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2023 DIGILAW 129 (HP)

State of H. P. v. Hem Raj Mehta

2023-03-10

SABINA, SATYEN VAIDYA

body2023
JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant appeal, the appellants have assailed judgment dated 23.9.2021, passed by learned Single Judge in CWP No. 74 of 2019. 2. Brief facts necessary for adjudication of appeal are that the appellants-State constructed road named as ‘Udho-Niwas-Jakhar-Bartu’ in the year 1995-96. Acquisition proceedings to acquire some of the land utilized for construction of above noted road was undertaken and the compensation was offered vide award dated 24.11.1997. A part of the land utilized for aforesaid road remained without acquisition and consequently owners of such land were not paid any compensation. On 4.9.2014, another award came to be passed in respect of a part of the land utilized for the aforesaid road. 3. The grievance of the respondents is that their land comprised in Khasra Nos. 610 and 603 situate in Patwar circle Jakhar, Mohal Jakhar, Tehsil Rohru, District Shimla was also utilized by the appellants No. 1 and 2 for construction of the above named road, but no acquisition was undertaken in respect of their land and the compensation was not paid to them either in terms of award dated 24.11.1997 or award dated 4.9.2014. 4. The respondents approached the appropriate authority with a prayer to acquire their land, already utilized for the above noted road. Despite recommendation of their case by appropriate authority, their grievance was not finally settled, which forced them to approach this Court by way of CWP No. 74 of 2019, seeking relief in following terms: “(i) That writ in the nature of mandamus may kindly be issued directing the respondents to acquire the land of the petitioners and pay the compensation as has been done in the other similar situated cases i.e. by award dated 04.09.2014 (Annexure P-3) immediately within a reasonable period as deemed fit by this Hon’ble Court. (ii) That the petitioners may kindly be granted same and similar order, which has been granted by this Hon’ble Court in a similar situated case vide judgment dated 09.01.2018 (Annexure P-11).” 5. Appellants contested the writ petition, mainly, on the ground that the claim of the respondents was highly belated. They had approached this Court after about 23 years and for such reasons were not entitled to any relief. It was also urged that the land of the respondents had been utilized for ‘Udho-Niwas-Jakhar-Bartu Road’ with their oral consent. Appellants contested the writ petition, mainly, on the ground that the claim of the respondents was highly belated. They had approached this Court after about 23 years and for such reasons were not entitled to any relief. It was also urged that the land of the respondents had been utilized for ‘Udho-Niwas-Jakhar-Bartu Road’ with their oral consent. Respondents had enjoyed the facility of road and thus, were estopped from filing the petition. 6. Learned Single Judge vide judgment dated 23.9.2021 passed in CWP No. 74 of 2019 allowed the claim of the respondents and directed the appellants in following terms: “9. 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.” 7. In the instant appeal, challenge has been laid to impugned judgment dated 23.9.2021 passed in CWP No. 74 of 2019 again on the ground that the claim of the respondents was highly belated. They had consented for utilization of their land for construction of road and for such reasons, were not entitled to any relief. The appellants have pressed into service the judgment of Full Bench of this Court in Shankar Dass vs. State of Himachal Pradesh passed in CWP No. 1966 of 2010, decided on 02.03.2013, wherein it was held that in cases with identical facts, the appropriate remedy was to approach Civil Court by filing civil suit. The appellants have also placed reliance upon the judgment passed by Hon’ble Supreme Court in State of Maharashtra vs. Digambar, (1995) 4 SCC 683 to support its contention. 8. We have heard learned counsel for the parties and gone through the record available on the file carefully. 9. There is no denial of the appellants to the fact that the land of the respondents comprised in Khasra Nos. 610 and 603 sitaute in Patwar Circle Jakhar Mohal Jakhar, Tehsil Rohru, Distt. Shimla was utilized for construction of road ‘Udho-Niwas-Jakhar-Bartu’ fin the year 1995-96. It is also not in dispute that the land of the respondents, so utilized by the appellants, was not acquired at any stage and the respondents have not been paid any compensation. 10. 610 and 603 sitaute in Patwar Circle Jakhar Mohal Jakhar, Tehsil Rohru, Distt. Shimla was utilized for construction of road ‘Udho-Niwas-Jakhar-Bartu’ fin the year 1995-96. It is also not in dispute that the land of the respondents, so utilized by the appellants, was not acquired at any stage and the respondents have not been paid any compensation. 10. The only ground consistently agitated by the appellants before writ Court and also before this Court is regarding the delay on the part of respondents to approach the Court, besides, the contention regarding the oral consent given by the respondents for utilization of their land for the construction of road. 11. Learned Single Judge while allowing the petition of the respondents vide impugned judgment had placed reliance on judgment passed by Hon’ble Supreme Court in Vidya Devi vs. State of H.P. and Others, (2020) 2 SCC 569 to dispel the contentions raised on behalf of the appellants. 12. Recently, in Sukh Dutt Ratra and Another vs. State of Himachal Pradesh and Others, (2022) 7 SCC 508 , Hon’ble Supreme Court in almost identical facts situation, as available in the instant case, after placing reliance upon Vidya Devi (supra) held as under: “23. This Court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances - rejected the contention of ‘oral’ consent to be baseless and outlined the responsibility of the State: “12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi vs. Maharashtra Industrial Development Corporation, wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 12.10. This Court in State of Haryana vs. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.” 24. This Court in State of Haryana vs. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.” 24. And with regards to the contention of delay and laches, this court went on to hold: “12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. 12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. 25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case. 26. In view of the above discussion, in view of this court’s extraordinary jurisdiction under Article 136 and 142 of the Constitution, the State is hereby directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants in the same terms as the order of the reference court dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of 2004 (and consolidated matters). The Respondent-State is directed, consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. Petition No. 10-LAC/4 of 2004 (and consolidated matters). The Respondent-State is directed, consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. The appellants would also be entitled to consequential benefits of solatium and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013.” 13. Thus, the challenge laid by the appellants to the impugned judgment passed by learned Single Judge is without substance and merits. The legal position has been well settled in Sukh Dutt Ratra (supra). The respondents cannot be deprived of property, without due process of law. Despite two separate awards having been passed in respect of land utilized for ‘Udho-Niwas-Jakhar-Bartu Road’ in the year 1997-2014. The land of the respondents remained without acquisition and as a consequence thereof, respondents have remained without payment of compensation. 14. Learned Additional Advocate General also placed reliance on the judgment dated 24.2.2023, passed by Hon’ble Supreme Court in Civil Appeal No. 1278 of 2023, titled State of Himachal Pradesh and Others vs. Rajiv and Another. After going through the judgment so referred, we have not found a view different than the view taken by Hon’ble Supreme Court in Sukh Dutt Ratra, save and except, that in Civil Appeal No. 1278 of 2023 the respondents therein were not held entitled to the interest under the Land Acquisition Act from the date of notification under Section 4 of the said Act in that case till the filing of the writ petition. However, in the facts of the instant case, we find that the award for grant of compensation for the second time was passed in 2014, without considering the land of the respondents and no plausible reasons whatsoever has been put forth by the appellants for such omission. Thereafter, the respondents continued to agitate their grievance with the appellants and despite the positive recommendation of appropriate authority of appellant No. 1 in favour of the claim of respondents, no final decision was taken, forcing the respondents to approach this Court. Thereafter, the respondents continued to agitate their grievance with the appellants and despite the positive recommendation of appropriate authority of appellant No. 1 in favour of the claim of respondents, no final decision was taken, forcing the respondents to approach this Court. In such view of the matter, the appellants cannot derive any benefit from the judgment passed by Hon’ble Supreme Court in Civil Appeal No. 1278 of 2023, titled State of Himachal Pradesh and Others vs. Rajiv and Another, which in our considered view has been passed in the peculiar facts of the said case. 15. In view of above discussion, we find no merit in the appeal and the same is dismissed. 16. Pending miscellaneous applications, if any, shall also stand disposed of.