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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 106 of 19710/21/2011Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long timeago would not be set aside after the lapse of a number of years." Here as admitted by the State Government inparagraph 55 of the affidavit in reply, all promotions that have been made by the State Government areprovisional and the position has not been crystallised to the prejudice of the petitioners. No rights have, therefore,accrued in favour of others by reason of the delay in filing the petition. The promotions being provisional, theyhave not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if thecorrect legal position, as finally determined, so requires. We were also told by the learned counsel for thepetitioners, and that was not controverted by the learned counsel appearing on behalf of the State Government,that even if the petition were allowed and the reliefs claimed by the petitioners granted to them, that would notresult in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/Tehsildar;the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as DeputyCollectors. Moreover it may be noticed that the claim for enforcement of the fundamental right of equal opportunityunder Art. 16 is itself a fundamental right guaranteed under. Art. 32 and this Court which has been assigned therole of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuadedto refuse relief solely on the jejune ground of laches, delay or the like."The judgment on which much reliance has been placed by the learned counsel for the respondents is theConstitution Bench judgment of the Apex Court in Aflatoon & Ors. Vs. Lt. Governor of Delhi & Ors., (1975) 4 SCC285.In the aforesaid case, writ petitions were filed challenging the notification issued under Section 4 of the Act, 1894in the year 1959. The argument which was put forward was that the public purpose as specified in the notificationissued under Section 4, namely, the 'planned development of Delhi" was vague as neither a Master Plan nor aZonal Plan was in existence on the date of the notification and as the purpose specified in the notification wasvague, the appellants were unable to exercise effectively their right under Section 5A of the Act. The Apex Courtnoted in the judgment that after notification under Section 4 of the Act was issued about 6000 objections werefiled under Section 5A by interested persons and several writ petitions were also filed in the year 1966 and 1967,but the petitioners choose to wait till 1972 on the ground that particulars of the public purpose were not specified.In the above, background, the Apex Court laid down following in paragraphs 11,12 and 13:-"11.Nor do we think that the petitioners in the writ petitions should be allowed to raise this plea in view of theirconduct in not challenging the validity of the notification even after the publication of the declaration under Section6 in 1966. Of the two writ petitions, one is filed by one of the appellants. There was apparently no reason why thewrit petitioners should have waited till 1972 to come to this Court for challenging the validity of the notificationissued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notificationunder Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fenceand allowed the Government to complete the acquisition proceedings on the basis that the notification underSection 4 and the declaration under Section 6 were valid and then to attack the notification on grounds whichwere available to them at the time when the notification was published would be putting a premium on dilatorytactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of thepetitioners (see Tilokchand Motichand and Others v. H. B. Munshi and Rabindranath Bose v. Union of India).12. From the counter affidavit filed on behalf of the Government, it is clear that the Government have allotted alarge portion of the land after the acquisition proceedings were finalised to Cooperative housing societies. Toquash the notification at this stage would disturb the rights of third parties who are not before the Court.13. As regards the second contention that there was inordinate delay in finalizing the acquisition proceedings andthat the appellants and writ petitioners were deprived of the appreciation in value of the land in which they wereinterested, it may be noted that about 6,000 objections were filed under Section 5A by persons interested in theproperty. Several writ petitions were also filed in 1966 and 1967 challenging the validity of the acquisitionproceedings. The Government had necessarily to wait for the disposal of the objections and petitions beforeproceeding further in the matter. Both the learned Single Judge as well as the Division Bench of the High Courtwere of the view that there was no inordinate delay on the part of the Government in completing the acquisitionproceedings. We are not persuaded to come to a different conclusion."The next judgment relied on by the learned counsel for the respondents is the judgment of the Apex Court inGeneral Manager, Telecommunication & Anr. Vs. Dr. Madan Mohan Padhan & Ors, 1995 Supp (4) SCC 268.In the aforesaid case, the notification under Section 4(1) of the Act was published in the year 1973 and thereafterdeclaration under Section 6 of the Act was issued on 30/6/1975. Possession of the land was taken on 12/4/1976and the award was given on 02/11/1976. Writ Petition No.1139/1976 was filed challenging the validity of
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 107 of 19710/21/2011notification under Section 4(1) of the Act which was disposed of on 16/3/1982, directing the Government toconsider the representation of the land owners for exclusion of the land from acquisition. The representation wasrejected on 03/6/1987. Then Writ Petition No.435/1988 was filed again challenging the notifications. In the abovebackground of facts following was laid down by the Apex Court in paragraph 4 which is quoted below:-"4. It is already seen that the possession having already been taken on April 12, 1976 and vested in theGovernment free from all encumbrances and many others having accepted the award and some had received thecompensation under protest, the High Court was wholly unjustified in interfering with the acquisition. We haveseen the plan produced before us which would indicate that the land acquired comprises the establishment ofOfficers' building and 2000 electronic exchange. Under theses circumstances, it would be highly inconvenient toexclude this land from acquisition. The purpose of enquiry under Section 5A is only to show that any otherconvenient and suitable land would be available other than the land sought to be acquired, or there is no publicpurpose. This issue would become an academic once the construction started and was in progress. The ratio inthe case of Oxford English School v. Govt. of T.N. has no application to the facts of these appeals. In that case,neither the award was made before the amendment act has come into force nor was possession taken. In thesecircumstances, this Court held that declaration under Section 6 was invalid and direction given by the High Courtto conduct enquiry under Section 5A, after three years had expired, is illegal. Section 4(1) also stood lapsed byoperation of proviso to Section 6 of the Act. Therefore, the ratio is clearly inapplicable to the facts of theseappeals."Another judgment relied on by the learned counsel for the respondents is the judgment of the Apex Court inSenjeevanagar Medical & Health Employees' Co-operative Housing Society Vs. Mohd Abdul Wahab & Ors,(1996) 3 SCC 600.In the aforesaid case, the Apex Court held that the property under acquisition having vested in the State, exerciseof power to quash notification under Section 4 (1) and the declaration issued under Section 6 of the Act wouldlead to incongruity. Therefore, the High Court should not have interfered with the acquisition and quashed thenotification and declaration under Sections 4 and 6 respetively. Following was laid down in paragraph 12 which isquoted below:-"12. That apart, as facts disclose, the award was made on November 24, 1980 and the writ petition was filed onAugust 9, 1982. It is not in dispute that compensation was deposited in the court of the Subordinate Judge. lt isasserted by the appellant- Society that possession of the land was delivered to it and the land had been dividedand allotted to its members for construction of houses and that construction of some houses had beencommenced by the date the writ petition was filed. It would be obvious that the question of division of theproperties among its members and allotment of the respective plots to them would arise only after the LandAcquisition Officer had taken possession of the acquired land and handed it over to the appellant-Society. Byoperation of Section 16 the land stood vested in the State free from all encumbrances. In Satendra Prasad Jain &Ors. v. State of U.P. the question arose: whether notification under Section 4 and the declaration under Section 6get lapsed if the award is not made within two years as envisaged under Section 11A? A Bench of three Judgeshad held that once possession was taken and the land vested in the Government, title to the land so vested in theState is subject only to determination of compensation and to pay the same to the owner. Divesting the title to theland statutorily vested in the Government and reverting the same to the owner is not contemplated under the Act.Only Section 48(1) gives power to withdrew from acquisition that too before possession is taken. That questiondid not arise in this case. The property under acquisition having been vested in the appellants, in the absence ofany power under the Act to have the title of the appellants divested except by exercise of the power under Section48(1), valid title cannot be defeated. The exercise of the power to quash the notification under Section 4(1) andthe declaration under Section 6 would lead to incongruity. Therefore, the High Court under those circumstanceswould not have interfered with the acquisition and quashed the notification and declaration under Sections 4 and6 respectively. Considered from either perspective, we are of the view that the High Court was wrong in allowingthe writ appeal."To the same effect there is another judgment of the Apex Court in State of Rajasthan & Ors. Vs. D.R. Laxmi &Ors, (1996) 6 SCC 445. This is a three judge judgment. The Apex Court in the said case held that when the awardwas passed and the possession was taken the Court should not have exercised its power to quash the award.Following was laid down in paragraph 9 which is quoted below:-"9. Recently, another Bench of this Court in Municipal Corporation of Greater Bombay Vs. Industrial Development& Investment Co. (P) Ltd. re-examined the entire case law and held that once the land was vested in the State,the Court was not justified in interfering with the notification published under appropriate provisions of the Act.Delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of latches. It is
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