Dismissed

Inder Singh v. State of Hp

Himachal Pradesh HC3 May 2024RSA/141/2018

Case brief

AI extract

What is this about?

Plaintiffs sued seeking mandatory injunction directing the State to acquire land used for a road built in 1981-82 without acquisition. Both courts below dismissed the suits as time-barred with concurrent findings that dispossession was complete on construction. The High Court held Vidya Devi rested on constitutional jurisdiction unavailable in ordinary civil suits and dismissed the appeals.

What the court decided

AI extract

Inder Singh Vs State of Hp — Land Acquisition | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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RSA No.141, 138 and 143 of 2018 Reserved on: 20.04.2024 Decided on: 03.05.2024

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____________________________________________________ 1 RSA No. 141 of 2018

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Inder Singh and others ..Appellants Versus State of H.P and others ..Respondents. 2. RSA No. 138 of 2018 Julfu and others ..Appellants Versus State of H.P and others ..Respondents. 3. RSA No. 143 of 2018 Vidhi Chand .Appellants Versus State of H.P and others ..Respondents. _______________________________________________________ Coram_ Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice Whether approved for reporting?¹ For the Appellants: Mr. Sudhir Thakur, Senior Advocate with Mr. Karun Negi, Advocate. For the Respondents: Mr. Rakesh Dhaulta, Additional Advocate General.

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M.S. Ramachandra Rao, Chief Justice

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In these three second Appeals, the suits filed by the

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respective appellants/plaintiffs had been dismissed by the trial court

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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and the said judgment has been confirmed by the lower appellate court on the ground that they are barred by limitation and holding that they had approached the Court long after cause of action accrued to them individually.

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The appellants in these three Appeals had filed three separate suits before the trial Court contending that they are owners of certain property, out of which, the State Government/PWD Department had laid a road; and that they came to know about the same on 02.02.2012 and 08.07.2010 respectively when demarcation on the spot was conducted; and therefore they are entitled to a decree for mandatory injunction directing the respondents/defendants to initiate proceedings under the Land Acquisition Act, 1894 to acquire their respective properties and to pay compensation to them with all statutory benefits as admissible under the law for the land used by the respondents for the construction of road through their respective lands.

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I may point out that the appellants in RSA No. 138 of 2018 had filed the suit on 31.10.2012, the appellants in RSA No. 141 of 2018 had filed their suit on 31.10.2014 and the appellant in RSA No. 143 of 2018 had filed his suit on 31.10.2012.

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1. The respondents in turn had pleaded that the road in question in

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all the three cases was laid in 1981-1982 on the demand of inhabitants

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of the village and other people of the area and claimed that the land had been donated by the land owners for the road without claiming any compensation. It is also asserted that the respective appellants and their predecessors did not object for the carving out of the road at that time and gave implied consent for that purpose. It is specifically alleged that the suits are hopelessly time barred.

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As stated above, the trial Court as well as the first appellate Court agreed with the plea of the State/respondents/defendants and dismissed the suit and the first Appeals.

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These appeals had been admitted in 2018 and the following question of law has been framed:-

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“Whether on account of mis-appreciation of the pleadings and law and also misreading of the oral as well as documentary evidence available on record, the findings recorded by both Courts below are erroneous and, as such, the judgment and decree impugned in this appeal being perverse and vitiated is not legally sustainable?”

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7) Thereafter another question of law was framed by this Court on

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05.04.2024 as under:

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“ Whether the Courts below were right in holding that the Suits filed by the appellants were barred by limitation in the facts and circumstances of the case?”

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Counsel for the appellants placed reliance on the decisions rendered by the Supreme Court in Vidya Devi vs. The State of Himachal Pradesh² and Sukh Dutt Ratra and others vs. State of Himachal Pradesh and others³ , and contended that there is a continuing cause of action for the injuries suffered by the appellant as per the above decisions, and so the judgments of the trial Court as well as the appellate Court in these appeals be set aside and their respective suits be decreed.

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The judgment in Vidya Devi ( 2 supra)

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In the judgment rendered by the Supreme Court in Vidya Devi case (supra 2), the appellant before the Supreme Court had initially filed a Writ petition before this Court praying that the State be directed to pay compensation for her land, which had been acquired in 1967-1968 or in the alternative for issuance of a direction to the State

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to initiate acquisition proceedings under the Land Acquisition Act, 1894.

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The State filed reply in the Writ petition admitting that it had

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used the land in the ownership of appellant for construction of the road in 1967-1968. It contended that it was in continues possession of

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2 (2020) 2 SCC 569

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3 (2022) 7 SCC 508

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the property since then for more than 42 years, that it acquired title through adverse possession, that the Writ petition was not maintainable and she had to file a Civil Suit.

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The High Court dismissed the Writ petition on the ground that it involves adjudication of disputed questions of law and fact for determining the starting point of limitation, and the same could not be adjudicated in the Writ proceedings.

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The Supreme Court set aside the judgment of the High Court and held in paragraphs 10.6,10.7 and 11 as under:

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“ 10.6. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

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10.7. 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

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delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. 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. In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,10 this Court while dealing with a similar fact situation, held as follows :

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“There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 9 P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152. 10 (2013) 1 SCC 353. 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode.”

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11. In the present case, the Appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law. The present case is one where the demand for

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justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction under Articles 136 and 142 of the Constitution, and direct the State to pay compensation to the Appellant.”

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(emphasis supplied)

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A reading of the above judgment indicates that the basis of exercise of jurisdiction by the Supreme Court in that case was it’s constitutional jurisdiction and that was why delay and laches were held not to be a bar for grant of relief to the appellant therein as the conduct of the State was found to have shocked the conscience of the Court. The judgment also makes specific reference to the exercise of

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the extra ordinary jurisdiction conferred on the Supreme Court under Articles 136 and 142 of the Constitution of India.

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The Sukh Dutt Ratra case ( 3 supra)

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The principle laid down in Vidya Devi’s case (2 supra) was

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reiterated in Sukh Dutt Ratra case (supra 3) as well, where the facts are identical.

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In that case also, the respondent-State had utilized the land belonging to the appellant and adjoining lands for construction of road in 1972-1973 without initiating any proceedings for acquisition

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of the land and without paying any compensation to the appellants.

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A Writ petition was filed in the High Court in 2011 seeking

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compensation for the deprivation of the property or initiation of the acquisition proceedings under the land Acquisition Act.

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A Full Bench of this Court in Shankar Dass vs. State of H.P

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and another⁴ , held that the matter involved disputed questions of law and fact for determination on the starting point of limitation, which cannot be adjudicated in the Writ proceedings. The High Court disposed of the Writ petition with liberty to file a Civil Suit in accordance with law.

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The Supreme Court reversed the judgment of the High Court and granted relief to the appellant following the judgment in Vidya Devi (supra 2) and invoking the Supreme Court’s extra ordinary jurisdiction under Articles 136 and 142 of the Constitution and directed the State to treat the subject land as deemed acquisition and appropriately disburse compensation to the appellants.

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The Consideration by the Court

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The instant appeals are not however cases, which have come before the Court for adjudication under Article 226 of the Constitution of India and but as Civil Suits to be decided in exercise of ordinary Civil Jurisdiction. Exercise of constitutional jurisdiction is not permissible in these proceedings.

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4 2013 SCC Online HP 681

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There are findings of fact recorded by the trial Court in these

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three cases that the utilization of the property of the appellants for construction of a road by the State had happened long back in 19811982, but the suits had been filed on various dates in 2012 and 2014, respectively.

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The trial court and the lower appellate Court have taken a view that it was not a continuing wrong so as to give cause of action de die in diem or that these cases are covered by Article 113 of Limitation Act; that the injury caused to the appellant was the construction of the

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road which was completed in the year 1981-1982; the injury was inflicted and completed with the construction of the road; the appellants or their predecessors were completely dispossessed and ousted from the suit land in 1981-1982 with the construction of the road; and so it cannot be a continuing wrong, but it was a wrong which was completed at the time of construction of the road.

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The Courts below have noted that the appellants had admitted that the road in question was constructed in 1981-1982 and they cannot plead that cause of action accrued only on the date when the demarcation was done. They held that that cause of action actually accrued to them on the date when the road was carved out through the suit land. They have also held that the appellants or their predecessors

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10 -

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slept over their right for long period of time exceeding 30 years.

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1. Having regard to the concurrent findings of facts recorded by

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both the trial Court as well as the lower appellate Court in all the three cases, and also having regard to the fact that this Court is not exercising jurisdiction under Article 226 of the Constitution of India i.e. constitutional jurisdiction and is only exercising ordinary civil jurisdiction, I see no reason to interfere with such findings. Therefore, substantial questions of law are answered against the appellants and all the Appeals are dismissed.

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1. All pending applications stand disposed of accordingly. 25) No costs.

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( M.S. Ramachandra Rao ) Chief Justice

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May 03, 2024

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(priti)

Inder Singh v. State of Hp

Case brief

What is this about?

What the court decided

Inder Singh v. State of Hp

Case brief

What is this about?

What the court decided

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