2003 Supreme(Del) 1024

High Court Of Delhi
RADHEY SHYAM GUPTA - Appellant
Versus
UNION OF INDIA - Respondent
CIV.WRIT PETITION 922 of 2001
Decided On : 10/29/2003

Headnote:Constitution of India, 1950 - Article 226 — Power under Article 22 — Land acquisition — Exercise of — Power under Article 226 of the Constitution is discretionary, courts have to weigh the public interest vis-a-vis private interest while exercising the power under Article 226.

       Land Acquisition - Delay in approaching the Court — Petitioners did not bother to approach the Court after issuance of notification under Section 4, notification under Section 17(1) as also soon after declaration under Section 6 was made — Petitioners had allowed the machinery to complete the acquisition proceedings and award being made and thereforee they have no right to challenge the proceedings.

       Held:

       It is clear that the petition is filed after an award was made by the Land Acquisition Collector. The petitioners did not bother to approach the Court after issuance of notification under Section 4, notification under Section 17(1) as also soon after declaration under Section 6 was made. The petitioners did not approach soon after the notice under Section 9 was issued but have approached as someone else approached the Court after award was made. In view of this, on behalf of the respondent it was submitted that the petitioners had allowed the machinery to complete the acquisition proceedings and thereforee they have no right to challenge the proceedings.

       Exercise of power of urgency - Delay on account of the lethargic action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of issuance of notification.

       The delay on account of the lethargic action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of issuance of notification. In Jage Ram v. State of Haryana, 1971 (1) SCC 671, the Apex Court upheld the exercise of power of urgency under Section 17(4) and held that lethargy on the part of the officers at an early stage was not relevant to decide whether on the date of notification there was urgency or not. In Rajasthan Housing Board v. Smt Krishna, 1993 (2) SCC 84, the Apex Court had held that it must be remembered that satisfaction under Section 17(4) is subjective, and that so long as there is material upon which the Government could have formed the said satisfaction fairly, the Court would not interfere nor loould it examine the material as an appellate authority.

       It is very clear from the following decisions of the Apex Court that the Apex Court has considered purposes similar to the erection of CETP in the instant case as urgent and upheld the issuance of notification under Section 17 (1) and 17 (4): the notification of Section 17(1) and 17(4) have been upheld as such for treatment plant (Jai Narain v. UOI, 1996 (2) SCC 9); for shifting of timber business from the walled city of Delhi, (Union of India v. Praveen Gupta, for the purpose of construction of new transit station of Delhi Airport, (Deepak Pahwa v. LG of Delhi, AIR 1984 SC 1712); for the purpose of planned development as per plan submitted to the Government by Ghaziabad Development Authority, (A.P. Sain v. State of U.P., 1997(9) SCC 359); shifting of fruits and vegetable market from a congested locality, (Bhagat Singh v. State of U.P.); for construction of market yard for the appellant in Krishi Utpadan, (AIR 1988 SC 1459); for technological park in the case of S.S. Darshan v. State of Karnataka, (AIR 1996 SC 1459) and for construction of residential and commercial building where Section 17(4) was applied as unauthorised colonies would have come up on the land in question in the case of Satbir v. State of U.P., AIR 1998 Allahabad 177.

       Possession - Even if possession was previously taken, the same will be deemed to be in possession of the Government under Section 17 of the Act on expiration of the period indicated in the notice, and land will vest in the Government free from all encumbrances — Land Acquisition Act, 1894, Sections 4, 6, 9, 17(1) & 17(4).

       The petitioners claiming to be in possession have never raised objection to the acquisition proceedings after issuance of notification under Section 4, declaration under Section 6 or notification under Section 17(1) or notice Under Section 9(1) of the Act. They have not thought it fit to approach the Court before the award was made by the Land Acquisition Collector under the Act. From all these, what is required to be inferred is that the petitioners peacefully handed over possession, never objected to the possession and never filed any reply to the notice under Section 9 even after the possession was taken. Merely because some one filed a petition, the petitioners have rushed to the Court and in view of the fact that an order was passed in one of such petitions, the petitioners were also protected. It is in view of these that authorities could not make use of the land which they were entitled to make use soon after acquisition. As pointed out by the Apex Court in the case of Lt. Governor Himachal Pradesh (supra), even if possession was previously taken, the same will be deemed to be in possession of the Government under Section 17 of the Act on expiration of the period indicated in the notice, and land will vest in the Government free from all encumbrances.

       Service of notice - Requirement — Notice is required to be issued to the owners or occupiers of the property whose names are appearing in the revenue record — Petitioners names are not reflected as owners or occupiers of the land in the revenue record, thereforee, there is no question of serving any notice to the petitioners.

       It is also admitted position that the petitioners are not the recorded owners. On behalf of the respondent it was submitted that the petitioners names are not reflected as owners or occupiers of the land in the revenue record. It is not the case of the petitioners that they got their names recorded in the revenue record in pursuance of the alleged documents on which reliance is placed. thereforee, it was submitted on behalf of the respondents that there is no question of serving any notice to the petitioners under the circumstances. Notice is required to be issued to the owners or occupiers of the property whose names are appearing in the revenue record. The Apex Court in Winky Dilawari v. Amritsar Improvement Trust, 1996 (11) SCC 644, has taken the view that failure to serve personal notice on the persons whose names have not been mutated in the official Record of Rights in pursuance of any sale in their favor does not vitiate the proceedings for acquisition.

       Right of transferees - Transfer of property in favor of the petitioners has taken place after issuance of requisite notifications under the Land Acquisition Act, and, thereforee, the transferees have no right, except to claim compensation in accordance with law if they are entitled to.