Allowed

Jawahar Lal v. State of Hp

Himachal Pradesh HC7 Sept 2020CWP/1510/2017

Case brief

AI extract

What is this about?

Allowed a writ petition directing the State to acquire land used for road construction without following acquisition procedures and pay market value compensation, overriding delay objections.

What did the court decide?

Direct respondents to acquire petitioner's land and pay compensation at prevailing market rate within six months.

Jawahar Lal Vs State of Hp — Land Acquisition | Himachal Pradesh HC (2020)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.1510 of 2017 Date of Decision: 7.9.2020

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Jawahar Lal …… Petitioner

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versus

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State of H.P.& others ….Respondents Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for report? Yes.

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------------------------------------------------------------------------------For the Petitioner : Mr. Daleep Singh Kaith, Advocate, through video conferencing. For the Respondents : Mr. Sudhir Bhatnagar, Additional Advocate General with Mr. Kunal Thakur, Deputy Advocate General, through video-conferencing.

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Sandeep Sharma, Judge (oral)

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By way of instant petition filed under Article 226 of the

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Constitution of India, petitioner has prayed for the following reliefs:-

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(i) That writ in the nature of mandamus may kindly be issued, directing the respondents to acquire the land of the petitioner measuring 6.50 biswas compromised in Khasra No.955, Khewat No. 43/42 min, Khatauni No.1366/135min, situated in Mohal Shaneri, Patwar Circle Shingla, Tehsil Rampur, District Shimla, H.P. within time bound period, since the respondents have used the above mentioned land of the petitioner for the construction of Shingla to Shaneri road.

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(ii) That writ in the nature of mandamus may kindly be issued, directing the respondents to grant the compensation to the petitioner at the market value of the land prevailing at present as per the ratio laid down by this Hon’ble Court as well as Hon’ble Apex Court.”

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Precisely, the facts of the case as emerge from the pleadings adduced on record by the respective parties are that the land of the petitioner bearing Khasra No.955, Khewat No. 43/42min, Khatauni No.1366/135min, situate in Mohal Shaneri, Patwar Circle Shingla, Tehsil Rampur, District Shimla, H.P., came to be used by the respondents-State for the construction of road namely “Dakolar-Shingla- Shaneri, work whereof started in the year, 1997 and as per the reply filed by respondents No.1 to 3 construction work of aforesaid road stands completed in the year 1998, as is evident from the copies of measurement book placed on record by respondents No.1 to 3 alongwith their reply (Annexure R-1 colly). Since, other similarly situate persons received due amount of compensation on account of use of their land for the construction of road in question, petitioner also filed various representations to the Department to pay him compensation, but since no action ever came to be taken at the behest of the respondents-State qua the prayer made on behalf of the petitioner, he was compelled to approach this Court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.

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Having heard learned counsel representing the parties and perused the material adduced on record, this Court finds that there is no dispute inter-se parties as far as use of land of the petitioner for the construction of road in question, is concerned. Respondents No.1 to 3 in their reply though have made an attempt to make out a case that no land belonging to the petitioner ever came to be utilized for the purpose of construction of road in question, but if their reply is read in its entire-

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ty, it stands virtually admitted that 315 Sq.meter of land was utilized for the construction of road in question. Aforesaid respondents in their reply have stated that road in question was constructed on the persistent demand of the inhabitants of the area as they were willing to have road facility in order to connect with the main National Highway and also to have their agricultural produce marketed at different destination in the country. Respondents No.1 to 3 have further stated that land owners including the predecessor of the petitioner had voluntarily surrendered their land in their favour, but no formal deeds were executed and as such, petitioner is not entitled to any compensation qua the land, if any, used by the respondents for the construction of the road in question. Besides above, respondents have also stated in their reply that since 1998 onwards neither predecessor of the petitioner nor the petitioner raised any objections or any demand with respect to payment of compensation and as such, present petition deserves outright rejection on the ground of inordinate delay of more than 20 years.

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Respondent No.4, Land Acquisition Officer, HPPWD, has filed its separate reply, perusal whereof reveals that the petitioner is the coowner of the land bearing Khasra No.955, Khewat No.41/42, Khatauni No.1366/135min, situate in Mohal Shaneri, Tehsil Rampur, District Shimla, H.P., and such land stands utilized by respondents No.1 to 3 for the construction of road in question. Respondent No.4 has categorically stated in para-4 of its reply that representation, dated 27.5.2017 (Annexure P-4) was received in the office and whereafter necessary action was taken to demarcate the land. Field Kanungo, Rampur in the

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demarcation report dated 17.7.2017 has reported that the road of HPPWD has been constructed in the land comprised in Khasra No.955/1, measuring 00-03-41 Hectares on the spot, but there is no entry to this effect in the revenue record (Annexure R-4/1). It has been further stated by respondent No.4 that after demarcation, the tatima of spot was prepared (Annexure R-4/2) and Field Kanungo also recorded the statement of the petitioner and representatives of the PWD. Respondent No.4 in its reply has stated that since other adjoining land owners have received the compensation, petitioner should also be given compensation.

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Though, in the case at hand an attempt has made on behalf of the respondents to defeat the claim of the petitioner on the ground of delay and laches, but there is no specific denial to the fact that petitioner had been repeatedly requesting the respondents to pay compensation. At this stage, learned Additional Advocate General has placed reliance upon the judgment rendered by the Full Bench of this Court in Shankar Dass Vs. State of Himachal Pradesh and Connected matters, 2013(2) Him. L.R.(FB) 698, wherein following question was referred for adjudication by Full Bench of this Court:-

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“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 has been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, can they seek a direction in a writ petition filed after a long time for a direction to the State to initiate land acquisition proceedings in respect of their such land which has been utilized for the purposes of construction of the road?”.

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The reference was answered by the Full Bench of this Court in the following manner:-

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“As per the view of the majority, the Reference is answered as follows:

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“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.” Post these cases in the respective Benches.”

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In the aforesaid judgment Full Bench of this Court has held

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that 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 has been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, land owners 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.

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In the case at hand, factum of the land having been utilized for the construction of “Dakolar-Shingla- Shaneri” road is not disputed by the respondents-State and similarly, no material, worth credence, has been placed on record by the respondent-State to demonstrate that land in question was utilized by the State for the construction of the road with the consent of the petitioner implied or otherwise. There is no cogent explanation given by the State as to why the land of the petitioner was not acquired as per the provisions of Land Acquisition Act when the land

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of similarly situate persons was duly acquired under the provisions of Land Acquisition Act and they have been duly compensated for utilization of their land as per law.

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Once it stands admitted in the reply having been filed by the respondents that other land owners, whose land was also utilized for the construction of the road in question were paid due compensation, respondent-State cannot be allowed to defeat the claim of the petitioner on the ground of delay and laches.

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The Hon’ble Supreme Court in K.B.Ramachandra Raje Urs (Dead) by Legal Representatives Vs. State of Karnataka and others (2016)3 Supreme Court Cases 422 has held in para 28 as under:-

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“28. It has been vehemently argued on behalf of the respondents that the writ petition ought not to have been entertained and any order thereon could not have been passed as it is inordinately delayed and the appellant has made certain false statements in the pleadings before the High Court details of which have been mentioned hereinabove. This issue need not detain the Court. Time and again it has been said that while exercising the jurisdiction under Article 226 of the Constitution of India the High Court is not bound by any strict rule of limitation. If substantial issues of public importance touching upon the fairness of governmental action do arise, the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction by the Court. Insofar as the knowledge of the appellant-writ petitioner with regard to the allotment of the land to Respondent 28 Society is concerned, what was claimed in the writ petition is that it is only in the year 1994 when Respondent 28 Society had attempted to raise construction on the land that the fact of allotment of such land came to be known to the appellant writ petitioner.”

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As per the judgment of Full Bench rendered in Shankar Dass

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case supra, though land owner(s) whose claim(s) is/are sought to be

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denied/refuted by the respondent-State on the ground that required land had been willingly surrendered either orally or otherwise or with implied or express consent by the owners can invoke jurisdiction of the Court within the time within which such a relief can be claimed in civil suit in the competent Court of law, but in the aforesaid judgment, it has been categorically held that once such question is thus raised in a writ petition, same can be considered in the writ petition.

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In the case at hand, if reply of respondents No.1 to 3 is ready in its entirety, it has been categorically admitted that though revenue record annexed with the petition reveals that some land of petitioner has been used for construction of road, but since no demarcation report as well as documents has been placed on record, it cannot be ascertained that how much land of the petitioner was utilized for the construction of road. However, as has been taken note hereinabove, respondent No.4 in its reply has categorically stated that pursuant to representation received from the petitioner, land of the petitioner was demarcated i.e. Annexure R-4/1. Respondents No.1 to 3 have also admitted the factum with regard to use of land to the extent of 315 sq. Meter belonging to the petitioner for the construction of road and as such, there is no justification at all to deny the claim, as has been raised by the petitioner in the instant petition.

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The Hon’ble Apex Court in Tuka Ram Kana Joshi and others through Power of Attorney Holder versus Maharashtra Industrial Development Corporation and others (2013) 1 Supreme Court Cases 353; has held that question of delay and laches is adopted as a mode of

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discretion to decline exercise of jurisdiction to grant relief, however court is required to exercise judicial discretion. The said discretion is dependent on the 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.

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It would be profitable to reproduce paras No.12 to 14 of the aforesaid judgment herein below:-

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“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.

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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. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768;)

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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 circums-

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tances 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 Coop Housing Society Ltd. v. M. Prabhakar & Ors., AIR 2011 SC 2161)

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The Hon’ble Apex Court in State of U.P. and others versus Manohar (supra), has held that constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the 44^th Amendment to the Constitution, Article 300A has been placed in the Constitution, which reads as follows : 300A- persons not to be deprived of property save by authority of law. No person shall be deprived of his property save by authority of law. On the basis of aforesaid judgment rendered by Hon’ble Apex Court, this Court in catena of cases, has reiterated that no person can be deprived of his property without following due process of law.

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The Hon’ble Supreme Court in State of U.P. and Others Vs.

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Manohar, (2005)2 Supreme Court Cases 126 has held as under:-

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“5. As a matter of fact, the appellants were unable to produce even a scrap of evidence indicating that the land of the respondent had been taken over or acquired in any manner known to law or that he had ever been paid any compensation in respect of such acquisition. That the land was thereafter constructed upon, is not denied.

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Having heard the learned counsel for the appellants, we are satisfied that the case projected before the Court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in

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opposing what appears to be a just and reasonable claim of the respondent.

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Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the 44th Amendment to the Constitution, Article 300A has been placed in the Constitution, which reads as follows: "300A- Persons not to be deprived of property save by authority of law _ No person shall be deprived of his property save by authority of law."

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This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us.”

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17. This Court in Jeet Ram Vs. State of Himachal Pradesh and

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others, Latest HLJ 2016 (HP) 615 has held as under:-

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“4. No person can be deprived of his property without following due process of law. Respondents have utilized the land of the petitioner without paying him any compensation. There is no contemporaneous record placed on record by the respondentState to show that the petitioner had consented for the construction of the road through his land. It is evident from the contents of Annexure P-1 that the nature of land in Khasra No. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valuable piece of land of the petitioner has been utilized in an arbitrary manner by the respondent-State, for the purpose of construction/widening of the Shillaru-Reog road.

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It is also argued by Mr. Anup Rattan, Additional Advocate General, that there is delay in filing the present petition, as construction of the road on the suit land was only undertaken on 5.6.2006. Immediately thereafter, the petitioner had served a notice upon the respondents on 30.4.2007. Some action ought to have been taken on notice dated 30.4.2007. Petitioner was constrained to serve another notice on 22.9.2009. Despite that no action has been taken by the respondent-State to redress the grievance of the petitioner.

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Legitimate right of a citizen, that too pertaining to valuable property, cannot be defeated merely on the technical objections. There ought to be difference in the approach of a private litigant vis-à-vis State. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There cannot be any estoppel/ waiver against the constitutional/fundamental/legal rights.”

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Respondent-State cannot deprive the person of his

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property without following due process of law and as such, petitioner, whose land admittedly came to be utilized for the construction of road,

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is also entitled to compensation, as has been paid to other similarly situate persons.

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Consequently, in view of the above, the present petition is allowed and the respondents are directed to take steps, if not already taken, for acquisition of land belonging to the petitioner utilized by it for construction of road and thereafter pay him compensation at the prevalent market rate. Since, the petitioner had been running from pillar to post to get his due and admissible compensation for the last so many years, this Court hopes and trust that respondents would do the needful expeditiously, preferably within a period of six months from today. Pending application(s), if any, also stands disposed of.

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(Sandeep Sharma), September 7,2020 Judge (shankar)

Jawahar Lal v. State of Hp

Case brief

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Jawahar Lal v. State of Hp

Case brief

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