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2016 DIGILAW 340 (HP)

Roshan Lal v. State of H. P.

2016-03-29

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This writ petition has been filed with the following prayer: It is, therefore, prayed that the writ of mandamus may kindly be issued to the respondents for initiating acquisition proceedings or to pay compensation in respect of land measuring about 1.5 Bighas used for the construction of road in the year 2002-03 out of Khasra No.73, 77 and 78 kita 3, measuring 00-21-59 hectares, situate at Mohal Dhar Tarpunoo, Tehsil Theog, District Shimla, H.P. 2. The complaint is that the respondent-State has utilized approximately 1.5. Bighas of land belonging to the petitioner out of Khasra Nos. 73, 77 and 78, measuring 00-21-59 hectares, situate at Mohal Dhar Tarpunoo, Tehsil Theog, District Shimla, for construction of Meha-Dhandi Road in the year 2002, without acquiring the same and payment of due and admissible compensation in respect of the land and apple trees, uprooted during the construction of the road in question. 3. Though the respondent-State has not denied the construction of Meha-Dhandi road through the land of the petitioner, however, its stand is that the said road was constructed during the year 2000 with his consent. He never objected to the construction of the road nor ever demanded compensation qua his land over which the road has been constructed. 4. Therefore, according to the respondent-State, after an inordinate delay of more than 15 years, the petitioner is stated to be not entitled to invoke the extraordinary jurisdiction of this Court and to claim the compensation for the road in question. The writ petition, therefore, has been sought to be dismissed on merits and also on the ground of delay and latches. 5. Mr. B.M. Chauhan, learned Senior Advocate assisted by Mr. Vaibhav Tanwar, Advocate, has canvassed that the petitioner is entitled to the payment of just and reasonable compensation qua his land utilized by the respondent-State for construction of the road in question and also the apple trees uprooted during such construction. 6. Learned Additional Advocate General has, however, vehemently argued that the point in issue in this petition is covered against the petitioner by the judgment of a larger Bench of this Court in Shankar Dass Vs. State of H.P. and others and its connected matters, 2013(2) Him. LR (FB) 698. The same, therefore, has been sought to be disposed of in view of the ratio of the judgment (supra). 7. State of H.P. and others and its connected matters, 2013(2) Him. LR (FB) 698. The same, therefore, has been sought to be disposed of in view of the ratio of the judgment (supra). 7. A larger Bench of this Court in Shankar Dass’s case supra, has considered the question as to what should be the parameters to be taken into consideration by the writ by the writ Court in a situation when the land utilized by the State for a public purpose without acquiring the same and payment of due and admissible compensation. By majority, the Bench has held as under: “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.” 8. In CWP No. 1996 of 2010, decided by a Division Bench of this Court on 12.9.2013, the land was acquired for construction of the road in the year 1994-95 and the stand of the respondent-State was that the petitioner did not raise any objection when the work commenced and completed and rather voluntarily consented for the construction of the road through his land. After placing reliance on the judgment of a larger Bench of this Court in Shankar Dass’s case supra, the Division Bench has held as under: “2. From the pleadings, we find that according to the case set out by the petitioner, the land belonging to him was utilized by the respondents for the construction of Kharapathar-Patsari road in the year 1994-95. The stand of the respondent-State, on the other hand, is that before starting the construction work of Kharapathar-Patsari road the petitioner raised no objection but rather verbally consented/did not object to the construction so made, which was completed in the year 1995 in all respects. 3. The stand of the respondent-State, on the other hand, is that before starting the construction work of Kharapathar-Patsari road the petitioner raised no objection but rather verbally consented/did not object to the construction so made, which was completed in the year 1995 in all respects. 3. From the pleadings, we find that serious disputed questions of law and facts arise for determination of the starting point of limitation, which, it is not possible to adjudicate in writ proceedings. The appropriate remedy for the petitioner would be to institute a civil suit in accordance with Shankar Dass’s case supra, to establish the claim as pleaded. In these circumstances, this writ petition is disposed of with liberty to the petitioner to institute a civil suit in accordance with law and the ratio in Shankar Dass’s case supra. 4. We do not pronounce on the merits of the case of either party. We also direct that if such suit is filed the period spent by the petitioner in pursuing the writ remedy before this Court shall obviously be excluded for calculation of period of limitation, if disputed. Petition stands disposed of.” 9. It is seen that the petitioner herein is similarly situate to the petitioner in CWP No. 1966/2010. Therefore, applying the ratio of the judgment in CWP No. 1966/2010 (supra), this petition is disposed of with liberty to the petitioner to institute a civil suit in accordance with law and also the ratio of the judgment of a larger bench of this Court in Shankar Dass’s case, supra. If the suit is filed by the petitioner, the period spent by him in pursuing the writ remedy before this Court shall be excluded while computing the period of limitation prescribed for filing the same. 10. The petition stands disposed of accordingly. Pending applications, if any, shall also stand disposed of.