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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 178 of 19710/21/2011Government wrongly exercised its power under Section 17(4) in dispensing with the inquiry. The Apex Court afterconsidering all relevant cases has come to the conclusion that the dispensation of inquiry under Section 5A wasunsustainable. The Apex Court after taking the view that notification in so far as the dispensation of inquiry underSection 5A, was unsustainable, proceeded to consider as to whether at that distance of time acquisitionproceedings may be declared invalid and illegal. The Apex Court noted the submission of the GorakhpurDevelopment Authrority which had invested huge amount in the Development. The Court did not grant relief to thepetitioners for quashing the acquisition/notification. Following was laid down in paragraphs 55 and 56 which arequoted below:-"55.In the facts and circumstances of the present case, therefore, the Government has completely failed to justifythe dispensation of an enquiry under Section 5A by invoking Section 17(4). For this reason, the impugnednotifications to the extent they state that Section 5A shall not apply suffer from legal infirmity. The question, then,arises whether at this distance of time, the acquisition proceedings must be declared invalid and illegal.56. In the written submissions of the GDA, it is stated that subsequent to the declaration made under Section 6 ofthe Act in the month of December, 2004, award has been made and out of the 400 land owners more than 370have already received compensation. It is also stated that out of the total cost of Rs. 8,85,14,000/- fordevelopment of the acquired land, an amount of Rs. 5,28,00,000/- has already been spent by the GDA and morethan 60% of work has been completed. It, thus, seems that barring the appellants and few others all other tenureholders/land owners have accepted the `takings' of their land. It is too late in the day to undo what has alreadybeen done. We are of the opinion, therefore, that in the peculiar facts and circumstances of the case, theappellants are not entitled to any relief although dispensation of enquiry under Section 5A was not justified."Another recent judgment relied on by the learned counsel for the respondents is Shankara Cooperative HousingSociety Ltd. Vs. M. Prabhakar & Ors, (2011) 5 SCC 607. The Apex Court in the said case laid down principles forgranting or refusing relief on the ground of delay and laches. Following was laid down in paragraphs 54 and 68which are quoted below:"54. The relevant considerations, in determining whether delay or laches should be put against a person whoapproaches the writ court under Article 226 of the Constitution is now well settled. They are:(1)There is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertainthe petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealtwith on its own facts.(2)The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued toothers by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for thedelay, because court should not harm innocent parties if their rights had emerged by the delay on the part of thepetitioners.(3)The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to showthat he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided inthe Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial whatthe petitioner chooses to believe in regard to the remedy.(4)No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.(5)That representations would not be adequate explanation to take care of the delay.68. The other factor the High Court should have taken into consideration that during the period of delay, interesthas accrued in favour of the third party and the condonatoin of unexplained delay would affect the rights of thirdparties. We are also of the view that reliance placed by Shri Ranjit Kumar on certain observations made by thisCourt would not assist him in the facts and circumstances of this case. While concluding on this issue, it would beuseful to refer the observations made by the Court in the case of Municipal Council, Ahmednagar Vs. Shah HyderBeig, wherein it is stated that:`delay defeats equity and that the discretionary relief of condonation can be had, provided one has not given byhis conduct, given a go by to his rights'."From the dictum of the Apex Court as noted above, it is clear that the creation of third party rights and carrying ondevelopmental works on the allotted sites has bearing while considering the issue as to what relief the landowners who have challenged the acquisition proceedings are entitled.
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 179 of 19710/21/2011Learned counsel for the petitioners has submitted that in some of the cases there was an interim order passed bythe High Court for maintaining status quo and it was not open for the authority to make any allotment or createany third party right.In this bunch of writ petitions, in which there are more than 400 writ petitions for consideration only in few writpetitions interim orders were passed by this Court and in some of the cases said interim orders are of the datesubsequent to the date when the respondents claimed to have taken possession.Learned counsel appearing for the Authority as well as the learned counsel appearing for the intervenors havesubmitted that no land which was covered by any interim order of the High Court was neither allotted nortransferred and in some of the cases possession memo while taking possession mentions that possession wasnot taken since the land was covered by any interim order of the Court. The fact that most of the petitioners didnot invoke the jurisdiction of this Court under Article 226 of the Constitution immediately after declaration underSection 6 of the Act, 1894 or after taking of the possession has also relevance while considering the issue as towhat relief the petitioners are entitled in the facts of the present cases.We, thus conclude that the effect and consequence of third party rights, developments and the constructionsmade after taking of the possession by the authorities is a relevant factor which shall hereinafter be consideredwhile considering the issue as to what relief the petitioners are entitled.15. Effect of upholding of some of the notifcations in some writ petitions earlier decided.16. Conflicts in view of Division Benches:Both the above issues are taken together for consideration.The Division Bench while hearing main writ petition as noticed above in its referring order dated 26 July 2011 hasnoticed two contrary decisions of Division Bench of this Court. First judgment is Division Bench Judgment dated25 November 2008 in writ petition no.45777 of 2008, Harish Chand and others Vs State of U.P. and others andsecond judgment is judgment of the Division Bench dated 19 July 2011 in writ petition no.17068 of 2009 HarKaran Singh Vs. State of U.P. and others (2011 Volume VI, A.D.J. , 755)". In Harishchand's case the notificationsdated 12.3.2008 and 30 June 2008 acquiring the land of village Patwari was under challenge. The Division Benchdismissed the writ petition by following order:"Heard learned counsel for the petitioner and the learned Standing Counsel.Learned Standing Counsel has produced the original records pertaining the land acquisition proceedings underchallenge. The notification dated 20.3.2007 and 9.7.2008 under Section 4 and 6 respectively have been assailedon the ground that there is no material before the State Government to arrive at a conclusion and there was anurgency for invoking Section 17 of the Land Acquisition Act.We have perused the original records and we find that the District Magistrate had indicated various factors whichled him to arrive at a conclusion that the land was required urgently and there was justification for acquiring theland. The State Government having regard to the letters/reports on record formed an opinion that it was a fit caseto strike the urgency clause under Section 17 of the Land Acquisition Act. We are therefore of the opinion that thecontention raised on behalf of the writ petitioner has no force. Further, we are fortifying our opinion in view of thedecision of the Division Bench of this Court in case of Lakhami Vs. State of U.P. 2008 (9) ADJ 657 and JasrajSingh Vs. State of U.P. and others others 2008 (8) ADJ 329.Accordingly, we find no good grounds to interfere with the writ petition.The writ petition is dismissed."The second judgment in Har Karan Singh's case dated 19 July 2011 was also a writ petition in which thenotification dated 12 March 2008 under Section 4 read with Section 17(1) and 17(4) as well as notification dated30 June 2008 under Section 6 of Village Patwari was under challenge. The subsequent Division Bench noticedthe earlier Division Bench judgment in Harischand case but took the view that the petitioner's are not bound bythe judgement in Harischand's case and they have independent right to challenge the acquisition. On the basis oflaw laid down by Supreme Court the Division Bench in Har Karan Singh's case also observed that law ofacquisition of land by State applying the Section 17(1) and 17(4) has undergone a sea change after thejudgments of Supreme Court in Anand Singh's case, Radhey Shyam case, Devendra Kumar's case (supra)following was laid down in paragraph 30 in Har Karan Singh's case:
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