Nathu Ram v. State of Haryana & Ors.

Mr. Sachin Mittal, Advocate, for the petitioner. Mr. Kamal Sehgal, Addl. AG, Haryana, for respondent Nos. 1 and 2. Ms. Shallie Taneja, Advocate, for Mr. Arun Walia, Advocate, for respondent No. 3. To be referred to the Reporters or not? 1. 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The petitioner has challenged notification dated 3.10.2006 (P-2), issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and declaration made on 1.10.2007 under Section 6 of the Act. The principal ground of challenge of the acquisition proceedings is that the Collector has not granted adequate hearing to the petitioner and the objections filed by him under Section 5-A of the Act have also not been considered properly. The other ground of challenge is discrimination. It has been alleged that the land belonging to the petitioner is surrounded by the vacant land owned by various private builders but the same has not been acquired. CWP No. 4248 of 2010 2 On 11.3.2010, when the instant petition came up for motion hearing, learned counsel for the petitioner fairly pointed out that the writ petition was filed on 24.9.2009 and the same was returned by the Registry with the objection ‘Incomplete petition in all respects’. The petition could be re- filed only on 9.3.2010. However, in the interregnum period the Land Acquisition Collector announced the award on 30.9.2009. Accordingly, the issue which arises for determination is whether announcement of award during the interregnum period would attract the delay caused due to re-filing the petition by the petitioner and will be hit by various 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, or not. The aforesaid issue is no longer res integra. A similar petition being CWP No. 4352 of 2010 (M/s Magic Promoters Pvt. Ltd. v. State of Haryana) came up for our consideration on 27.4.2010. In that case the petitioner has challenged notification dated 19.1.2007 issued under Section 4 of the Act and declaration made on 18.1.2008 under Section 6 of the Act. The petition was initially filed on 26.11.2009, however, on account of some defects in the presentation of the petition, the Registry of this Court raised objection on

27.11.2009. It was on 27.11.2009 that award was announced, possession of the land was taken by the respondent-State and the same was further handed over to the Haryana Urban Development Authority which has to develop the land. The petition was re-filed on 11.3.2010. In other words, the writ petition was re-filed CWP No. 4248 of 2010 3 after the announcement of the award which brings the petitioner in existence of his irreversible rights. The respondent- State acquired proprietary rights and the land vest in the State free from all encumbrances after the award and taking of the possession. The petitioner in the said case took the stand that the question of obtaining of possession is a question of fact which depends on facts and circumstances of each case. In support of the aforementioned submission reliance was placed on certain observations made by Hon'ble the Supreme Court in the cases of Balwant Narayan Bhagde v. M.D. Bhagwat, (1976) 1 SCC 700 and National Thermal Power Corporation v. Mahesh Dutta and others (2009) 8 SCC 339. After considering the contention of the petitioner and the law laid down by Hon’ble the Supreme Court in the case of Bal Mokand Khatri Educational and Industrial Trust v. State of Punjab, (1996) 4 SCC 212, we have dismissed the said petition vide order dated 27.4.2010 by observing as under:- “ After bestowing our thoughtful consideration on the submissions made by the learned senior counsel, we are of the view that the instant petition lacks merit and is thus liable to be dismissed. It is well settled that possession of the land can always be taken by visiting the spot and making entry in the rapat roznamcha. For the aforesaid proposition, reliance may be placed on para 4 of the judgement rendered by Hon'ble the Supreme Court in the case of Bal Mokand Khatri Educational and Industrial Trust v. State of Punjab (1996) 4 SCC 212 which reads thus: “4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their CWP No. 4248 of 2010 4 possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory 1241 acquisition. The normal mode of taking possession is drafting the Panchanama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.” It is thus obvious that normal rule of taking possession is entry in the rapat roznamcha (Panchnama), taking of possession and giving delivery to the beneficiary. It is further pertinent to mention that retention of possession by the land owner thereafter would tantamount to illegal and unlawful possession. The contention of the learned counsel based on the judgement of Hon'ble the Supreme Court in the case of Balwant Narayan Bhagde (supra) has failed to persuade us to deviate from the settled principle of law that once award is announced and possession is taken then the writ petition is not maintainable because the observations made in para 28 on which reliance has been placed are not different in contents and substance than the one made in the case of Balwant Narayan Bhagde (supra). In the present case, the petitioner has approached this Court on 26.11.2009. On account of the fact that the petition was incomplete it was returned to the petitioner on 27.11.2009. However, the petitioner did not re-file the petition for more than three months and it could be refiled only on 11.3.2010. It appears that the petitioner not only allowed the award to be passed, CWP No. 4248 of 2010 5 possession to be taken and given to the beneficiary Authority but also failed in refiling the petition which was delayed by more than three months. The delay is regarded as fatal. For the proposition that no writ petition is maintainable after the passing of the award, reliance may be placed on C.Padma v. Deputy Secretary to the Government of Tamil Nadu (1997)2 SCC 627 and Star Wire (India) Ltd. v. State of Haryana (1996) 11 SCC 698. As a sequel to the above discussion, the writ petition fails and the same is dismissed.” The facts of the present case are also identical. The instant petition was initially filed on 24.9.2009 and the same was returned with objection by the Registry on 25.9.2009. The award was announced on 30.9.2009, whereas the petition was re-filed only on 9.3.2010. We find that the order dated 27.4.2010 passed by us in CWP No. 4352 of 2010 is fully applicable to the present case. As a sequel to the above discussion, the instant petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) JUDGE May 12, 2010 Pkapoor