# Hakim Singh v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-13
- **Case number:** Writ C No. 37047 of 2023
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hakim-singh-v-state-of-u-p-ors-50900
- **Pages:** 17

## Headnote

Civil Law- Constitution of India,1950Article
226-Urban
Land(Ceiling
and
Regulation)Act,
1976-Section
10(3),
10(5)-U.P. Avas Evam Vikas Parishad
Adhiniyam, 1965-The land was declared
surplus and acquired by awas evam vikas
parishad-he claimed no compensation was
received
under
the
Act,1976
and
notifications
were
never
served-The
2 All. Hakim Singh Vs. State of U.P. & Ors.
529
acquisition of land under the act,1965
including
possession
transfer
and
compensation distribution was valid and
lawful-The subsequent purchaser of the
land had no right to challenge the
acquisition
process
as
the
original
acquisition vested title in the Stateproceedings under the Act, 1976 were
final and binding-Claims of lack of notice
or compensation were refuted by records
showing proper procedure and notification
compliance-delay and laches disentitle
equitable relief under Article 226 of the
Constitution.(Para 1 to 27)

The writ petition is dismissed. .( E-6)

List of cases cited:

## Text

_Characters 0–39,944 of 58,400. This is a partial read: ask again with offset=39944 for what follows._

528 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Similarly, in case of Noharlal
Verma v. District Cooperative Central
Bank Limited, Jagdalpur reported in
(2008) 14 SCC 445, the Apex Court
reiterated the view in paragraph no. 32 &
33 as under:

"32. Now, limitation goes to the
root of the matter. If a suit, appeal or
application is barred by limitation, a Court
or an Adjudicating Authority has no
jurisdiction, power or authority to entertain
such suit, appeal or application and to
decide it on merits.

33. Sub-section (1) of Section 3 of
the Limitation Act, 1963 reads as under;

(3) Bar of limitation.--(1) Subject
to the provisions contained in Sections 4 to
24 (inclusive), every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed
although limitation has not been set up as a
defence.

(emphasis supplied)

Bare reading of the aforesaid
provision leaves no room for doubt that if a
suit is instituted, appeal is preferred or
application is made after the prescribed
period, it has to be dismissed even though
no such plea has been raised or defence
has been set up. In other words, even in
absence of such plea by the defendant,
respondent or opponent, the Court or
Authority must dismiss such suit, appeal or
application, if it is satisfied that the suit,
appeal or application is barred by
limitation."

27. The issue of limitation being
generally a mixed issue of fact and law and
is subject to the evidence led by the parties.
The
findings
recorded
by
the
Court/Tribunal
while
deciding
the
application under Order 7 Rule 11 C.P.C.
will not operate as res judicata.

28. I am of the considered opinion
that the judgment of the Appellate Court is
perfectly correct as it takes care of the
petitioner's concern as to bar of limitation
to
maintainability
of
the
Original
Application.

29. In view of the same, I am not
inclined to interfere with the matter.
Accordingly, the petition is disposed of
with the direction to D.R.T. Jabalpur to
comply with the directions issued by the
D.R.A.T. Allahabad vide its order dated
3.1.2023 passed in Appeal No.1140 of 2022
(Saurabh
Kalani
Vs.
Stressed
Asset
Stabilization Fund and others.
----------
(2024) 2 ILRA 528
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023
BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ C No. 37047 of 2023

Hakim Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Indra Raj, Sri M.A. Haseen

Counsel for the Respondents:
C.S.C., Sri Nipun Singh

Civil Law- Constitution of India,1950Article
226-Urban
Land(Ceiling
and
Regulation)Act,
1976-Section
10(3),
10(5)-U.P. Avas Evam Vikas Parishad
Adhiniyam, 1965-The land was declared
surplus and acquired by awas evam vikas
parishad-he claimed no compensation was
received
under
the
Act,1976
and
notifications
were
never
served-The
2 All. Hakim Singh Vs. State of U.P. & Ors.
529
acquisition of land under the act,1965
including
possession
transfer
and
compensation distribution was valid and
lawful-The subsequent purchaser of the
land had no right to challenge the
acquisition
process
as
the
original
acquisition vested title in the Stateproceedings under the Act, 1976 were
final and binding-Claims of lack of notice
or compensation were refuted by records
showing proper procedure and notification
compliance-delay and laches disentitle
equitable relief under Article 226 of the
Constitution.(Para 1 to 27)

The writ petition is dismissed. .( E-6)

List of cases cited:

1. Atul Sharma & ors.. Vs St. of U.P. & ors..,
L.A. No. 159 of 2014

2. Jagbeer Singh & ors.. Vs St. of U.P. & ors..
(2018)2 AWC 1639

3. Raj. St. Indus Development & Investt Corpn
Vs Subhash Sindhi Co-op. Housing Socy. Jaipur
& ors.. (2013) AIR SC 1226

4.
V.
Chandrasekaran
&
anr..
Vs
The
Administrative Officer & ors.. JT (2012)9 SC 260

5. Dehri Rohtas Light Railway Vs District Board
Bhojpur & ors.. (1992) 2 SCC 598

6. Shivgonda Anna Patil Vs St. of Mah. (1999) 3
SCC 5

7. Municipal Council, Ahmednagar Vs Shah
Hyder Beig(2000) 2 SCC 48

8. U.P. Jal Nigam & anr.. Vs Jaswant Singh &
anr. (2006) 11 SCC 464

9. Tukaram Kana Joshi & ors.. Vs MIDC & ors..
(2013) 1 SCC 353

10. St. of Assam Vs Bhaskar Jyoti Sharma &
ors.., (2015) 5 SCC 321

11. Shiv Ram Singh Vs St. of U.P. & ors.. (2015)
7 ADJ 630

12. Kapilaben Ambalal Patel & ors.. Vs St. of
Guj. 2021 (12 SCC 95,

13. Smt. Kalawati Devi Vs St. of UP & ors.. Writ
C No. 41628 of 2011

14. Basic Shiksha Parishad U.P. Alld. & ors.. Vs
Aditya Kishor & Prabhat Kumar & ors.. (2013)2
ADJ 607

 (Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Prashant Kumar, J.)

1. Heard Shri M.A. Haseen, learned
counsel for the petitioner; Shri Sharad
Chandra
Upadhyay,
learned
Standing
Counsel for State respondents and Shri
Nipun Singh, learned counsel for U.P. Avas
Evam Vikas Parishad (in short "the
Parishad").

2. The instant writ petition has been
preferred for a direction to respondents not
to dispossess the petitioner from the land in
question at Khasra No.863, 864, 897, 903,
904 situated at Village Kakaraitha, Tehsil
Sadar, District Agra, declared surplus vide
order dated 18.5.1977 passed under the
Urban Land (Ceiling and Regulations) Act,
1976 and record the name of the petitioner
after
expunging
the
name
of
State
Government.

3. It transpires from the record that
ceiling proceedings were initiated under the
Urban Land (Ceiling and Regulation) Act,
1976 (in short "the Act, 1976") against the
petitioner-Hakim Singh and his brother
Mavasia, both sons of Beneram, who were
recorded tenure holders of Plot Nos.863,
864, 897, 903, 904 (total area 8 Beegha 4
530 INDIAN LAW REPORTS ALLAHABAD SERIES
Biswa) (in short "the disputed land"),
Village Kakaraitha, Tehsil Sadar, District
Agra. The petitioner was recorded tenure
holder with bhumidhari rights and was in
possession over his holding (half share of
the disputed land). A notice under Section 8
(3) of the Act, 1976 was issued to the
petitioner by the Prescribed Authority in
the year 1977 and the same was also
objected. The said objection was rejected
by the Prescribed Authority vide order
dated 18.5.1977 declaring certain land as
surplus. It is claimed that the petitioner had
no knowledge of the order dated 18.5.1977
and had never received any notice under
Section 9 of the Act, 1976. Therefore, he
could not file any appeal against the order
dated 18.5.1977. It is also claimed that in
the ceiling proceeding 1500 sq. mtr. land
was left in favour of the petitioner as per
Section 4 (9) of the Act, 1976, upon which
the respondents had no right and title and
as such the entire impugned action of the
respondents is arbitrary and illegal. Though
the land in question was declared surplus
but no actual and physical possession was
taken from the petitioner and the petitioner
remained and still in actual and physical
possession over the disputed land. It is also
claimed that no compensation under
Section 11 of the Act, 1976 was given to
the petitioner. Although the notification
under Section 10 (3) of the Act, 1976 was
issued on 27.12.1982 and under Section 10
(5) was issued on 18.9.1986 but as both the
notifications were not served upon the
petitioner, therefore, actual possession was
neither been delivered by the petitioner nor
taken by the State Government. No
proceeding for taking possession under
Section 10 (6) of the Act, 1976 or any other
provisions had even been invoked against
the disputed land. After the Repeal Act,
1999 no proceeding under Section 10 (6)
can be initiated and the State Government
cannot dispossess the petitioner after the
Repeal
Act.
Mere
publication
of
notification under Section 10 (3) and 10 (5)
of the Act, 1976 is not sufficient, if the
actual physical possession has not been
taken by the prescribed Authority.

4. It is contended that neither the
actual physical possession has been taken
by the authorities nor the petitioner has
handed over the possession to the State but
surprisingly in the month of April, 2017 the
officials of the respondent no.5-Parishad
came on the spot and threatened the
petitioner for dispossession. When the
petitioner enquired about the same, they
orally informed that the entire land
including the land in dispute (8 Beegha 4
Biswa) was acquired for housing purposes.
It is claimed that neither the petitioner had
received any notice or information of the
acquisition by respondent no.5-Parishad
nor he received any compensation. As such
it is submitted that this Court may come for
rescue and reprieve of the petitioner.

5. On the matter being taken up on
11.12.2023, the Court has proceeded to
pass the following order:-

"1. Sri S.C. Upadhyay, learned
Standing Counsel has placed detailed
instructions indicating therein that for the
part of the land, ceiling proceeding under
Urban Land (Ceiling and Regulation) Act,
1976 (in short, Act, 1976) was initiated and
the possession was taken over by the State
Government way back in the year 1980.
For the remaining part, the surplus land
was handed over to the Awas Evam Vikas
Parishad, which had also initiated the
acquisition proceeding under Sections 28
and 32 of Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 1965 (in short, Act,
1965). It is also claimed that qua the
2 All. Hakim Singh Vs. State of U.P. & Ors.
531
acquisition proceedings, which were drawn
under the Act, 1965, the award was also
made and adequate compensation was also
paid to the tenure holders.

2. Sri S.C. Upadhyay, learned
Standing Counsel has raised an objection
that at this stage, in view of law laid down
by Division Bench of this Court in Writ C
No.38977 of 2022 (Mithai Lal and 11 ors
vs. State Of U.P. and 2 Others) decided on
16.02.2023, no relief can be accorded and
in case in lieu of the award the petitioner
has not lifted the compensation, it is open
to
the
petitioner
to
lift
the
said
compensation but neither any relief can be
accorded under the Act of 1976 nor under
the Act of 1965 the acquisition proceeding
can be challenged at this stage.

3. On the request of learned
counsel for the petitioner, the matter is
adjourned.

4. Put up this matter as fresh day
after tomorrow i.e. 13.12.2023 at 2 PM."

6. On the matter being taken up today,
Shri Nipun Singh, learned counsel for
Parishad, on the instructions, submits that
for Sikandara Project, Agra, notification
under Section 28 of U.P. Avas Evam Vikas
Parishad Act, 1965 (in short "Act, 1965")
of Khasra No.863 (2-1-0) 864 (1-17-0), 897
(1-14-0), 903 (1-5-0) and Khasra No.904
(1-7-0) i.e. Total (8-4-0) of Village
Kakretha was issued on 4.4.1970 and
notification under Section 32 was issued on
28.6.1980.
After
the
acquisition
proceeding, the actual physical possession
was taken by the competent authority on
26.7.1983 and the award was declared on
26.8.1985. The compensation was also
taken by the petitioner. At present allotment
scheme is already completed and even
allotment has also been made. The
petitioner has not come to the Court with
clean hands. He had transferred his rights
to Shri Sobran Singh and Madhu through
sale deed, who have received compensation
and as such he has mislead the Court that
he has not received the compensation.
Learned counsel for Parishad, in this
backdrop, submits that after the land was
acquired and possession was taken over, the
same was vested in the State free from all
encumbrances. Later on under the Scheme,
allotments were also made. He submits that
at this belated stage, the relief as has been
sought for, cannot be accorded and the writ
petition is liable to be dismissed on the
ground of delay and laches.

7. Shri Nipun Singh, learned counsel
for Parishad has also contended that at this
stage the alleged possession cannot sustain
and even the provisions of Section 24 (2) of
the Right to Fair Compensation &
Transparency
in
Land
Acquisition,
Rehabilitation & Resettlement Act, 2013
(in short "the Act, 2013") would not apply
to
the
acquisition
made
under
the
provisions of Act, 1965. He submits that
the said issue is no longer res integra in
view of the Division Bench judgment of
this Court in Atul Sharma & Ors. v. State
of U.P. & Ors., L.A. No.159 of 2014 and
Jagbeer Singh & Ors. v. State of U.P. &
Ors., 2018 (2) AWC 1639. The operative
portion of the judgment in Atul Sharma &
Ors. (Supra) is quoted as under:-

".............The
aforesaid
observations
have
been
later
on
reproduced, considered and explained by
the Apex Court in at least three decisions
which deserve mention, the leading being
Ch. Tika Ramji and Ors etc. vs. The State of
Uttar Pradesh and Ors. (AIR 1956
Supreme Court 676), paragraphs 30 to 39.
The second decision is in the case of the
State of T.N. and Anr. vs. Adhiyaman
Educational & Research Institute and
532 INDIAN LAW REPORTS ALLAHABAD SERIES
Ors,(1995 (4) SCC 104) paragraphs 15 to
18 and the third decision is in the case of
Thirumuruga
Kirupananda
Variyarthavathiru Sundara Swamigalme vs.
Stae of Tamil Nadu and Ors. (1996 Vol. 3
SCC 15) paragraphs 19, 20, 23 to 26.
There are many more decisions to the same
effect and it is not necessary for us to
burden this judgment with anything further.

The basic principle that can be
culled out from a perusal of these
judgments is that the test of repugnancy is
whether the law made by Parliament and
that by the State Legislature occupy the
same field and whether the Parliament
intended to lay down a exhaustive code in
respect of the subject matter replacing the
act of the State Legislature.

The non-inclusion of the 1965 Act
in the 4th Schedule to the 2013 Act in terms
of section 105 thereof does not necessarily
mean that the 2013 Act was extended to be
applied in acquisitions under the 1965 Act.
The intent of the 2013 Act was to eclipse
the anomalies and improve the conditions
of payment of compensation to acquisitions
made under the Land Acquisition Act, 1894
only. Since the 1894 Act has been repealed,
and the 1965 Act continues to exist without
any amendment there does not arise any
issue of repugnancy or inconsistency. This
has to be viewed from another angle. The
benefit of deemed lapse is by a fiction
under a specific statute. A provision of
fiction has to be strictly construed and it
cannot
be
impliedly
treated
to
be
incorporated unless the 1965 Act also
contemplates any such fiction. It is for this
reason that an amendment will have to be
expressly brought about in the 1965 Act if
the provisions of 2013 Act have to be
applied and not otherwise in relation to the
procedure of acquisition. A provision of
deemed lapse cannot be read into by way of
interpretation
into 1965 Act
without
specific amendment therein.

The other question is can this be
construed the other way around by
presuming an implied applicability of the
2013 Act merely because section 55 of the
1965 Act incorporates the procedure of
acquisition under the 1894 Act. We may put
on record that the issue of lapse of an
acquisition proceeding under section 11-A
of the 1894 Act was specifically held to be
not applicable in acquisitions under the
1965 Act in Jainul Islam's case. The same
situation exists here where the issue of
deemed lapse under section 24(2) is sought
to be introduced and read into the 1965
Act. We cannot accept this proposition
inasmuch as section 55 of the 1965 Act has
not been amended so as to include any
provision
relating
to
the
acquisition
resulting in any lapse as contained in the
2013 Act. Thus, such applicability cannot
be
implied
when
it
has
not
been
incorporated in the 1965 Act.

There is yet another reason
namely the provisions of 2013 Act as
contained in
section 24(2)
are
not
inconsistent with any provision of the State
Act that exists from before. Conversely the
State Act also does not include any
provision that may said to be inconsistent
or in conflict with 2013 Act. The noninclusion of the benefit of the clause of
deemed lapse does not make the enactment
inconsistent, conflicting or repugnant.

To understand this recourse can
be had to the provisions quoted herein
above in the 2013 Act that clearly provide
that the 2013 Act and its provisions are in
addition and not in derogation of any law
for the time being in force. Consequently
the States have been left to enact any law
that may provide for any better facilities
relating to acquisition over and above that
has been provided for in the 2013 Act. This,
2 All. Hakim Singh Vs. State of U.P. & Ors.
533
therefore, also removes the elements of
discrimination or arbitrariness. It is open
to the State to provide better facility or
benefit in matters of acquisition by
bringing about any amendment in the 1965
Act.

Coming to the last limb of this
argument
namely
the
resultant
discrimination in relation to acquisitions
having been made prior to 01.01.2014, we
may point out that when there is a
legislation by incorporation then it is only
that part of legislation which stands
incorporated and continues to exist and not
a new legislation which refers to the
proceedings under the old legislation. The
reason is what can be incorporated is that
which exists. It is for this reason that
section 55 of the 1965 Act incorporated the
then existing provisions of 1894 Act. The
1894 Act has now been repealed and is not
in existence. Thus, it is only the provisions
of 1894 Act that have been incorporated in
section 55 of the 1965 Act that will
continue to exist for that purpose only to
that limited extent. The same does not
within its fold draw the elements of the
2013 Act which has never been intended to
be incorporated or included in the 1965 Act
or vice-versa. Thus, these are two sets of
acquisitions under the different Acts and
the question of applying Article 14 to
invoke discrimination does not arise.

However, there is another shade
of this discrimination which has to be
avoided keeping in view the ratio of the
Jainul Islam's case. To that extent we hold
that if any acquisition is made by the
authority under the 1965 Act after
01.01.2014 then it's actions or the
assessment of compensation cannot be less
than what has been contemplated in 2013
Act. The determination of the quantum of
compensation, therefore, on principles will
have to be applied in relation to
acquisitions made by the Awas Vikas
Parishad under the 1965 Act after
01.01.2014 as per the 2013 Act.

Consequently for all the reasons
aforesaid the relief claimed in the writ
petition with regard to the lapse of the
proceedings cannot be availed of and the
petition is accordingly dismissed."

8. For ready reference, the operative
portion of the judgment in Jagbeer Singh &
Ors., (Supra) is quoted as under:-

".........The
Fourth
Schedule
contained in the 2013 Act makes reference
to 13 Acts but does not make reference to
the Parishad Act.

This issue was also considered by
a Division Bench of this Court in Atul
Sharma. It was sought to be contended that
Section 24(2) of the 2013 Act would apply
to acquisitions made under the Parishad
Act. This contention was repelled by the
Division Bench holding that the absence of
exclusion of the applicability of the 2013
Act would not necessarily mean that the
2013 Act would apply to the acquisitions
made under the Parishad Act. The
observations of the Division Bench are as
follows:

"The non-inclusion of the 1965
Act in the 4th Schedule to the 2013 Act in
terms of section 105 thereof does not
necessarily mean that the 2013 Act was
extended to be applied in acquisitions
under the 1965 Act. The intent of the 2013
Act was to eclipse the anomalies and
improve the conditions of payment of
compensation to acquisitions made under
the Land Acquisition Act, 1894 only. Since
the 1894 Act has been repealed, and the
1965 Act continues to exist without any
amendment there does not arise any issue
of repugnancy or inconsistency. This has to
be viewed from another angle. The benefit
534 INDIAN LAW REPORTS ALLAHABAD SERIES
of deemed lapse is by a fiction under a
specific statute. A provision of fiction has to
be strictly construed and it cannot be
impliedly treated to be incorporated unless
the 1965 Act also contemplates any such
fiction. It is for this reason that an
amendment will have to be expressly
brought about in the 1965 Act if the
provisions of 2013 Act have to be applied
and not otherwise in relation to the
procedure of acquisition. A provision of
deemed lapse cannot be read into by way of
interpretation
into 1965 Act
without
specific amendment therein.

In this connection, the Division
Bench also observed that since Section 11A of the Acquisition Act was held not to be
applicable to acquisitions made under the
Parishad Act, the same position would exist
in regard to Section 24(2) of the 2013 Act
and the observations are:

"The other question is can this be
construed the other way around by
presuming an implied applicability of the
2013 Act merely because section 55 of the
1965 Act incorporates the procedure of
acquisition under the 1894 Act. We may put
on record that the issue of lapse of an
acquisition proceeding under section 11-A
of the 1894 Act was specifically held to be
not applicable in acquisitions under the
1965 Act in Jainul Islam's case. The same
situation exists here where the issue of
deemed lapse under section 24(2) is sought
to be introduced and read into the 1965
Act. We cannot accept this proposition
inasmuch as section 55 of the 1965 Act has
not been amended so as to include any
provision
relating
to
the
acquisition
resulting in any lapse as contained in the
2013 Act. Thus, such applicability cannot
be
implied
when
it
has
not
been
incorporated in the 1965 Act."

The decisions referred to by the
learned counsel for the petitioners relating
to lapsing of acquisition under Section
24(2) of the 2013 Act when land was
acquired under the provisions of the
Acquisition Act would, therefore, not come
to the aid of the petitioners.

Thus, for all the reasons stated
above, it is not possible to accept the
contention of the learned counsel for the
petitioners that Section 24(2) of the 2013
Act would be applicable to the acquisitions
made under the Parishad Act.

In the end, learned counsel for
the petitioners submitted that though the
award was made way back on 30 December
2013, compensation has not been paid to
the petitioners who are the subsequent
purchaser of the land that was acquired. It
is for the petitioners to file an application
before the Special Land Acquisition Officer
for payment of the compensation and the
Court has no reason to doubt that in case
such an application is filed, it shall be
decided in accordance with law after
hearing the parties concerned.

The writ petition is, accordingly,
dismissed with the aforesaid observations."

9. Similar arguments have also been
raised by learned Standing Counsel. On the
basis of instructions dated 16.11.2023 sent
by the Addl. District Magistrate (City),
Agra, he submits that under the Scheme in
question the land in question was acquired.
At the time of acquisition, the names of
petitioner-Hakim Singh and Mawasia both
sons of Baniram were recorded in the
revenue record. After acquisition, the
possession was transferred on 26.7.1983
and the award was declared on 26.8.1985.
The original land owner Mawasia has sold
his half portion to Smt. Madhu daughter of
Lakhmi Chand and the petitioner Hakim
Singh has sold his half portion to Soran
Singh son of Ram Dayal. The said Soran
Singh had sold his half share to Saudan
2 All. Hakim Singh Vs. State of U.P. & Ors.
535
Singh son of Kuwari. Accordingly, Soran
Singh, Saudan Singh and Smt. Madhu had
received
the
compensation
of
their
share/portion. As such the claim of the
petitioner
that
he
has
not
received
compensation is absolutely incorrect and
unjustified. It is submitted that acquisition
proceeding had been completed way back
and as such at this belated stage no
interference is required in the matter.

10. Heard rival submissions and
perused the record, as well as the
instructions placed by learned counsel for
the respondents.

11. In the present matter two issues
are involved for adjudication. The First
Issue is "whether the part of disputed land,
which was acquired under the Act, 1965 is
valid or not?" The Second Issue is
"whether the Ceiling Proceeding drawn
under the Act, 1976 is sustainable or not?"

First Issue

12. So far as the first issue is
concerned, the notification under Section
28 of the Act, 1965 (pari materia Section 4
of the Land Acquisition Act, 1894) of the
land viz. Khasra No.863 (2-1-0), 864 (1-170), 897 (1-14-0), 903 (1-5-0) and Khasra
No.904 (1-7-0) Total 8-4-0 for planned
development was issued on 4.4.1970.
Thereafter, the notification under Section
32 of the Act, 1965 (pari materia Section 6
of the Land Acquisition Act, 1894) was
issued on 28.6.1980. After the completion
of acquisition proceeding, the competent
authority had taken over the actual physical
possession of the aforesaid land under the
Land Acquisition Act, 1894 and, thereafter,
the possession of the same was handed over
to the Parishad on 26.7.1983. The award of
the disputed land (8-4-0) was also made on
26.8.1985. At the time of acquisition, the
names of the petitioner-Hakim Singh and
his brother Mavasia, both sons of Beneram
were recorded in the revenue record. The
said Mawasia had sold half portion of his
holding to Smt. Madhu daughter of Lakhmi
Chand and the petitioner Hakim Singh had
also sold his half portion to Soran Singh
son of Ram Dayal. Even thereafter, the said
Soran Singh had also sold his half share to
Saudan Singh son of Kuwari. On the basis
of said transfer, Soran Singh had received
compensation of Rs.40,093.50 on 2.9.1985;
Saudan Singh received compensation of
Rs.40,093.50 on 2.9.1985 and Smt. Madhu
received compensation of Rs.79,457.30 on
3.9.1985. Therefore, on the basis of
instructions, it is claimed that in lieu of the
award, the compensation was either lifted
by the petitioner, his brother or even by the
subsequent
purchasers. Therefore,
the
claim, as has been set up before us, that in
lieu of the award the petitioner has not
lifted
the
compensation
is
factually
incorrect.

13. There cannot be any quarrel with
respect to the settled legal proposition that
the purchase, subsequent to the issuance of
notification under Section 28 of the Act,
1965 (pari materia of Section 4 of the Land
Acquisition Act, 1894) in relation to such
land, is void against the State and at the
most, the purchaser may be a person
interested in compensation, since he steps
into the shoes of the erstwhile owner and
may, therefore, merely claim compensation.
However, it is also apparent from the
record that third party interest had been
created and the compensation had also been
lifted by the parties. Therefore, at this
stage, we are not inclined to dwell with the
issue whether the alleged transfer/ sale of
the disputed land is prior or after the
notification under Section 28 of the Act,
536 INDIAN LAW REPORTS ALLAHABAD SERIES
1965. Hon'ble the Apex Court in the case of
Rajasthan State Industrial Development
and
Investment
Corporation
Vs.
Subhash Sindhi Cooperative Housing
Society Jaipur and Ors, AIR 2013 SC
1226 has observed in Paragraph No. 7 as
follows:-

"7. There can be no quarrel with
respect to the settled legal proposition that
a purchaser, subsequent to the issuance of a
Section 4 Notification in respect of the
land, cannot challenge the acquisition
proceedings,
and
can
only
claim
compensation as the sale transaction in
such
a
situation
is
Void
qua
the
Government.
Any
such
encumbrance
created by the owner, or any transfer of the
land in question, that is made after the
issuance of such a notification, would be
deemed to be void and would not be
binding on the Government. (Vide: Gian
Chand v. Gopala & Ors., (1995) 2 SCC
528; Yadu Nandan Garg v. State of
Rajasthan & Ors., AIR 1996 SC 520;
Jaipur Development Authority v. Mahavir
Housing Coop. Society, Jaipur & Ors.
(1996) 11 SCC 229; Secretary, Jaipur
Development Authority, Jaipur v. Daulat
Mal Jain & Ors., (1997) 1 SCC 35; Meera
Sahni v. Lieutenant Governor of Delhi &
Ors., (2008) 9 SCC 177; Har Narain
(Dead) by Lrs. v. Mam Chand (Dead) by
LRs. & Ors., (2010) 13 SCC 128; and V.
Chandrasekaran
&
Anr.
v.
The
Administrative Officer & Ors., JT 2012 (9)
SC 260)."

14. Hon'ble the Apex Court has also
considered
the
issue
'whether
the
subsequent purchaser can challenge the
acquisition
proceeding'
in
V.
Chandrasekaran
&
Anr.
v.
The
Administrative Officer and Ors., JT
2012 (9) SC 260 and observed as under:-

"Whether subsequent purchaser
can challenge the acquisition proceedings:

6. The issue of maintainability of
the writ petitions by the person who
purchases the land subsequent to a
notification being issued Under Section 4
of the Act has been considered by this
Court time and again.

In Pandit Leela Ram v. Union of
India : AIR 1975 SC 2112, this Court held
that, any one who deals with the land
subsequent to a Section 4 notification being
issued, does so, at his own peril. In Sneh
Prabha v. State of Uttar Pradesh: AIR 1996
SC 540, this Court held that a Section 4 in
notification gives a notice to the public at
large that the land in respect to which it
has been issued, is needed for a public
purpose, and it further points out that there
will be "an impediment to any one to
encumber the land acquired thereunder."
The alienation thereafter does not bind the
State
or
the
beneficiary
under
the
acquisition. The purchaser is entitled only
to receive compensation. While deciding
the said case, reliance was placed on an
earlier judgment of this Court in Union of
India v. Shri Shiv Kumar Bhargava and
Ors.: JT (1995) 6 SC 274.

7. Similarly, in U.P. Jal Nigam v.
Kalra Properties Pvt. Ltd.: AIR 1996 SC
1170, this Court held that, purchase of land
after publication of a Section 4 notification
in relation to such land, is void against the
State and at the most, the purchaser may be
a person-interested in compensation, since
he steps into the shoes of the erstwhile
owner and may therefore, merely claim
compensation. (See also: Star Wire (India)
Ltd. v. State of Haryana and Ors.: (1996)
11 SCC 698).

9.In view of the above, the law on
the issue can be summarized to the effect
that
a
person
who
purchases
land
subsequent to the issuance of a Section 4
2 All. Hakim Singh Vs. State of U.P. & Ors.
537
notification with respect to it, is not
competent to challenge the validity of the
acquisition proceedings on any ground
whatsoever, for the reason that the sale
deed executed in his favour does not confer
upon him, any title and at the most he can
claim compensation on the basis of his
vendor's title."

15. In the present matter, admittedly
the petitioner has not approached this Court
with clean hands. No averment is made in
the writ petition, at what time he has
created third party interest in the property
in
dispute,
whereas
through
the
instructions, it is brought into notice to the
Court that the compensation was lifted.
Considering the aforesaid facts and in the
light of the judgments cited above, we find
that in lieu of the award the entire
compensation has been lifted. Therefore, at
this belated stage, any challenge to the
proceeding under the Act, 1965 is not
available either to the petitioner or to the
subsequent purchasers.

Second Issue

16. The second issue pertains to the
proceedings under the Act, 1976. A notice
under Section 8 (3) of the Act, 1976 was
issued to the petitioner to which he filed an
objection. Even the said objection was
rejected by the Prescribed Authority way
back on 18.5.1977 declaring the disputed
land of the petitioner as surplus. Thereafter,
notice under Section 10 (3) of the Act, 1976
was issued on 29.3.1986. Thereafter, notice
under Section 10 (5) was issued according
30 days time to the petitioner for handing
over possession and admittedly the same
was
served
upon
the
petitioner
on
17.10.1986. Thereafter, the possession was
taken over and the name of erstwhile owner
was also expunged and the name of the
State Government was entered in the
revenue record. Therefore, it is absolutely
incorrect to say that the petitioner was
having no knowledge about the ceiling
proceeding as the revenue record is
maintained/ rectified/ modified in every six
years known as "Shat Varshiki Khatauni".
Each and every villager is very particular/
conscious regarding entry in the revenue
record. The entry in the khasra and
khatauni gives an ample opportunity to the
recorded tenure holder or to his/her heirs
for correction in the revenue record. Once
the name of the State Government was
entered in the revenue record, therefore, it
cannot be said, at this belated stage, that the
petitioner had no knowledge regarding the
said proceeding.

17. It is evident from the record that
the petitioner has raised the issue of
possession and notice under Section 10 (6)
of the Ceiling Act after lapse of more than
40 years and there is no explanation for the
delay. The said aspect of the matter has
been considered in detail in Dehri Rohtas
Light
Railway
Vs.
District
Board
Bhojpur and Others, (1992) 2 SCC 598,
wherein Hon'ble Supreme Court observed
in paragraph No. 13 as under :-

"The rule which says that the
Court may not inquire into belated and
stale claim is not a rule of law but a rule of
practice based on sound and proper
exercise of discretion. Each case must
depend upon its own facts. It will all
depend on what the breach of the
fundamental right and the remedy claimed
are and how the delay arose. The principle
on which the relief to the party on the
grounds of laches or delay is denied is that
the rights which have accrued to others by
reason of the delay in filing the petition
should not be allowed to be disturbed
538 INDIAN LAW REPORTS ALLAHABAD SERIES
unless there is reasonable explanation for
the delay. The real test to determine delay
in such cases is that the petitioner should
come to the writ court before a parallel
right is created and that the lapse of time is
not
attributable
to
any
laches
or
negligence. The test is not to physical
running of time. Where the circumstances
justifying the conduct exists, the illegality
which is manifest cannot be sustained on
the sole ground of laches. The decision in
Trilok
Chand
(supra)
relied
on
is
distinguishable on the facts of the present
case. The levy is based on the net profits of
the railway undertaking was beyond the
authority and the illegal nature of the same
has been questioned though belatedly in the
pending
proceedings
after
the
pronouncement of the High Court in the
matter relating to the subsequent years.
That being the case, the claim of the
appellant cannot be turned down on the
sole ground of delay. We are of the opinion
that the High Court was wrong in
dismissing the writ petition in limine and
refusing to grant the relief sought for. We
however agree that suit has been rightly
dismissed."

18. Similarly, Hon'ble Apex Court has
also considered the delay and laches
pertaining to ceiling matters in Shivgonda
Anna Patil Vs. State of Maharashtra,
(1999) 3 SCC 5 wherein the petitioner had
approached after considerable delay of ten
years after the land was declared surplus
and vested in the State Government and the
writ petition was summarily dismissed by
the High Court and the same was also
approved by the Apex Court. Hon'ble Apex
Court has also considered the delay and
laches in preferring the petition under
Article 226 of Constution of India in
Municipal Council, Ahmednagar Vs.
Shah Hyder Beig, (2000) 2 SCC 48 and
held that the equitable doctrine, namely,
"delay defects equity" has its fullest
application in the matter of grant of relief
under Article 226 of the Constitution.

19. The Supreme Court in U.P. Jal
Nigam and Another Vs. Jaswant Singh
and Another, (2006) 11 SCC 464 referred,
with approval the law relating to laches, as
summarized in Halsbury's Law of England.
The relevant extract from the aforesaid
judgement is reproduced below :-

"12. The statement of law has
also been summarized in Halsbury's Laws
of England, Para 911 , pg. 395 as follows :

"In determining whether there
has been such delay as to amount to laches,
the chief points to be considered are :

(i) acquiescence on the claimant's
part; and

(ii) any change of position that
has occurred on the defendant's part.

Acquiescence in this sense does
not mean standing by while the violation
of a right is in progress, but assent after
the violation has been completed and the
claimant has become aware of it. It is
unjust to give the claimant a remedy
where, by his conduct, he has done that
which might fairly be regarded as
equivalent to a waiver of it; or where by
his conduct and neglect, though not
waiving the remedy, he has put the other
party in a position in which it would not
be reasonable to place him if the remedy
were afterwards to be asserted. In such
cases lapse of time and delay are most
material. Upon these considerations rests
the doctrine of laches."

(Emphasis added)

20. In Tukaram Kana Joshi and
others Vs. MIDC and others, (2013) 1
2 All. Hakim Singh Vs. State of U.P. & Ors.
539
SCC 353, the Supreme Court observed as
follows :-

"12. The State, especially a
welfare State which is governed by the Rule
of Law, cannot arrogate itself to a status
beyond one that is provided by the
Constitution. Our Constitution is an
organic and flexible one. Delay and laches
is adopted as a mode of discretion to
decline exercise of jurisdiction to grant
relief. There is another facet. The Court is
required to exercise judicial discretion. The
said discretion is dependent on facts and
circumstances of the cases. Delay and
laches is one of the facets to deny exercise
of discretion. It is not an absolute
impediment. There can be mitigating
factors, continuity of cause action, etc. That
apart, if whole thing shocks the judicial
conscience, then the Court should exercise
the discretion more so, when no third party
interest is involved. Thus analysed, the
petition is not hit by the doctrine of delay
and laches as the same is not a
constitutional limitation, the cause of
action is continuous and further the
situation
certainly
shocks
judicial
conscience.

13. The question of condonation
of delay is one of discretion and has to be
decided on the basis of the facts of the case
at hand, as the same vary from case to
case. It will depend upon what the breach
of fundamental right and the remedy
claimed are and when and how the delay
arose. It is not that there is any period of
limitation for the Courts to exercise their
powers under Article 226, nor is it that
there can never be a case where the Courts
cannot interfere in a matter, after the
passage of a certain length of time. There
may be a case where the demand for justice
is so compelling, that the High Court would
be inclined to interfere in spite of delay.
Ultimately, it would be a matter within the
discretion of the Court and such discretion,
must be exercised fairly and justly so as
to promote justice and not to defeat it.
The validity of the party's defence must
be tried upon principles substantially
equitable. (Vide: P.S. Sadasivaswamy
vs. State of T.N. AIR 1974 SC 2271;
State of M.P. & Others. vs. Nandlal
Jaiswal & Others., AIR 1987 SC 251;
and Tridip Kumar Dingal & Others. vs.
State of West Bengal & Others, (2009) 1
SCC 768;)

14. No hard and fast rule can be
laid down as to when the High Court
should refuse to exercise its jurisdiction in
favour of a party who moves it after
considerable delay and is otherwise guilty
of laches.