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2017 DIGILAW 284 (HP)

Durga Dass Sharma v. State of H. P.

2017-04-01

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. By way of instant petition filed under Article 226 of the Constitution of India, petitioner has prayed for following main reliefs:- (i) Writ Of Mandamus may be issued directing the respondent no.2 to Allot a plot to the petitioner as per Rules for The Allotment of Plots in The New Bilaspur Township as petitioner belongs to the family of oustee as defined under Rules for The Allotment of Plots in The New Bilaspur Township. (ii) That the respondent be directed to produce the complete record of oustee before this Hon’ble Court with details of plots allotted till date to similar situated persons. (iii) That the respondents may be directed to implement the rule for the allotment of plots in NEW Bilaspur Town”. 2. In the present petition, petitioner has claimed that his father; namely late Shri Sant Ram was permanent resident of Bilaspur Town and he was having a shop-cum-residence, which was subsequently acquired by the Authorities for the construction of Bhakra Dam Project. It is admitted case of the petitioner that at the time of acquisition of property of his late father, compensation amounting to Rs.556/- was given to him in the year 1979 as he fell in the definition of oustees as defined under the Rules for Allotment of Plots in the New Bilaspur Township. 3. Learned counsel representing the petitioner, while placing reliance on Annexure P-1, i.e. a list of oustees prepared by respondents-State, contended that father of the petitioner was having 4/62 share in the property acquired by respondents i.e. Khatauni No.319/421 and as such he was also entitled for allotment of plot in New Bilaspur Township as per Rules for Allotment of Plots. Learned counsel further contended that since shop-cum-residence was acquired for the purpose of construction of Bhakra Dam Project, the Authorities concerned, ought to have granted plot in favour of the petitioner in New BIlaspur Township, in addition to compensation already received by him. 4. Learned counsel further contended that since shop-cum-residence was acquired for the purpose of construction of Bhakra Dam Project, the Authorities concerned, ought to have granted plot in favour of the petitioner in New BIlaspur Township, in addition to compensation already received by him. 4. Learned counsel, while inviting the attention of this Court to Annexures P-2 and P-3, stated that father of the petitioner had applied for residential plot on the prescribed application strictly in terms of Rules for Allotment of Plots in the New Bilaspur Township, but since no action, whatsoever, was taken on the aforesaid request for Allotment of plot having been made by the father of the petitioner, he was compelled to approach this Court by way of instant petition, seeking therein reliefs as reproduced above. 5. Mr. Ramesh Thakur, learned Deputy Advocate General, while inviting the attention of this Court to the reply filed by respondents No.1 and 2, vehemently argued that present petition is not maintainable on account of inordinate and unexplained delay. Mr. Thakur contended that it clearly emerge from the record as well as documents annexed alongwith the petition that petitioner has approached this Court after 54 years and as such present petition deserves to be dismissed on the ground of delay itself. Mr. Thakur further contended that bare perusal of award statement i.e. Annexure P-1 annexed with the petition clearly suggests that shop-cum-residence of petitioner’s father was not acquired for construction of the Bhakra Dam Project, rather only land of the petitioner was acquired for the construction of Bhakra Dam Project and accordingly as per Rule 2 of Rules for Allotment of Plots in New Bilaspur Township, father of the petitioner was held not eligible for allotment of plot. Mr. Thakur further contended that since it is an admitted case of the petitioner that due compensation of Rs.556/- was received by late father of the petitioner on account of acquisition of their land, present petition deserves to be dismissed with exemplary costs. 6. During proceedings of this case, this Court had an occasion to peruse various documents annexed with the pleadings by the respective parties, perusal whereof clearly suggests that vide award statement (Annexure P-1) compensation of Rs.556/- was paid to father of the petitioner in the year 1979. 6. During proceedings of this case, this Court had an occasion to peruse various documents annexed with the pleadings by the respective parties, perusal whereof clearly suggests that vide award statement (Annexure P-1) compensation of Rs.556/- was paid to father of the petitioner in the year 1979. Similarly, Annexure P-2 suggests that father of the petitioner vide application dated 30th July, 1979 had made an application for allotment of plot in New Bilaspur Township being Bhakra Dam oustee. However, perusal of Annexure P-4 i.e. communication dated 21.4.1994 clearly suggests that aforesaid request for allotment of plot in lieu of acquisition of land-cum-shop for construction of Bhakra Dam Project was rejected by the Collector, Bilaspur by stating that since name of applicant i.e. father of the petitioner is/was not included in the list of 256 oustees prepared by Bhakra Dam Oustees Advisory Committee, prayer for allotment of plot could not be considered. 7. This Court was unable to lay its hand to communication, if any, made by the petitioner and proforma respondent or their late father after issuance of letter dated 21.4.1994 till date, whereby his case was rejected by the Authorities for allotment of plot in New Bilaspur Township. Moreover, perusal of communication dated 21.4.21994 (Annexure P-4) itself suggests that list of 256 oustees was prepared in the meeting of Bhakra Dam Oustees Advisory Committee held on 13.7.1983, meaning thereby that prayer for allotment of plot in New Bilaspur Township was made after 11 years i.e. on 17.3.1994 by the petitioner, after the preparation of list of oustees by the aforesaid Committee. Otherwise also last communication, as per petitioner, was sent by the Authorities concerned on 21.4.1994 (Annexure P-4), but even then there is no communication available on record suggestive of the fact that the petitioner raised issue in terms of original application filed by their father in the year 1979 till the filing of present petition i.e. 30th August, 2011. 8. After carefully examining the documents on record, this Court sees substantial force in the arguments of Shri Ramesh Thakur, learned Deputy Advocate General, that there is inordinate delay of 54 years in maintaining the present petition. 8. After carefully examining the documents on record, this Court sees substantial force in the arguments of Shri Ramesh Thakur, learned Deputy Advocate General, that there is inordinate delay of 54 years in maintaining the present petition. First of all, there is no explanation worth the name in the petition for not pursuing the application made by father of the petitioner in 1979 till 21.4.1994 when Authority concerned informed that case of the petitioner could not be considered for allotment of plot in view of non-inclusion of name of their father in the list of oustees prepared by the Committee. There is no document on record to infer that even after 21.4.1994 petitioner took any steps to get the matter revived on the basis of original application filed by his father on 1.8.1979 and as such this Court has no hesitation to conclude that present petition is hopelessly time barred and accordingly deserves to be dismissed on this ground. 9. In the instant case, the petitioner has invoked the jurisdiction of writ Court in the year 2011 claiming residential plot on the basis of application made by his father on Ist August 1979, which claim of the petitioner is hopelessly time barred. 10. Reliance is placed on B.S. Bajwa and another vs.State of Punjab and others, (1998)2 SCC 523 , wherein the Hon’ble Apex Court has held as under:- "7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B.S. Bajwa and B.D. Kapoor only in 1984, which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D. Kapoor and this position was known to B.S. Bajwa and B.D. Kapoor right from the beginning as found by the Division Bench itself. At every stage the others were promoted before B.S. Bajwa and B.D. Kapoor and this position was known to B.S. Bajwa and B.D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition." 11. The Hon’ble Apex Court in case titled as State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others, 2014 AIR SCW 6519, held that relief cannot be extended to the persons who have approached the Court after long delay, that too, who are fence-sitters. It is apt to reproduce para 24 of the judgment herein:- "24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above." 12. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above." 12. Even Division Bench of this Court, while placing reliance upon the aforesaid judgments passed by Hon’ble Apex Court, has held in LPA No. 604 of 2011, titled Karan Singh Pathania vs. State of H.P. and Others that “fencer cannot be held entitled to any relief”. 13. This Court, after carefully examining the material available on record as well as law referred hereinabove, has no hesitation to conclude that the present petition is not maintainable at all, being solely time barred. Moreover, there is no explanation worth the name in the writ petition with regard to undue delay caused in maintaining this petition. Apart from above, as emerged from the record, present petition involves disputed question of fact because respondents have specifically disputed the factum of acquisition of shop alongwith land at the time of construction of Bhakra Dam Project and as such, same cannot be decided in the present proceedings under Article 226, 227 of the Constitution of India. 14. Consequently, in view of detailed discussion made hereinabove, this petition is dismissed being devoid of any merit. However, the petitioner is at liberty to approach the appropriate Authority/Forum for redressal of his grievance. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.