JUDGMENT G.P. Mathur, J.
1. This writ petition under Article 226 of the Constitution has been filed praying that the entire proceedings commencing from notification dated 7.7.1984 issued under Section 4(1) and the notification dated 9.7.1984 issued under Section 6 of Land Acquisition Act for acquisition of petitioner's land be quashed. In the alternative, it is prayed that if the aforesaid prayer is not granted, a writ of mandamus be issued commanding the respondent Nos. 2 and 3 to issue and serve notice under Section 9 of Land Acquisition Act and to pay compensation along with interest @ 18 per cent per annum.
2. The case set-up in writ petition is that the petitioner is owner of 12 bighas and 12 biswas of land situate In village Hasanpur Bhowapur, Pargana Lone. Tehsil Dadri district Ghaziabad. A notification dated 7.7.1984 was issued under Section 4(1) of Land Acquisition Act (hereinafter referred to as the Act), which was published in the Gazette on 9.7.1984. Thereafter, a declaration was made under Section 6 of the Act on 9.7.1984, which was published in the Gazette on 11.7.1984. The petitioner filed Civil Misc. Writ Petition No. 2493 of 1985 In the High Court for quashing of the aforesaid notifications in which a stay order staying dispossession of the petitioner was passed on 19.2.1985. The writ petition was, however, dismissed on 30.8.1988 by a detailed judgment. Thereafter, the petitioner filed Special Leave Petition No. 11438 of 1988 before the Supreme Court in which an order for maintaining status quo as on date was passed on 3.10.1988. The petitioner also filed a Civil Suit being O.S. No. 617 of 1989, Dabur India Ltd. v. Ghaziabad Development Authority, before the Civil Judge, Ghaziabad, where the main relief claimed was for injunction restraining the defendant from interfering with the petitioner's possession over the land in dispute. The petitioner also moved an application for grant of an interim relief and the learned Civil Judge passed an order on 24.5,1989 directing the parties to comply with the order passed by Hon'ble Supreme Court on 3.10.1988 and to maintain status quo over the property in dispute till the decision of the suit. Subsequently, the petitioner moved an application for withdrawal of the Special Leave Petition No. 11438 of 1988 and the petition was dismissed as withdrawn by Hon'ble Supreme Court on 27.6.1991. Thereafter, the petitioner's counsel also made a statement in the court of Civil Judge that the petitioner does not want to continue with the suit and the same may be dismissed as not pressed and accordingly the suit filed by the petitioner was dismissed on 19.8.1991. It is averred in para 22 that no award has been made in respect of the petitioner's land till now though award with regard to other land covered by the same notification had been made on 27.9.1991, in paras 23 to 25, it is averred that the petitioner was not served with any notice under Section 9 of the Act. However, a notice dated 16.12.1995 purporting to be under Section 12(2) of the Act was issued by Additional Collector/Special Land Acquisition Officer, Ghaziabad, stating that an award had been made on 27.7,1991 and it directed the petitioner to appear in Collcctorate Ghaziabad on 22.12.1995 to receive compensation but the notice was received by the petitioner on 28.12.1995. It is averred and pleaded in paras 27 and 28 of the writ petition that the petitioner is still in possession over the land in dispute and as no award had been made the proceedings for acquisition of land had lapsed under Section 11A of the Act.
3. A short counter-affidavit has been filed on behalf of Ghaziabad Development Authority (respondent No. 4), wherein, it is averred that after dismissal of the writ petition by the High Court on 30.8.1988, the possession of the acquired land was taken over by the Authority on 6.9.1988 and a possession memo was executed. After the acquisition proceedings had attained finality, the petitioner approached the Ghaziabad Development Authority with a request to allot part of the acquired land to it. The matter was considered in the meeting of the Board on 5.3.1991 and the request of the petitioner for allotment of 60 per cent of the acquired land was accepted upon the condition that the petitioner will withdraw the special leave petition filed before Hon'ble Supreme Court. In pursuance of the aforesaid decision of the Board, a communication clarifying the stand of the Authority was sent to the petitioner on 17.5.1991 and the rate of allotment of the land was finalised in the meeting of the Board held on 29.5,1991. Copies of these documents have been filed as Annexures-2. 3 and 4 to the counter-affidavit and the copies of five letters sent by the petitioner praying for allotment of land to it have been filed as Annexure-5 to the counter-affidavit. Thereafter, a communication was sent by the Authority on 25.9.1996 asking it to supply non-Judicial Stamp Paper of Rs. 4.02,570 and other documents for execution of the lease deed and a lease deed was actually executed in favour of the petitioner on 5.10.1996.
4. The stand in the counter-affidavit is that the petitioner approached for being allotted part of the acquired land and a settlement took place between the parties in pursuance whereof a lease deed of 60 per cent of acquired land was executed In favour of the petitioner. That there was a settlement between the petitioner and the Ghaziabad Development Authority is established by the undertaking given by the petitioner on 12.6.1991 (copy filed as Annexure-5 to the counter-affidavit), which is being reproduced below ;
"In consideration of amicable settlement reached between us vide your letter No. 857 of 1991 dated 11th March, 1991 and letter No- 152 of 1991 dated 17th May, 1991 and our letter No. SEC/904/91 dated 12th June. 1991, whereby we undertake to withdraw the Special Leave Petition (Civil No. 11438 of 1988) pending in the Hon'ble Supreme Court of India soon after the opening of the Hon'ble Supreme Court after the vacation as per the Deed of Compromise to be mutually agreed and settled between us,"
5. After withdrawing the special leave petition, the petitioner wrote a letter on 28.6.1991 to the Vice-Chairman of the Ghaziabad Development Authority and the relevant part thereof is being reproduced below :
"In view of your letters dated 1 1.3.1991, 17.5.1991 and 18.6-1991 and our letters dated 13.3.1991, 2.5.1991. 18.5.1991. 25.5.1991, 11.6.1991 and 12,6.1991 and as desired by you, we have fulfilled our terms of the settlement and compromise, by withdrawing the S.L.P. No. 11438 of 1988 on 27.6.1991 and now we request you to kindly fulfil your terms of the compromise and settlement, as per letters dated 1 1 .3. 1991 . 17.5.1991 and 18,6.1991.
In the light of fact stated above, we request your good self to kindly issue us a firm and formal Letter of Allotment and Demand Notice in respect of payment of instrument to be made by us and the Annual Lease Rental in respect of land to be used by way of Garden Lease keeping in view the Sector Premium Rate of Rs. 816 per sq. mtrs.
We shall be grateful if you kindly issue expeditiously the firm and formal Letter of Allotment and Demand Notice for payment enabling us to deposit the same to get the lease deed executed for taking the possession."
6. The facts mentioned above show that the petitioner has deliberately concealed certain material facts in the writ petition. The fact that after completion of the acquisition proceedings, the petitioner approached the Ghaziabad Development Authority for allotment of 60 per cent of the acquired land to it and that the said request was accepted and a settlement took place whereunder a substantial area was allotted to it and lease deed has been executed has been concealed in the writ petition. The factum of settlement and execution of lease deed in favour of the petitioner is not denied in the rejoinder-affidavit. The petitioner has not approached the Court with clean hands and has tried to obtain orders in its favour by concealing very important and material facts. The writ petition is therefore, liable to be dismissed on this ground alone.
7. The petitioner having taken advantage of the settlement and having obtained lease deed in its favour of a substantial area of land. It is not open to it to challenge the acquisition proceedings.
8. It may also be pointed out that the petitioner had filed Writ Petition No. 2493 of 1985 in the High Court challenging the notifications under Section 4(1) and 6 of the Act. The writ petition was dismissed on 30.8.1988 and thereafter, the petitioner preferred Special Leave Petition No. 11438 of 1988 in Hon'ble Supreme Court. This was also dismissed as withdrawn on 27,6.1991, The petitioner had also filed O.S. No. 617 of 1989 in the court of Civil Judge. Ghaziabad, for injunction restraining the defendant (Authority) from interfering in its possession over the land in dispute. The suit was dismissed on the statement of the petitioner's counsel on 19.8.1991. In view of these facts, it is not open to the petitioner to file another writ petition seeking quashing of the notifications under Sections 4(1) and 6 of the Act. It has been held in Sarguja Transport Service v. S. T. A, Tribunal. AIR 1987 SC 88, that a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 without the permission to institute a fresh petition cannot file a fresh writ petition in respect of same cause of action in the High Court under that Article. The writ petition of the petitioner having been dismissed by the High Court and the Special Leave Petition having been withdrawn, the petitioner is precluded from raising any controversy for assailing the impugned notifications which it could raise at that stage. We are fortified in our view by the law laid down in Sharadchandra Ganesh Muley v. State of Maharashtra, AIR 1996 SC 61.
9. Shri Sankatha Rai learned counsel for the petitioner has lastly urged that the declaration under Section 6 of the Act was made on 9.7.1984 and was published in the Gazette on 1 1.7.1984 but till now no award has been made and even after excluding the period during which stay order had been operative in favour of the petitioner either by the High Court or by the Hon'ble Supreme Court, a period of more than 2 years has elapsed and. consequently, the entire acquisition proceedings have lapsed under Section 11A of the Act. Before examining the contention raised, it is necessary to find out whether the possession of the acquired land had been taken over or not by the State Government or by the Ghaziabad Development Authority. In para 3 of the short counter-affidavit, it is specifically averred that after the dismissal of the writ petition by the High Court, the possession of the acquired land was taken over by the authority on 6.9.1988 and a copy of the possession memo has been filed as Annexure-1 to the same. In Special Leave Petition No. 11438 of 1988, following interim order was passed by Hon'ble Supreme Court :
"Issue notice. Sri Raju Rama Chandran accepts notice on behalf of the respondents. He wants three weeks' time for filing counter-affidavit. Pending notice, status quo as on date shall be maintained."
10. In the aforesaid special leave petition, a counter-affidavit was filed by Shri Mumtaz All, Legal Assistant, Ghaziabad Development Authority, which was sworn on 25.10.1988 and para 8 thereof is being reproduced below :
"8. With regard to the application for stay. I respectfully submit that the same has become infructuous Inasmuch as the possession of the lands forming the subject-matter of acquisition has been taken over by the respondents authority on 6.9.1988."
11. Therefore, the case of the respondents from the very beginning is that the possession had been taken over by the Ghaziabad Development Authority on 6.9.1988 and the said fact was also asserted in the affidavit which had been sworn on 25.10.1988 and had been filed before Hon'ble Supreme Court. There is no reason to doubt the stand of the respondent that possession was taken over on 6.9.1988. The sheel anchor of the learned counsel for the petitioner is a report of the court Amin which was given in the civil suit in May, 1989. It has been held by the majority in Balwant Narain Bhagde v. M. D. Bhagwat and Ors., AIR 1975 SC 1767, that if the land was lying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent was sufficient to constitute taking of possession, it has been further held that even if the tenure holder entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the tenure holder did not have the effect of obliterating the consequences of vesting. The stand of the petitioner that the possession of the acquired land had not been taken over is. therefore, absolutely false and cannot be accepted nor can it affect the legal position that after 6.9.1988 the land vested with the Government.
12. The notification issued under Section 4(1) of the Act mentioned that the Governor was of the opinion that the provisions of Sub-section (1) of Section 17 of the Act were applicable as the land was urgently required for construction of houses under a Housing Scheme by the Ghaziabad Development Authority and it was directed under Sub-section (4) of Section 17 of the Act that the provisions of Section 5A of the Act shall not apply. The notification under Section 6 of the Act also mentioned that the Governor is satisfied that the case is one of urgency and accordingly, a direction was issued under Section 17(1) of the Act to the Collector to take possession of the land on expiration of 15 days from the publication of notice mentioned in Sub-section (1) of Section 9 though no award under Section 11 had been made. It has been held in Satyendra Prasad Jain v. State of U. P., AIR 1993 SC 2517, that when Section 17(1) is applied by reason of urgency and the Government takes possession of the land prior to making of the award under Section 11, the owner is divested of the title of the land which is vested with the Government and the provisions of Section 11A can have no application. Similar view has been taken in Awadh Behari Yadav and others v. State of Bihar and others. 1995 (3) AWC 2011 (SC) (NOC) : AIR 1996 SC 122 and Allahabad Development Authority v. Nasir-uz-Zaman, 1997 (1) AWC 153 : 1996 (6) SCC 424. In view of this settled legal position, the acquisition proceedings cannot lapse on account of non-making of the award.
13. The stand of the petitioner that the award has not been made so far is also not established from the material on record. A copy of the award dated 27.7.1991 has been filed as Annexure-18 to the writ petition and this shows that the award regarding the land of the petitioner was actually prepared but the same was not declared on account of stay order passed by the Court. There is a clear averment to that effect in the award. It may be noticed that the special leave petition filed by the petitioner had been dismissed as withdrawn on 27.6.1991 and it is likely that the said fact was not communicated to the Special Land Acquisition Officer, Ghaziabad. forthwith. It was for this reason that he mentioned in the award made and pronounced on 27.7.1991 that a stay order was operating with regard to the land of the petitioner. However, as the amount of compensation had already been calculated and determined in the award, no further proceedings had to be taken except for formally declaring the award with regard to the and of the petitioner.
14. There is another important feature of the rase, which deserves notice. The petitioner moved an application on 30.1.1996 under Section 18 of the Act in response to the notice dated 16.12.1995 sent under Section 12(2) of the Act. A copy of this application has been filed as Annexure-20 to the writ petition. A specific prayer was made in the application for making a reference to the Court under Section 18 of the Act. In this view of the matter, it is not open to the petitioner to contend that the award has not been made. There was no occasion for the petitioner to make an application under Section 18 of the Act unless the award had been made and pronounced.
15. Since the petitioner concealed material facts, we are of the opinion that a heavy cost of rupees twenty thousand should be imposed. Out of the aforesaid amount, a sum of rupees ten thousand will be paid to Ghaziabad Development Authority and the balance will go to the State. The petitioner is granted two months time to deposit the cost. If the cost is not deposited within the aforesaid period, it will be open to Ghaziabad Development Authority (respondent No. 4) to move an application before Collector. Ghaziabad (respondent No. 2), who shall recover the cost from the petitioner as arrears of land revenue. After the recovery of the amount, he shall remit the amount of rupees ten thousand to the High Court.
16. For the reasons mentioned above, the writ petition lacks merit and is dismissed at the admission stage.