition has been filed by the petitioner, who is an Advocate, and owner of property No. WX-49, situated in the revenue estate of Basti Nau, Jalandhar City, challenging notification dated 20.03.1974 (Annexure-P-3) issued under Section 36 of the Punjab Town Improvement Act, 1922, (in short ‘the Act’) by the Jalandhar Improvement Trust, Jalandhar/respondent No. 1, and notification dated 16.09.1975 (Annexure-P5) issued under Section 42 of Act.

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It is the contention of the petitioner that notice under Section 36 of the Act has been issued without framing any scheme and without even getting prepared a map of the area comprised in the scheme. In the notice,

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C.W.P. No. 6000 of 1985 (O&M)

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reference was made to general map of the locality comprised in the scheme and that map was shown as drawing No. TP/427/69, which had been got prepared in 1969. No notice as envisaged under Section 38 of the Act was given to the petitioner regarding proposed acquisition of property of the petitioner, depriving him of his statutory right to file objections to such a proposed acquisition and the case was referred to the State Government for sanction of the scheme. The State Government approved the scheme, leading to issuance of notification under Section 42 of the Act, which cannot be sustained. It is on this basis that the notifications have been challenged with a prayer to quash the same, as not sustainable in law.

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It has been pleaded that the Award was passed by the Land Acquisition Collector on 12.02.1976. The petitioner made an application under Section 18 of the Land Acquisition Act, 1894, (in short ‘the Acquisition Act’), which is pending before the District Judge, Jalandhar. It is further pleaded that the petitioner did not approach this Court earlier under a bonafide belief that Jodh Singh and others, whose land had also been acquired under the same notification, had approached this Court by filing CWP No. 2131 of 1976, which had been referred to the Full Bench of this Court and whatever would be the decision of this Court, the same would be made applicable to the case of the petitioner. The petitioner has not withdrawn amount of compensation, which had been deposited with the Land Acquisition Collector by the Improvement Trust.

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After the writ petition filed by Jodh Singh and others was allowed by this Court on 02.05.1985, the petitioner has preferred present writ petition, challenging the said notifications in December, 1985. It has further been stated that the result of the acquisition would be demolition of building of the petitioner as the land is being sought for widening of road.

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C.W.P. No. 6000 of 1985 (O&M)

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In response to the writ petition, respondents have raised a preliminary objection with regard to maintainability of the present writ petition on the ground of delay and laches by stating that the petitioner should have approached this Court in time. The Award was given by the Collector on 14.04.1977 and the petitioner has challenged the acquisition proceedings in December, 1985, which were initiated, vide notification dated 20.03.1974 (Annexure-P-3) under Section 36 of the Act and notification dated 16.09.1975 (Annexure-P-5) under Section 42 of the Act. Thus, there is a delay of more than 10 years. On merits, fact regarding passing of the orders of the Full Bench and Division Bench of this Court in CWP No. 2131 of 1976 Jodh Singh and others , has not been denied.

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The petitioner has raised various grounds to challenge the notifications in the pleadings but the learned Senior Counsel has primarily pressed into service Full Bench judgment of this Court in the case of Jodh Singh and others Versus Jalandhar Improvement Trust, Jalandhar and others, 1984 AIR Punjab and Haryana 398 . He contends that it has been held by the Full Bench of this Court that Sections 36, 38, and 40(1) of the Act are mandatory in character. A Division Bench of this Court, while considering the case of Jodh Singh and others (supra) , vide its Order dated 02.05.1985, had already quashed the notification under Section 42 of the Act and, therefore, the petitioner is entitled to the same benefit.

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Counsel for respondents on the other hand has forcefully argued the preliminary objection with regard to maintainability of the present writ petition after a delay of more than 10 years, challenging the notifications issued under Sections 36 and 42 of the Act. In support of this contention, he has relied upon the judgment of Hon’ble the Supreme Court in the case of Hari Singh and others Versus State of U.P. and others, AIR 1984 Supreme

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C.W.P. No. 6000 of 1985 (O&M)

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Court 1020 , wherein Hon’ble the Supreme Court has held that the writ petition challenging the validity of notification issued for acquisition under Section 4 of the Acquisition Act filed after two and a half years, is liable to be dismissed on the ground of laches alone.

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We have heard counsel for the parties and have gone through the records of the case.

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The Improvement Trust/respondent No. 1 passed a resolution in the year 1969 for framing a street scheme in respect of land measuring 2.5 acres including land of the petitioner bearing Khasra No.48/1 and 49/1. Before framing of the scheme in 1969, plan of the area in which scheme had to be executed, was got prepared and site plan of the area comprised in scheme was marked drawing No. TP/396/66 and lay out plan of the area in that scheme was marked TP/427/69. Subsequently this scheme was dropped by the Improvement Trust/respondent No. 1 in the year 1971. On 11.03.1974, the Improvement Trust again passed a resolution No. 34 for framing street scheme for an area measuring 2.5 acres for the improvement of Road Bastiat turning near Adda Basti Guzan, Jalandhar, and authorised its Chairman to issue notices under Sections 36 and 38 of the Improvement Act. In pursuance of this resolution, the Improvement Trust issued notice dated 20.08.1974 (Annexure-P-2) under Section 36 of the Improvement Act. Notification dated 16.09.1975 was issued under Section 42 of the Improvement Act, which was published in the Government gazette on 26.09.1975. Jodh Singh and others challenged these notifications by filing Civil Writ Petition No. 2131 of 1976 Jodh Singh and others Versus Jullundur Improvement Trust, Jalandhar, and others.

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The matter was referred to the Full Bench of this Court, which, vide judgment dated 27.04.1984, decided the question of law by holding

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C.W.P. No. 6000 of 1985 (O&M)

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therein that Sections 36, 38, and 40 (1) of the Improvement Act are mandatory in character. These sections provide not merely for framing of scheme simpliciter but also provide for acquisition of the property to enable execution of scheme. They confer rights on inhabitants to file objections to scheme and to acquisition of their property with a further right of personal hearing in support of their objections, which creates a public duty on the Improvement Trust of publication of notice under Section 36 and serve a notice under Section 38 of the Improvement Act upon owner/occupier of immovable property proposed to be acquired and Section 40 (1) provides for consideration of objections, if any, submitted by owner/occupier of the immovable property. It was further held that the general public does not acquire any right in the scheme till such time it is finalised and executed. The writ petition was remitted to be placed before the appropriate Bench for decision on merits in the light of law laid down by the Full Bench.

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The writ petition came up for hearing on 02.05.1985 before a Division Bench of this Court and the same was partly allowed. The operative part of the order reads as follow :-

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“In view of the ratio of the Full Bench in Jodh Singh and others Versus Jullundur Improvement Trust and others 1984 PLJ 413, we quash the impugned notification issued under Section 42 (2) in so far as it concerns the petitioner's property and direct the Improvement Trust to consider the objections filed by the petitioner after affording him due opportunity of hearing.”

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It would not be out of way to mention here that when Jodh Singh and others approached this Court by challenging the notifications, Award had not been announced. But by the time above Order was passed by the Division Bench of this Court, allowing the writ petition, Award had already been passed by the Land Acquisition Collector on 14.04.1977 for the other land

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C.W.P. No. 6000 of 1985 (O&M)

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which were notified for acquisition. The petitioner had preferred a reference under Section 18 of the Acquisition Act on 14.06.1977, which was pending before the Land Acquisition Tribunal, Jalandhar Improvement Trust, Jalandhar, constituted under the Punjab Town Improvement Trust Act, 1922. It was only after passing of the order dated 02.05.1985 by the Division Bench that petitioner preferred present writ petition. The only explanation put forth by the petitioner is that he was under a bonafide belief that Jodh Singh and others, who were similarly situated as the petitioner, as their land was acquired under the same notification, had approached this Court by filing a writ petition, decision whereof was pending before this Court and, therefore, he would be entitled to the same benefit, cannot be accepted. Firstly, the petitioner is a practising Advocate and, therefore, cannot be said to be ignorant of the law. It is by now settled that any challenge which has to be raised or claim made, should be within reasonable time from the date the cause of action arose. Delay in approaching the Court without any justifiable explanation would itself defeat the right or claim made at a belated stage. Hon’ble the Supreme Court in a recent judgment Smt. Sulochana Chandrakant Galande Versus Pune Municipal Transport and Ors., (Civil Appeal No. 492 of 2007, decided on 03.08.2010), while referring to earlier judgment, has held as follow :-

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“24. If some person has taken a relief from the Court by filing a Writ Petition immediately after the cause of action had arisen, petitioners cannot take the benefit thereof resorting to legal proceedings belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.

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25. In State of Karnataka and ors. Vs. S.M. Kotrayya and ors., (1996) 6 SCC 267, this Court rejected the contention that a

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C.W.P. No. 6000 of 1985 (O&M)

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petition should be considered ignoring the delay and laches, on the ground that the petitioner therein filed the petition just after coming to know of the relief granted by the Court in a similar case, as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches.

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26. The same view has been reiterated by this Court in Jagdish Lal and ors. Vs. State of Haryana and ors. AIR 1997 SC 2366, observing as under :-

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“Suffice it to state that appellants may be sleeping over their rights for long and elected to wake-up when they had impetus from Veerpal Chauhan and Ajit Singh’s ratio.....desperate attempts of the appellants to re-do the seniority, held by them in various cadre...are not amenable to the judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well.”

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27. In M/s Rup Diamonds and ors. Vs. Union of India and ors. AIR 1989 SC 674, this Court considered a case where petitioner wanted to get relief on the basis of the judgment of this Court wherein a particular law had been declared ultra vires. The Court rejected the petition on the ground of delay and laches observing as under :-

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“There is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they have not pursued for several years. Petitioners were not vigilant but were content to be dormant and close to sit on the fence till somebody else’s case came to be decided.”

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Thus, the present writ petition deserves to be dismissed on the ground of delay and laches as the same has been preferred after more than ten years of issuance of notifications under Sections 36 and 42 of the Act, dated 20.03.1974 and 16.09.1975 respectively (Annexures-P-2 and P-5).

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Hon’ble the Supreme Court in the case of Hari Singh and others (supra) , has held that questioning the notification for acquisition of land after

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C.W.P. No. 6000 of 1985 (O&M)

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a delay of nearly two and a half years renders the writ petition liable to be dismissed on the ground of laches alone.

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The present writ petition deserves to be dismissed as not maintainable on the ground that the petitioner approached this Court after passing of the Award also. The Award in this case was announced on 14.04.1977 and the present writ petition was filed on 19.12.1985 and that too after reference under Section 18 of the Land Acquisition Act was preferred by the petitioner on 14.06.1977, which is pending before the Land Acquisition Tribunal, Jalandhar Improvement Trust, Jalandhar, till date as the proceedings before the Tribunal were stayed by this Court. Although, it has been pleaded that the petitioner has not accepted the compensation offered to him, but the amount of Rs. 2681.15, which was amount of compensation as assessed by the Collector, stands deposited with the Court as per the provisions of Section 31 of Land Acquisition Act. It is well settled that no writ petition would be competent after passing of the Award because possession of land, free from all encumbrances was taken and it is deemed to be vested in the State Government. In this regard reliance may be placed on the judgments of Hon’ble the Supreme Court rendered in the cases of Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited, (1996) 11 SCC 501; Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48; C. Padma v. Deputy Secretary to the Government of Tamil Nadu,(1997) 2 SCC 627; Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC 698; and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, JT 2008 (2) SC 280.

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It needs to be pointed out here that on receipt of notice under Section 9 of the Acquisition Act, petitioner preferred a representation dated 22.07.1976 (Annexure-R-1), wherein no grievance with regard to non

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C.W.P. No. 6000 of 1985 (O&M)

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compliance of provisions of the Improvement Act was raised. It was also not mentioned that he had not received any notice under Section 38 of the Act and he had only asked that the scheme be dropped, besides asking for market value of the property. This clearly shows that the petitioner has no grievance with regard to issuance of notifications dated 20.03.1974 and 16.09.1975 under Sections 36 and 42 of the Act respectively (Annexures-P-2 and P-5). That being so, the petitioner cannot be permitted now to raise such a plea in the present writ petition that no notice had been served upon him under Section 38 of the Act and other pleas as well. Further it has been held in the case of Delhi Administration Versus Gurdip Singh Uban and others (2000) 7 Supreme Court Cases 296 , that if objections have not been filed, notification must be held to be conclusive proof that the said person has waived off objections, which were personal and which he could have raised and the challenge to the notifications would not be maintainable.

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Hon’ble the Supreme Court in the case of Talson Real Estate (P) Ltd. Versus State of Maharashtra and others (2007) 13 Supreme Court Cases 186 , in paras 18 and 19 has held as follow :-

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“18. The appellant Company, being the owner of the land, has not filed objection under Section 5-A, in principle, it must be accepted that it had no objection to Section 4 notification operating in respect of its property. Those claimant owners of the lands who have not filed objection under Section 5-A could not be allowed to contend that Section 5-A inquiry was bad and that consequently Section 6 declaration must be struck down and that then the Section 4 notification would lapse.

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19. The appellant Company has failed to point out that the corrigendum issued to Section 4 notification and declaration under Section 6 of the Act, indicating Survey No. 23 (Part) in any manner has misled the appellant Company about the identity of its lands involved in the land acquisition proceedings. The

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C.W.P. No. 6000 of 1985 (O&M)

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respondents have followed the prescribed statutory procedures laid down in the Act, completed the acquisition proceedings which finally culminated in the making of award on 14.6.2000 by SLAO. The appellant Company admittedly, has preferred reference application under Section 18 of the Act during the pendency of the writ petition before the High Court and the said application is stated to be still under consideration of SLAO or civil court.”

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In view of the above, the present writ petition would not be maintainable after a delay of more than 10 years of issuance of the notification for acquiring land of the petitioner, especially when the Award had been pronounced and reference under Section 18 of the Acquisition Act had been preferred by the petitioner. The present writ petition, thus, deserves to be dismissed.

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Ordered accordingly.

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Since the reference preferred by the petitioner is pending before the Land Acquisition Tribunal, Jalandhar Improvement Trust, Jalandhar, constituted under the ‘The Punjab Town Improvement Act, 1922’, it being an old case, a direction is issued to the Land Acquisition Tribunal, to decide the reference expeditiously, preferably within a period of four months from the date of receipt of certified copy of this order.

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Copy of this Order be sent to the Land Acquisition Tribunal, Jalandhar Improvement Trust, Jalandhar, forthwith.

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(JASBIR SINGH) (AUGUSTINE GEORGE MASIH) JUDGE JUDGE

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August 23, 2010. sjks.

Puran Chand Arora v. the Jullundhur .Improvement Trust & Ors.

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Puran Chand Arora v. the Jullundhur .Improvement Trust & Ors.

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