Himachal Pradesh High Court
Sh. Anil Kumar Kaushal Son Of vs Shri Anil Kaushal S/O Late Shri Prem Dutt on 30 September, 2022
Author: Virender Singh
Bench: Virender Singh
1
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE VIRENDER SINGH
CIVIL MISC. PETITION MAIN (ORIGINAL) NOs. 225 OF 2021 &
58 OF 2022
CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 225 OF 2021
Between:-
1. SH. ANIL KUMAR KAUSHAL SON OF
LATE SH. PREM DUTT
2. SH. AKHIL KAUSHAL SON OF
LATE SH. PREM DUTT
3. SMT. RAJ WIFE OF LATE SH. PREM DUTT
ALL R/O VILLAGE SANWARA , P.O. DHARAMPUR
TEHSIL KASAULI, DISTRICT SOLAN, H.P.
....PETITIONERS
(BY MR. SUDHIR THAKUR, SENIOR
ADVOCATE WITH MR. KARUN NEGI,
ADVOCATE)
AND
1. SMT. OSHIN D/O LATE SMT. SAVITA RANI.
2. SH. KARAN SON OF LATE SMT. SAVITA RANI.
BOTH ARE THE RESIDENTS OF HOUSE NO. 1707
SECTOR-34, CHANDIGARH (UT).
3. NATIONAL HIGHWAY AUTHORITY OF INDIA
(NHAI), HAVING ITS OFFICE AT HOUSE NO.1,
SHANTI KUTIA, RISHIKESH SADAN, CHAKKAR,
SHIMLA, H.P. THROUGH ITS PROJECT DIRECTOR.
4. COMPETENT AUTHORITY-CUM-LAND ACQUISITION
AUTHORITY ACT (CALA) SOLAN, DISTT. SOLAN, H.P.
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2
...RESPONDNETS.
(MR. AJAY KUMAR, SENIOR
ADVOCATE WITH MR. ROHIT,
ADVOCATE FOR R-1 AND R-2.
.
MR. K.D. SHREEDHAR, SENIOR
ADVOCATE WITH MS. SNEH BHIMTA,
ADVOCATE FOR R-3
MR. SHIV PAL MANHANS, ADDL. A.G.
WITH MR. BHUPINDER THAKUR, DY.
A.G. FOR R-4)
CIVIL MISC. PETITION MAIN (ORIGINAL) NO. 58 OF 2022
Between:-
1. SMT. OSHIN CHOPRA, AGED 28 YEARS
D/O LATE SMT. SAVITA RANI.
2. SH. KARAN S/O LATE SMT. SAVITA RANI.
LATE SH. PREM DUTT
BOTH PETITIONERS THROUGH THEIR GPA SMT.
SUNITA PURI, W/O SHRI SUNIL PURI, HOUSE NO.36,
SWASTIK VIHAR, MANSA DEVI COMPLEX,
SECTOR 5, PANCHKULA.
....PETITIONERS
(BY MR. AJAY KUMAR, SENIOR ADVOCATE
WITH MR. ROHIT, ADVOCATE)
AND
1. SHRI ANIL KAUSHAL S/O LATE SHRI PREM DUTT.
2. SHRI AKHIL KAUSHAL S/O LATE SHRI PREM DUTT.
3. SMT. RAJ W/O LATE SHRI PREM DUTT.
ALL R/O SANWARA, P.O. DHARAMPUR, TEHSIL
KASAULI, DISTT. SOLAN, H.P.
4. THE COMPETENT AUTHORITY LAND ACQUISITION
CUM SUB DIVISIONAL COLLECTOR SOLAN (UNDER
THE NATIONAL HIGHWAY ACT, 1956)
5. THE NATIONAL HIGHWAY AUTHORITY OF INDIA
(NHAI), THROUGH ITS PROJECT DIRECTOR, HOUSE
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3
NO.1, SHANTI KUTIA, RISHIKESH SADAN, CHAKKAR,
SHIMLA 171 005
...RESPONDNETS.
(MR. SUDHIR THAKUR, SENIOR
.
ADVOCATE WITH MR. KARUN NEGI,
ADVOCATE FOR R-1 TO R-3.
MR. SHIV PAL MANHANS, ADDL. A.G.
WITH MR. BHUPINDER THAKUR, DY.
A.G. FOR R-4
MR. K.D. SHREEDHAR, SENIOR
ADVOCATE MS. SNEH BHIMTA,
ADVOCATE FOR R-5)
Reserved on: 16.09.2022
Decided on: 30.09.2022
__________________________________________________________________
These petitions coming on for pronouncement of
judgment on this day, the Court passed the following:-
ORDER
The above two petitions are being disposed of by the common order.
2. Brief facts, leading to the filing of the above-noted CMPMOs, may be summed up, as under:-
3. The National Highway Authority has acquired the land of Sh. Prem Singh predecessor-in-interest of the petitioner in CMPMO No. 225 of 2021 for the widening/four laning of Kalka-Shimla road. Consequently, the Land Acquisition Collector-cum-Competent Authority (hereinafter referred to as the 'CALA') has announced the award dated 29.09.2018. On the basis of an agreement to ::: Downloaded on - 01/10/2022 20:02:08 :::CIS 4 sell, Smt. Oshin, daughter of late Smt. Savita Rani and Shri Karan son of late Smt. Savita Rani (hereinafter referred to as the 'petitioners') have preferred a petition .
under Section 3H(4) of the National Highways Act, 1956 (hereinafter referred to as 'the Act') for deciding the dispute of apportionment of the amount of the compensation. This reference was forwarded to the Court of learned Principal Judge, Solan (hereinafter referred to as the 'trial Court').
4. In the said proceedings, S/Sh. Anil Kaushal, Akhil Kaushal and Smt. Raj, sons and daughter of late Sh. Prem Dutt (hereinafter referred to as the 'respondents') have moved an application under Section 151 of the Code of Civil Procedure for release of the amount of compensation awarded vide Award No. 9-C dated 29.09.2018. The said application was registered as CMA No. 101-ADJ-II/6 of 2021.
5. By virtue of the said application, the respondents asserted themselves to be the recorded owners of the property, so acquired. According to them, they are in dire need of money and the possession of the acquired land has already been taken by the National Highway Authority- respondent No.5.
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6. This application has been contested by the respondents on the grounds that predecessor-in-interest of respondent had sold the land, along-with structure, for a .
total consideration of Rs.3,76,000/- and handed over the possession to the predecessor-in-interest of petitioners. The application has been dismissed by the learned trial Court vide order dated 08.09.2021. The said order has been assailed before this Court by respondents No. 1 to 3, by way of CMPMO No. 225 of 2021.
7. The order has been assailed mainly on the ground that the learned trial Court has wrongly rejected their application for release of the amount of compensation. The order, dated 08.09.2021, is also stated to be wrongly passed upon alleged agreement which, according to them, suffers from so many infirmities. The right allegedly asserted by the petitioners is also stated to be barred by limitation. In the petition filed under Section 227 of the Constitution of India, the main attack of respondents is upon the contents of the agreement, as such, a prayer has been made to set aside the order dated 08.09.2021, passed by the trial Court in CMA No. 101-ADJ-II/6 of 2021.
8. As the lis is pending before the learned trial Court, who will decide the question of apportionment, on the ::: Downloaded on - 01/10/2022 20:02:08 :::CIS 6 basis of evidence adduced by the parties before it, as such, this Court is of the view that the learned trial Court has rightly dismissed the application for release of the amount .
moved by respondents in this case. The said order does not warrant any interference by this Court, as such, CMPMO No. 225 of 2021 being devoid of merit is dismissed.
9. In the proceedings under Section 3H(4) of the Act pending before the learned trial Court, the petitioners have moved an application under Section 45 and 73 of the Indian Evidence Act for comparison of signatures, handwriting with the agreement dated 2.3.2001 and letter dated 15.10.2009 with the admitted record i.e. service book and personal file of late Shri Prem Dutt son of Sh. Leela Dutt, retired as Superintendent Grade-II along-with medical benefits and audit report prepared by late Shri Prem Dutt by sending the aforesaid documents to FSL, Junga.
10. The said application has been moved on the ground that their predecessor-in-interest Smt. Savita Rani had entered into an agreement dated 2.3.2001 with the predecessor-in-interest of respondents No. 1 to 3, late Sh. Prem Dutt regarding the purchase of land measuring 18 biswas. The terms and conditions of the said agreement ::: Downloaded on - 01/10/2022 20:02:08 :::CIS 7 were reduced into writing in the presence of the witnesses. Since respondents No. 1 to 3, who are legal heirs of late Sh. Prem Dutt had denied the execution of the documents .
dated 2.3.2001 and writing dated 15.10.2009, as such, it has been pleaded that in order to prove their right based upon the above two documents, it is necessary to compare the signatures and writings of Sh. Prem Dutt over these documents with the admitted signatures, which have been detailed and described in the application.
11. On the basis of above facts, a prayer has been made to allow the application and to send the above two documents for their comparison with the admitted handwriting of Sh. Prem Dutt over the documents, as mentioned in the application.
12. On notice, this application has been contested, as depicted from Annexure P-4, which is copy of the reply. In the reply, preliminary objections have been taken that the application is not maintainable and the application has been moved just to linger on the proceedings. The factual position asserted in the application has also been denied and it has been prayed that the application may kindly be dismissed.
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13. This application has been registered as CMA No. 145-ADJ-II/6 of 2021. Vide order dated 17.12.2021, the learned trial Court has rejected this application on the .
ground that the petitioners have already examined the witnesses, who, as per learned trial Court, had identified the signatures of Sh. Prem Dutt on the aforesaid agreement. The learned trial Court, while considering the fact that the expert evidence is weak type of evidence, has dismissed the said application.
14. The said order has been assailed by the petitioners by way of CMPMO No. 58 of 2022.
15. It is not in dispute, in this case, that the land belonging to respondents No. 1 to 3 has been acquired by respondent No.5 vide Award No. 9-C dated 29.09.2018 and the amount of compensation has been ascertained. Since the petitioners are asserting their right on the basis of the documents, which have been described by them, as agreement to sell and writing by Sh. Prem Dutt, the predecessor-in-interest of respondents No. 1 to 3 and the question of apportionment has been referred by the CALA to the learned trial Court, as such, this Court is of the considered opinion that there was no occasion for the ::: Downloaded on - 01/10/2022 20:02:08 :::CIS 9 learned trial Court to comment upon the evidentiary value of the expert witness.
16. The parties to the lis are free to prove their case as .
per the Evidence Act and the opportunity has to be given to the parties to prove their case. When the petitioners have opted to prove the documents, as relied upon by them, then they have every right to prove the same as per law. The evidentiary value of the evidence adduced by the parties is to be seen at the time of deciding the lis. The sole ground, upon which, the learned trial Court has rejected the application is that two witnesses, who, as per the learned trial Court, had seen Sh. Prem Dutt executing the documents, which have heavily been relied upon by the petitioners, have already been examined, is not sustainable in the eyes of law, as the rights asserted by the petitioners qua their claim for apportionment are to be decided by the learned trial Court on the basis of evidence so adduced before it. The learned Court should refrain itself from commenting on the quality of the evidence adduced by the parties before the final decision.
17. So far as the argument of learned counsel appearing for respondents No. 1 to 3, in this case, qua the fact that the petitioners are interested to delay the ::: Downloaded on - 01/10/2022 20:02:08 :::CIS 10 proceedings and they are in dire need of money are concerned, if the above two facts are taken to be as it is, then too, the petitioners have every right to prove their .
case. According to the provisions of the Evidence Act, in such a situation, the order dated 17.12.2021 passed by the learned trial Court, rejecting the application moved by the petitioners is not sustainable in the eyes of law and the same is set aside. Accordingly, CMPMO No. 58 of 2022 is allowed. r
18. However, keeping in view the fact and circumstances of the present case, the learned trial Court is directed to take up the matter on 12.10.2022, on which date, the parties, through their learned counsel, are directed to put their appearance.
19. The learned trial Court shall decide the application in view of the above observations by giving an opportunity to the parties to lead evidence and, decide the matter in a time bound manner, preferably within a period of three months from today.
20. Both the petitions stand disposed of in the aforesaid terms, along-with pending applications, if any.
September 30, 2022 ( Virender Singh )
(naveen) Judge
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