Jammu & Kashmir High CourtDharam Singh vs State And Others on 17 April, 2015HIGH COURT OF JAMMU AND KASHMIR AT JAMMU             
OWP No. 67 OF 2014   
Dharam Singh  
Petitioners
State and others
Respondent  
!Mr. D. C. Raina, Sr. Adv. with Mr. Vikas Mangotra, Adv
^Mr. K. S. Johal, Sr. Adv. with Mr. Aashray Choudhary, Adv. for Nos. 6 and 7
Mr. H. A. Siddiqui, AAG for Nos. 1, 2, 4 and 5 Mr. Ajay Abrol, Adv. for No. 3

Honble Mr. Justice Janak Raj Kotwal, Judge
Date: 17.04.2015 
:J U D G M E N T :1. Collector, Land Acquisition (Assistant Commissioner Revenue),
Jammu (for short, the Collector) issued Notification No. 06 of 1988 dated
29.08.1988 under section 4(1) of the Jammu and Kashmir Land  
Acquisition Act, 1990 (for short, the Act) proposing acquisition of a big
chunk of land situate at villages, Kartholi, Meen Sarkar and Birpur for a
public purpose, namely, development and expansion of Industrial
Complex, Bari Brahmana, Jammu. On the recommendation of the    
Collector, Government issued declaration vide Notification No. 335-RD of
1989 under section 6 of the Act on 21.09.1989. Final award was passed
by the Collector on 08.04.1999, whereby 1912 kanals 07 marlas of land
has been acquired. The acquired land includes 2 kanals 19 marlas of land
belonging to the petitioner bearing khasra No. 478 situate at village,
Kartholi. A supplementary award bearing No. LA/ACR/final/2001 dated
19.04.2001 was also passed but it is not stated in the pleadings of the
petitioner or the Collector as to whether that has any relevance to the
award dated 08.04.1999 qua the land belonging to the petitioner.2. Petitioner has filed this petition underArticle 226of the
Constitution of India read with Section 103 of the Constitution of Jammu
and Kashmir seeking inter alia a writ declaring acquisition proceedings
and the awards as non est and nullity in the eyes of law. Petitioner has
also sought mandamus commanding respondent No. 4 to restrain   
respondent Nos. 6 and 7 from encroaching upon and grabbing or 
interfering in any manner with the aforementioned land belonging to the
petitioner.3. Heard. I have perused the record.4. Case set up by the petitioner is that entire proceedings which were
taken by the relevant time were in fact not notified as per the mandate
of law. Petitioner or any of his co-sharers, who are in actual possession
of the land, were never given any compensation of their land nor
possession on spot was taken over either by the indenting department or
by the Collector. Petitioner continues in peaceful possession of the said
land even after 12 years of the acquisition. The acquisition proceedings
had become nullity because of afflux of time by the conduct of
respondent No. 3 (Indenting department) in neither taking possession of
the said land nor paying any compensation in lieu of the acquired land.5. Respondent Nos. 1, 2, 4 and 5, who include the Collector, on one
hand and respondent Nos. 6 and 7 on the other have opposed the writ
petition by filing separate objections. Respondent Nos. 1, 2, 4 and 5 have
primarily questioned the maintainability of the writ petition after 15
years of the passing of the impugned award. They have opposed the writ
petition further by contending that procedure as prescribed under the
Act was complied with in the acquisition proceedings. By the medium of
supplementary affidavit filed on behalf of the Collector, it is stated that
as per khasra entries made on 14.10.1997 possession of the land was 
handed over to General Manager, District Industries Centre, Jammu
giving effect to the final award.6. Mr. D. C. Raina, learned senior Advocate, appearing for and on behalf
of petitioner submitted that mandatory requirements of acquisition
proceedings were not complied with by the Collector inasmuch as
neither notification under section 4 of the Act was issued as per
requirement of law nor petitioner was heard in terms of section 5-A (1)
before issuing declaration under section 6. In regard to the delay in filing
this writ petition, Mr. Raina argued that the petitioner all along
continues in possession of the land said to have been acquired and no
compensation in regard to acquisition has been paid to him. The
necessity of filing the writ petition arose only when under the garb the
acquisition respondent Nos. 6 and 7 started causing interference with
petitioners land so the petition cannot be defeated for the reason of
delay only. Mr. Raina relied upon (2012) 12 SCC 443 and AIR 2013 SC856.7. Per contra, Mr. H. A. Siddiqui, learned AAG appearing for respondents
1, 2, 4 and 5 assisted by Mr. Ajay Abrol, learned counsel for respondent
No. 3 submitted that writ petition having been filed in the year 2014, 15
years after passing of the award on 08.04.1999 and taking over of the
possession of the acquired land by the indenting department suffers
from inordinate delay and laches and is not maintainable in view of the
law laid down by the Supreme Court inMunicipal Corporation of Greater
Bombay v Industrial Development and Investment Company (P) Ltd., 
(1996) 11 SCC 501 and reiterated in catena of subsequent judgments.
Mr. Siddiqui argued further that with the transfer of possession of the
acquired land to the indenting department, the land gets vested in the
State so acquisition cannot be questioned and award cannot be quashed. 
On merits, Mr. Siddiqui sought to point out that the acquisition
proceedings have been assailed by the petitioner on conjectures and
surmises without pinpointing any illegality at any stage of the
proceedings. In regard to the compensation, Mr. Siddiqui submitted that
the indenting depart had duly deposited the compensation amount in
the office of the Collector and the petitioner cannot be heard raising any
dispute fifteen years after the award. 8. It is not disputed that the land
including the aforementioned land belonging to the writ petitioner was
required for a public purpose, namely, development and expansion of
the Industrial Complex, Bari Brahmana. The impugned final award was
passed by the Collector on 08.04.1999. The writ petition on hand has
been filed in January 2014 viz about fifteen years after the passing of the
award.9. Petitioner has sought to explain the fifteen years delay after the
award in filing this petition by taking the plea that he all along continued
in possession of the land. Petitioners contention that he all along
continued in possession of the land belonging to him or that possession
of the land had never been given to the indenting department, however,
is without any basis and not supported by any material. Even the copy of
khasra entry for the year 2013, kharif, (annexure A) relied upon by the
petitioner would show that the land in question, that is, land comprised
in khasra No. 478 measuring 2 kanals 19 marlas is in possession of the
Industries Department. Not only that, as per the supplementary affidavit
in this regard filed by the Collector under the direction of this Court,
possession of the land was delivered by the Collector to the General
Manager, District Industries Centre, Jammu in the year 1997 and khasra
entry in this regard was made on 14.10.1997. What is stated in the
supplementary affidavit is borne out from khasra entry for the year
1997, kharif, annexed to the supplementary affidavit, which shows that
possession of land comprised in various khasra numbers including khasra
No. 478 was handed over to the General Manager, District Industries
Centre, Jammu by way of Nishandehi viz demarcation. Khasra entry for
the year 1997, kharif read with khasra entry for the year 2013, kharif
supports respondents contention that possession of the acquired land
was handed over to the indenting department (Industries Department) in
the year 1997.10. Contextually, report of Tehsildar, Bari Brahmana dated 21.11.2014,
which has been produced by none else than the petitioner vide CMA No.
295/2015, has important bearing with the question of possession of the
land in question. Demarcation of land comprised in khasra Nos.
478 and 479 seems to have been done at the request of the Managing 
Director, J&K SIDCO. This report clearly shows that the land comprised in
khasra No. 478 has been acquired by and is recorded in possession of
Industries Department, the possession having been handed over in the
year 1997, kharif. The report further shows that 2 marlas of the acquired
land comprised in khasra No. 478 has come under the shops/building 
constructed by Yashpal Singh and Satpal Singh (herein respondent Nos. 6 
and 7) and their mother, Presto Devi, 8.5 marlas of land has been
amalgamated by said three persons with their land comprised in khasra
No. 479 and rest of the land is covered under road and factories of the
Industries Department.11. What clearly emerges thus is that Notification under section 4 in
regard to acquisition of the big chunk of land situate at villages, Kartholi,
Meen Sarkar and Birpur including 2 kanals 19 marlas of petitioners land
situate at village, Kartholi was issued in the year 1988. Possession of
petitioners land among others was delivered by the Collector to the
indenting department in year 1997 and award came to be passed 
08.04.1999. As per the report of the Tehsildar dated 21.11.2014 (supra)
some 10.5 marlas of the acquired land comprised in khasra No. 478 is in
possession of respondents 6 and 7 whereas rest of the land is covered
under a road and factories of the Industrial Complex. Petitioner has not
produced any material in support of his contention of being in
possession of the acquired land after the year, 1997. Neither has he said
anything against the khasra entries nor has refuted the Tehsildars report,
which as a matter of fact has been produced by the petitioner by way of
CMA No. 295/2015. This being so, petitioner cannot be permitted to
raise any dispute about delivery of possession of the acquired land to the
indenting department to carve out a justification for filing this writ
petition after fifteen years of date of award. 12. The question whether
High Court should issue writ qua acquisition of land when acquisition is
assailed after long gap of time from the date of award and taking over of
possession of the acquired land by the indenting department was taken
up for consideration by the Supreme Court inMunicipal Corporation of
Greater Bombay v Industrial Development and Investment Company (P)  
Ltd., (1996) 11 SCC 501. Their Lordships, while taking notice that the
respondentin that casehad approached the High Court after a gap of
four years, after surveying earlier judgments of the Supreme Court on the
point, has held:It is thus well settled law that when there is inordinate delay in filing the writ
petition and when all steps taken in the acquisition proceedings have become
final, the Court should be loath to quash the notifications. The High Court has, no
doubt, discretionary powers underArticle 226of the Constitution to quash the
notification under Section 4(1) and declaration under Section 6. But it should be
exercised taking all relevant factors into pragmatic consideration. When the
award was passed and possession was taken, the Court should not have exercised  
its power to quash the award which is a material factor to be taken into
consideration before exercising the power underArticle 226.The fact that no
third party rights were created in the case, is hardly a ground for interference.
The Division Bench of High Court was not right in interfering with the discretion
exercised by the learned single Judge dismissing the writ petition on the ground of
laches. Similar view has been taken by the Supreme Court in M/sSwaika
Properties Pvt. Ltd. v. State of Rajasthan, AIR 2008 S. C. 1494.13. Anil Kumar Guptas case, (2012) 12 SCC 446 (supra) relied upon by
learned petitioners counsel would not render any beneficial support to
petitioners case on the question of delay and laches in filing this writ
petition as it does not come to rescue of a person guilty of laches in
approaching the High Court . Supreme Court rather has reiterated with
approval that the framers of Constitution have not prescribed any period
within which a petition can be filed under section 226 of the Constitution
of India but the superior courts have evolved several rules of self-imposed restraint which are required to be kept in mind by the High
Courts while exercising powers underArticle 226.One of these rules is
that High Court will not come to the aid of a person who approaches the
Court with delay and no explanation is offered for the same. Not only
that, Supreme Court has amplified the law in regard to the scope of
assailing of the acquisition proceedings at various stages by a person
feeling aggrieved by acquisition of his land. I may gainfully quote para 15
of the judgment which reads:15 The issue needs to be examined from another angle. A person who is
deprived of his land can challenge the acquisition proceedings at various stages.He can question the notification issued under Section 4(1) on the ground of
violation of the mandate contained therein like publication of the notification in
the Official Gazette and/or two newspapers including the one the substance of
the notification to be given at convenient places in the locality. He can challenge
the declaration issued under Section 6(1) on the ground of non-compliance with
Sections 5-A(1) and/or (2) or violation of the first proviso (ii) to Section 6(1). In a
given case, the landowner can also Section 11 on the ground that he had not been
heard or that the acquisition proceedings are a nullity. He can also challenge the
award if it is not made within the period prescribed under Section 11-A. The
vesting of land in the Government can be challenged on the ground that the
possession had not been taken in accordance with the prescribed procedure. The
invoking of the urgency clause contained in Section 17 can be questioned on the
ground that there was no real urgency. There may be many more grounds on  
which the landowner can challenge the acquisition proceedings. Insofar as the
appellant is concerned, he had challenged the acquisition proceedings
immediately after passing of the award and pleaded that the declaration issued
under Section 6(1) was liable to be declared a nullity because of violation of the
time-limit prescribed in the first proviso (ii). This being the position, it is not
possible to approve the view taken by the Division Bench of the High Court that
the writ petition was belated. 14. Patasi Devis case, AIR 2013 SC 856
(supra) too is of little help to the petitioners case. In that case Supreme
Court took a view that petitioners challenge to the acquisition after
passing of award should not have been summarily dismissed when no  
evidence was adduced showing that possession of land has been taken  
over by indenting department and land has been vested in the State.
Contrary to the factual position in that case, in the case on hand khasra
entries would show that possession has been handed over to the
indenting department in the year, 1997 and petitioner has not produced
any material to show that he was in possession after 1997.15. It is noticed that petitioner never challenged the acquisition
proceedings at any stage earlier to filing of this petition at a belated
stage after fifteen years of passing of the final award. Even in this
petition no specific objection to any aspect of the acquisition
proceedings has been raised. It is not petitioners say that Notification
under section 4 of the Act was not published as per requirement of that
section or that he was not aware of that notification or could not file
objections against acquisition. It is not his say also that objections filed
by him were not accorded consideration to or he was not heard by the
Collector. As per the Khasra entries, indenting department is in
possession of the acquired land since 1997 and no material has been
produced by the petitioner that he is in continuous possession or had
ever been in possession of the said land during this period. 16. Petitioner
rather seems to have got irked by respondent Nos. 6 and 7 continuing in
possession of the land comprised in khasra No. 479 which too had been
acquired along with petitioners land. Petitioners grievance also seems
to be against respondent Nos. 6 and 7, who, as per the petitioner and
report of the Tehsildar (supra), have encroached upon the land
comprised in khasra No. 478, which before its acquisition was owned by
the petitioner. Petitioner, thus, seems to have staked claim to the entire
land measuring 2 kanals 19 marlas by challenging the acquisition having
taken place 15 years back by the medium of this writ petition. Petitioner
seems to have made an attempt to question the acquisition on the
analogy that the same had been earlier questioned by respondent Nos. 6
and 7 by the medium of OWP No. 682/2000 followed by review  
application No. 35/2001 and AP(OWP) No. 206.17. There, however, is no possibility of petitioner claiming parity with
respondent Nos. 6 and 7 because it is seen that Puran Chand, the father
of respondent Nos. 6 and 7 and some others had approached this Court 
by the medium of OWP No. 682/2000 shortly after the award dated 
08.04.1999 on the ground that compensation for some structures-
houses coming under acquisition was not assessed and they were still in
possession of the acquired land and had objected assessment of 
compensation in regard to those houses and structures on the basis of
expiry of the limitation period after issuance of Notification under
section 6 of the Act. It was in these peculiar circumstances that this Court
had granted relief in their favour and may be the said respondents are
still continuing in possession of that land. 18. Petitioners attempt to
explain the delay and justify his filing this petition after fifteen years of
award on the ground that he all along continued in possession of the
land in question has no substance for the reason stated above.19. I would thus hold that on the basis of the material relied upon
by the petitioner and that available on the file of the Collector, it cannot
be said that the petitioner continued in physical possession of the
acquired land even after its acquisition and passing of the final award far
back in the year 1999. On the other hand, record would show that the
possession of the land was handed over to the indenting department in
the year 1997 and the land is in possession of the indenting department
since then. It appears some of this land, as per the report of the Tehsildar
(supra), has been encroached upon by respondent Nos. 6 and 7 but the 
fact of the matter remains that land has vested in the State fifteen years
prior to filing of this writ petition pursuant to a regular acquisition
proceedings and no ground for questioning the acquisition at such a
belated stage is made out.20. Viewed thus, I would hold further that this writ petition suffers
from unwarranted delay and the petitioner is guilty of laches inasmuch
as no case for throwing challenge to acquisition proceeding and final
award after fifteen years is made out.21. For aforementioned, this writ petition is dismissed firstly for
delay and laches and secondly being without any merit.22. Disposed of.(Janak Raj Kotwal)
Judge 

Jammu:17.04.2015 
 Rakesh 


