Agra Ice Factory and Cold Storage vs State of U.P. and Others

R.A. Sharma, J.—All these writ petitions, which involve common questions of facts and law, have been heard together and are being disposed of by a common judgment, with the consent of the learned Counsel for the parties, Agra Ice Factory arid Cold Storage v. State of U.P. and Ors., Writ Petition No. 11134 of 1985 has been made the leading case, from which the relevant facts shall be given hereinafter.

Petitioner is a registered partnership firm. It has built a cold storage on plots Nos. 4142. 4144, 4145, 4146. 4151, 4152/1, 4152/2 and 4154, located by the side of Naraich-Hathras Road, Agra (total area being 2 Bighas 2 Biswas and 10 Biswansis), in 1967 with the permission of the Government of India under Cold Storage Order, 1964. This cold storage was registered with the Directorate of Industries, Government of U. P. on 15.11.1968 and was granted a licence under the Regulation of the Cold Storage Act, 1975. Petitioner is carrying on the business of cold storage since then.

A notification under Sub-section (1) of Section 4 read with Sub-section (4) of Section 17 of Land Acquisition Act (hereinafter referred to as the Act) was issued on 27.8.1976 for acquiring large number of plots including the plots in question over which the Petitioner has established the cold storage for planned industrial development in district Agra through U.P. State Industrial Development Corporation Ltd. (hereinafter referred to as the Corporation). On 28.8.1976, notification u/s 6 of the Act was also published. On 12.9.1976 a notice u/s 9 of the Act was published in a Hindi news paper ''AMAR UJALA''. The Petitioners, who have established their industries over several plots, which were acquired by the aforesaid notifications, made representation before the Government of India and the Government of U.P., complaining against the impugned acquisition and requesting for release of their land from acquisition. The Government of India vide its letter dated January 29, 1977 informed the Petitioners that it has taken up the matter with the Corporation, who has informed it that the matter is being considered for release of the plots over which industrial units were existing at the time when the above notifications were issued. Petitioners were, therefore, advised to approach the Corporation in this connection. The District Magistrate, Agra vide letter dated June 6, 1977 asked for the details of the plots over which industrial units are existing for exemption from acquisition. The Government of U. I''., vide its letter dated October 13, 1977, informed the Director of the Corporation that the Government has decided to exempt the land over which industrial units exist from acquisition on payment of 50% betterment fee by these units. The Government of U. P., however, instead of itself releasing the Petitioners'' land from acquisition, wrote a letter dated November 26, 1977 to the Corporation requiring it to release the land over which the industrial units exist from acquisition by execution of conveyance deeds in their favour. The Government adopted this course for releasing the Petitioners'' land from acquisition, because in its opinion, possession of the land had already been taken and, therefore, land cannot be exempted from acquisition by it in view of the provisions contained in Section 48 of the Act. Petitioners thereafter continued to represent the matter in this connection before the State Government and the Corporation. The Corporation vide its letters dated 27.4.1985 and 29.5.1985 (Annexures 14 and 16 to the writ petition), informed the Petitioners that the Corporation can allot plots on lease on payment of development charges at the rate of Rs. 8 per square yard and required the Petitioners to confirm their acceptance of the proposal. Petitioners thereafter have filed these writ petitions before this Court for release of their land from acquisition and for getting the aforesaid two letters quashed. Prayer for quashing the notifications Under Sections 4 and 6 of the Act has also been made, Incidental and consequential reliefs have also been claimed.

Both the Government and the Corporation have filed counter affidavits and the Petitioner have filed rejoinder affidavits in reply thereto. We have heard the learned Counsel for the parties.

Learned Counsel for the Petitioners have made three submissions in support of these petitions, namely, (i) the State Government was fully competent to release the land of the Petitioners from acquisition u/s 48 of the Act, because Its actual possession was not taken by it and, therefore, there was no vesting of the lap.d in the Government Under Sections 16 and 17 of the Act ; (ii] notifications under the Art acquiring the land were issued without application of mind in a mechanical manner and (Hi) there was no justification for applying the urgency clause contained in Sub-section (4) of Section 17 and dispensing with the provisions of Section 5A of the Act. Sri Chandra Prakash, learned Counsel for the Corporation and the learned standing counsel, apart from disputing the above contentions, have raised two preliminary objections, namely, (i) the Petitioners, being firms, have no focus standi to file these writ petitions ; and (ii) Petitioners are guilty of excessive delay and laches, so far as their challenge to the notifications Under Sections 4 and 6 of the Act is concerned.

Before dealing with the questions raised by the Petitioners, it is necessary to decide the preliminary objections raised by the learned Counsel for the Respondents. As regards the first objection, their contention is that a firm is neither a natural nor a Juristic person and, therefore, it has no locus standi to file writ petition under Article 226 of the Constitution of India, challenging the acquisition proceedings. In their support they have placed reliance on a decision of Division Bench of this Court in M/s. Agarwal Stone Mill v. U. P. State Electricity Board 1993 ACJ 361. It is true that the Division Bench in the above case has laid down that firm has no right to file the writ petition, because it is neither a natural nor a juristic person.

The question as to whether a firm can maintain a writ petition was raised before the Hon''ble Supreme Court in Andhra Industrial Works Vs. Chief Controller of Imports and Others, . Supreme Court rejected the preliminary objection and held that firm can maintain a writ petition as it stands for all the partners collectively and the writ petition filed by it is to be deemed to have been filed by all the partners. The relevant extract from the said decision of the Supreme Court Is reproduced below:

"We 11 nd no merit in the preliminary objection that the writ petition on behalf of the "firm" is not maintainable. Since "firm" stands for all the partners collectively, the petition is to be deemed to have been filed by all the partners, who are citizens of India. We, therefore, negative this objection."

Right of the firm to maintain the writ petition having been upheld by the Hon''ble Supreme Court in the above case, it was not open to this Court to take contrary view in Agarwal Stone Mill v. State Eler.trtrity Board (supra). It appears that the aforesaid decision of the Supreme Court was not placed before the Division Bench which decided. Agarwal Stone Mill''s case (supra). It may also be mentioned that a Full Bench of (his court in Umesh Chand Vinod Kumar and Others Vs. Krishi Utpadan Mandi Samiti and Another, has upheld the right of an association of persons registered or unregistered to file a writ petition for enforcement of the rights of its members. Relevant extract from the judgment of the Full Bench is as under:

To summarise the position appears to be that an association of persons, registered or unregistered, can file a petition under Article 226 for enforcement of the rights of its members as distinguished from the enforcement of its own rights-

In case members of such an association are themselves unable to approach the court by reason of poverty, disability or socially or economically disadvantaged position "little Indians"

In case public injury leading to public interest litigation provided the association has some concern deeper than that of a way-farer or a busybody, Le., it has a special interest in the subject-matter.

Where the rules or Regulations of the association specifically authorise It to take legal proceedings on behalf of Its members, so that any order passed by the court In such proceedings will be binding on the members.

When an unregistered association can file a writ petition for enforcement of the rights of its members there will be no justification to deny such a right to a registered firm. Unfortunately the decision of the Full Bench also does not appear to have been placed before this Court in Agarwal Stone Mill v. U.P. State Electricity Board (supra). The decision of the Division Bench, referred to above, has been given in igorance of decisions of Supreme Court in Andhra Industrial Works v. Chief Controller (supra) and of Full Bench in Umesh Chand v. Krishi Utpadan Mandi Samiti (supra) and, therefore, it cannot be accepted as a binding precedent, being per incuriam. Whenever a decision is rendered by a court in Ignorance of relevant statutory provisions or decision of higher court or the court of co-ordinate jurisdiction, such a decision becomes or incuriam and does not have binding effect. In this connection reference may be made to a Full Bench decision In Rana Pratap Singh v. State of U.P. and Ors. (Writ Petition No. 8374 of 1992) decided on 6.2.1995 by five Hon''ble Judges of this Court, relevant extract from which Is reproduced below:

This is what now brings us to what constitute the parameters of the per incuriam rule. As the Supreme Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh and Others, , explained "The Latin expression per incuriam means through inadvertance. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of this Court." Further "In England, a decision is said to be given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.

A similar exposition of the per incuriam rule is to be found in State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, , namely that "Incuria" literally means carelessness'' in practice per incuriam appears to mean per ignortium. English courts have developed this principle in relaxation of the rule of stare decisis. The ''quotable in law'' is avoided and ignored if it is rendered in ignoratium of a statute or other binding authority''. Young v. Bristol Aeroplane Co. Ud. 1994 1 KB 718: 1944 2 AER 293."

It is strictly within these parameters and not beyond, that the per incuriam rule can legitimately be applied."

The writ petitions filed by the firm are, as such, maintainable. The first preliminary objection raised by the learned Counsel for the Respondents is accordingly rejected.

The second objection raised by the learned Counsel regarding delay is, however, liable to be accepted. Notifications Under Sections 4 and 6 of the Act were issued in 1976. These writ petitions have been filed in 1985, challenging those notifications. There is thus delay of about nine years which is highly excessive. There Is no plausible explanation given by the Petitioners for challenging those notifications after such a long gap of time. Supreme Court in Hari Singh and Others Vs. State of U.P. and Others, , held that the writ petition challenging the notification under the Act filed after the delay of nearly two and a half years is liable to be dismissed on the ground of laches. Therefore this writ petition, so far as it relates to the challenge to the notifications Under Sections 4 and 6 of the Act has to be dismissed on the ground of delay and laches. However the first contention of the Petitioners relating to the release of their plots from acquisition is liable to be decided by this Court, because there is no delay as regards this relief.

As regards the first contention raised by the learned Counsel for the Petitioners, it may be mentioned that the Government has the power to release any land from acquisition u/s 48 of the Act till its possession is taken by it. Supreme Court in Jethmull Bhojraj Vs. State of Bihar and Others, , has held that, "Possession referred to In Section 48 necessarily is the possession taken either u/s 16 or u/s 17(1)". Possession contemplated by Sections 16 and 17 of the Act is the actual possession and neither symbolical nor the possession on paper only. In this connection, reference may be made to the decision of the Supreme Court in Balwant Narayan Bhagde Vs. M.D. Bhagwat and Others, , relevant extract from which is reproduced below:

We think It is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking ''symbolical'' possession in the sense understood by Judicial decisions under the Code of Civil Procedure. Nor, would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land.

In the instant case It has specifically been pleaded by the Petitioners that actual possession of the land was never taken by the Respondents; but this has not been seriously disputed by Respondents. In their counter affidavits, the Respondents have stated that they have taken possession of the land, but how such possession was taken has not been specified.'' They are also silent on the question as to whether the actual possession was taken by them. In paragraphs 21, 27, 69, 74 and 76 of the writ petition, Petitioner has specifically pleaded that actual possession of the land was not taken by the Respondents. The reply of these paragraphs Is contained in paragraphs 25, 27 and 29 of the counter affidavit of the Government in which the above position is not seriously disputed. Same is the position with regard to the counter affidavit filed on behalf of the Corporation as is clear from its paragraph 59. On the other hand, in paragraph 29 of the Government''s counter-affidavit, and in paragraph 59 of the Corporation''s counter-affidavit, the physical possession of the plots in question of the Petitioners has been admitted.

Government of U.P. has, in fact, taken a decision to release the land of the Petitioners from acquisition ; but it did not pass any order u/s 48 of the Act on the assumption that the possession of the land has already been taken. In this connection, it did not consider whether actual possession was or was not taken. Unless the actual possession is taken by the Government u/s 16 or 17 of the Act, the land does not vest In it and the owners of the land continue to be Its owner. The Government is, therefore, fully competent to release the land from acquisition till such time its actual possession is taken by it. In view of the facts and circumstances of the case, the Government has to consider the question of release of land from acquisition afresh in accordance with law.

These writ petitions are accordingly allowed partly. The orders dated 27.4.1985 and 29.5.1985 (Annexures 14 and 16 of the writ petition) are quashed. The Government of U.P. is directed to consider the question of release of the Petitioners'' land from acquisition afresh in accordance with law as expeditiously as possible, preferably within a period of six months from the date of presentation of certified copy of this order before It. In view of the facts and circumstances of the case, there shall be no order as to costs.