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2012 DIGILAW 428 (HP)

CHAMAN SINGH v. STATE OF HIMACHAL PRADESH

2012-08-13

V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. 1. Petitioners filed the present writ petition praying that the respondent-State be directed to pay compensation for occupation of the land of the petitioners, after initiating proceedings under Section 4 of the Land Acquisition Act. A notice of the petition was issued to the respondents, who filed reply. 2. I have heard Mr. Rupinder Singh, Advocate, for the petitioner and Mr. J.S. Guleria, Assistant Advocate General, for the respondents, and have gone through the material placed on record. 3. The case of the petitioners is that a notification under Section 4 of the Land Acquisition Act was issued by the respondent State for construction of road Mari-ka-Ghat Dinger Kinner Mathanan. The notification was issued in the year 1970-71 and the petitioners alleged that their land is also covered under the road, but the land of the petitioners was not acquired and they were not paid any compensation. 4. The respondent State, in reply, pleaded that the road in question i.e. Mari-ka-Ghat Dinger Kinner Mathanan was completed by the respondents during the year 1971-72 and vehicular traffic also started plying on the said road. It was pleaded by the respondents that the construction work was done by the respondents with the implied consent of the petitioners and their predecessor and no objection was raised by the petitioners or any representation was made to the respondent Department for acquiring and payment of compensation till the filing of the present writ petition after about 38 years. It was also pleaded that since disputed questions of fact are also involved in regard to the implied consent of the petitioners, if any, or any representation made by the petitioners to the respondent Department, there has been delay of 38 years and therefore, no such directions can be issued to the respondent-State to acquire the land. 5. It was also pleaded that since disputed questions of fact are also involved in regard to the implied consent of the petitioners, if any, or any representation made by the petitioners to the respondent Department, there has been delay of 38 years and therefore, no such directions can be issued to the respondent-State to acquire the land. 5. To substantiate his point that the land of the petitioners cannot be taken without acquiring the same or without paying adequate compensation, the learned counsel for the petitioners has relied upon the decision in Nokhia and others v. State of H.P. and others, ILR 1984 HP 906, wherein following directions were given: "In order to avoid proliferation of litigation and to alleviate genuine hardship of persons similarly situate, all cases like the present, where there has been a deviation from law and persons have been deprived of the possession of their property save in accordance with law, be taken up for regularisation by initiating/completing acquisition proceedings in accordance with law with the utmost expedition and within a time limit which may be set up by the State Government bearing in mind the need of striking a just balance between the inevitable lapse of time which is reasonably likely to occur even if urgent action is taken in that direction and the duty of providing quick relief by emergent remedial measures to the aggrieved persons and in all such cases, equitable compensation, on the basis of which the Court has so far awarded the same in such and similar cases and proposes to award herein, be paid to such persons from the date of taking over of possession till the date of actual payment, in addition to the compensation, solatium and interest at the statutory rate which becomes payable under the law." 6. Reliance was also placed upon the decision of a Division Bench of this Court in Kahan Singh v. State of H.P. and others, 2010 (1) Latest HLJ 365, wherein it was observed in paragraph 3 as under: "There is a vital question of public importance involved in this petition. A practise has developed affront to rule of law. The State agencies had started constructing roads without either paying any compensation or acquiring the land under the Land Acquisition Act, 1894. The Court had called upon the Principal Secretary (PW) to attend the today hearing. He is present in person. A practise has developed affront to rule of law. The State agencies had started constructing roads without either paying any compensation or acquiring the land under the Land Acquisition Act, 1894. The Court had called upon the Principal Secretary (PW) to attend the today hearing. He is present in person. He submits that he has issued necessary instructions to all the Departments not to undertake the construction of any road in the State of Himachal Pradesh without the express consent of the land owners. He further submits that the instructions have been issued to the effect that in case the villagers want the construction of road through their land, they will have to execute a valid gift deed in favour of the State Government and thereafter when the entries are carried out in the revenue records in favour of the State Government, the construction of the road shall be undertaken. We appreciate the fair stand taken by Mr. Kapoor, Principal Secretary (PW) in conformity with the Constitutions philosophy. Needless to say that a person cannot be deprived of his property save and except in accordance with law." Thereafter, in paragraph 4 following directions were issued: "4. In view of the stand of the State expressed through the Principal Secretary (PW), we order: (a) henceforth, no construction of the roads shall be undertaken by any development agency in the State of Himachal Pradesh without the owners express permission-valid gift deed made in favour of the State Government. (b) the State Government shall undertake the construction of the roads the process of acquisition under the Land Acquisition Act, 1894. (c) These directions shall be obeyed punctually." 7. Another decision relied upon by the learned counsel for the petitioner is in Jai Ram v. State of H.P. and others, 2005 (2) Latest HLJ 835. In this case, the Division Bench of this Court has relied upon the decision in Nokhias case (supra) as also the decision of the Apex Court in State of U.P. and others v. Manohar, (2005) 2 SCC 126 and the following directions were passed: "8. As a result of the aforesaid discussion, it is ordered that respondent No.1 shall initiate steps for acquisition of the land of the petitioner which has been untiled in the construction of Ghoma-Deothi road, as per provision of Land Acquisition Act by 31st October, 2005 and shall complete such proceedings by 30th September, 2006. As a result of the aforesaid discussion, it is ordered that respondent No.1 shall initiate steps for acquisition of the land of the petitioner which has been untiled in the construction of Ghoma-Deothi road, as per provision of Land Acquisition Act by 31st October, 2005 and shall complete such proceedings by 30th September, 2006. The time frame shall be strictly adhered to." In the aforesaid case, the road was constructed somewhere in the year 1991-92 and the directions were issued by this Court in the year 2005. 8. Reliance was also placed upon the decision of a learned Single Judge of this Court in Smt. Lata and anr. v. The State of H.P. and others, 2009 (1) Latest HLJ 101, wherein also the decisions in Nokhias case (supra) and State of U.P. v. Manohar (supra) were relied upon. 9. A reference was also made to the decision in Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. (2007) 8 SCC 705 . The observations quoted from the said decision are as under: "The right to property is now considered to be not only a constitutional right but also a human right. The Declaration of Human Rights (1789) enunciates under Article 17: "Since the right to property is inviolable and sacred, no-one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid." 10. Accordingly, the facts of the case were referred that the construction of the road was started in the year 1989 and the State was directed in the year 2008 to acquire the land of the petitioners and complete the acquisition proceedings within a period of six months. 11. Reliance was also placed upon the decision in State of U.P. and others v. Manohar, (2005) 2 SCC 126 , in which case the road was constructed in 1955 and the matter was taken up with the State Government in the year 1991 and directions were issued by the Apex Court to correct the mistake and take steps accordingly in the year 2005. 12. Another decision relied upon was in Mahanadi Coalfields Limited and another v. Mathias Oram and others, (2010)11 SCC 269 . The decision in Civil Appeal Nos. 12. Another decision relied upon was in Mahanadi Coalfields Limited and another v. Mathias Oram and others, (2010)11 SCC 269 . The decision in Civil Appeal Nos. 4324-4325 of 2012, titled Jagan Nath v. State of H.P. and ors., decided on 8.5.2012, attested copy of which judgment has been placed on record, was also relied upon the learned counsel for the petitioners. The grievance of the appellant was that though he donated only 4 biswas of land, the respondent-State has utilised six bighas of land for the construction of the road. The State was directed to inspect the land of the appellant and measure the same and in case it was found that the State has utilised more than donated land i.e. 4 biswas, in that event the appellant was held entitled to reasonable compensation for the land utilized, otherwise, no further enquiry is required. 13. On the other hand, the learned Assistant Advocate General for the State has relied upon the decision of the Apex Court passed by a three Judges Bench in State of Maharashtra v. Digambar, (1995) 4 SCC 683 . In that case also the respondent had moved in the year 1991 for direction to the State Government to grant him compensation for his land utilised by the Government without his consent in the course of execution of scarcity relief works undertaken by the State Government in the year 1971-72. Rejecting the plea of the Government to dismiss the writ petition on the ground of laches and delay of 20 years, the High Court had held that in a welfare State, the State Government could not take such attitude when citizens came before the Court and complained that they had been deprived of their property without following the process of law and without paying compensation. Before the Honble Supreme Court, the State urged that the respondent was, on account of laches and delay on his part, dis entitled to the relief from the High Court. The appeal was allowed by the Supreme Court. Before the Honble Supreme Court, the State urged that the respondent was, on account of laches and delay on his part, dis entitled to the relief from the High Court. The appeal was allowed by the Supreme Court. The observations made in paragraphs 25 and 26 are relevant and are being reproduced below: "In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occurred between the alleged taking of possession of his land and the date of filing of writ petition in the High Court. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the State. When such general allegation is made against a State in relation to an event said to have occurred 20 years earlier, and the States non-compliance with petitioners demands, the State may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functions. Undue delay in 20 years on the part of the writ petitioner, in invoking the High Courts extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the governmental agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it. Thus, when the writ petitioner (respondent here) was guilty of laches and undue delay in approaching the High Court, the principle of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from the High Court, particularly, when virtually no attempt had been made by the writ petitioner to explain his blameworthy conduct of undue delay or laches. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. The High Court, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of the High court, the allegation adverted to above, appears to be the common allegation in other 191 writ petitions where judgments are rendered by the High Court following the judgment under appeal and which are subject of SLPs in this court that are yet to be registered. We have, therefore, no hesitation in holding that the High Court had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgment rendered following the said judgment in other 191 writ petitions, said to be the subject of SLPs or otherwise. All the said judgments of the High Court, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us." 14. There is no dispute in regard to the preposition that the land of a person cannot be used for construction of a road or any other similar purpose without paying him adequate compensation in accordance with law. The rule of law is to prevail and the person cannot be deprived of his land until and unless adequate compensation is paid to him. However, the only question is that whether the petitioner is entitled to compensation in case he moves the court after a lapse of sufficient time. 15. The question has been dealt with in various decisions, as referred to above, and the directions have been issued for payment of compensation for acquiring the land. However, I am bound by the decision of the Honble Supreme Court passed by a three Judges Bench in Digambars case (supra), wherein this question was considered by the Supreme Court at length and it was held that since there had been undue delay of 20 years on the part of the writ petitioner, he cannot invoke the High Courts extraordinary jurisdiction under Article 226 of the Constitution of India. It was further observed that the question may arise as to whether the land of the petitioner has not been taken at all or it could not have been taken without his consent or if it was taken against his consent, he has acquiesced in such taking and waived his right to take compensation for it. The question had been raised earlier in the cases of Mahanadi Coalfields Limited and another, and State of U.P. and others v. Manohar (supra). However, there is no reference in both these decisions that the three Judges Bench decision in Digambars case (supra) was brought to the knowledge of the Bench hearing the petitions. Once a three Judges Bench decision of the Apex Court has been brought to my notice in which it has been held that in view of the delay of 20 years, no relief could be granted in favour of the petitioners, I am bound by the said decision in preference to all other decisions relied upon by the learned counsel for the petitioner. 16. Therefore, in view of the law laid down by the Apex Court in Digambars case (supra), no relief can be granted in favour of the petitioners since the disputed questions of fact are also involved, such as, whether the petitioners consent had been taken, or if the land was taken against their consent, they have acquiesced in such taking and waived their right to take compensation for it. Accordingly, no relief can be granted under Article 226 of the Constitution of India. However, the petitioners are at liberty to approach Civil Court, if so advised, for redressal of their grievances. 17. The petition is dismissed accordingly, so also the pending application(s), if any. However, there is no order as to costs.