STATE OF HIMACHAL PRADESH & ORS versus RAJIV AND ANR. on 24 February 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 01.10.2020 passed by the High Court of HimachalPradesh in CMP (M) No.1375 of 2019 in LPA No.50 of 2020 by whichthe Division Bench of the High Court has refused to condone the delayDin preferring the LPA against the judgment and order passed by thelearned Single Judge passed in CWP No.771 of 2016, the State ofHimachal Pradesh has preferred the present appeal.

2. Though the present appeal is against the impugned order passedby the Division Bench of the High Court refusing to condone the delayEin preferring the LPA, instead of remanding the matter to the DivisionBench to decide the appeal on merits and to consider the legality andvalidity of the judgment and order passed by the Hon’ble Judge, wehave heard the learned counsel appearing on behalf of the respectiveparties on merits against the judgment and order passed by the learnedSingle Judge.F

2.1 That the respondents herein - original writ petitioners filed thewrit petition before the learned Single Judge of the High Court beingCWP No.771 of 2016 and prayed for the following reliefs:

“(i) That the respondents may be directed to produce entire recordGin connection with construction work of road from village Banutito village Loharb in Tehsil and District Shimla along with entirerecord of the remaining portion from Loharb to Mauja Pahal TehsilSunni showing the process and proceeding which were startedfor acquisition of land and for payment of amount of compensation.

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(ii) That the respondent may be directed not to deprive thepetitioners of their property without adopting due process of lawand that they should act in accordance with law and make paymentof amount of compensation as per provision law.

(iii) That in case the respondents are, not ready and willing tostart and complete acquisition proceeding and make payment ofamount of compensation in that event they may be directed tohand over the physical possession of the land in question to thepetitioner and also they may be held liable to pay use and occupationcharges from the period from 1996 to date.

(iv) Any other suitable relief as consider just and proper under thefacts and circumstances of the petition may kindly be granted topetitioners.”

2.2 It was the case on behalf of the original writ petitioners thatthe land in question was utilized by the State for the construction ofBanuti to Pahal Road as far as back in the year 1996, however, till date,no compensation in view of the same has been paid to them. The petitionwas opposed by the State by filing a reply contending inter alia that atthe time when the road was constructed through the land of the writpetitioners, it was on their request and on the condition that they will notclaim any compensation. It was submitted that however at that time nowritten document was executed in this respect. It was submitted in thereply that due to this reason the construction work of the road wascompleted without acquisition proceedings by the State Government. Itwas also submitted that the road was constructed on the demand ofpublic of the area including the writ petitioners. It was submitted thathad there been any truth in the plea of the writ petitioners, the writpetitioners would have raised the objection during the long period of 20years.

2.3 Having heard learned counsel appearing on behalf of theoriginal writ petitioners as well as the State and taking into considerationthe fact that some portion of the land of the writ petitioners has beenutilized for the purpose of construction of the road and no compensationhas been paid and the land has been used without acquiring the landunder the provisions of the Land Acquisition Act, 1894 (hereinafterreferred to as ‘the Act, 1894’), the learned Single Judge allowed the writpetition and directed the appellants to initiate the process for acquisitionof the land of the writ petitioners in accordance with law.

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A2.4 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Single Judge, the State preferred the Letters PatentAppeal before the Division Bench of the High Court allowing the delayof 354 days in preferring the LPA. By the impugned order the DivisionBench of the High Court has refused to condone the delay andconsequently has dismissed the LPA on the ground of limitation. Hence,Bthe present appeal.

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3. Shri Abhimanyu Jhamba, learned counsel appearing on behalfof the State has vehemently submitted that in the facts and circumstancesof the case, the learned Single Judge has materially erred in directing toinitiate the process for acquisition of the land of the original writ petitionersCin a writ petition which was filed after a period of 21 years from the dateof the use of the land in question which was used for the construction ofroad.

3.1 It is submitted that before the learned Single Judge it was thespecific case on behalf of the State that the land was used with theDconsent of the original writ petitioners and the same was done on therequest of the writ petitioners and with condition that they will not claimcompensation for the same.

3.2 Thus, the impugned judgment and order passed by the learnedSingle Judge has been assailed mainly on the ground of delay and laches.E

4. Present appeal is vehemently opposed by Ms. Radhika Gautam,learned counsel appearing on behalf of the original writ petitioners.

4.1 It is submitted that nothing is on record that at the relevanttime the original writ petitioners consented for the use of their land forFconstruction of road without claiming compensation for the same.

4.2 It is vehemently submitted that as such initially a notificationunder Section 4 of the Act, 1894 was issued for acquisition of the land atVillage Tikkari on 17.05.1996, however the notification so issued underSection 4 of the Act, 1894 was permitted to lapse.

4.3 It is submitted that thereafter neither the fresh acquisitionproceedings were initiated nor even the compensation with respect tothe land used for construction of road has been paid.

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4.4 It is submitted that the State on the ground of delay and lachescannot evade its legal responsibility towards those from whom privateHproperty has been expropriated. Reliance is placed upon the recent decision of this Court in the case of Sukh Dutt Ratra and Anr. Vs.State of Himachal Pradesh and Ors., (2022) 7 SCC 505.

4.5 Relying upon the aforesaid decision, it is further submittedthat as observed and held by this Court in the said decision in absence ofwritten consent to voluntarily give up their land, the land owners areentitled to the compensation in terms of law.

5. Having heard learned counsel appearing for the respectiveparties and in the facts and circumstances of the case and when the writpetition and the claim of the original writ petitioners to claim thecompensation for the land used for construction of the road has beenopposed by the State solely on the ground of delay and laches, we are ofthe opinion that on the certain conditions which shall be considered hereinbelow the original writ petitioners – owners of the land used by the Statefor construction of the road shall be entitled to the compensation fortheir lands which have been used by the State without acquisition underthe Act, 1894.

5.1 At this stage, it is required to be noted that in the present caseas such initially the Notification under Section 4 was issued for acquisitionof the land at Village Tikkari on 17.05.1996. However thereafter thenotification so issued under Section 4 of the Act, 1894 was permitted tolapse. Therefore, 17.05.1996 can be directed to be treated as a deemedacquisition on that day and the original landowners may be awarded thecompensation considering the market price as on 17.05.1996, howeverwith all other statutory benefits excluding the interest from 17.05.1996till the writ petition was filed before the High Court. If the aforesaidorder is passed in exercise of this Court’s extra ordinary jurisdictionunder Articles 136 & 142 of the Constitution, the same can be said to bejust and proper and doing the complete justice between the parties.

6. In view of the above and for the reasons stated above, presentappeal stands disposed of by directing that 17.05.1996 be treated as thedeemed date of acquisition under Section 4 of the Act, 1894 and theoriginal owners/writ petitioners shall be entitled to the compensationconsidering the market price of the land in question used by the State forconstruction of the road as on 17.05.1996. However, considering thefact that there was a huge delay of 20 years in filing the writ petitionbefore the High Court, we direct that though the original writ petitionersshall be entitled to all the statutory benefits which may be available underthe Act, 1894 from 17.05.1996, however they shall not be entitled to any AB

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Ainterest under the Act, 1894 from 17.05.1996 to the date of filing of thewrit petition.

Now the State/appropriate authority to calculate the amount ofcompensation as above after giving an opportunity to the original writpetitioners to lead the evidence on the market price as on 17.05.1996Band thereafter to make the payment of compensation as above within aperiod of 2 months from the date of actual calculation of the amount ofcompensation. However, the entire exercise shall be completed within aperiod of six months from today.

Present appeal stands allowed/disposed of in terms of the above.

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However, in the facts and circumstances of the case there shallbe no order as to costs.

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Divya Pandey

(Assisted by : Abhishek Pratap Singh and Roopanshi Virang, LCRAs)

Appeal disposed of.

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