Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1303 (HP)

Shankar Singh v. State of H. P.

2016-07-07

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. 1. By way of present petition, the petitioners have prayed for the following reliefs:- “(i) That the respondents may kindly be directed to make payment to the petitioners for the land situated in Khata Khatauni No. 29 Khasra No. 171/1 measuring 2.7 Bighas for the construction of the road as per rates of compensation already settled by the District Judge vide its award dated 28.2.2006 and upheld by this Hon’ble Court vide judgment dated 23.12.2008 along with solecium, interest etc. etc. (ii) That in alternative of prayer No. (i) above, the respondents may be directed to initiate land acquisition proceedings under Land Acquisition Act and to make the payment of compensation according to the provisions of Land Acquisition Act.” 2. The case of the petitioners is that the respondent-department acquired land for the construction of Namhol-Asha Majari Road and for the said purpose it issued a Notification under Section 4 of the Land Acquisition Act. After complying with the provisions as envisaged in the Land Acquisition Act, an award was passed by respondent No. 2 on 20.1.1997. Against the said award, reference petitions were also preferred in the Court of learned District Judge which were also decided on 28.2.2006. Vide judgment dated 23.12.2008 in RFA No. 359 of 2006 and connected matters, this Court dismissed all the appeals and cross-objections which were filed by the respective parties against the award passed in reference petitions by the learned District Judge. 3. Petitioners are owners in possession of land measuring 2.7 bighas comprised in Khata Khatauni No. 29, Khasra No. 171/1, out of which 0.13 bighas of land has been utilized by the respondents for the construction of Namhol-Asha Majari road from the above stated khasra number without acquiring the same. As per petitioners, respondents by mistake or otherwise ignored this portion of land comprised in Khasra No. 171/1 to be included in the notification issued under the Land Acquisition Act for the purposes of acquiring the land required for the construction of road. Thus, as a result of the said act of omission and commission of the respondents, the land of the petitioners stands utilized by the respondents for the purpose of the construction of the road mentioned above without compensating them in accordance with law. Thus, as a result of the said act of omission and commission of the respondents, the land of the petitioners stands utilized by the respondents for the purpose of the construction of the road mentioned above without compensating them in accordance with law. It is further their case that they are rustic and illiterate villagers and they came to know of the factum of their land having been utilized without them being adequately compensated as per law when the matters were decided by this Court vide its judgment dated 23.12.2008. It is in these circumstances that the petitioners thereafter have approached this Court with the prayer that the respondents be directed to compensate the petitioners in terms of the award/rates of compensation settled by learned District Judge vide order dated 28.2.2006 which has been upheld by this Court vide its judgment dated 23.12.2008. 4. In its reply, respondents have not denied the factum of the construction of road through the land of the petitioners, however, the stand of the State is that at the time when the said land of the petitioners was utilized for the purpose of construction of the road no objection was raised by the petitioners and now at such a belated stage petitioners cannot be permitted to plead that their land should be acquired and they should be compensated for their land, which has been utilized for the construction of the road. According to the respondents, petition is hit by delay and laches and there is no justifiable explanation given by the petitioners as to why they have approached the Court so late in the year 2009 when the road was constructed between the years 1982-1990. 5. I have heard learned counsel for the parties and also gone through the records of the case. 6. In order to substantiate its case that at this stage no relief can be granted to the petitioner, learned Additional Advocate General has relied upon a Full Bench judgment of this Court in Shankar Dass Vs. State of Himachal Pradesh and Connected Matter, 2013 (2) Him L.R. (FB) 698. 6. In order to substantiate its case that at this stage no relief can be granted to the petitioner, learned Additional Advocate General has relied upon a Full Bench judgment of this Court in Shankar Dass Vs. State of Himachal Pradesh and Connected Matter, 2013 (2) Him L.R. (FB) 698. The following was the question referred for adjudication by Full Bench of this Court:- “In cases where the State has not taken steps under the Land Acquisition Act for the purpose of construction of roads, on the ground that the required land has been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, can they seek a direction in a writ petition filed after a long time for a direction to the State to initiate land acquisition proceedings in respect of their such land which has been utilized for the purposes of construction of the road?” 7. The reference was answered by the Full Bench of this Court in the following manner:- “As per the view of the majority, the Reference is answered as follows: “In cases where the State has not taken steps under the Land Acquisition Act for the purpose of construction of roads on the ground that the required land had been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, they can invoke the jurisdiction refuting such express or implied consent or the stand of the State on voluntary surrender, only within the time within which such a relief can be claimed in a Civil Suit. Once such a question is thus raised in a Writ Petition the same can be considered in the Writ Petition itself.” Post these cases in the respective Benches.” 8. The Hon’ble Supreme Court in K.B. Ramachandra Raje Urs (Dead) by Legal Representatives. Vs. State of Karnataka and others, (2016) 3 SCC 422 has held in para 28 as under:- “28. It has been vehemently argued on behalf of the respondents that the writ petition ought not to have been entertained and any order thereon could not have been passed as it is inordinately delayed and the appellant has made certain false statements in the pleadings before the High Court details of which have been mentioned hereinabove. This issue need not detain the Court. This issue need not detain the Court. Time and again it has been said that while exercising the jurisdiction under Article 226 of the Constitution of India the High Court is not bound by any strict rule of limitation. If substantial issues of public importance touching upon the fairness of governmental action do arise, the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction by the Court. Insofar as the knowledge of the appellant-writ petitioner with regard to the allotment of the land to Respondent 28 Society is concerned, what was claimed in the writ petition is that it is only in the year 1994 when Respondent 28 Society had attempted to raise construction on the land that the fact of allotment of such land came to be known to the appellant-writ petitioner.” 9. The Hon’ble Supreme Court in SLP (C) No. 2373/2014, Raj Kumar Vs. State of H.P. & others decided on 29.10.2015 has held as under:- “There is in our opinion considerable merit in the submission made by Mr. Nag. It is true that the appellant had approached the High Court rather belatedly inasmuch the land had been utilized some time in the year 1985-86 while the writ petition was filed by the appellant in the year 2009. At the same time it is clear from the pleadings in the case at hand that the user of the land owned by the appellant is not denied by the State in the counter affidavit filed before the High Court or that filed before us. It is also evident from the averments made in the court affidavit that the State has not sought any donation in its favour either by the appellant or his predecessor in interest during whose life time the road in question was constructed. All that is stated in the counter affidavit is that the erstwhile owner of the land “might have donated” the land to the State Government. In the absence of any specific assertion regarding any such donation or documentary evidence to support the same, we are not inclined to accept the ipsit dixit suggesting any such donation. If that be so as it indeed is, we fail to appreciate why the State should have given up the land acquisition proceedings initiated by it in relation to the land of the appellant herein. If that be so as it indeed is, we fail to appreciate why the State should have given up the land acquisition proceedings initiated by it in relation to the land of the appellant herein. The fact that the State Government had initiated such proceedings is not in dispute nor is it disputed that the same were allowed to lapse just because the road had in the meantime been taken under the Pradhan Mantri Gram Sadak Yojna. It is also not in dispute that for the very same road the land owned by Kanwar Singh another owner had not only been notified for acquisition but duly paid for in terms of Award No. 10 of 2008.” 10. The Hon’ble Supreme Court in State of U.P. and Others Vs. Manohar has held as under:- “5. As a matter of fact, the appellants were unable to produce even a scrap of evidence indicating that the land of the respondent had been taken over or acquired in any manner known to law or that he had ever been paid any compensation in respect of such acquisition. That the land was thereafter constructed upon, is not denied. 6. Having heard the learned counsel for the appellants, we are satisfied that the case projected before the Court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent. 7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the 44th Amendment to the Constitution, Article 300A has been placed in the Constitution, which reads as follows: "300A- Persons not to be deprived of property save by authority of law - No person shall be deprived of his property save by authority of law." 8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us.” 11. The Hon’ble Supreme Court in Tukaram Kana Joshi and others through Power of Attorney Holder Vs. Maharashtra Industrial Development Corporation and others, (2013) 1 SCC 353 has held as under:- “16. The High Court committed an error in holding the appellants non-suited on the ground of delay and non-availability of records, as the Court failed to appreciate that the appellants had been pursuing their case persistently. Accepting their claim, the statutory authorities had even initiated the acquisition proceedings in 1981, which subsequently lapsed for want of further action on the part of those authorities. The claimants are illiterate and inarticulate persons, who have been deprived of their fundamental rights by the State, without it resorting to any procedure prescribed by law, without the Court realizing that the enrichment of a welfare State, or of its instrumentalities, at the cost of poor farmers is not permissible, particularly when done at the behest of the State itself. The appellants belonged to a class which did not have any other vocation or any business/calling to fall back upon, for the purpose of earning their livelihood. 17. Depriving the appellants of their immovable properties was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development. 18. The appellants have been deprived of their legitimate dues for about half a century. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development. 18. The appellants have been deprived of their legitimate dues for about half a century. In such a fact situation, we fail to understand for which class of citizens the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country, to whom constitutional/statutory benefits are accorded, in accordance with the law.” 12. This Court in Jeet Ram Vs. State of Himachal Pradesh and others, Latest HLJ 2016 (HP) 615 has held as under:- “4. No person can be deprived of his property without following due process of law. Respondents have utilized the land of the petitioner without paying him any compensation. There is no contemporaneous record placed on record by the respondent-State to show that the petitioner had consented for the construction of the road through his land. It is evident from the contents of Annexure P-1 that the nature of land in Khasra No. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valuable piece of land of the petitioner has been utilized in an arbitrary manner by the respondent-State, for the purpose of construction/widening of the Shillaru-Reog road. 5. It is also argued by Mr. Anup Rattan, Additional Advocate General, that there is delay in filing the present petition, as construction of the road on the suit land was only undertaken on 5.6.2006. Immediately thereafter, the petitioner had served a notice upon the respondents on 30.4.2007. Some action ought to have been taken on notice dated 30.4.2007. Petitioner was constrained to serve another notice on 22.9.2009. Despite that no action has been taken by the respondent-State to redress the grievance of the petitioner. 6. Legitimate right of a citizen, that too pertaining to valuable property, can not be defeated merely on the technical objections. There ought to be difference in the approach of a private litigant vis-a-vis State. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There can not be any estoppel/ waiver against the constitutional /fundamental/legal rights. 13. In view of the above discussed law, now I revert to the facts of the present case. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There can not be any estoppel/ waiver against the constitutional /fundamental/legal rights. 13. In view of the above discussed law, now I revert to the facts of the present case. The factum of the land of the petitioners having been utilized for the purposes of construction of Namhol-Asha Majari road is not disputed by the respondent-State. There is no material produced on record by the State from which it can be inferred that the said road was utilized by the State for the construction of the road with the consent of the petitioners implied or otherwise. There is no cogent explanation given by the State as to why the land of the petitioners was not acquired as per the provisions of Land Acquisition Act when the land of similarly situated persons was duly acquired under the provisions of Land Acquisition Act and they have been duly compensated for the utilization of their land as per law. 14. It is a matter of record that in the present case notification under Section 4 of the Land Acquisition Act was published in the Rajpatra on 2.10.1993. It is also a matter of record that the award passed by the Land Acquisition Collector pertaining to the land owners similarly situated as the petitioners whose land were utilized for the construction of the road in issue was announced on 20.1.1997 and the reference petitions against the said award were decided by the Court of learned District Judge vide award dated 28.2.2006. It is also a matter of record that appeals and cross-objections filed against the award passed by the learned District Judge were decided by this Court vide its judgment dated 23.12.2008 in RFA No. 359 of 2006 and other connected matters. The reasons as to why the petitioners have approached this Court in the year 2009 by way of writ petition are mentioned in para 7 of the same which are reproduced herein-below:- “7. The reasons as to why the petitioners have approached this Court in the year 2009 by way of writ petition are mentioned in para 7 of the same which are reproduced herein-below:- “7. That the petitioners are rustic and illiterate villagers and could not approach this Hon’ble Court earlier, however since the matter has been recently decided by this Hon’ble High Court vide its judgment dated 23.12.2008 Annexure P-3 regarding the land acquired for the same road where the land of the petitioners as mentioned here-above is situated, therefore, it is duty of the respondents to make the payment of compensation as per the rate already settled by the Hon’ble High Court regarding amount of compensation for the acquisition of land in the area and as per the award passed by the learned District Judge dated 28.2.2006and upheld by this Hon’ble Court vide judgment dated 23.12.2008. The petitioners are entitled for compensation to the tune of Rs. 2 thousand per biswas alongwith solacium, interest and other amounts as per the mandatory provisions of the Land Acquisition Act.” 15. The following is the reply which has been filed by respondents to the said para of the writ petition:- “7 & 8. That the contents of these paras are wrong as such denied in view of detailed preliminary submission para-2 & 3.” 16. In my considered view there is not an inordinate delay of 35 years in filing of the writ petition as has been stated in the preliminary objections taken in the rely by the State. Notification under Section 4 itself was issued on 13th September, 1993. This fact is duly borne out from the award passed by the Land Acquisition Collector dated 20.1.1997. The present petition has been filed by the petitioners after the decision of this Court dated 23.12.2008 in RFA No. 359 of 2006 and other connected matters which appeals and cross-objections were filed by the aggrieved parties against the award passed by the learned District Judge in reference petitions preferred against the award passed by the Land Acquisition Collector. The petitioners have stated that they could not approach the Court earlier being rustic and illiterate villagers. Reply to the said averments made in the writ petition by the State is cryptic. 17. The petitioners have stated that they could not approach the Court earlier being rustic and illiterate villagers. Reply to the said averments made in the writ petition by the State is cryptic. 17. Not only this, for the first time the State has taken the stand about the land of the petitioners being utilized on account of no objection being raised by them is in the reply which has been filed to the writ petition. As per the judgment of Full Bench of this Court in cases where the State has not taken steps under the Land Acquisition Act for the purpose of construction of roads on the ground that the required land had been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, the petitioners can invoke the jurisdiction refuting such express or implied consent or the stand of the State on voluntarily surrender only within the time within which such a relief can be claimed in a civil suit. It has also been held that once such a question has been raised in the writ the same can be considered in the writ petition. 18. As I have already held above this stand of the State for the first time has been taken in the reply which has been filed by the State to the writ petition. In other words, there is no material on record produced by the State to the effect that the State had already made it evident to the petitioners that no compensation shall be paid to them as their land has been utilized with their consent and from that date the writ was not preferred by the petitioners within the time within which the relief could have been claimed by them in a civil suit. 19. Therefore, in my considered view, in view of the law laid down by the Hon’ble Supreme Court and Full Bench of this Court it cannot be said that the petition filed by the petitioners is hit by delay and laches. 20. It is settled law that no person can be deprived of his property without following due process of law. It is not disputed by the respondent-State that they have utilized the land of the petitioners without paying compensation. 20. It is settled law that no person can be deprived of his property without following due process of law. It is not disputed by the respondent-State that they have utilized the land of the petitioners without paying compensation. No material has been placed on record by the State to show that the petitioners had consented for the construction of the road through their land thus the fact remains that the land of the petitioners has been utilized by the State for the purpose of construction of the road in issue without following the procedure of law and without compensating them as per law. In this view of the matter and in view of the law discussed above in my considered view the right of the petitioners pertaining to valuable right of property cannot be defeated on technical objections like delay and laches especially keeping in view the fact that the land has been utilized by the State and the status of the State is on high pedestal as compared to a private litigant. 21. Further keeping in view the fact that it is the duty of the functionaries of the State to maintain the Rule of Law, the State cannot be permitted to deprive due and just compensation for the utilization of their land which has been used by the State for the construction of the road. 22. It is reiterated that the State has not been able to demonstrate that the petitioners had consented for the use of their land for the purpose of road and even otherwise, keeping in view the fact that right to property is a constitutional right, there cannot be estoppel/ waiver against constitutional/fundamental/legal rights. Accordingly, the present writ petition is allowed and the respondents are directed to initiate the process for the acquisition of the land of the petitioners in accordance with law and complete the entire proceedings within a period of one year. The respondents shall be at liberty to compensate petitioners for the land which has been utilized by the State on the basis of the award passed by the learned District Judge in Land Ref Pet No. 12 of 2002 and connected matters dated 28.2.2006 which has been upheld by this Court in RFA No. 359 of 2006 and connected matters. The writ petition is allowed in the above terms. No order as to cost.