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2013 DIGILAW 900 (HP)

STATE OF H. P. v. RAVINDER KUMAR

2013-10-21

A.M.KHANWILKAR, KULDIP SINGH

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JUDGEMENT A.M.KHANWILKAR, J. 1. HEARD counsel for the parties. As short question is involved, appeal is taken up for final disposal forthwith by consent. 2. THIS appeal takes exception to the judgment of the learned Single Judge of this Court dated 27th April, 2007 and 26th April, 2011, passed in CWP No.569 of 2001 and Review Petition No.98 of 2010, respectively. The respondent filed the above numbered CWP for issuing direction to the State Authorities to acquire the land, referred to in the petition. That petition succeeded vide order dated 27th April, 2007 passed by the learned Single Judge of this Court. The learned Single Judge rejected the stand taken by the State and directed the State Authorities to initiate proceedings under Section 4 of the Land Acquisition Act on the finding that the land, referred to in the writ petition, was in possession of the State Authorities. That . finding was recorded on the basis of the plea taken by the State Authorities, including of having become owner by adverse possession. However, later on, when the State Authorities realized that the stand taken to oppose the writ petition, filed by of the respondent, was incorrect as it was noticed during the subsequent inspections and demarcation proceedings that the land, referred to in the writ petition, was not in possession of the State Authorities and that the school building was, in fact, standing on the Government land, the State Authorities decided to apply for the review of the direction, given by this Court, while disposing of CWP No.569 of 2001. Since there was delay in filing the Review, application for condonation of delay was filed. However, the learned Single Judge dismissed the said application and as a consequence thereof, the Review Petition came to be dismissed being time barred. Even this decision is subject matter of challenge in this appeal. Since there was delay in filing the Review, application for condonation of delay was filed. However, the learned Single Judge dismissed the said application and as a consequence thereof, the Review Petition came to be dismissed being time barred. Even this decision is subject matter of challenge in this appeal. Having examined the original pleadings, filed before the learned Single Judge, both in writ petition and review petition and the stand taken by the appellants in this appeal with reference to the subsequent events, we are of the considered opinion that, in public interest, it is appropriate that the impugned judgments, both in writ petition as well as application for condonation of delay in filing the review petition, deserve to be quashed and set aside and instead, the writ petition being CWP No.569 of 2001 should be restored to the file . to its original number, to be heard afresh by the learned Single Judge. We say so because it has come on record that during subsequent demarcation proceedings, it has been noticed that the land, referred to in the writ petition, was never in the of possession of the State Government and that the school building was standing, in fact, on Government land in Khasra No.735. This factual position goes to the root of the matter. 3. THE technicalities invoked by the respondent for non -suiting the appellants -State Authorities, in our opinion, is an argument of desperation. The fact that the State Authorities in the writ petition took a plea that they were in possession of the land, referred to in the writ petition, for quite some time and had become owners thereof, by adverse possession, was obviously under mistaken belief. That is reinforced from the subsequent demarcation proceedings. These are matters, which will have to be examined and answered authoritatively, by the Court. 4. IN our opinion, therefore, neither the fact that the State Authorities had taken a plea to oppose writ petition of having become owners of the property, referred to in the writ petition, by way of adverse possession nor the fact that the review petition was barred by limitation, would come in the way of this Court, to set aside both the decisions and relegate the parties for full, complete and effectual decision in the matter. We are inclined to do so also because if the State Authorities are justified in asserting that the land, referred to in the writ petition, was not in possession of the State Authorities, as has been evidenced from the demarcation proceedings, the question of acquiring the said land on the assumption that the school building has been constructed on the land, owned and of possessed by the petitioner, would not survive and will be a non -issue. The concomitant of that finding would be that the respondent would be unfairly benefited due to forcible acquisition of the property to be done by the State, which is not required by the State Authorities in public interest and it would also be substantial loss to the State exchequer to the extent of over two crores, as is the value of the land estimated. In the circumstances, the impugned judgment and order dated 27th April, 2007 and 26th April, 2011, passed in CWP No.569 of 2001 and Review Petition No.98 of 2010, respectively, are quashed and set aside. Instead, the writ petition is restored to the file to its original number, to be heard by the learned Single Judge, taking into account subsequent proceedings to be filed by the State Authorities and response thereto, if any, to be tiled by the writ petitioner. 5. ALL questions will have to be decided on their own merits, in accordance with law. 6. THE appellants are free to file further affidavits to oppose the writ petition within four weeks from today. The respondent -writ petitioner will be free to file reply thereto, within four weeks thereafter. The writ petition be included in the consolidated list of matters for the month of March, 2014 under caption "High Court Expedited Cases". of 7. THE appeal is accordingly disposed of, so also the pending application(s), if any.