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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5170 OF 2010

NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY .....APPELLANT(S)

VERSUS

HARKISHAN (DEAD) THROUGH LRS. & ORS. .....RESPONDENT(S)

J U D G M E N T A.K. SIKRI, J.

This appeal has a chequered history.  Matter pertains to the

acquisition of  the land of the respondents, which was acquired

way back in the year 1990.  Notification under Section 4 of the

Land Acquisition Act,  1894 (hereinafter  referred to as the 'Act')

proposing to acquire the land of the respondents, as well as some

other persons, was issued on January 05, 1991.  It was followed

by declaration under Section 6 issued on January 07, 1992.  Even

award,  thereafter,  was  pronounced  on  August  17,  1996.   The

acquisition proceedings were challenged by the respondents by

filing writ petition in the High Court, which was dismissed by the

High Court, and the appeal there against was dismissed by this

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Court also on July 15, 1998.  In this first round of litigation, while

dismissing the appeal, this Court left open a little window for the

respondents herein by permitting them to make a representation

to the State Government  under  Section 48(1) of  the Act.   The

respondents, thus, made a representation for release of the land,

which  was  considered  by  the  State  Government.   The  State

Government,  however  rejected  the  same  vide  orders  dated

December 03, 1999.  Second round of litigation started when this

rejection was again challenged by the respondents by filing writ

petitions.  This time again attempts of the respondents failed as

the writ  petitions were dismissed by the High Court  and those

orders were affirmed by this Court vide judgment dated March 12,

2003, reported as Ved Prakash & Ors. v. Ministry of Industry,

Lucknow & Anr.1.

2) Undeterred by the aforesaid dismissals, the respondents started

third round of litigation by approaching the High Court by way of

another writ petition filed in the year 2004.  This time, the validity

of  the award passed in  the year  1996 was challenged on the

ground that the said award was not passed within the period of

two  years  as  prescribed  under  Section  11A  of  the  Act  and,

therefore,  acquisition  proceedings  lapsed.   In  this  attempt,  the

1 (2003) 9 SCC 542

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respondents have succeeded before the High Court inasmuch as

vide  its  judgment  dated  June  30,  2009,  the  High  Court  has

accepted  the  aforesaid  contention  of  the  respondents  thereby

allowing the writ petitions and directing the Collector to issue fresh

notifications  under  Sections  4  and  6  of  the  Act  and  thereafter

make an award under Section 11 of the Act which, according to

the High Court, will cure the defect that has crept in on account of

delay in making the award beyond the period prescribed under

Section 11 of the Act.  It is this judgment which is assailed by the

New Okhla Industrial Development Authority, at whose behest the

land in question was acquired.

3) Neat question of law which is raised is that the petition filed in the

year 2004, after having lost twice, was not even maintainable as it

suffered  from  unexplained  delays  and  latches  and  was  also

barred by the provisions of Order II Rule 2 of the Code of Civil

Procedure, 1908.  For proper appreciation of this submission, we

recount the events in some detail hereinafter.

4) A  notification  dated  January  05,  1991  was  issued  under  the

provisions  of  Section  4(1)  read  with  Section  17  of  the  Act,

invoking urgency provisions,  to  acquire  about  790 bighas (496

acres)  of  land  in  village  Chalera  Banger,  Tehsil  Dadri,  District

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Gautam  Budh  Nagar,  including  the  land  belonging  to  the

respondents  herein,  i.e.  khasra  No.  279  (measuring  2-13-10

bigha)  and  khasra  No.  280  (measuring  2-6-10  bigha).   The

aforesaid  notification  was  followed  by  issuance  of  declaration

dated January 07, 1992 under Section 6 read with Section 17 of

the Act.  The respondents herein filed a writ petition before the

High Court of Judicature at Allahabad challenging the acquisition

on the ground that  the emergency provision,  thereby depriving

them of their right to file objections under Section 5A of the Act,

was  illegal.   This  writ  petition,  along  with  certain  other  writ

petitions, was dismissed by the High Court by common judgment

dated August  24,  1995.   Possession of  the acquired land was

taken  over  by  the  State  Government  and  handed  over  to  the

appellant on November 18, 1995.

5) Aggrieved  with  the  judgment  dated  August  24,  1995,  the

respondents  approached  this  Court  by  filing  Special  Leave

Petition (Civil) No. 1874 of 1996, in which leave was granted and

numbered as Civil Appeal No. 3263 of 1998.  While this appeal

was pending, in which there was no stay, the State Government

went ahead to complete the acquisition process.  An award dated

August  17,  1996,  in  respect  of  all  the  acquired  land  vide

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declaration dated January 07, 1992, was passed by the Additional

District Magistrate (Land Acquisition), Ghaziabad.

6) The aforesaid appeal came up for final hearing in the year 1998.

By a common judgment dated July 15, 1998 passed in a batch of

civil  appeals,  lead  case  being  Civil  Appeal  No.  3261  of  1998

(which batch included Civil Appeal No. 3263 of 1998 that was filed

by respondent Nos. 1 to 3 herein), this Court, while dismissing the

appeals, granted liberty to the respondents to file a representation

under Section 48(1) of the Act.  Thus, acquisition was upheld, but

at the same time, permission to file a representation was given.

Relevant portion of the order, which is material for deciding this

appeal, is reproduced below:

“Section 4 Notification in the present cases is dated 5th January,  1991.   It  is  followed  by  Section  6 Notification dated 7th January, 1992.   In  between the  appellants  went  to  the  High  Court  and  got status quo order since 31st March 1992.  Results is that till today even after the expiry of 6 years and more,  the  land  acquisition  proceedings  qua  the appellants'  lands  have  remained  stagnant.   It  is also  to  be  kept  in  view  that  the  impugned notification under Section 6 of the Act was issued for the purpose of planned development of District Ghaziabad  through  NOIDA  and  by  the  said notification,  496  acres  of  land  spread  over hundreds  of  plot  numbers  have  been  acquired. Out of 494.26 acres of land under acquisition, only the  present  appellants  owning  about  50  acres, making a grievance about acquisition of their lands have gone to the Court.  Thus, almost 9/10th of the acquired lands have stood validly acquired under the land acquisition proceedings and only dispute

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centers  round  1/10th  of  these  acquired  lands owned  by  the  present  appellants.   It  is  a comprehensive  project  for  the  further  planned development  in the district.   We are informed by learned senior counsel Shri Mohta for NOIDA that a lot  of  construction  work  has  been  done  on  the undisputed  land  under  acquisition  and  pipelines and other infrastructure have been put up.  That the disputed  lands  belonging  to  the  appellants  may have  stray  constructions  spread  over  different pockets of his huge complex of lands sought to be acquired.   That  if  notification  under  Section  4(1) read  with  Section  17(4)  is  set  aside  qua  these pockets  of  lands  then  the  entire  development activity in the complex will come to a grinding halt and that would not be in the interest of anyone.

...That we cannot permit upsetting the entire apple cart of acquisition of 500 acres only at the behest of 1/10th of landowners whose lands are sought to be acquired.  We may also keep in view the further salient  fact  that  all  the  appellants  have  filed references  for  additional  compensation  under Section 18 of the Act.”

7) Respondent Nos. 1 to 3, pursuant to the liberty granted by this

Court, filed representation dated August 28, 1998 before the State

Government.   This  representation  was  ultimately  decided  vide

order  dated  December  03,  1999.   By  that  order,  the  State

Government rejected the representation filed by respondent Nos.

1 to 3.

8) The  respondents,  and  other  similarly  situated  persons,  whose

representations had met the same fate, felt dissatisfied with the

rejection.  As a result, a number of writ petitions were filed by the

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erstwhile land owners challenging the order dated December 03,

1999  passed  by  the  State  Government  whereby  their

representations  had  been rejected.   All  the  writ  petitions  were

clubbed together and dismissed by a common order passed by

the  High  Court.   Dissatisfied  landowners,  whose  lands  were

acquired, again approached this Court.  A number of special leave

petitions were filed challenging the aforesaid dismissal of the writ

petitions wherein  leave  was granted.   Civil  Appeal  No.  999  of

2001 was treated as the lead case.  All the civil appeals, special

leave petitions and the contempt petitions were dismissed by this

Court by a common judgment dated March 12, 2003.

9) A perusal of this judgment would show that focus of this Court

was on  the  validity  of  Office  Order  dated  December  03,  1999

passed by the State Government vide which representations of

the respondents and others under Section 48(1) of the Act had

been dismissed and after  examining  the  matter  at  length,  this

Court concluded that there was no infirmity in the order of the

State  Government  rejecting  the  representations  on  the  ground

that it was not feasible to release the lands of the respondents

and others from acquisition under Section 48(1) of the Act.  The

court referred to its earlier judgment dated July 15, 1998 wherein

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challenge to the acquisition laid by the respondents was repelled

but  an  opportunity  was  given  to  the  respondents  to  make  a

representation  under  Section  48(1)  of  the  Act.   Extensively

quoting from the earlier  judgment,  the Court  found that  all  the

aspects which the State Government was supposed to consider,

as per the directions given in the earlier judgment, were duly dealt

with and considered by the State Government and there was no

reason  to  interfere  with  the  same.   We  would  also  like  to

reproduce some of the discussion contained in the said judgment:

“19.  The 1976 Act provides for the constitution of an authority for the development of certain areas in the  State.  A  notification  was  published  in  the Gazette dated 17-4-1976 under the Act declaring the area comprising the villages mentioned in the Schedule  called  the  “New  Okhla  Industrial Development Area”. Village Chalera Bangar is one of  the  villages  included in  the  Schedule  and the lands  in  question  are  in  the  same  village.  The function of the authority under Section 6 of the Act is to acquire the land in the notified area by the agreement  or  through the proceedings under the Land  Acquisition  Act,  to  prepare  a  plan  for  the development  of  the  industrial  area,  to  provide infrastructure  for  industrial,  commercial  and residential  purposes,  to  regulate  the  erection  of buildings and setting up of the industries and to lay down the purpose for which a particular site or plot of  land  shall  be  used,  namely,  for  industrial, commercial or residential or for any other specified purpose  in  such  area.  Section  8  authorises  the authority to issue directions such as the alignment of  buildings  on  any  site,  the  restrictions  and conditions  in  regard  to  open  spaces  to  be maintained in and around buildings and height and character of buildings and the number of residential buildings that may be erected on any site. Section

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9  imposes  a  ban  on  erection  of  buildings  in contravention of regulations. As is evident from this section,  no  person  could  erect  or  occupy  any building  in  the  industrial  development  area  in contravention  of  any  building  regulation  made under  the  Act.  Regulation  4  of  the  Building Regulations shows that no person shall erect any building  without  obtaining  a  prior  building  permit thereof  from  the  Chief  Executive  Officer  in  the manner provided.

20.   There  is  no  material  to  show  that  the constructions and structures said to be existing in the abadi area were existing prior to the notification issued on  17-4-1976 as  no  village  map or  other documents  show  the  same  in  the  large  area  of abadi claimed by the appellants. Certain provisions of the U.P. Land Revenue Act are already extracted above.  Looking to  the  said  provisions,  it  is  clear that field-books, maps, record-of-rights and annual register  had  to  be  maintained.  There  could  be resurvey  and  revision  of  map  and  records.  The argument  was  advanced  on  behalf  of  the appellants that  abadi existing long back could not continue  to  be  the  same;  over  the  years  when families  grew,  population  increased,  necessarily corresponding  abadi area  also  increased;  new constructions and structures came up. If that be so then the same thing could have been reflected in the  records  and  the  map  maintained  under  the 1901  Act.  Similarly,  it  is  not  shown  that  such structures  or  constructions  were  put  up  with  the permission as required under the provisions of the Act and the Regulations. Section 10 of the Act even provides for ordering proper maintenance of site or building  if  it  appears  to  the  authority  that  the condition  or  use  of  any  site  or  building  is prejudicially affecting or is likely to affect the proper planning  or  the  maintenance  in  any  part  of  the industrial  development area or the interest  of  the general  public  thereto  requires  that  the  authority could direct the transferee or occupier of the site or building to take steps within the period specified to maintain a site or building in such manner as may be  specified.  When  the  large  area  of  about  496 acres  of  land  was  acquired  for  planned development  of  industrial  area  called  the  New

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Okhla Industrial Development Area and the object and purpose of the Act is sought to be achieved as provided  in  the  Act,  the  authority  has  power  to acquire the lands and to give necessary direction or take steps to maintain and regulate the sites and buildings  in  the  area.  The State  authority  having elaborately  considered  the  evidence available  on record found that the claim of the appellants as to abadi is  spread over  in  a scattered manner in a large area apart  from being whether that was an abadi or not and whether it was existing prior to the issue of  notification in 1976. Having regard to all aspects, the authority found that it was not feasible to  release  the  lands  of  the  appellants  from acquisition  under  Section  48(1)  of  the  Act.  As is evident even from the survey report that  boongas, bitooras,  thatched  huts,  thatched  sheds  etc. occupied a small area but were spread over a long distance. The photographs show that large area is open land even in the so-called abadi area, so an individual  assuming  could  claim  some  area  as abadi that could be a small area appurtenant to his residential  house  or  a  farm  house  or  any cattle-shed etc.  but the appellants claim for large area  covering  few  acres  of  land  as  abadi,  is untenable.  All  the more so, when it  could not be legitimately  claimed  or  asserted  that  they  were regularly  living  in  those  structures  of  very  kacha type. The nature of the construction, their age from its  appearance etc.  give  an  impression that  they were  hurriedly  planted  at  later  dates  only  to circumvent the land acquisition proceedings.

21.   As  already  stated  above,  the  competent authority in compliance with the directions given by this  Court  in  Om  Prakash  case  in  the  light  of observations made therein having considered the evidence placed on record and after  hearing the parties, recorded findings and held that it was not feasible to release the lands of the appellants from acquisition.  From  the  impugned  judgment  of  the High Court  it  is  clear that the High Court  kept in view the scope and judicial review in dealing with the  impugned order  dated  3-12-1999,  passed by the  competent  authority. In  CIT  v.  Mahindra  and Mahindra Ltd. [(1983) 4 SCC 392] this Court, while stating that by now, the parameters of the Court's

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power  of  judicial  review  of  administrative  or executive action  or  decision  and the  grounds on which the  Court  can interfere with  the same are well  settled,  proceeded to say further in para 11, thus: (SCC p. 402)

“11.… Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant  or  extraneous  matters  the  Court would be justified in interfering with the same.”

In  the  same  decision  it  is  also  stated  that  in examining the validity of an order in such matters the test is to see whether there is any infirmity in the decision-making process and not the decision itself. From this decision it is also clear that when choices  are  open  to  the  authority  it  is  for  that authority to decide upon the choice and not for the court to substitute its view. The High Court keeping in view the scope of judicial review in such matters considered  the  respective  contentions  raised before it. On finding that the authority passed the impugned  order  dated  3-12-1999  on  proper consideration of the evidence placed before it and after hearing the parties in the light of the directions given and observations made by this Court in the case of Om Prakash did not consider it appropriate to interfere with the impugned order. We do not find any good or valid reason so as to interfere with the impugned judgment of the High Court affirming the order passed by the authority.”

10) It becomes clear from the above that in the first round of litigation,

when acquisition was challenged by the respondents, they failed

in their attempt.  At that time, not only declaration under Section 6

of the Act had been passed, the writ petitions were also dismissed

by the High Court on August 24, 1995.  Thereafter, possession of

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the land was taken on November 18, 1995.  Subsequently, the

award was also passed on August 17, 1996.  This Court passed

the judgment dated July 15, 1998 thereby affirming the judgment

of the High Court.  No doubt, event of the passing of the award

dated August 17, 1996 had taken place during pendency of the

appeals in this Court.  Fact remains that this was not questioned

at the time of arguments advanced by the parties.  Even for a

moment it is accepted that the subject matter of the civil appeals

in  the  first  round  of  litigation  in  this  Court  was  validity  of

notifications issued under Sections 4 and 6 of the Act, what is to

be borne in mind is that the entire gamut of controversy was gone

into and the only permission which was given to the respondents

was  to  make  a  suitable  representation  before  the  appropriate

State authorities under Section 48(1) of the Act.

11) More importantly, when the respondents made the representation,

it was dealt with and rejected by the State Government vide order

dated December 03, 1999.  At that time, award had been passed.

However, in the second round of writ petitions preferred by the

respondents,  they  chose  to  challenge  only  Office  Order  dated

December 03, 1999 vide which their representation under Section

48 of the Act had been rejected and it never dawned on them to

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challenge the validity of the award on the ground that the same

was  not  passed within  the  prescribed  period  of  limitation.   As

noted  above,  in  the  second  round  of  litigation  also,  the

respondents failed in their attempt, inasmuch as, this Court put its

imprimatur to the rejection order dated December 03, 1999 vide

its  judgment  dated  March  12,  2003.   At  that  time,  even  the

possession of land had been taken.  If the respondents wanted to

challenge  the  validity  of  the  award  on  the  ground  that  it  was

passed beyond the period of limitation, they should have done so

immediately and, in any case, in the second round of writ petitions

filed by them.  Filing fresh writ petition challenging the validity of

the award for the first time in the year 2004 would, therefore, not

only be barred by the provisions of Order II Rule 2 of the Code of

Civil Procedure, 1908, but would also be barred on the doctrine of

laches and delays as well.

12) There is yet another serious infirmity in the impugned judgment.

In the instant case, the land was acquired by invoking urgency

clause  under  Section  17  of  the  Act  and  dispensing  with  the

requirement of filing the objections under Section 5A of the Act.

This action on the part  of  the Government was upheld by this

Court in the first  round of litigation.  Once possession is taken

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under Section 17(1) of the Act, Section 11A is not even attracted

and, therefore, acquisition proceedings would not lapse on failure

to make award within the period prescribed therein.  This is so

held in Satendra Prasad Jain & Ors. v. State of Uttar Pradesh

& Ors.2, which view is affirmed in Awadh Bihari Yadav & Ors. v.

State of Bihar & Ors.3

13) For all these reasons, we find fault with the approach of the High

Court in entertaining the writ petitions, which were clearly barred

in  law,  and  allowing  the  same.   The  appeal  is,  accordingly,

allowed setting aside the judgment of the High Court.

No costs.

...........................................J. (A.K. SIKRI)

...........................................J. (R.K. AGRAWAL)

NEW DELHI; JANUARY 27, 2017

2 (1993) 4 SCC 369 3 (1995) 6 SCC 31

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