PETITIONER: UNION OF INDIA Vs. RESPONDENT: K. P. JOSEPH AND ORS. DATE OF JUDGMENT27/10/1972 BENCH: <NAME>, KUTTYIL KURIEN BENCH: <NAME>, KUTTYIL KURIEN GROVER, A.N. MUKHERJEA, B.K. CITATION: 1973 AIR 303 1973 SCR (2) 752 1973 SCC (1) 194 CITATOR INFO : R 1974 SC 252 (16) R 1975 SC 434 (3) F 1975 SC1487 (22) RF 1976 SC1913 (11) RF 1977 SC2411 (26) ACT: Military Service--General Order of Government of India Ministry of Defence dated 15th July 1960 conferring certain benefits on retired military personnel--Exception in paragraph (3) cl. (3) of Order, applicability of--Claim under Order whether justiciable--Offer not retrospective--Pay whether could be re-fixed for period before date of Order. HEADNOTE: The appellant was discharged from the post of combatant Clerk in <ORG> on 9th June, 1953 and was re- employed shortly thereafter. His pay was re-fixed in the scale applicable. On 15th July 1960 <ORG> issued a general Order relating to re-employed ex-military personnel. Under the Order those entitled to its benefits would get fixed in the scale applicable to them by adding to the bottom of their scales increments equal to the total number of completed years of military service. The first respondent having exercised the option provided for in the Order, claimed that he was entitled to the benefit of the Order. The claim was rejected by the Government The first respondent filed a writ petition in <ORG>. The writ petition was allowed and <ORG> directed that the pay of the respondent be refixed from 2-3-1953. In appeals to this Court it was contended by <ORG> : (i) that the order was not applicable to the first res- pondent as he was re-employed before 25-11-1958; (ii) that the order being an administrative direction was not justiciable and no writ lay; (iii) that the order not being retrospective in character, the respondent's pay should not have been fixed with retrospective effect from 2-7-53. HELD :-(i) The general rule under the Order was that past cases of persons re-employed prior to 25-11-1958 would not be reopened. But the effect of clause (3) of paragraph (3) is to create an exception to the general rule in the case of persons re-employed before 25-11-1958 for an unspecified period or for a period which extends to the date of order and who have exercised their option in writing to be brought under the Order. The respondent having exercised his option was therefore entitled to the benefit of the order. (ii)Generally speaking an administrative order confers no justiciable right but this rule like all other general rules is subject to exceptions. To say that an administrative order can never confer any right would be too wide a proposition. There are administrative rights which confer rights and impose duties. it is because an administrative order can abridge or takeaway rights that this Court imported the principle of natural justice of audi alteram partem into this area., The order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. There was no reason why this Court should not enforce that right. [755D] <CITATION> ,  1 S.C.R. 111; and <CITATION> .,  2 S.C.R. 366, 377, applied to. (3)The order was not retrospective in character. <ORG> was therefore wrong in fixing the pay with retrospective effect from 2-7-1953. 753 The direction could only be to fix the pay with effect from the date of the Order. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1204 of 1967.

Appeal by special leave from the judgment and order dated September 9, 1966 of <ORG> in Writ Petition No. 885 of 1964.

<NAME> and <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <NAME>, J.-This is an appeal by Special Leave from the order dated the 9th of September, 1966 passed by <ORG> in a Writ Petition filed by the first respondent. The first respondent was a combatant Clerk in <ORG> for a period of more than 14 years. He was discharged from that post on 9th June, 1953. On 2nd July 1953, he was re-employed as an ordinary clerk on the pay scale of Rs. 55- 85EB-4-125-5-130. His pay was re-fixed in the above scale at Rs. 70/- plus a personal pay of Rs. 2.50 by an Order dated 28th October, 1958, with effect from the date of re- employment, i.e., 2-7-1953.

On 15th July, 1960, <ORG>, <ORG>, issued a general Order called "Office Memorandum" No. 2(54)58/5801/D(Civil) providing for certain benefits to ex-military personnel on re-employment on the basis of their length of actual military service. The general effect of that Order was that those who are entitled to its benefits, would get fixed in the scale applicable to them by adding to the bottom of their scales increments equal to the total number of completed years of military service. The Order so far as it is relevant for the purpose of this appeal is contained in paragraphs 3 and 4 thereof and they read as follows :-

"3. These orders will apply to all cases of reemployment occurring on or after 25-11-58 and past cases will not be reopened. In the cases of pensioners who are in service on the date of issue of these orders and have been re-employed from a date prior to 25-11-1958 for an unspecified period or for a period which extends beyond the date of issue of the present orders may, subject to their option, be brought under the provisions of these orders with immediate effect.

(4). The option should be exercised in writing within a period of three months from the date of issue of these orders. The option once exercised shall be final."

The first respondent claimed that he was entitled to the benefit of the Order but the claim was rejected by the Government and so he filed the Writ Petition contending that as he answered the description of one to whom the benefit of the Order could properly be extended he should be given its benefit.

<ORG> allowed the writ petition and issued an order directing respondent No. 2 to refix the pay of respondent No. 1 in the scale of pay of Rs. 55-3-85-EB-4-125-130 at 89/- as from 2-7-1953 and to make consequential adjustments and payments.

The appellant contended before us that the Order was not applicable to the first respondent, as he was re-employed before 25-11-1958 and his pay had already been fixed after re-employment and therefore according to the terms of the Order the case of the 1st respondent, being a past one, could not have been reopened. To resolve this question, it is necessary to understand the provisions of the Order. The first sentence in para 3 of the Order makes it clear that it is applicable only to persons reemployed on or after 25-11- 1958. Respondent No. 1 clearly does not come within this category. The Order then goes on to say that past cases will not be re-opened. That means that cases of persons re- employed prior to that date will not be re-opened. But the contention of the first respondent is that although he was re-employed prior to 25-11-1958, he is governed by clause (3) of paragraph 3, and as he has exercised the option pursuant to clause (4) of the Order he is entitled to the benefit of the Order. In other words, the contention was that an exception to the general rule that past cases will not be re-opened has been created by clause (3) of paragraph 3 of the Order in favour of persons who were re-employed from a date prior to 25-11-1958 for an unspecified period or for a period which extended beyond the date of the issue of the Order and who exercised the option to be brought under the provisions of the Order with immediate effect and as' his case fell within the exception, he was entitled to the benefit of the Order. We think that the contention of the first respondent is well founded. It is no doubt true that past cases, namely, cases of persons re-employed prior to 25-11-1958 will not be reopened. That is the general rule. But the effect of clause (3) of paragraph (3) is to create an exception to the general rule in the case of persons re- employed before 25-11-1958 for an unspecified period or for a period which extends beyond the date of the Order and who have exercised their option in writing to be brought under the Order.

There is no dispute that the first respondent has exercised the option to be brought under the provisions of the Order. We, therefore, think that <ORG> was right in its view that the first respondent was entitled to the benefit of the Order.

The appellant, however, contended that the Order being an administrative direction conferred no justiciable right upon the first respondent which could be enforced in a Court by a writ or order in the nature of mandamus. The appellant submitted that the very foundation for the issue of a writ or an order in the nature of mandamus is the existence of a legal right and as an administrative order could confer no justiciable right, <ORG> was wrong in issuing the order directing the second respondent to fix the pay of the first respondent in accordance with the Order. Generally speaking, an administrative Order confers no justiciable right, but this rule, like all other general rules, is subject to exceptions. This Court has held in <CITATION> (1) that although Government cannot supersede statutory rules by administrative instructions, yet, if the rules framed under Art. 309 of the Constitution are silent on any particular point, the Government can fill up gaps ;and supplement the rules and issue instructions not inconsistent with the rules already framed and these instructions will govern the condi- tions of service.

<CITATION> .(2), this Court, in considering the) nature of the Import Trade Policy said:

"Granting that it is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities. "

To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural.justice of audi alteram partem into this area. A very perceptive writer has written:

"Let us take one of Mr. <NAME>'s instances,- a regulation from <ORG> that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King's shilling; afterwards the officer is sued by the (1) [1968] 1 S.C.R. 111. (2) [1968] 2 S.C.R. 366, 377.

Government for being short in his accounts among other items he claims to be allowed the shilling paid to the undersized recruit. The <ORG> has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the <ORG> exactly as effect will be given to a statute providing that murderers shall 'be hanged, or that last wills must have two witnesses." (<NAME> on "The Nature and Sources of the Law").

We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the <ORG> should not enforce that right. It was contended on behalf of the appellant that the Order not being retrospective in character, the respondent's pay should not have been fixed with retrospective effect from 2- 7-1953. The Order is not retrospective in character. The High <ORG> was therefore wrong in fixing the pay with retrospective effect from 2-7-1953. The direction could only be to fix the pay with effect from the date of the Order and the first respondent did not contend otherwise in this <ORG>. The second respondent will, therefore, fix the pay of the 1st respondent in accordance with the provisions of the Order with effect from the date of the Order. The appeal is dismissed with this modification, but, in the circumstances, we make no order as to costs.

<ORG> Appeal dismissed.


JUDGMENT <NAME>, C.J.

1. On 27-10-1944, the appellant, <NAME>, was appointed a District Fishery Officer along with several other persons. He was put on probation for a period of two years and the order of appointment specifically provided that he would be confirmed in service "on the satisfactory completion of the period of probation and the passing of a departmental examination, which may be prescribed during the period." No departmental examination was held during the probationary period, but the appellant was allowed to continue in service. An examination was held in 1951 and the appellant did appear in it, but was unable to pass. Up to the time when the proceedings out of which this appeal has arisen were commenced, he had not passed the departmental examination. We are informed that he passed it while he was under suspension.

2. On 22-9-1951, the appellant was placed under suspension by an order passed on that date. Along with the order, a charge-sheet containing as many as five charges was served on him. Those charges related principally to alleged irregularities in monetary dealings and also failure to maintain proper accounts. The charge-sheet, after reciting the charges, directed the appellant to show cause within a fortnight why disciplinary action under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules. 1936 should not be taken against him. Both the order of suspension and the charge-sheet were signed by one Dr. <NAME> who was the Director of <ORG> at the time.

3. The appellant showed cause by means of a lengthy document submitted on 14-11-1931. On the 7th of December following, he received a telegram from the Director of <ORG>, directing him to see the Director on the 10th of December next in connection with the explanation furnished. <NAME> did see the Director on that date and something like an enquiry was held at which another Officer as also a stenographer was present. What happened exactly on the 10th of December is a matter of dispute between the parties, but this much is clear that the enquiry was not concluded on that date. It appears from a letter of the Director that he thought that the appellant was obstinately refusing to furnish further explanation as to certain points raised by him in his memorandum and that he was insisting on the points being formally reduced to writing and formally served on him before he would undertake to answer them. The appellant's version is different. Be that as it may, the Director finally asked the appellant to appear before him once again on the 13th of December. The appellant did not appear on that date, but on the previous clay left a letter addressed to the Director at his Office by which he explained his own point of view. As the appellant failed to appear on the 13th of December, the Director treated his examination as closed and made a report which was adverse to the appellant. The report was duly considered by <ORG> and they came provisionally to the conclusion that the appellant "should be punished with discharge from <ORG> service under Rule 49 (vi) of the Civil" Service (C.G.A.) Rules." By a notice dated 14-5-1952, an Assistant Secretary to the State <ORG> called upon the appellant to submit within fifteen days any representation that he might desire to make as to why he should not be punished in the aforesaid manner.

4. The appellant did make a representation, but it found no favour with the authorities. They consulted <ORG> and on the recommendation received from that body, they finally decided that the appellant should be discharged from <ORG> service. Thereafter, by an order dated 28-3-1953, he was discharged.

5. The appellant then moved this Court under Article 226 of the Constitution against the Director of <ORG>, the Secretary in the Department of Forests and <ORG> and the State of West Bengal for a writ of mandamus, commanding them to rescind the orders passed against him or to forbear from giving effect to them. The usual additional prayers for writs of certiorari and prohibition were also made. A Rule was issued on the application, but at the final hearing it was discharged by <NAME>, J., by an order dated 29-5-1956. Aggrieved by that order, the appellant preferred the present appeal.

6. A great deal of controversy appears to have taken place before the learned Judge as to whether the appellant had continued to be a mere probationer in <ORG> service or had become a confirmed member by reason of his having been retained in employment after the expiry of the probationary period. The learned Judge held that the appellant had continued to be a probationer and I find no good reason to dissent from that view. It is quite true that the probationary period was for two years only and that even after the expiry of that period, the appellant had not been discharged but kept on in service. At the same time, he had not been confirmed. It has also to be noticed that by the very terms of his appointment, he was to be confirmed only if he satisfied both of two conditions, one of which was satisfactory work during the probationary period and the other of which was the passing of a departmental examination. Admittedly, he did not pass a departmental examination during the probationary period and obviously his work was not considered satisfactory. It may have been wrong for <ORG> not to hold a departmental examination within the probationary period and the appellant, if he was so minded, might have taken appropriate steps at the appropriate time for forcing <ORG> to hold a timely examination. This point, however, which is somewhat in the appellant's favour, loses a great deal of its force, if one remembers that when the examination was ultimately held in 1951, the appellant failed to pass it. Be that as it may, whatever might have been the reason for <ORG> not confirming him, the fact remains that he was not confirmed and if he was not confirmed, he could not claim any status other than that of a probationer.

7. The learned Judge found the status of the appellant to be a complete answer to the grievance made by him. The grievance was that he was entitled to the benefit of Article 311(2) of the Constitution of India and, therefore, he was entitled to a proper enquiry into the charges against him and proper opportunities to show cause both against the charges and, if the charges were found proved, against the action proposed to her taken against him. <NAME>, J., disposed of the appellant's complaint by holding that since his status in <ORG> service was no more than that of a probationer and since under the very terms of his employment, he would be liable to be discharged, if his work was not found satisfactory, it could not be said that he had been penalised, if his service had been terminated in the view that he had failed to render satisfactory service. What had happened, according to the learned Judge, was that the conditions under which the appellant had entered employment in <ORG> had been worked out in a normal manner and, consequently, no question of any penalty arose at all.

8. The learned Judge also pointed out that the appellant had been proceeded against under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936 and that, according to the explanation appended to that Rule, the discharge of a person appointed on probation during the period of probation would not amount to removal or dismissal within the meaning of the Rule. On the basis of the explanation the learned Judge held that since the appellant was only a probationer and since he had been discharged during the period of his probation, he had neither been dismissed nor removed and, therefore, he could not complain that the protection of Article 311(2) had not been made available to him.

9. A point had been taken before the learned Judge that the enquiry which had been held was not a proper enquiry at all. It was said that the Director of <ORG>, having himself framed the charges and having been virtually in the position of a complainant, should not have constituted himself the Enquiring Officer as well. Other complaints were also made as to irregularities in the course of the enquiry. The learned Judge found it unnecessary to decide whether what had taken place could be said to have been an enquiry as contemplated by Article 311(2) or the relevant Service Rules, because, in his view, the appellant having been a mere probationer, was not entitled to an enquiry of that kind at all.

10. On the broad features of the case, the learned Judge held that it could not fairly be said that the appellant had had no opportunity for establishing his innocence. He pointed out that the authorities had proceeded on documents which had been fully dealt with by the appellant in his representations and that he had been given opportunity to show cause against both the charges and the penalty proposed to be imposed on him. Accordingly, the learned Judge concluded that even if Rule 55B of the Fundamental Rules applied, it could not be said that the benefit of that Rule had been withheld from him. I should explain here that Rule 55B provides that where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault on account of his unsuitability for the service, he shall be apprised of the grounds of such proposal and given an opportunity to show cause against it. There is no such Rule amongst the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, and that explains why the learned Judge said "even if Rule 55B applies.'

11. It appears to me that the view taken by the learned Judge of the proceedings had against the appellant is not warranted by the facts. It is quite true that his status was that of a probationer, as the learned Judge has held and as I think he rightly held. But the mere fact that the appellant was a probationer could not by itself exclude him from the benefit of the Constitutional protection. If the service of a probationer is terminated merely on the ground of his work being unsatisfactory and terminated in accordance with the terms of the employment, no question of any penalty being imposed, it is true, arises. But even a probationer can be proceeded against for misconduct and proceedings with a view to imposing a penalty can be taken against a probationer as well. If, on the facts of the case, it appears that what the authorities did was not merely to terminate the employment of the probationer, because his work had not been found up to the required standard, but they had proceeded on some ground extraneous to the terms of service and had intended to punish the probationer on that ground, Article 311(2) would obviously be attracted. As I have explained elsewhere, a probationer will normally servo up to the end of the probationary period and then be either confirmed, if his work has been found satisfactory, or discharged, if the reverse has been the case; but if before me probationary period is over or if although the period is over, the <ORG> servant concerned is still holding the status of a probationer, some misconduct if alleged against him and proceedings are started with a view to punishing him for such misconduct, it can by no means be said that no more is being done than the terms of the employment are being worked out. To such a case, as I have already said, the provisions of Article 311(2) will apply.

12. Before dealing with the facts of the case may point out that the argument drawn by the learned Judge from Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, does not, with respect, appear to me to be correct. Under the Explanation to Rule 7, discharge of a probationer during the period of probation does not I amount to removal or dismissal from service. The I meaning of that provision is that if a person, appointed on probation, is discharged during the period of probation, such discharge will not be a penalty of removal within the meaning of clause (vi) of Rule 7, nor a penalty of dismissal within the meaning of clause (vii) of the same Rule. In such a case, therefore, there would be no question of proceeding under Rule 7 at all, because Rule 7 only provides for imposition of penalties by way, inter alia, of removal from service or dismissal. The fact, therefore, that the authorities in the present case proceeded under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, proves rather than disproves that they were proceeding against the appellant with a view to imposing a penalty. The explanation to Rule 7 is an exception and if a case comes under the exception, Rule 7 will not apply at all and no proceedings under that Rule can be taken.

13. Turning now to the facts of the case, it appears from the charge-sheet that the charges all related to specific instances of misconduct on the part of the appellant. The proceedings begin with an order of suspension which, by itself, indicates that it was not as a case of a probationer that the appellant's case was being considered. If it was a question of merely examining the record of the appellant with a view to taking a decision as to whether he should or should not be confirmed, it could hardly be appropriate to serve him with a charge-sheet. Not merely was a charge-sheet served, but, as I have already pointed out, the appellant was asked to show cause why disciplinary action under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules should not be taken against him. The structure of the proceedings, again, was the structure of an enquiry such as prescribed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. A charge-sheet was served, cause was directed to be shown against the charges, then an enquiry of a kind was held, at the end of the enquiry a particular penalty was tentatively decided on, then the appellant was asked to show cause why that penalty should not be imposed and ultimately it was imposed. The succession of these steps, coupled with the fact that the authorities were on their own admission proceeding under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, shows conclusively that they were holding an enquiry with a view to imposing a penalty, if the charges were proved. The matter is clinched by the letter of 14-5-1952, which an Assistant Secretary to <ORG> addressed to the appellant. There it was stated that Government bad come to the conclusion provisionally that the appellant should be "punished" with discharge from Government service and he was asked to show cause why he should not be "punished" in the manner stated. After all these, it cannot possibly be contended that it was not punishment which the authorities had in view, but merely the termination of the appellant's service in accordance with the terms of his employment.

14. Mr. <NAME>, who appeals for the respondents, was asked by me whether he could, in view of these facts, contend that the appellant had been treated merely as a probationer and whether it was not a fact that the authorities had proceeded against him for alleged misconduct with a view to punishing him therefor. He would not directly concede that the true view of the facts was the latter, but was frank enough to say that it looked as if it was so. In my view, it does not merely look that it was so, but it was in fact so.

15. It must, therefore, be held that the appellant was entitled to the protection of Article 311(2) of the Constitution and that, therefore, was entitled to a proper opportunity at a proper enquiry to show cause against the charges framed against him. The learned Judge has undoubtedly held that even if the appellant was entitled to the Constitutional protection, he had in substance got it, because the authorities had proceeded on nothing which he had not dealt with in his representations and because two opportunities, one to show cause against the charges and another to show cause against the proposed punishment, had in fact been given. I think that this is not a correct view of the facts. I pass over the appellant's objection that the so-called Enquiring Officer was the complainant himself, but an enquiry had to be directed to be held and the appellant had to be given proper notice thereof. All that happened after he had submitted the explanation was that he was asked by a telegram to appear before the Director of Fisheries in connection with a representation made by him. What happened subsequently I have already stated. The learned Judge has said that the appellant could not complain that he had not been given an opportunity to call witnesses, because he had never asked for such an opportunity. It appears to me that since no <ORG> or Enquiring Officer had ever been appointed and the appellant had merely been asked to see the Director of Fisheries which he did at least once, it cannot fairly be said that an occasion had arisen when he could ask for an opportunity to call witnesses. There was nothing to indicate to him that what was being held by the Director of Fisheries was anything but an interview between a superior Officer and a subordinate Officer and that it was a formal enquiry at which he would be entitled to call witnesses. It is true, as the learned Judge has observed, that the appellant had not specifically asked for an opportunity to call any evidence, but I do not think that anything ever happened which could put him in mind that he was appearing at a formal enquiry and that he was to ask for an opportunity to tender evidence, if he wished to tender evidence. I am, therefore, of opinion that since no <ORG> or Enquiring Officer was ever appointed and all that happened was that the appellant was summoned for interview with his superior Officer, it cannot be said that having had an opportunity to call evidence, the appellant had not claimed it and that therefore he is estopped.

The result, as I see it, is that the appellant being entitled to a proper enquiry and entitled to an opportunity to snow cause thereat in a proper manner was not granted such an opportunity. The order passed against him cannot, therefore, be sustained.

16. The next question is what order we should make. In my view the proper order to make will be not merely to quash the order passed against the appellant, but also to give further directions. Certain charges were framed, the appellant submitted his explanation and the position is that thereafter the matter did not proceed according to law and that all that happened subsequently must be quashed as having been illegal. This, however, will not affect such portion of the proceedings as was legal which will remain valid to be proceeded with and concluded if desired.

17. For the reasons given above, this appeal is allowed, the order of the learned Judge dated 29-5-1956, is set aside and the order of discharge dated 28-3-1953, passed against the appellant by the State Government is quashed. We direct further that if Government be so minded, they will be at liberty to continue the proceedings in accordance with law from the stage at which the appellant had furnished his explanation of the charges framed against him but no enquiry had yet been held and pass such orders as may be lawful and proper according to the result of such proceedings.

*(As regards the order of suspension passed against the appellant, the order of his discharge being now quashed, it will be governed, so far at least the period subsequent to the date of the order of discharge is concerned, by the principles laid down by <ORG> in the case of <CITATION> )).

18. The appellant will have the costs of this appeal from respondent No. 3, the State of West Bengal hearing fee five gold mohurs.

<NAME>, J.

19. I agree.


CASE NO.: Appeal (civil) 1081 of 2008 PETITIONER: <ORG> & Anr. RESPONDENT: State of Rajasthan & Ors. DATE OF JUDGMENT: 07/02/2008 BENCH: ASHOK BHAN & DALVEER BHANDARI JUDGMENT:

J U D G M E N T [Arising out of S.L.P.(C)No.16910 of 2006] ASHOK BHAN, J.

1. Leave granted.

2. Challenge in the present appeal is to the order passed on 04th September 2006 in D.B. Special Appeal (W) No.134 of 2006 by <ORG> of <ORG> dismissing the appeal filed by the appellants whereby <ORG> has upheld the judgment and order passed by a learned Single Judge of the same <ORG> dismissing the writ petition filed by the appellants thereby upholding the acquisition proceedings in respect of the land of the appellants.

3. In order to appreciate the grievance of the appellants, facts leading to the filing of the appeal are necessary to be indicated.

4. Notice under Section 52(2) [which is equivalent to Section 4 of the Land Acquisition Act, 1894] of the Rajasthan Urban Improvement Act 1959 (for short, 'the Act') was issued on S.L.P.(C)No.16910 of 2006 ..... (contd.)

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25th June 1975 for acquiring the land of the appellants bearing Khasra No.383 measuring 14 bighas and 16 biswas situated at Madrampura, Jaipur, Rajasthan. As per the said notice, land was sought to be acquired for improvement and purposes of Jaipur Town  extension of Civil Lines Area for construction of buildings. On 23rd August 1975, another notice was issued by the <ORG> under Section 52(2) of the Act indicating the purpose of acquisition of land for extension of civil lines and planning of housing scheme. Appellants, on 08th September 1975, filed objections to the acquisition of their land. The appellants also submitted their representation from time to time. The Land Acquisition Officer, however, rejected the objections. On 08th February 1984, the Government issued declaration under Section 52(1) of the Act [which is equivalent to Section 6 of the Land Acquisition Act, 1894]. Pursuant to the said declaration, notice under Section 52(5) of the Act was issued asking the appellants to hand over possession of the land.

5. After these notices were issued, the appellants filed Writ Petition No.5972 of 1984 before <ORG>. A learned Single Judge of <ORG>, while issuing rule nisi, granted stay of the acquisition proceedings and restrained the respondents from taking possession of the land. Aggrieved against the said order the respondents filed Special Leave Petition before this Court, inter alia, S.L.P.(C)No.16910 of 2006 ..... (contd.)

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challenging the jurisdiction of <ORG> to entertain the writ petition. Since the Special Leave Petition was filed against an interim order, this Court did not go into the merits of the case and while granting leave, by order dated 08th April 1985, set aside the order of <ORG> and held that <ORG> did not have the territorial jurisdiction to entertain the writ petition in respect of a land situated in the State of Rajasthan. Thus, the proceedings before <ORG> came to an end.

6. On 17.02.1987, possession of the land in question is alleged to have been taken by the respondents and the same was handed over to <ORG>. However, according to the the appellants, possession was not taken.

7. The appellants filed Writ Petition No.1507 of 1987 in <ORG> which was withdrawn by them on 10th March 1989 with liberty to file a fresh writ petition.

8. On 26th June 1989, the Land Acquisition Officer passed the award and forwarded the same for approval to <ORG>. According to the respondents, <ORG> accorded its approval on 29th July 1989 which was declared by the Land Acquisition Officer on 30th July 1989 in accordance with law.

9. In the meantime, the appellants filed S.B.Civil Writ Petition No.2911 of 1989 seeking quashing of Notification dated 08th February 1984 and also notice dated 17th/18th February 2007 S.L.P.(C)No.16910 of 2006 ..... (contd.)

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by which the possession is alleged to have been taken. One of the objections taken by the respondents before <ORG> was that the writ petition could not be entertained after taking over of the possession of the land and handing over the same to <ORG> and the award having been passed in respect of the said land in accordance with law. It was also alleged that the award was not the subject-matter of the writ petition. It was also pointed out that the appellants were simultaneously pursuing Reference Application for enhancement of compensation. Ultimately, a learned Single Judge of <ORG> of Rajasthan, accepting the submissions of the respondents, dismissed the writ petition holding that the there was a genuine public purpose behind initiating the acquisition proceedings.

10. Being aggrieved, the appellants carried the matter in appeal before <ORG> of <ORG>. <ORG>, agreeing with the view taken by the learned Single Judge, dismissed the appeal and held that since the appellants had filed an application under Section 18 of the Land Acquisition Act, 1894 for enhancement of the compensation they are not entitled to the relief sought for in the writ petition. The said order is under challenge before us.

11. A preliminary objection has been taken by the respondents to the effect that the appeal is liable to be S.L.P.(C)No.16910 of 2006 ..... (contd.)

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dismissed on the ground of the delay on the part of the appellants to challenge the acquisition proceedings. It is also submitted that the acquisition of the land cannot be challenged after taking over of the possession and after the award having become final. In support of this submission, the respondents have relied upon a number of judgments of this <ORG>.

12. Counsel for the appellants, however, strenuously contended that there was no delay on the part of the appellants in filing the writ petition challenging the acquisition proceedings. He submitted that soon after the notice under Section 52(5) was issued by by the respondents, the appellants filed writ petition before <ORG> which stood dismissed pursuant to an order of this Court, as noted above. Thereafter the appellants filed another writ petition before <ORG> which was withdrawn. Within a period of four months thereof, i.e., on 05th July 1989, another writ petition bearing No.2911 of 1989 was filed. Counsel also submitted that these acts of the appellants demonstrate that there was no delay on the part of the appellants to seek redressal of their grievance. It was contended that actual possession of the land was never taken by the respondents on 17th/18th February 1987.

13. We do not find any substance in the submissions of the counsel for the appellants. No doubt, the appellants had filed S.L.P.(C)No.16910 of 2006 ..... (contd.)

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a writ petition before <ORG> challenging the acquisition proceedings, but the said writ petition was dismissed by this Court on 08th April 1985 holding that <ORG> did not have the territorial jurisdiction to entertain the writ petition. Thereafter, till 1987 the appellants did not challenge the acquisition proceedings and the writ petition was filed by it before <ORG> which had the territorial jurisdiction in the matter and the same was withdrawn which was again filed within the next four months thereof, meaning thereby, during the interregnum the appellants slept over the matter. However, the appellants have not been able to give any explanation for the same. Insofar as the contention regarding the possession having not been taken is concerned, the respondents submit that the possession of the land in dispute has already been taken. Be that as it may, the award in respect of the land having become final, <ORG> is vested with the powers to take possession of the land concerned and, therefore, there is no reason to disbelieve the claim of <ORG> that the possession had been taken before the filing of the writ petition. Moreover, the appellants sought enhancement of compensation by filing reference application under Section 18 of the Land Acquisition Act, 1894. Simultaneously, the appellants filed writ petition before <ORG> after passing of the award.

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This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In the case of <CITATION> .  where <NAME>, J. speaking for a Bench consisting of His Lordship and <NAME>, J. held :

"It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. <ORG> has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6 . But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. <ORG> of <ORG> was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."

14. In the concurring judgment, <NAME> J. held as under :

"..... Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ petitioners can be said to have waived their objections to the acquisition on the ground of extinction of S.L.P.(C)No.16910 of 2006 ..... (contd.)

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public purpose by their own inaction, lethargy and indolent conduct. <ORG> of <ORG> had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in <ORG> and <ORG> free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of <ORG> by virtue of the vesting of the land in <ORG> for being handed over to the <ORG>. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches. ...."

15. Similarly, in the case of <CITATION> .  following the decision of this Court in the case of <ORG> (supra) it was held :

".... When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. <ORG> of <ORG> was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches. ...."

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16. To the similar effect is the judgment of this Court in the case of <CITATION> .  this Court, following the decision of this Court in the case of <CITATION> .  held :

"In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases ( <CITATION> .) ...."

17. In the present case also, the writ petition having been filed after taking over the possession and the award having become final, the same deserves to be dismissed on the ground of delay and laches. Accordingly, the order of the learned Single Judge and that of <ORG> are affirmed to the extent of dismissal of the writ petition and the special appeal without going into the merits thereof. This appeal also deserves to be dismissed without going into the merits of the case and is dismissed as such. No costs.