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Purshotam Lal and ors. Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc Writ Petition No. 521, 524, 525 and 532 of 1970
Judge
Reported in1972WLN702
AppellantPurshotam Lal and ors.
RespondentThe State of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredMangla and Anr. v. The State of Rajasthan and Ors. (supra) and Bhera
Excerpt:
.....declaration about the validity of the notification which they want to challenge by means of these writ petitions.;the delayed application agitating the stale, cases are rejected on the basis of laches. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the..........to determine their compensation and, therefore in these circumstances without explaining the delay the petitioners should not be permitted to invoke the extraordinary jurisdiction of this court.8. before i discuss the rulings relied upon by learned counsel for the petitioners, i would like to consider certain principles that have been laid down by the supreme court for the guidance of the courts in such matters. in tilokchand motichand v. h.b. munshi (supra) each lordship expressed his opinion in his separate judgment. that case went to the supreme court under the provision of article 32 the question raised in that case was that the fundamental rights of the petitioner were encroached upon and it was in that context that the learned judge expressed their opinion as to how the.....
Judgment:

V.P. Tyagi, J.

1. All these five writ petitions relate to the acquisition of land in village Bharda Tehsil Chittorghargh for which notifications under Section 4 & 6 of the Rajasthan Land Acquisition Act were issued by the State Government, which have been challenged by the petitioners by filing these five separate petitions and therefore 1 propose to dispose them of by one judgment, On 4-3-1966, the State Government issued a notification under Section 4 of the Rajasthan Land Acquisition Act. Another notification purporting to be under Section 6 of the Act was thereafter issued by the State Government and the same was published in the Rajasthan Rajpatra dated 5th May, 1966. Thereafter notices to the individual Khatedars of the land were issued under Section 9 of the Act for assessing the compensation. It is alleged that the petitioners had filed their claims before the Land Acquisition Officer but no substantial proceedings could be taken by the said officer. The notices under Section 9 of the Act were, however, issued on 6.6.68 and the claims were filed by the petitioners on 29.8.68. When the proceedings were going on before the Land, Acquisition Officer for determining the compensation, the petitioners preferred to file these writ petitions in this Court on 28.4.1970 for a declaration that notification issued by the State Government under Section 6 be declared void as the, State Government have initiated the proceedings for acquisition for Birla Cement Work, Chittorgarh, without complying with the requirement of Chapter VII of the Act. This lacuna, according to the petitioners, vitiates the; entires proceedings and therefore it was prayed that the notifications under Section 6 and the subsequent proceedings be declared void.

2. Elaborate replies have been filed by the State Government as well as the Birla Cement Works, Chittoragh, denying the statements made by the petitioners. But I need not go into the merits of these denials as the petitions can be disposed of on the point of laches only.

3. It is vehemently urged by the learned Deputy Government Advocate and the learned Advocate appearing on behalf of respondent No. 3 that the petitioners have been all through cooperating with the Land Acquisition Officer, but all of a sudden in, the year 1970 after the lapse of five years from the date of the issue of the notification under Section 4 and four years from the date of the issue of the notification under Section 6, the petitioners preferred to come to this Court to invoke extraordinary jurisdiction under Article 226 of the Constitution without explaining the laches for not doing so promptly after the notification under Section 6 was published by the State Government in the official Gazette in the year 1969.

4. This Court by its order dated 21st Much, 1971, allowed the petitioners at their request time to explain the laches on their part to file the writ petitions after such a long time. But in spite of the time allowed to the petitioners, no explanation has been given on behalf of the petitioners. Learned Counsel appearing for the petitioners, however, argued that the petitions should not be thrown off on the plea of laches if the fundamental rights of the, petitioners are involved He also urged that as long as the possession of the: land had not been taken from the petitioners, it was not necessary for them to, file writ petitions and if the petitioners took part in the proceedings for the assessment of compensation under the provisions of the Land Acquisition Act, that conduct of the petitioners should not be considered as their acquiescence and should not come in their way to challenge the validity of the notification under Section 6 He also argued that unless the opposite party's cause was in any manner prejudiced by the delay in bringing these petitions before this Court, laches, if any, should not have any effect for seeking remedy in this Court.

5. The learned Deputy Government Advocate on the other hand placed reliance on certain authorities of the Supreme Court which I shall presently deal with and urged that the question of the involvement of the fundamental right of the petitioners would not in any manner entitle the, petitioners to take their own time to invoke the extraordinary jurisdiction of this Court. The fundamental rights of the petitioners, it at all involved, were involved at the initial stage and therefore as soon as the danger to their fundamental rights came in view, they ought to have rushed to this Court, to seek a redress in the exercise of the extraordinary jurisdiction under article 226 of the Constitution.

6. Mr. Tiwari also urged that there must be some outer limit for invoking the jurisdiction of this Court and according to him if the petitioners are debarred from bringing a suit because of the law of limitation, then thereafter they should not be permitted to invoke the extraordinary jurisdiction of this Court, and if the petitioners are allowed to seek remedies even after the lapse of time prescribed for filing a suit, then this course would go to make the law of limitation futile. Learned Counsel for the petitioners placed reliance in support of his argument on the following judgments of the various High Courts: Venkatapathi Raju v. The State AIR 1957 AP 686, Subbana Naik v. State of Mysore AIR 1965 Mys 269, Prem Nath v. State of J.K. AIR 1960 J&K; 78, Babulal Bhartia v. State of Assam ILR(1964)16 Assam 482; Chuhru v. State of J. & K AIR 1962 J&K; 19, Jagdish Narain v. State of UP : AIR1959All380 , Khub Chand v. State of Rajasthan : [1967]1SCR120 , Moon Mills v. Industrial Court Bombay AIR 1967 SC 1450, Dalpathbhai Hemchand v. Chansma Municipality : AIR1968Guj38 , Kamalabai v. T.B. Desai : AIR1966Bom36 , Bhagawat Dayal v. Union of India , Metal Corpn. of India AIR 1970 MIS. Mr. Tewari on the other hand placed reliance on certain unreported judgment of this Court where the Court rejected the waiting petition on the ground of unexplained delay made by the petitioners in invoking the extra-ordinary jurisdiction of this Court and they are Mangla and Anr. v. The State Bank of Rajasthan and Ors. (S.B. Civil writ petition No. 1839 of 1970 decided on 11.5.71) and Bhera v. State (S B Civil writ No. 1083 of 1969 decided on 5.1.71. Besides these cases, the Supreme Court decisions in Rabindra Nath v. Union of India : [1970]2SCR697 and Tilokchand Motichind v. H.B. Munshi : [1969]2SCR824 and Union of India v. K.K. Colliery Co. : [1968]3SCR784 , were relied upon by Mr. Tiwari.

7. Learned Counsel appearing on behalf of the company respondent No. 3, however urged that after the notification under Section 4 was issued, the petitioners preferred to file their objections under Section 5 of the Act, which were not accepted by the State Government and the notification under Section 6 was thereafter issued; but that notification was not challenged by the petitioners as being violative of the provisions of the Rajasthan Land Acquisition Act on the contrary the petitioners put up their claims before the Land Acquisition Officer to determine their compensation and, therefore in these circumstances without explaining the delay the petitioners should not be permitted to invoke the extraordinary jurisdiction of this Court.

8. Before I discuss the rulings relied upon by learned Counsel for the petitioners, I would like to consider certain principles that have been laid down by the Supreme Court for the guidance of the courts in such matters. In Tilokchand Motichand v. H.B. Munshi (Supra) each lordship expressed his opinion in his separate judgment. That case went to the Supreme Court under the provision of Article 32 The question raised in that case was that the fundamental rights of the petitioner were encroached upon and it was in that context that the learned Judge expressed their opinion as to how the laches on the part of the petitioner should be viewed by the courts in India when extraordinary jurisdiction is invoked to safeguard the fundamental rights. Hidayatullah C.J, in this connection observed as follows:

In India we have the Limitation Act which prescribes different periods of limitation for suits, petitions or applications. There are also residuary articles which prescribe limitation in those cases. Where no express period is provided if it were a matter of a suit or application either an appropriate article or the residuary article would have applied. But a petition under Article 32 is not a suit and is also not a petition or an application to which the limitation Act applies. To put curbs in the way of enforcement of Fundamental Rights through legislative action might well be question under Article 13(2). The reason is also quit clear. If a short period of limitation were prescribed the Fundamental Right might well be frustrated. Prescribing too long a period might enable stable claims to be made to the determent of other rights which might emerge.

If then there is not period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction.

Sikri, J., as he then was, was of opinion that:

If a claim is barred under the Limitation Act, unless there are exceptional circumstances, prima facie it is a stale claim and should not be entertained by this Court But even if it is not barred under the India Limitation Act. it may not be entertained by this Court if on the facts of the case there is unreasonable delay For instance, if the State had taken possession of property under a law alleged to be void, and if a petitioner comes to this Court 11 years after the possession was taken by the State, I would dismiss the petition on the ground of delay, unless there is some reasonable explanation. The fact that a suit for possession of land would still be in time would not be relevant at all. It is difficult to lay down a precise period beyond which delay should be explained. I favour one year because this Court should not be approached lightly', and competent legal advice should be taken and pros and cons carefully weighed before coming to this Court. It is common knowledge that appeals and representations to the higher authorities take time; time spent in pursuing these remedies may not be excluded under the Limitation Act, but it may ordinary be taken as a good explanation for the delay.

Bachawat, J. while dealing with this case expressed his opinion in the following language:

The writ under Article 32 issues as a matter of course if a breach of a fundamental right is established. Technical rules applicable to suits like the provisions of Section 80 of the Code of Civil Procedure are not applicable to a proceeding, under Article 32, the Court must ignore & trample under foot all laws of procedure, evidence, limitation, res judicata and the like.

He further observed that:

The extraordinary remedies under the Constitution are not intended to enable the claimant to recover monies, the recovery of which by suit is barred by limitation. Where the remedy in a writ application Under Article32 of the Constitution Article 226 corresponds to a remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation the Court in its writ jurisdiction acts by analogy to the statute adopts the statute as its own rule of procedure and in the absence of special circumstances imposes the same limitation on the summary remedy in the writ jurisdiction.'.The Court will almost always refuse to give relief under Article 226 if the delay, is more than the statutory period of limitation. (See : [1964]6SCR261 ).

Mitter J. in this connection observed as follows:

The provisions of the Limitation Act do not in terms apply to claims against the State in respect of violation of fundamental rights. A person complaining of infraction of any such right has one of three courses open to him He can either make an application Under Article 226 of the Constitution to a High Court or he can make an application to this Court under Article 32 of the Constitution or he can file a suit asking for appropriate reliefs. The decisions of various High Courts in India have firmly laid down that in the matter of the issue of a writ under Article 226 the Courts have a discretion and may in suitable cases refuse to give relief to the person approaching it even though on the merits the applicant has a substantial complaint as regards violation of fundamental rights. Although the Limitation Act does not apply, the Courts have refused to give relief in cases of long unreasonable delay. As noted above in Bhailal Bhai's case (AIR 1964 8.C 1009), it was observed that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinary be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured.' On the question of delay we see no reason to hold that a different test ought to be applied when a patty comes to this Court under Article 32 from one applicable to applications under Article 226. There is a public policy behind all statutes of limitation and according to Halsbury's Laws of England (Third Edition Vol. 24) Article 330 at page 181:

The Courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely (I), that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim and (3) that persons with good cause of action should pursue them with reasonable deligence.

The learned Judge in para 52 of his judgment was of opinion that limitation, prescribed for filing a suit against the Government for the refund of money under Article 16 of the Limitation Act was one year, and, therefore after the lapse of one year, the petitioner cannot be permitted to file a writ petition for the same relief.

9. The learned, Deputy Government advocate argued that in the present case if the petitioners wanted to challenge the validity of the notification issued under S.G. of the Rajasthan Land Acquisition Act, they could do so within a period of three years from the date of the issue of the notification as the residuary Article 113 would govern the period of limitation for such a suit which according to him has now been reduced from 6 to 3 years. Formerly the residuary article was 120 of the law of limitation, in such cases. According to him, the petitioners had a right to file a suit for a declaration of the notification under Section 6 as invalid only up to the year 1968, but the petitioners have filed these petitions in the year 1970 which is obviously a claim burred by limitations. He, therefore, urged that the petitioners should not be allowed to file a writ application challenging the validity of the notification issued under Section 6, as it is obviously beyond the period of limitation prescribed for that purpose by the law of limitation. Learned Counsel for the respondents relying on the Privy Council decision in Annamalai Chettiar and Ors. v. A M K C.T. Muthakaruppan and Anr. AIR 1931 PC 9 and Rukhma Bai v. Laxami Narayan AIR 1960 SC 33(SIC) further urged that the cause of action challenging the validity of the notification under Section 6 arose to the petitioner when a threat to his right became manifest by the publication of the said notification and therefore in such circumstances the time to file a writ petition or a suit shall be computed from the date when the threat to the right of the petitioner cam? into existence In these circumstances, he urged that the period of limitation must be computed from the date of the publication of the notification under Section 6.

10. I agree with argument advanced by learned for counsel the respondent that when the notification Under Section 6 alone is to be challenged, then the period of limitation shall start from the date of its publication. These facts that the proceedings for determining the compensation are suit in progress & the possession of the land has not yet been taken from the petitioners, do not help the petitioner's claim that a further claim that a further cause of action has arisen to them to invoke the extraordinary jurisdiction. The argument advanced by learned Counsel for the petitioners that he can wait to challenge the validity of the notification issued under Section 6 till his clients have been dispossessed is not a weighty argument to explain the delay of cause in filing these petitions before this Court when they are still holding the possession of the disputed lands. If the lacuna or the flaw in the notification under Section 6 is obvious on the very face of it, then the petitioners should not wait to challenge the validity of that notification till the compensation has been assessed by the assessing authority. It would mean that the petitioners by cooperating with the Land Acquisition Officer first took a chance to get a fair compensation for the land sought to be acquired by the State Government and when they failed to achieve that end, then they made up their mind to challenge the validity of the notification which they would have easily challenged when the same was issued by the State Government. Waiting for the determination of the compensation and taking the possession of the properties from the hands of the petitioners would not in any manner entitle them to approach this Court after a long period which disentitles them to file a suit if they so desired for a declaration about the validity of the notification which they want to challenge by means of these writ petitions.

11. I would now like to discuss the authorities cited by learned Counsel for the petitioners can would judge their applicability to the circumstances of the case in the light of the observations of the Supreme Court referred to above which laid down a guide-lire for the Courts in India to follow while judging the question of laches on the part of the petitioners,

12. In Venkatapathi Raju v. The State (supra) the notification under Section 6 was issued in the year 1950 and the writ petition was filed in the year 1954. At the time of the filing of the writ petition, an inquiry under Section 9 of the land acquisition was pending before the Land Acquisition Officer. The learned Judge was of the opinion that since the inquiry contemplated by Section 9 of the Act was still pending and some of the petitioners had already made an approach to the Government to drop the land acquisition proceedings, the delay caused in the filing the writ petitions, cannot be laid to be an undue delay. The fact that the matter was under the consideration of the Government for dropping the proceedings for securing the land in question however weighed with learned Judge to condone the delay in that matter. This authority, therefore, does not throw any light on the question of judging whether in the present circumstances the delay is unreasonable or not.

13. In Subbanna Naik v. State of Mysore (supra) the petitioners approached the court immediately after the proceedings under Section 9 were initiated. The petitioners in that case expressed that they were under the impression that the State Government would drop the Acquisition proceedings after the Supreme Court rendered its decision illegal in R.L; Arora v. State of Uttar Pradesh : AIR1962SC764 and they had reason to entertain ! that belief. This fact changes the complexion of the case. If the petitioners have a reasonable ground to think that the Government would change its decision after the pronouncement of the Supreme Court in some other case, then the petitioners' not invoking the extraordinary jurisdiction at an early date cannot be taken to be a bar on the ground of laches.

14. Similarly, in Prem Nath v. State of J & K (supra), a notification under Section 4 was issued in 1953 and the award was given in 1954. The writ petition was filed in 1958. The question of delay was however decided by the Court on the ground that valuable fundamental rights of the petitioners were involved and therefore the Court was of opinion that the petition could not be rejected on the ground of delay. This authority of Jammu and Kashmir cannot be said to be a good law in view of the observations of their Lordships of the Supreme Court in Tilok Chand Moti Chand v. H.B. Munshi (Supra),

15. Similarly Chuhru v. State of J. & K (supra) where there was a delay of four months only it cannot provide any light to discuss the merits of the objection raised in the present case.

16. In Jagdish Narain v. State of U tar Pradesh (supra) the petitioners were working on an assurance that their property was likely to be released from acquisition proceedings. The question of delay therefore loses its importance. Learned Counsel placed reliance on the decision of the Supreme Court in Khub Chand v. State of Rajasthan (supra) It was an appeal from the judgment of the Rajasthan High Court where the writ petition was thrown off by this Court on the question of delay. The ground that weighed with the learned Judges of the Supreme Court to upset the order of this Court was that the petitioner was not a person who raised the plea of the want of jurisdiction of the Tribunal when the decision went against him, but he was from the very beginning challenging the question of the jurisdiction of the Tribunal and he refused to take part in the proceedings before the Tribunal. In that case the notification under Section 4 was published in the Rajasthan Gazette of February 14, 1957; and the award was given on June 27, 1960, but the contention of the petitioners was that the award was given on September 15, 1960. The petition was however filed in the High Court on October 16, 1960 The jurisdiction of the Tribunal was challenged by the petitioners from the very outset In these circumstances their Lordships of the Supreme Court observed that it was not a case of an inordinate delay as to preclude the appellants from invoking the jurisdiction of the High Court under Article 226 of the Constitution In the present cases, the petitioners never raised any plea of want of jurisdiction before the Land Acquisition Officer. On the contrary they filed their claims for assessment of their compensation though they say that the claims were filed by them under protest. These writ petitioner have not been filed before this Court after the award had been given by the Land Acquisition Officer, but the petitioners preferred to come to Court to challenge the notification under Section 6 of the Act on the ground that the notification is violative of the provisions of Chapter VII of Act, and, therefore, it is void. The notification under Section 6 was issued in the year 1966 and this flaw was apparent in the notification at the time, when it was published. The petitioners, if they felt aggrieved by the issuance of the said notification, then they should have come to this Court without any delay and should not have waited till 1970 The lapse of four years' time is not explained by the petitioners as to why they did not prefer to throw the challenge to the said notification at the appropriate time. In my opinion; the facts in the case before the Supreme Court were different from the facts and circumstances of the present cases and the decision of the Supreme Court would not govern the present matter.

17. The judgment of Gujrat and Punjab High Courts in Dalpathi Hemchand v. Chansma Municipality (supra) and Bhagwat Dayal v. Union of India (supra) when scrutinised in the light of the principles laid down by the Supreme Court cannot be said to be laying down the law which may provide a good guide-line to the Courts after the pronouncement of the Supreme Court case.

18. It is the practice with this Court as is apparent from the judgments in Mangla and Anr. v. The State of Rajasthan and Ors. (supra) and Bhera v. State (supra) that the delayed applications agitating the stale cases are rejected on the basis of laches.

19. As discussed above, if the principles laid by the Supreme Court in Tilok Chand Motichand v. H B Munshi (supra) are applied to the circumstances of the present case, then I am definitely of the opinion that the petitions have been filed with considerable delay and the same has not been explained by the petitioners even when an opportunity was given to them.

20. For these reasons, I feel that these petitions should be dismissed on the ground of delay, The petitions are, therefore, dismissed. No order as to costs.


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