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2016 DIGILAW 346 (HP)

Mohan Lal v. State of H. P.

2016-03-29

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary. (Oral) This writ petition has been filed with the following prayers: i). For issuing a writ of mandamus to the respondents to initiate the proceedings under Land Acquisition Act to acquire the land of petitioners used for the construction of Johron-Pipliwala-Kiratpur- Majra road in Tehsil Paonta Sahib District Sirmour and to complete the process in a time bound manner. ii). For issuing a writ of mandamus or any other appropriate writ, order or direction to the respondents to compensate on account of the possession of their lands taken for construction of Johron-Pipliwala-Kiratpur-Majra road in Tehsil Paonta Sahib District Sirmour, without acquiring the same. 2. The complaint is that the respondent-State has utilized the land measuring 0-7 Bighas, bearing Khasra No.1224/64/1 of petitioner No.1; measuring 1-18 Bighas, bearing Khasra No.3/2 of petitioner No.2, situate in Mauza Pipliwala, Tehsil Paonta Sahib, District Sirmour; measuring 0-11 Bighas, bearing Khasra No.68/1, situate in Mouza Kiratpur-Bhagwanpur, Tehsil Paonta Sahib, District Sirmour of petitioner No.3; measuring 4-1 Bighas, bearing Khasra Nos.401/45/2; measuring 1-2 Bighas, bearing Khasra No.403/49/2 and measuring 0-1 Bighas, bearing Khasra No.371/108/1 of petitioners No. 4 to 8, situate in Mouza Kiratpur, Tehsil Paonta Sahib, District Sirmour, 15 years back for construction of Johron-Pipliwala-Kiratpur-Majra Road, without acquisition and payment of due and admissible compensation. 3. Further grievance of the petitioners is that due and admissible compensation has been paid to the right holders of Mouza Bhagwanpur, with regard to their land acquired for the construction of the same road. The petitioners, therefore, are stated to be discriminated, in the matter of acquisition of their land and payment of due and admissible compensation, against the similarly situated persons, hence, this writ petition. 4. Though the respondent-State has not denied the construction of Johron- Pipliwala-Kiratpur-Majra road, however, its stand is that the said road was constructed during the year 1994-97. Also that Kutcha road was in existence since the year 1984 and that it was constructed as a deposit work on allocation of funds by the Deputy Commissioner to the tune of Rs.91,600/- on 31.12.1984. The petitioner never objected to the construction of the road nor demanded compensation for the land utilized for alignment of the same. Also that Kutcha road was in existence since the year 1984 and that it was constructed as a deposit work on allocation of funds by the Deputy Commissioner to the tune of Rs.91,600/- on 31.12.1984. The petitioner never objected to the construction of the road nor demanded compensation for the land utilized for alignment of the same. Therefore, according to the respondent-State, after an inordinate delay of more than 25 years, the petitioners are 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. Further, according to the respondent-State, the remedy, if any available to the petitioners, lies in the Civil Court and not in this Court. 5. Ms. Jyotsna Rewal Dua, learned Senior Advocate assisted by Ms. Charu Bhaatnagar, Advocate, has canvassed that the petitioners are entitled to the payment of just and reasonable compensation qua their land utilized by the respondent-State for construction of the road in question. She has emphasized that he petitioners cannot be discriminated against the similarly situated persons i.e. the right holders of Mouza Bhagwanpur, to whom the due and admissible compensation has been paid after acquiring their land used for the same public purpose i.e. construction of Johron Pipliwala-Kiraatpur Majra Road. 6. Learned Additional Advocate has, however, vehemently argued that the point in issue in this petition is covered against the petitioners 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. 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 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. 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 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. 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. 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 petitioners herein are 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 petitioners 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 petitioners, the period spent by them 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 application (s), if any, shall also stand disposed of.