Partly allowed

District Bar Association Solan v. State of Hp and Others

Himachal Pradesh HC19 Apr 2024CWP/1134/2019

Case brief

AI extract

What is this about?

Bar association's writ sought land acquisition for Phase-II of Solan Judicial Court Complex. After notifications under Section 11 of the 2013 Act, the State resiled citing cost. The Court held the State cannot take advantage of its own delay or plead financial limits against its constitutional duty and ordered completion of acquisition within two months.

What did the court decide?

Writ of mandamus to respondents 1 and 4 to complete acquisition of notified land within 2 months and hand over possession to District and Sessions Judge, Solan; respondent no.2 to release funds per no

District Bar Association Solan Vs State of Hp and… — Land Acquisition | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH

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AT SHIMLA

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CWP No.1134 of 2019

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Reserved on:20.3.2024

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Pronounced on: 19.4.2024

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District Bar Association, Solan ……Petitioner

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Versus

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State of HP and others ....…Respondents

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Coram:

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Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

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Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

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Whether approved for reporting?

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For the petitioner : Mr. P.S. Goverdhan, Sr. Advocate with Mr. Rakesh Thakur, Advocate.

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For the respondents : Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocate Generals and Mr. Arsh Rattan & Mr. Sidharth Jalta, Deputy Advocate Generals for respondents No.1,3 and 4

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Mr.Balram Sharma, Deputy Solicitor General of India for respondent no.2-UOI Mr.Aman Sood, Advocate for respondent no.5

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M.S. Ramachandra Rao, Chief Justice .

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The Writ Petitioner is a registered body of Advocates practicing at District

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Court, Solan which is also registered under the Societies Registration Act,2006 on 24.5.2014. It has a membership of 430. Ex.P2 is the resolution of the Executive Committee of the petitioner Association for filing this Writ Petition.

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This Writ petition interalia relates to taking of effective steps by the State of Himachal Pradesh, the Union of India and the Secretary, Department of Finance, State of Himachal Pradesh (respondent no.1,2 and 4) for acquisition of land comprised in Kahsra No.47/1, 49,48,50,51 and 52 admeasuring 00-10-04 hectare situated in Mohal Thodo Solan, Tehsil and District Solan, Himachal Pradesh for construction, development and extension of the new Judicial Court Complex (Main Block) Phase-II at district Court, Solan.

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It is not in dispute that previously Judicial Courts at Solan were functioning in an old building known as Modi Bhawan, Sunny Side , Solan. It was decided to be dismantled as it had outlived it’s life, but before this was done, an additional block of Judicial Complex was constructed in 2009 to house one Court and Ministerial staff of all Courts functional at the relevant time. Though the proposed drawing of the additional block of the Judicial Complex, Solan had a provision for

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a Bar room, library, canteen, record room, litigant room, area designated for

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document writers, typists and stamp vendors etc., these facilities were not provided

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and instead 4 more Judicial Courts were started there.

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The Modi Bhawan was razed to the ground, but the construction of new block (Main Block-Phase-II) in that area did not happen.

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The Building and Infrastructure Committee of the High Court (respondent No.5) on 7.12.2016 mooted a proposal (Annexure R5/19) to acquire the above land, a private land adjacent to the existing Court complex at Solan towards the hill side for Main Block- Phase II of the Judicial complex. This was also reiterated in another meeting held on 21.6.2017 (Annexure R5/23) by the said Committee.

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On 24.4.2018, the District Collector, Solan had forwarded the “inescapability certificate” to the then District and sessions judge, Solan also. (Annexure R5/25).

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Since there was no progress on this proposal, the instant Writ Petition was filed.

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Events after filing of the Writ Petition

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On 27.5.2019, this Court had passed the following order :

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“ In the given facts and circumstances and also there being acute shortage of accommodation in Judicial complex, Solan,

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we direct the respondent State to consider the matter qua acquisition of land described in para (ii) of the prayer clause in the Writ Petition and apprise this Court about the current status on the next date . List on 12^th June,2019”.

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The Additional Chief Secretary (Revenue) to the Govt. of Himachal Pradesh wrote a letter No.Rev-D(E) 3-60/2019 dt.20.6.2019 (Annexure - R-1/II) to the Additional Chief Secretary (Home) stating that the Home Department is the administrative department for Higher Judicial Services and Judicial Services and the latter must see the feasibility and suitability of the land for the purpose for which it is being acquired (phase-II of the Judicial Complex, Solan) and then it should move a case for it’s acquisition.

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The Additional Chief Secretary (Home) then wrote on 21.6.2019 to the Registrar General of this Court to see on the administrative side the feasibility and suitability of the above land and desirability of making proposal for acquisition of land to the State Government. (Annexure –R-1/III)

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Thereafter the Registrar General of this Court Vide Letter No.HHC/GAD/4(25) 79-VIII-19070 dt.9.7.2019 sent the proposal.

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This was examined by the Deputy Commissioner, Solan District and a feasibility report/recommendation was also sent by the SDM Solan to the Asst. Commissioner on 15.7.2019 (Annexure Respondent No.1-Bank/I to additional

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Affidavit dt.29.7.2019) after a joint inspection of various departments including HPPWD, I & PH, HPSEBL, MC Solan, Forest department and Judiciary and after a Social Impact study was done.

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After all formalities were done, it is not in dispute that the aforesaid land had been notified vide Home-B(E)4-2/2019-II dt.29.4.2021 for acquisition by the State Government under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013 (for short ‘the Act’) and again on 16.5.2023 during the pendency of the Writ Petition.

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The notification dt.16.5.2023 under Section 11 of the Act was also published in the Times of India (English) and Divya Himachal (Hindi) daily news papers on 11.8.2023 for the construction and expansion of the Judicial Courts Complex, Solan. The time period for filing objections was fixed as 10.10.2023. Further action in the matter was indicated to be taken after completion of 60 days time under section 15 of the Act.

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These facts are stated in the letter No.Home-B-E003/10/2023 dt.26.9.2023 addressed by the Secretary (Home) to the Government of Himachal Pradesh to the Advocate General, State of Himachal Pradesh and the said letter was placed on record by the latter on 27.9.2023 and was recorded in the docket order dt.27.9.2023.

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Matter was directed to be listed on 8.11.2023.

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On 8.11.2023, a status report dt.7.11.2023 in the form of a letter dt.7.11.2023 from the Secretary (Home), Govt. of Himachal Pradesh addressed to

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the learned Advocate General was placed before us which stated:

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“… Due to huge financial implications, the matter has been taken up with the Finance department for seeking advice on 4.11.2023 and is still awaited”

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The so called huge financial implication mentioned was that total cost of

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land is more than Rs.2 Crores mentioned in the said letter.

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Matter was then adjourned on 8.11.2023 to 23.11.2023 and then on 23.11.2023 to 7.12.2023 to enable the views of the Finance Department to be placed on record.

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On 7.12.2023, it was adjourned to 19.12.2023 again at the request of the Additional Advocate General.

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Matter then was listed on 11.3.2024 ( after the winter vacation from 14.1.2024 to 25.2.2024).

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No views of the Finance department were however placed before the Court till date by the Advocate General.

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On 11.3.2024, the learned Additional Advocate General has placed before this Court a letter Ref.HOME-B-E003/10/2023-HOME-BHIMACHAL

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PRADESH SECRETARIAT dt.19.12.2023 from the Secretary (Home) to the Dy. Commissioner, Solan stating as under:

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“ .. the matter was take up with the Finance department who has advised to first identify a Government owned piece of land and then plan this capital work within approved budgetary outlays as the final cost of acquisition of proposed land may be much higher than the indicated cost of Rs.2 crore considering that the owners are seeking even higher compensation which may result in litigation…”

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So the whole process of acquisition of above referred land adjacent to the existing Court Complex has been brought to a naught by the State/respondents after issuing notifications under section 11 of the Act on 29.4.2023 and 16.5.2023 after all procedural steps in that regard had been taken.

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The Deputy Commissioner, Solan has then addressed a letter No.DRA/1150/2015-III-07 dt.18.1.2024 to the District and Sessions Judge, Solan stating that land is now proposed at a place called Ber Khas for the construction of the Judicial complex.

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The question is:

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“whether the respondents 1,3 and 4 can take give a go-by to the process of acquisition of the land notified for acquisition adjacent to the existing Judicial Complex merely because the cost of acquisition of the above land ( which is admittedly adjacent to the existing Judicial Complex, Solan ) is ` 2 Crore or more?”

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In part I of the recent report on Infrastructure, budgeting, Human resourcing and ICT prepared by the Centre for Research and Planning, Supreme Court of India titled “ State of Judiciary” ( November,2023) under the heading “Judicial Infrastructure”, the following is stated:

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“Access to Justice lies at the heart of the justice delivery system. Justice without accessibility to the litigant is an illusion. With the advent of technology and enhances awareness of rights and duties, there is an increasing inflow of litigation. Dispensation of speedy and quality justice requires judges to discharge their obligation at their optimum level of performance. This can be ensured with adequate and robust judicial infrastructure in place to provide financial support to judges. The Supreme Court of India has time and again pressed the need for

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revamping the judicial infrastructure. In All India Judges Assn. v. Union of India¹

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while highlighting the infrastructure needs , the Supreme Court observed that:

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“3. A sound infrastructure is the linchpin of a strong and stable judicial system. The responsibility for securing justice to the citizenry of our country rests upon the judiciary which makes it imperative upon the State to provide the judicial wing the requisite infrastructure commensurate with the constitutional obligation of the judiciary. It needs to be understood that without a robust infrastructure, the judiciary would not be able to function at its optimum level and, in turn, would fail to deliver the desired results.

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6. It has to be firmly borne in mind and accepted as a reality that raising the infrastructure standards in the court complexes is the need of the hour as it is the basic requirement for the courts in the twenty-first century. We are absolutely clear that when people are aware of their rights, their desire to get the rights realised is enhanced and they would like to knock at the doors of the Court to shape their aspiration into reality. It is a welcome phenomenon and conceptually, Rule of Law nourishes and garners the said idea. The idea of speedy and quality justice dispensation system cannot be treated with status quoist approach, for the definition of infrastructure and the understanding of the same in all associated contexts changes with the passage of time and introduction of modern technology in many a sphere of life. The consumers of justice expect prompt and effective delivery of justice in an atmosphere that is acceptable. Therefore, infrastructure enhancement will go a long way in strengthening functioning of the court and would improve the productivity in the justice delivery system.”

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In the Indian judicial system, the district judiciary provides the primary

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interface between the litigant and the justice system. District Courts are, therefore,

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1 (2018) 17 SCC 555

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the most accessible and most widely used recourse for litigants at the grassroot level in India. In this context, the aim is to highlight the infrastructural needs of the district judiciary from a citizen-centric perspective.”

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The report then goes on to highlight the dearth of court halls, poor quality of amenities such as lack of good lighting, proper ventilation, power backup, wash rooms, inadequate security, sufficient furniture for court staff and lawyers and incidents of falling of plasters, seepage rainwater as some of the Magisterial courts operate from colonial era facilities.

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These observations need to be kept in mind in considering the above issue framed for consideration.

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As pointed out above, the High Court had mooted the proposal for acquisition of this land way back in 2016 i.e from 7.12.2016 vide Annexure R5/19 and also reiterated in another meeting held on 21.6.2017 vide Annexure R5/23. The process had in fact been set in motion much prior to that at least from 3.6.2015 as can been seen from Annexure R-5/15.

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Having delayed the initiation of the process of acquisition from then, for about 7 years, the State cannot be allowed to resile from the said proposal at this point of time. The State cannot be allowed to take advantage of it’s own wrong in delaying the process of acquisition from 2016 till 2023 and then plead the increase

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in cost of acquisition occasioned by the said delay as an excuse to resile from it’s promise.

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32. In Kusheshwar Prasad Singh v. State of Bihar² , the Supreme Court

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explained :

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“14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal³ wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).

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15. In Union of India v. Major General Madan Lal Yadav⁴ the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court (at SCC p. 142, para 28) referred to Broom’s Legal Maxims (10th Edn.), p. 191 wherein it was stated:

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“It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law

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2 (2007) 11 SCC 447, at page 451

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3 AIR 1961 SC 1353

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4 (1996) 4 SCC 127

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and of equity, and, indeed, admits of illustration from every branch of legal procedure.”

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16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”.

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The Supreme Court has time and again emphasized that a sound judicial infrastructure is necessary for a stable and efficient judicial system. It has warned against the framing of any policies or doing of any acts by State which shall derogate from the very ethos of the stated basic principle of judicial independence and access to justice. If the policy decision of the State is likely to prove counterproductive and increase the pendency of cases, thereby limiting the right to

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fair and expeditious trial to the litigants in this country, it will tantamount to infringement of their basic rights and constitutional protections.

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In Brij Mohan Lal v. Union of India⁵ , the Supreme Court reiterated:

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“ 111. It is, thus, clear that it is the constitutional duty of this Court to ensure maintenance of the independence of judiciary as well as the effectiveness of the justice delivery system in the country. The data and statistics placed on record, of which this Court can even otherwise take judicial notice, show that certain and effective measures are required to be taken by the State Governments to bring down the pendency of cases in the lower courts. It

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5 (2012) 6 SCC 502

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necessarily implies that the Government should not frame any policies or do any acts which shall derogate from the very ethos of the stated basic principle of judicial independence. If the policy decision of the State is likely to prove counterproductive and increase the pendency of cases, thereby limiting the right to fair and expeditious trial to the litigants in this country, it will tantamount to infringement of their basic rights and constitutional protections. Thus, we have no hesitation in holding that in these cases, the Court could issue a mandamus…

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137. Article 21 of the Constitution of India takes in its sweep the right to expeditious and fair trial. Even Article 39-A of the Constitution recognises the right of citizens to equal justice and free legal aid. To put it simply, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duty of the Government, more particularly, when such rights are accepted as basic and fundamental to the human rights of citizens.” ( emphasis supplied)

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Thus the State cannot plead any financial limitation in providing adequate judicial infrastructure for redressal of grievances of it’s citizens when it is a part of it’s constitutional duty to provide means for an expeditious and fair trial. It’s decision in the instant case is, in our opinion, clearly counterproductive to it’s above constitutional duty for the following reasons:

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(a) Building a new complex at a new place, which is not adjacent to the existing Judicial complex, will mean that tax payer has to incur considerable expenditure for such construction as buildings incorporating

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the existing infrastructure also would have to be built again at the new place;

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(b) The process of acquisition and construction will further push the time lines and cause much more delay and expense defeating the right of litigants under Art.21 to have an expeditious trial of their cases;

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proposed by the State (vide letter No.DRA/1-150/2015-III-07 dt.18.1.2024 of the Deputy Commissioner, Solan to the District and Sessions Judge, Solan), then it would not feasible or convenient to have Courts at the existing Judicial complex and some other Courts at the new place proposed, which is at a considerable distance from the land proposed for acquisition, and would cause much inconvenience to the litigants, staff and judicial officers.

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The following facts also can be taken judicial notice by this Court :

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(a) The State Government Budget for 2023-24 Financial year was more than Rs.53,413 Crores and for the 2024-25 Financial year is Rs.58,444 Crores., an increase of Rs.5,000 Crores from the previous year;

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(b) The State is proposing to expand the airport runway at Gaggal Airport, Dharamshala by spending Rs.2000 Crores. A news report dt.14.7.2023 in the

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“Tribune” newspaper indicates that the state had earmarked Rs.2000 Crores in the State Government budget for 2023-24 for this purpose. This figure is not disputed by the learned Advocate General.

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(c) The State is proposing to start a State Administrative Tribunal to decide the service disputes of it’s employees and incur a recurring expenditure therefor of at least Rs.250 cr. annually. The Council of Ministers had approved the said proposal on 18.11.203 as per news report dt.19.11.2023 of the “Tribune” newspaper.

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(d) The State has announced on 5.3.2024, (Indian Express dt. 6.3.2024) an allowance for eligible women of 5 lakh in the State @ Rs.1500/- per month in age group 18-60 years costing Rs.800 Crore. This figure is also not disputed by the learned Advocate General.

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(e) The State is currently implementing the Old Pension Scheme and several other welfare measures which entail huge expenditure. These are also not disputed.

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While there may be ample justification by the State for implementing the above schemes /decisions, we fail to see why it cannot find a sum of mere Rs.2 Crores plus for the land acquisition of the above referred land for the Judicial Complex at Solan adjacent to the existing Judicial complex.

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In our opinion, the action of the respondents 1 and 4 is plainly arbitrary, unreasonable and unsustainable.

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We therefore do not find any merit in the reasons given by the State of

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Himachal Pradesh for resiling from the process of acquisition of the land notified under Section 11 of the Act on 16.5.2023.

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The Writ Petition is accordingly allowed in part; and a Writ of Mandamus is issued to the respondents 1 and 4 to proceed forthwith and complete within 2 months from today the process of acquisition of land notified under Section 11 of the Act on 16.5.2023 for construction, development and extension of the new Judicial Court complex ( Main Block Phase-II) at District Court, Solan and hand over possession thereof to the District and Session Judge, Solan without further delay. We also direct the respondent no.2 to release the funds in accordance with the existing norms and guidelines.

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Pending miscellaneous application(s), if any, shall stand disposed of.

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(M.S. Ramachandra Rao)

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Chief Justice

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(Jyotsna Rewal Dua)

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April 19, 2024

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Judge

District Bar Association Solan v. State of Hp and Others

Case brief

What is this about?

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District Bar Association Solan v. State of Hp and Others

Case brief

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