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2021 DIGILAW 226 (HP)

Banka Ram v. State of H. P.

2021-04-09

SURESHWAR THAKUR

body2021
JUDGMENT : SURESHWAR THAKUR, J. 1. The writ petitioner's land, is, evidently utilized by the respondents for the construction of road, nomenclatured, as, Bdiyara-Manghara road. However, despite the respondents utilizing the land of the writ petitioner for construction of the afore road, no compensation became determined, vis-a-vis, the petitioner's land, hence, leading the writ petitioner to approach this Court. Through, the extant writ petition, the petitioner claims rendition of a mandamus, upon, the respondents for acquiring his utilised land, and, thereafter the respondents determining compensation qua his land. 2. The learned counsel appearing for the petitioner, has, contended that since, vis-a-vis, the land of one Dina Nath located also hence within the span of the afore nomenclatured road, became after, a conclusive judgement and decree becoming rendered by the court concerned, hence, recommended, for, determination, of, compensation by the Negotiation Committed in its meeting held on 26th October, 2016, recommendations whereof, are borne in Annexure P-5, (i) and, whereafter the respondents meted approval, vis-a-vis, the recommendations as borne in Annexure P-5, (ii) thereupon, since, there is parity inter se the writ petitioner and the afore Dina Nath. Therefore, alike the afore, the respondents are enjoined to settle, vis-a-vis, the petitioner's land, compensation in accordance with law. 3. The respondents resisted the afore endeavour of the writ petitioner, on the ground, of, the writ petitioner admitting his purveying an oral consent to the respondents, in theirs undertaking the construction of the road, nomenclatured as “ Bdiyara-Manghara road”. Consequently, the respondent(s) contend(s) that the afore admitted oral consent or verbal consent purveyed by the petitioner to the respondents, does estop, him to either claim parity along with Dina Nath, and/or, from his claiming the writ relief. However, for the reasons to be assigned hereinafter, the afore resistance, meted by the respondents, cannot be accepted, (i) as, the afore road became constructed under the PMGSY, and, all funds became purveyed by the Government of India. However, for the reasons to be assigned hereinafter, the afore resistance, meted by the respondents, cannot be accepted, (i) as, the afore road became constructed under the PMGSY, and, all funds became purveyed by the Government of India. Since, the scheme formulated by the Government of India, for construction of roads under the PMGSY, mandate(s) that explicit consent of the landowners concerned, is to be obtained by the authority concerned, (ii) whereas, no explicit consent being obtained by the authority concerned from the writ petitioner, rather prior to theirs under taking to construct the afore road, (iii) thereupon, with the respondents breaching the mandate of the afore scheme, rather making a contemplation, vis-a-vis, the authorities concerned, prior to putting to utilization, the apposite landowners' land, for construction of any road, under the PMGSY, theirs obtaining an explicit scribed consent, of the landowners concerned. In sequel, the respondent cannot merely, upon, any admitted verbal/oral consent meted by the writ petitioner to the respondent, erect any argument, that there was completest compliance with the mandate of the scheme, rather enjoining the authorities concerned, to take an express and explicit scribed consent, for the relevant purpose, from the writ petitioner. 4. Be that as it may, mandate, if any, in PMGSY, hence stipulating the necessity of purveying of any explicit scribed consent by the landowners concerned, prior to the under taking of construction of the road, by the authorities concerned, would necessarily breach the mandate of Article 300-A of the Constitution of India. The afore constitutional mandate is inviolable, and, has been declared by the Hon'ble Apex Court in a verdict rendered in a case titled as Tukaram Kana Joshi and others vs. Maharashtra Industrial Development Corporation and others, reported in (2013)1 SCC 353 , the relevant paragraphs where stand extracted hereinafter, (i) to be meted completest adherence, through the authorities concerned, determining compensation, vis-a-vis, the lands put to utilization by the authorities concerned, (ii) and, also declares therein that the expropriation of land of the landowners concerned, by the authorities concerned, without determining compensation, in accordance with law, would breach the constitutional right granted to citizens, under Article 300-A of the Constitution. Furthermore, it has also been explicitly expressed therein, that any vice of delay and laches would not cast any grave impediment, vis-a-vis, the landowner concerned, in his propagating his constitutional right contemplated in Article 300- A of the Constitution. “12. Furthermore, it has also been explicitly expressed therein, that any vice of delay and laches would not cast any grave impediment, vis-a-vis, the landowner concerned, in his propagating his constitutional right contemplated in Article 300- A of the Constitution. “12. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party’s defence must be tried upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N. AIR 1974 SC 2271 ; State of M.P. & Ors. The validity of the party’s defence must be tried upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N. AIR 1974 SC 2271 ; State of M.P. & Ors. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251 ; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768 ;) 14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors., AIR 1970 SC 769 ; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., AIR 1987 SC 1353 ; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Ors., AIR 1993 SC 802 ; Dayal Singh & Ors. v. Union of India & Ors., AIR 2003 SC 1140 ; and Shankara Co- op Housing Society Ltd. v. M. Prabhakar & Ors., AIR 2011 SC 2161 ) 15. In the case of H.D Vora v. State of Maharashtra & Ors., AIR 1984 SC 866 , this Court condoned a 30 year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed.” 5. In the case of H.D Vora v. State of Maharashtra & Ors., AIR 1984 SC 866 , this Court condoned a 30 year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed.” 5. Furthermore, the stand, as, projected by the respondents, in their reply, that there occurs disparity inter se the writ petitioner and one Dina Nath, qua whom the respondents proceeded to accept the recommendations of the Negotiation Committee, hence determining compensation, vis-avis, his land, as, became utilized for construction of the afore named road, (i) and, as becomes anchored, upon, the petitioner unalike the afore admittedly meteing his verbal consent to the authority, for utilizing his land, for construction of the afore road, is also a misfounded stance, (ii) given obviously rather alike the afore Dina Nath, the writ petitioner only purveying an implied verbal consent to the authorities concerned, despite, the scheme providing the making, of, an express scribed consent by the petitioner, to the authorities concerned, (iii) omission(s) whereof, of the authorities concerned, does estops them, to deny compensation to the petitioner. Even if, the writ petitioner admits qua his purveying an oral consent, yet it being conditioned, upon his being paid compensation qua his land being utilized for construction of road, (iv) nonetheless, despite the respondents denying, the factum, that the oral consent purveyed by the writ petitioner to respondents, was, with an assurance meted to him that compensation would be determined with respect to his land. However, the afore denial with respect to the admitted consent of the writ petitioner, being rather conditioned with the afore assurance, would also not render disabled, the writ petitioner to claim parity with one Dina Nath. The reason being that in denying parity to the writ petitioner, with one Dina Nath, would wreak constitutionally prohibited vices of discrimination and arbitrariness, upon, the petitioner . 6. Be that as it may, the respondents are unable to establish through cogent material becoming placed on record, that the petitioner(s) concerned, had in contemporaneity, of their lands being utilized, for the construction of the afore road, had meted any express consent, for the relevant purpose. 6. Be that as it may, the respondents are unable to establish through cogent material becoming placed on record, that the petitioner(s) concerned, had in contemporaneity, of their lands being utilized, for the construction of the afore road, had meted any express consent, for the relevant purpose. The solitary stand in opposition to the writ claim, is, founded, upon implied consent of the writ petitioners concerned, and, the afore being marshable from the writ petition being hit by estopping vices of delay, and, laches. As aforestated, the afore opposition to the allowing of the writ claim, as, reared by the respondents, is outside the verdict supra, rendered by the Hon'ble Apex Court. 7. Strikingly, also, a similar plea became reared before the Hon'ble Apex Court, in a case titled as Vidya Devi vs. State of H.P. and, others, reported in (2020)2 SCC 569 . A reading thereof, does unveil, that the afore plea of any implied or verbal consent of the landowners concerned, besides the writ claims being hit by vices of delay, and, laches, becoming completely repudiated by the Hon'ble Apex Court. 8. For the foregoing reasons, the extant writ petition is allowed, and, the respondents are directed to, within four weeks from today, issue the requisite acquisition notice under the relevant statute, vis-a-vis, the lands of the writ petitioner, and, thereafter forthwith determine, just, and, fair compensation qua the lands of the landowners concerned. All pending applications also stand disposed of.