JUDGMENT
Swatanter Kumar, J.
1. The validity and legality of the notification dated 23rd January, 1965 issued under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act) and declaration under Section 6 dated 26th December, 1968 is challenged in the present writ petition. The petitioners also prayed that the said notifications are of no consequence or effect in relation to the land owned and possessed by the petitioners and respondents be restrained from forcibly entering upon the land of the petitioners without following the due process of law. It is also the prayer of the petitioners that respondents be restrained from taking any action in furtherance to the award made by the Collector in relation to the land, subject matter of the present writ petition.
2. The challenge is founded on the premise that :-
(a) the notifications under Section 4 and 6 of the Act have been kept in abeyance for 18 years.
(b) the petitioners have not been paid compensation for their land and as such, the acquisition proceedings have been vitiated in law.
(c) the respondents have misused the provisions of the Act, which is impermissible.
(d) the provisions of the Delhi Development Act, 1957 do not entitle the respondents to proceed with the matter any further in view of the fact that the acquisition proceeding relating to the land in question deserve to be declared invalid after the lapse of 10 years and 6 months.
3. It is also the contention of the petitioners that no public purpose would be achieved by acquisition of the land but on the contrary, it would deprive the user and benefit of land to large number of families. The petitioners have referred to various judgments in support of their contentions. It is contended that once one single notification under Section 4 of the Act relating to huge land was issued earlier in relation to the revenue estate of the same village, no further notification could be issued in respect of the remaining land in the revenue estate of the same village and that too by invoking the provisions of Section 4 of the Act afresh. The petitioners have also relied upon the decision in the case of Roshnara Begum v. Union of India and Ors. AIR 1996 Delhi 206 (FB) in support of their contentions.
4. Counter affidavit has been filed on behalf of the respondents wherein the respondents have given various reasons for the delay and it is their contention that question of delay has to be determined with reference to the facts and circumstances of the case and that large area of the land had to be acquired to meet unprecedented influx of population in Delhi, the resources, which were available were scare, planning concepts had to be evolved and finalised, several agencies were concerned in the matter of implementation of the programme of development of Delhi, lands had to be frozen with a view to preventing undesirable activities in real estates and preventing speculative deals and/or preventing individuals from being benefited unjustifiably enriching themselves at the expenses of the society and furthermore there were interim orders passed in various cases as a result of which, the plans could not be given effect to as planned development of Delhi was one large concept of public development in Delhi. While denying the correctness of the submissions made on behalf of the petitioners as afore-noticed, it was specifically pleaded by the respondents that award had been made on 30th March, 1981 and possession of the land had been taken on 31st March, 1981 by the Collector. Thereafter, it was handed over to Delhi Development Authority for proper development in accordance with the plans and as contemplated under Section 22(1) of the Delhi Development Act on 19th May, 1981. It is also stated that on pronouncement of award on 30th March, 1981, notice and intimation was sent to the petitioners, which were received by one Shri Suraj Mal on 4th May, 1981. In these circumstances, it is prayed that writ petition be dismissed.
5. The petitioners chose not to file any rejoinder to the averments made in the counter affidavit filed by the respondents, which, in any case, are based upon the records maintained by the respondents in the normal course of business. The averments made in the counter affidavit are normally treated to be correct. However, we still directed for production of the original record during the course of the hearing which were produced. From the record produced before us, it is clear that possession of land in question was taken by Kabza Karvahi dated 31st March, 1981 after the award was made on 30th March, 1981. The Kabza Karvahi produced before us clearly shows that possession of Khasra Nos. 1281/1, 1281/2 and 1282 measuring 3.8, 1.8 and 4.16 bighas was taken by the respondents and all these lands had been duly indicated in the Notification dated 19th May, 1981 issued by the Delhi Administration. A copy of the said notification has been placed on record.
6. In other words, there is sufficient record before us and we have no reason to doubt that the possession of the land in question was taken by the concerned authorities as back as in the year 1981 and present writ petition was filed in the year 1984 claiming the relief that petitioners should not be dispossessed. This relief of the petitioners is claimed on incorrect facts. There is nothing on record before us to doubt the correctness of the Kabza Karvahi report which in accordance with the settled principles of law is a primary proof of possession as well as the notification dated 19th May, 1981.
7. Firstly, all the pleas raised by the respondents are squarely covered by the Full Bench Judgment of this Court in the case of Smt. Roshnara Begum (supra), which itself has been relied upon by the petitioners but most pertinent factor of this case is that once the petitioners have been dispossessed after pronouncement of the award and in fact they participated in those proceedings and even served with the notices, they would be debarred from raising any challenge to the notifications under Sections 4 and 6 and the acquisition proceedings. In this regard reference can be made to a Division Bench judgment of this Court in the case of Ashish Paul v. Union of India & Ors . The relevant portion of the judgment reads as under :-
18. It may also be mentioned that it has been held by a Division Bench of this Court in Pawan Singh and Ors. v. Union of India and Ors. , that even if possession of acquired land is taken without offering compensation under Section 17(3A) of the Act, that would not by itself render the taking of possession illegal. However, it was observed that such a step should be taken only in exceptional circumstances. We are satisfied that given the facts of the case, even if the Respondents wanted to tender the compensation to the Petitioner before taking possession of the acquired land, they could not have done so because on the own showing of the Petitioner he was not in India at that time. This being the position, we do not think that the Respondents acted illegally in taking possession of the land of the Petitioner on 14th August, 2002.
19. In view of conclusion that possession of the Petitioner’s land was taken by the Respondents on 14th August, 2002 the present writ petition cannot be entertained.
8. In the case of Satendra Prasad Jain and Ors. v. State of U.P. and Ors. , the Supreme Court held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land under Section 17. Once lands were vested in the Government under the Scheme of Land Acquisition Act, there was no provision under the Land Acquisition Act to withdraw the land acquired under Section 17 of the Act.
9. Even in the case of State of Rajasthan and Ors. v. D.R. Laxmi and Ors. , the Supreme Court reiterated this principle and held that under the scheme of the Act after the possession of the land was taken either under Section 17(2) of the Act or Section 16, the land stands vested in the State free from all encumbrances. Thereafter, there is no provision under the Act to divest the title which was validly vested in the State.
10. In a very recent judgment of Division Bench of this Court in the case of Om Prakash v. Union of India & Ors , the Court took the same view after following the above principles and held as under :-
11. Even if the original notification was not applicable to the land in question, still upon conclusion of acquisition proceedings and land vesting in the appropriate Government, the petitioner would not be able to challenge the proceedings. The Supreme Court has specifically held that there can be no challenge to the acquisition proceedings after possession of the land is taken and the land is vested in the State [Refer: State of Rajasthan and Ors. v. D.R. Laxmi and Ors., and Delhi Development Authority v. Shyam Sunder Khanna and Ors. 2004 (72) DRJ 356 (C)].
12. This subject was also explained by another Division Bench of this Court in the judgment dated 26th March, 2004 passed in W.P. (C) No. 2361/1987 and after scanning numerous case law on this aspect, following principle was stated:
In view of the aforesaid pronouncements, including the recent judgment of the Supreme Court in the case of Delhi Development Authority v. Shyam Sunder Khanna (supra), the principle which can be deduced is that even in the case of void order, the aggrieved party has to approach before such an order is enforced. Till the order is enforced (in the instant case to mean that till possession is taken) the aggrieved party may challenge the order and at that stage the question of delay, latches or waiver would not come in his way. However, after the order is enforced, namely, possession is taken and the writ petition is filed thereafter, considerations like delay, latches or waiver would become relevant even when contention raised is that the impugned order was void.
13. In the case of Gajendra Kumar v. Union of India, 110 (2004) Delhi Law Times 591, the Court while dealing with somewhat similar circumstances except to the extent whether it stood already determined that the property in question was an evacuee property or not held as under :
… The petitioners are seeking quashing of Notification under Section 4 and Declaration under Section 6 of the Act ( it is not understood why the petitioners have prayed for quashing Notification under Section 4 of the Act when according to them it does not cover their land as it is excepted thereto) and notices under Sections 9 and 10 of the Act and also award bearing No.60-82/83 in respect of the land of the petitioners. Such a prayer cannot be granted in a petition filed in the year 1987, i.e. much after the award, which was passed in the year 1983 and possession taken in the year 1984.
11. On an analysis of the above judgment, it is clear that once a property is validly vested in the State under Section 16 of the Act, the petitioners would loose their locus to raise any objection in regard to acquisition proceedings particularly which they could and ought to have made under Section 5A of the Act.
12. In the present case, we have already noticed that possession of the property in question was taken by officers of different departments through Kabza Karvahi dated 31st March, 1981. Once the possession was taken in terms of Section 16 of the Act, the land would vest in the Government free of any restrictions. The obvious result thereof would be that petitioners cannot question the validity of the acquisition proceedings in the present writ petition. This view has been consistently taken by different Benches of this Court. The dictum of the Supreme Court in the case of Delhi Development Authority v. Shyam Sunder Khanna and Ors, 2004 (72) DRJ 356 ‘in any case is binding on this Court.
13. Notification under Section 4 in respect of the land of the petitioners was issued on 23rd January, 1965 and declaration in that regard under Section 6 was made on 26th December, 1968. the petitioners have approached this Court in the year 1984. There is, thus, intentional unexplained delay. The petition at the face of it suffers from defect of delay and latches. The contention of the petitioners that possession had not been taken is without any merit in face of the Kabza Karvahi report dated 31st March, 1981.
14. For the reasons aforestated, we find no merit in this petition.
15. WP (C) No. 2304/1984 is accordingly dismissed while leaving the parties to bear their own costs.