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2014 DIGILAW 369 (HP)

State of H. P. v. Laxmi Chand @ Laxmi Dass

2014-04-10

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT Dharam Chand Chaudhary, J. Defendants-department, which has lost in both Courts below, is in second appeal before this Court. 2. This appeal has been admitted on the following substantial questions of law:- 1.Whether the findings arrived by the Courts below is against the provision of law of limitation? 2.Whether finding given by Courts below is against the oral as well as documentary evidence on record? Whether reporters of the Local papers are allowed to see the judgment? Yes. 3.Whether the civil courts can direct the state for acquisition of land once the road has been constructed for the public interest with the consent of parties? 3.Admittedly respondents herein, hereinafter referred to as the plaintiffs, are owners of the land entered in Khata No.202, Khatauni No.39 1 bearing Khasra No.4325 and other land entered in Khata No. 201, Khatauni No.1389, Khasra No.4327 and 5059/4329, situated in Mohal Sundernagar, 26/8, Tehsil Sundernagar, District Mandi. The entries in the Jamabandis for the year 1999-2000 substantiate this part of the plaintiff’s case. The defendant-department had proposed to construct Sundernagar-Maloh road. Since a portion of the suit land together with the land belonging to other right holders was required for construction of the road, therefore, notification dated 25.4.1984 Ex.PW-2/B was issued for acquisition thereof. 4.It is seen that out of the suit land bearing Khasra No.4325, land measuring 434 square meters denoted by Khasra No.4325/1 was sought to be acquired. The land even was acquired and award No.23/86-87, dated 23.9.1986 Ex.PW-2/C was made. Compensation was also paid in the year 1986 to the owners of the acquired land except for the plaintiffs. While the plaintiffs claim that despite several visits to the office of the defendants and even issuance of legal notice also, when compensation was not paid they were left with no alternative except to file the suit. The defendant, however, claims that the plaintiffs never approached them for payment of compensation and the compensation could not be paid to them on account of some dispute qua their title in the suit land having arisen after pronouncement of the award and at the stage of payment of the compensation, it is for this reason, the amount of compensation could not be released to them. After the expiry of period of over 22 years, the plaintiffs are stated to be not entitled to claim the payment of compensation. 5. After the expiry of period of over 22 years, the plaintiffs are stated to be not entitled to claim the payment of compensation. 5. On the pleadings of the parties, learned trial court has framed the following issues:- 1. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction against the defendant qua the suit land as prayed for? OPP 2. Whether the plaintiffs are entitled for a decree of mandatory injunction as prayed? OPP 3. Whether the plaintiffs are entitled for a decree of vacant possession of the suit land in its original position as alleged?OPP 4.Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs are estopped by their own acts, conduct and deeds to file the present suit?OPD 6.Whether the plaintiffs have no cause of action against the defendants? OPD 7. Whether the suit is bad for non-joinder and mis-joinder of parties?OPD 8.Whether the suit is barred by limitation? OPD 9.Whether this Court has no jurisdiction to try the present suit?OPD 10. Relief 6.The suit was decreed for the relief of mandatory injunction directing thereby the defendants to acquire the suit land bearing Khasra No.4325/1 measuring 434 square meters and make the payment of compensation to the plaintiffs, however, the decree of permanent prohibitory injunction restraining the defendants from causing interference in the suit land and to hand over the vacant possession thereof to the plaintiffs sought to be passed in the alternative was declined. 7. Aggrieved by the judgment and decree passed by learned trial Judge, while the defendants preferred an appeal at the same time, the plaintiffs also filed counter claims before learned lower appellate Court aggrieved from that part of the judgment and decree whereby the relief for permanent prohibitory injunction with a direction to the defendants to hand over the vacant possession of the suit land to them was declined. 8.Learned lower appellate Court on reappraisal of the given facts and circumstances and also the evidence available on record has not only dismissed the appeal, but counter claims also and affirmed the judgment and decree passed by lower appellate Court. 8.Learned lower appellate Court on reappraisal of the given facts and circumstances and also the evidence available on record has not only dismissed the appeal, but counter claims also and affirmed the judgment and decree passed by lower appellate Court. 9.Challenge to the impugned judgment and decree is on the grounds inter alia that both the Courts below have neither appreciated the facts of the case nor evidence available on record, in its right perspective and to the contrary had based its findings merely on surmises and conjectures. The decree mandatory in nature was passed without framing any issue qua acquisition of the suit land. The facts that notification under Section 4 of the Land Acquisition Act was issued in the year 1984 whereas award passed in the year 1986 and the compensation also paid to right holders in the year 1986, the suit filed after the expiry of the period of more than 22 years without giving any explanation qua the inordinate delay so occurred, could have not been entertained and rather dismissed being time barred. The issue of limitation raised by the defendants, however, was neither considered nor discussed and decided, in accordance with law. 10.Learned Additional Advocate General while raising the question of limitation and jurisdiction of the civil Court, has urged that in a situation when the road over the suit land stands constructed long back, the civil Court had no jurisdiction to entertain and try the suit at this belated stage that is after the expiry of 22 years. It has, therefore, been contended that the plaintiffs are now not entitled to claim any compensation qua the suit land. 11.On the other hand, Mr. Sanjeev Kuthiala, Advocate while repelling the contentions so raised has come forward with the version that the plaintiffs, who were owners of the suit land, cannot be deprived from the just and reasonable compensation, when the same is acquired and used for the construction of the road. Also that the defendant, a welfare State instead of taking such frivolous objections should have paid the due and admissible compensation to the plaintiffs in lieu of their land acquired and utilized for the construction of the road. Also that the defendant, a welfare State instead of taking such frivolous objections should have paid the due and admissible compensation to the plaintiffs in lieu of their land acquired and utilized for the construction of the road. 12.On analyzing the rival submissions and also the given facts and circumstances as well as the evidence available on record in a situation when there is no dispute qua acquisition of the suit land measuring 434 square meters, which as per the documentary evidence i.e. Jamabandis for the year 1999-2000 Ex. PW-1/F and PW-1/G, belongs to the plaintiffs after having been acquired from Kaushlya etc., by way of sale, in the considered opinion of this Court are entitled to receive just and reasonable compensation that too when there is no dispute with regard to acquisition of the land in question and the Land Acquisition Collector even passed the award also and awarded compensation qua the suit land and also the land belonging to other land owners. Learned Additional Advocate General has mainly emphasized on the issue of limitation. The limitation is mixed question of facts and law. 13.Learned trial Judge while answering the issue of limitation has observed that the defendants neither produced any evidence nor made any submissions and as such failed to discharge the onus on them. Issue of limitation, therefore was answered against the defendants. 14.True it is that the suit, apart from other objections, has also been contested on the question of limitation. The only plea set out in the written statement to this effect is that the suit has been filed after the expiry of 22 years from the date of pronouncement of the award and payment of compensation to the other land owners, whose land was acquired for construction of road. The own correspondence i.e. letter dated 30.3.2007 Ex.PW-1/A, addressed by the 3rd defendant to 2nd defendant, demonstrates that the matter with respect to the acquisition and payment of compensation qua the suit land was under consideration at that time. The letter Ex.PW-2/A came to be issued consequent upon an application submitted by the plaintiff Laxmi Chand on 20.12.2006. The plaintiffs even served the defendants with legal notice Ex.PW-1/B, Acknowledgements Ex.PW-1/C & Ex. PW-1/D, have also been produced in evidence. The notice Ex.PW-1/B is dated 13.8.2007. The letter Ex.PW-2/A came to be issued consequent upon an application submitted by the plaintiff Laxmi Chand on 20.12.2006. The plaintiffs even served the defendants with legal notice Ex.PW-1/B, Acknowledgements Ex.PW-1/C & Ex. PW-1/D, have also been produced in evidence. The notice Ex.PW-1/B is dated 13.8.2007. No reply thereto seems to have been given by the defendants to the plaintiffs, however, facts remain that vide communication dated 30.3.2007 Ex.PW-2/A referred supra, the defendants acknowledged their liability to pay the compensation. It is vide this document the third defendant had requested the 2nd defendant to take necessary action qua acquisition of the suit land and payment of compensation to the plaintiffs. Therefore, the suit cannot be said to be time barred nor both the Courts below have committed any illegality and irregularity while entertaining and deciding the same. Otherwise also, as per the settled legal principles, the right to property is Constitutional right and no citizen can be deprived of his property save and except in accordance with law. Support in this behalf can be drawn from the judgment of a Division Bench of this Court in Des Raj Sood versus State of Himachal Pradesh, 2013 (1) Him. L.R.(DB) 146. The relevant portion of this judgment reads as follows:- “12. It is not disputed by the respondent-State that the land of the petitioner was situated adjacent to the National Highway. It is a prime land. The State Government has also constructed the office of Block Development Officer on this land. The petitioner cannot be permitted to be deprived of his valuable constitutional right to property, as enshrined under Article 300-A of the Constitution of India. Though the right to property is no more a fundamental right, but it is a constitutional right. A person cannot be deprived of the property, save in accordance with law. The respondents have failed to point out how the petitioner could be deprived of his land, that too, measuring 490 sq. mtrs. adjacent to the National Highway. The orders passed by the Settlement Officer on 29.03.1993 were equitable. The petitioner has been deprived of his land in negation of rule of law.” 15.In view of the ratio of the judgment supra, the plaintiffs cannot be deprived of the due and admissible compensation in lieu of the acquired property. mtrs. adjacent to the National Highway. The orders passed by the Settlement Officer on 29.03.1993 were equitable. The petitioner has been deprived of his land in negation of rule of law.” 15.In view of the ratio of the judgment supra, the plaintiffs cannot be deprived of the due and admissible compensation in lieu of the acquired property. It lies ill to say that the plaintiffs have failed to approach the defendants for payment of compensation because it is rather the defendants, who were under a legal obligation to pay the due and admissible compensation to the plaintiffs that too when the suit land admittedly has been acquired and the road constructed thereon. The plea that there arises dispute of title of the plaintiffs at the time of payment of compensation is nothing, but a lame excuse for the reason that the jamabandis for the year 1999-2000 Ex.PW-1/F and Ex.PW-1/G, make it crystal clear that the plaintiffs were owners-in-possession of the suit land. 16.A Coordinate Bench of this Court in Todar & Another versus State of H.P. & Others, 2008 (1) Cur.L.J (HP), has held that the payment of compensation of the acquired land to the right holders is the duty of the State. In this view of the matter and also the evidence available on record, both the Courts below, therefore, have not committed any illegality and irregularity in decreeing the suit for the relief of mandatory injunction. The question of jurisdiction of the civil Court qua issuance of a direction mandatory in nature for acquisition of the land in question has been raised merely for rejection for the reason that in the given facts and circumstances and also in the light of the Full Bench Judgment of this Court in Shankar Dass versus State of H.P. & other connected matters, 2013(2) Him.L.R.(FB), 698 the only remedy available to the plaintiffs was to have approached the civil Court having jurisdiction over the matter. 17.The present is also not a case where it can be said that both the Courts below have misread and misconstrued the evidence on record. Nothing qua this part of the defendants’ case has been brought to the notice of this Court during the course of arguments. Therefore, on this count also the findings recorded by the Courts below cannot be said to be perverse or having based upon conjectures and surmises. Nothing qua this part of the defendants’ case has been brought to the notice of this Court during the course of arguments. Therefore, on this count also the findings recorded by the Courts below cannot be said to be perverse or having based upon conjectures and surmises. The present, therefore, is a case where no legal question what to speak of substantial questions of law as formulated, arises for determination by this Court in the present appeal. The impugned judgment and decree, which otherwise is legally and factually sustainable and call for no interference by this Court deserves to be affirmed. 18.For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed. Parties are left to bear their own costs.