Himachal Pradesh High Court
Lpa No. 24/2019 vs Baldev Singh & Anr on 27 March, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 24/2019 a/w LPAs No. 46 to 49, 54/2017, 94/2019, 56/2021, CWP Nos. 46/2017, 443/2017 & COPC No. 60/2019 .
Reserved on: 19.3.2024 Decided on : 27.3.2024
1. LPA No. 24/2019 State of Himachal Pradesh & ors. .....Appellants Versus Baldev Singh & anr. ....Respondents
2. LPA No. 46/2017 State of Himachal Pradesh & ors. .....Appellants Versus Geeta Ram ....Respondent
3. LPA No. 47/2017 State of Himachal Pradesh & ors. .....Appellants Versus Inder Pal & anr. ....Respondents 4. LPA No. 48/2017 State of Himachal Pradesh & ors. .....Appellants Versus Birbal ....Respondent ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 2 5. LPA No. 49/2017 State of Himachal Pradesh & ors. .....Appellants Versus .
Daya Ram ....Respondent 6. LPA No. 54/2017 State of Himachal Pradesh & ors. .....Appellants Versus Upender Kumar ....Respondent 7. LPA No. 56/2021 r to State of Himachal Pradesh & ors. .....Appellants Versus Bijender Singh & ors. ....Respondents 8. LPA No. 94/2019 State of Himachal Pradesh & ors. .....Appellants Versus Prem Singh & ors. ....Respondents 9. CWP No. 46/2017 Kalma Nand & ors. .....Petitioners Versus State of H.P. & anr. ....Respondents ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 3 10. CWP No. 443/2017 Jagat Ram & ors. .....Petitioners Versus . State of H.P. & ors. ....Respondents 11. COPC No. 60/2019 Prem Singh & ors. .....Petitioners Versus Manisha Nanda ....Respondent Coram: r to
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 No Present: Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl.
A.Gs. and Mr. Raj Negi, Dy.A.G. for the appellants in all LPAs and for the respondents in writ petitions and contempt petitions.
Mr. B. M. Chauhan, Sr. Advocate with Mr. Amit Himalvi, Mr. Sarthak Mehta, Mr. C. N. Singh and Ms. Shashi Kiran, Advocates, for the petitioners in respective writ petitions and contempt petitions; and for the respondents in respective LPAs. Mr. Karan Singh Kanwar, Advocate, for the respondent in LPA No. 24/2019.
____________________________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/03/2024 20:31:35 :::CIS 4Justice Tarlok Singh Chauhan (oral) Since common question of law arises for .
consideration in all these appeals and petitions, therefore, the same were taken up together for hearing and are being disposed of by common reasoning.
LPA No. 24/2019, LPA No. 46 to 49, 54/2017, 94/2019 & 56/2021 2 The respondents are the land owners, whose lands find mention in the respective writ petitions as claimed to have been utilized by the respondents-State for construction of roads in their respective villages ranging from the years 1971, 1975- 76 to 1985-86. According to them, at the time of construction of the road, they had raised objections and requested the respondent-State to acquire their land in accordance with Land Acquisition Act, 1894 (for short "Act") before construction of the roads in question, and then commence with the construction thereof. However, on the undertaking(s) given by the representatives/officers of the respondents-State that acquisition proceedings would be started and amount of compensation would be paid to the landowners in accordance with law, the landowners allowed the construction of the road(s) through their respective land.
::: Downloaded on - 28/03/2024 20:31:35 :::CIS 53 It is claimed that the roads in question were constructed without acquiring the land of the respondents-
.
landlords in accordance with law and without their consent.
They further claimed that they have been discriminated because land of the people adjoining to their villages were also acquired in accordance with law and even due and admissible compensation was paid to them. However, no compensation, whatsoever, was ever paid to the respondents-landlords in lieu of their land used by the respondent-State for construction of the roads in question and as such they were compelled to serve the respondents with the demand notices by registered post.
However, the respondent-State failed to take any action even after receipt of notices issued on behalf of the landlords. Hence the writ petitions.
4 The appellant-State contested the claim of the respondents-landowners and admitted that some part of their land had been utilized by the State for construction of the road, which was given administratively approval and expenditure sanction. It was averred that the respondents including their predecessor-in-interest had represented the State for construction of the roads so as to provide them benefits of connectivity to the main road through their respective land ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 6 without raising any objection and since roads in question had been constructed on public demand and moreover, no objection, .
whatsoever, was raised at the time of construction; there was no provision of acquisition of land and payment of compensation in the budget, as such, respondents-landlords were not entitled to any payment of compensation on account of acquisition of their respective land. Lastly, it is averred that with a view to provide better/satisfactory service of the roads to the public including the landlords-respondents even tarring work of the roads was carried out under PMGSY. These roads in question had not been constructed over night and as such the landowners cannot claim compensation of land at this belated stage and the writ petitions are therefore not maintainable.
CWP No. 46/20175 The petitioners are the owners in possession of the land comprised in Khasra No 365, 337, 828, 831 970, 780, 790 and 729 situated in Chak/Mohal Nihari, Patwar Circle Devnagar (Dawara), Tehsil Rampur, District Shimla, H.P. Motorable road known as Bhadrash-Devnagar-Sobli-Brandali road had been constructed by the respondents in the year 1992-93 on the aforesaid land without acquiring it and the road had been opened for public and vehicles are plying since ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 7 thereon without any interruption. It is averred that the land falling within the aforesaid road from Brandali to Sobli, on .
which the road was constructed later on, had been acquired by the respondents and the land, which was earlier utilized for the construction of the road from Bhadrash onward upto village Sobli had not been acquired by the respondents.
6 According to the petitioners, the respondents had issued notification No P.B.W.B.A.(7)1-44/2002 dated 7.5.2005 under section 4(1) of the Act, to acquire the land, situated in villages Karsholi, Barandli, Sovali, Paljara, Kurnu, Bhashri, Tehsil Rampur, District Shimla, H.P., for the construction of Badrash-Barandli road. Later on the Respondents had also issued notification vide Notification No. P.B.W.(B)A-(7)1- 44/2002 dated 4.3.2006 declaring therein under section 6 and 7 of the Act, to acquire land for the same purpose in the same locality as notified earlier under Section 4(1) of the Act. As such the land of the petitioners was not notified for the purpose of construction of road. It is further submitted that the road has already been constructed by the respondent-State on the land of the petitioners without acquiring the same.
7 Lastly, it is submitted that the petitioners have recently come to know that an award had been passed long ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 8 back in respect of the lands as acquired by the respondents and accordingly, they got issued notice under section 80 of the Code .
of Civil Procedure upon the respondents claiming compensation, but to no avail.
CWP No. 443/20178 The petitioners are the owners of land, as detailed in para 3 of the petition, situated at Mohal Adyog, Office Rawla Kiar, Tehsil Kotkhai, District Shimla. It is averred that the construction work of Adyog Link Road, Khaltu to Adyog was commenced by the respondents on or about in the year 1996.
The land of the petitioners was utilized by respondents-State for the construction of the aforesaid link road without initiating any acquisition proceedings under the Act. At the time of construction of the link road, no measurement or acquisition was made with respect to their land, but entries with respect to uprooted fruits bearing trees and land were made in the measurement book. While constructing the aforesaid link road, respondents-State did not take any consent from the petitioners for the construction of the link road and when they raised objections qua construction of the road, the representatives of the respondents-State assured them they would be duly compensated in accordance with law and proper ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 9 proceedings as per the Act would be initiated. It is further averred that the Assistant Engineer, Kalbog, H.P.P.W.D. Sub .
Division Kalbog had also written letter to respondent No. 3 on 13.5.2003 to prepare the land acquisition papers with respect to the construction of Adyog Link Road making it clear therein that the villagers whose land had been utilized for the construction of link road had not been compensated. The petitioners and other aggrieved persons whose land had been utilized for the construction of the said link road made numerous oral representations to the respondents-State, but to no avail as till date no acquisition proceedings have been initiated for acquiring the said land nor compensation has been paid to the petitioners in accordance with law.
9 As regards the respondent-State in both these writ petitions, the respondents claimed that work of construction of road in question was initiated in the year 1991-1992 and 1996.
All the land owners including the petitioners, whose land came under the alignment of the road, had voluntarily surrendered their land in favour of the respondent-State for construction of the road in question as they were to get road connectivity. The petitioners consented to construct the road through their land and never raised any objection at the time of construction of the ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 10 road or thereafter and have therefore waived their rights so as to object now. The petitioner as well as other land owners have .
been benefited by construction of the road as prior to this they were not having any connectivity and had to walk on foot to reach the state highway. As a matter of fact, the road above named was constructed by the respondents on the persistent demand of the petitioners and other villagers. The petitioners after construction of the road remained silent for more than two decades and thus, their claim is barred by delay and laches.
Delay:
10 It is now trite law that in dealing with constitutional rights in the exercise of writ jurisdiction, one can no longer apply mutatis mutandis, the time frame stipulated in limitation law as if they were attracted. The issue has been dealt with time and again by the Hon'ble Supreme Court, particularly in the context of land acquisition.
11 In Tukaram Kana Joshi and others through Power-of-Attorney Holder versus Maharashtra Industrial Development Corporation and others (2013) 1 SCC 353 ("Tukaram"), the Hon'ble Supreme Court ruled that the constitutional right to property could not be defeated on ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 11 technical grounds citing delay. Though, in the case of State of Maharashtra versus Digambar (1995) 4 SCC 683 .
("Digambar") the Hon'ble Supreme Court had denied relief to farmers on the ground of delay, but delay was not simply declared to be an absolute bar on filing of a writ petition.
12 It cannot be disputed that while deciding Tukaram's case (supra), Digambar's case (supra) had not been noticed, but the same was later noticed by the Hon'ble Supreme Court in a fairly recent case of Sukh Dutt Ratra and another versus State of Himachal Pradesh and others (2022) 7 SCC 508 ("Sukh Dutt Ratra") wherein the Hon'ble Supreme Court has dealt with a number of its judgments to emphasis that there can be no "limitation" to do justice if it is clear that the right to property has been intruded into without due process of law. The Hon'ble Supreme Court has repelled the citation of delay and laches in enforcement of the constitutional right to property in land. The Hon'ble Supreme Court, as observed above, has considered the case of Digambar.
13 Thus, the law as stands today is that the State cannot, on the ground of delay and laches, evade its responsibility towards those from whom private property has been expropriated. In any case, what principles a Court must ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 12 apply while assessing whether a writ petition is so hopelessly barred by delays and laches that a remedy is not worthy of .
consideration, is well articulated in Maharashtra SRTC versus Balwant Regular Motor Service AIR 1969 SC 329 and these principles stand extracted and endorsed by the Hon'ble Supreme Court in Sukh Dutt Ratra's case (supra) wherein it was held as under:
"16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains - can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.
17. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 13 those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in Anakh Singh v. State of .
H.P., 2007 SCC Online HP 220) and 20.12.2013 (in Onkar Singh vs. State, CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.
18. There is a welter of precedents on delay and laches which conclude either way-as contended by both sides in the present dispute - however, the specific factual matrix compels this court to weigh in favour of the appellant-land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a 'limitation' to doing justice. This court in a much earlier case - Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service(1969) 1 SCR 808, held:
(AIR pp.335-36, para 11) "11......Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.
But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 14 statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the .
acts done during the interval, which might 1969 (1) SCR 808 affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
Right to Property no longer a fundamental right but recognized as human right.
14 By now, it is well settled that right to property though no longer a fundamental right and is otherwise a zealous possession of which one cannot be divested save and except by the authority of law as is enjoined by Article 300A of the Constitution of India. Any callous inaction or apathy of the State and its instrumentalities, in securing just compensation would amount to dereliction of a constitutional duty justifying issuance of writ of mandamus for appropriate remedial directions.
15 This was so held by the Hon'ble Supreme Court in Lalaram and others versus Jaipur Development Authority and another (2016) 11 SCC 31 and it shall be apt to reproduce the relevant observations as contained in paras 124 to 129 which read as under:
::: Downloaded on - 28/03/2024 20:31:35 :::CIS 15"124. The right to property though no longer a fundamental right is otherwise a zealous possession of which one cannot be divested save by the authority of law .
as is enjoined by Article 300A of the Constitution of India.
Any callous inaction or apathy of the State and its instrumentalities, in securing just compensation would amount to dereliction of a constitutional duty, justifying issuance of writ of mandamus for appropriate remedial directions.
125. This Court in Indore Vikas Pradhikaran versus Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 had an occasion to refer to the Declaration of the Rights of Man and the Citizen (dated 26.8.1789) to expound that though earlier, human rights existed to the claim of individuals' right to health, livelihood, shelter and employment etc., these have started gaining a multifaceted approach, so much so that property rights have become integrated within the definition of human rights.
126. The right of the owner of a land to receive just compensation, in the context of his claim to access to justice as declared by the International Covenant on Economic, Social and Cultural Rights, had been underlined by this Court in Steel Authority of India Limited versus Sutni Sangam (2009)16 SCC 1.
127. While recognising the power of the State to acquire the land of its citizens, it has been proclaimed in Dev Sharan versus State of U.P. (2011) 4 SCC 769 that even though the right to property is no longer a fundamental right and was never a natural right, it has to be accepted that without the right to property, other rights become illusory.::: Downloaded on - 28/03/2024 20:31:35 :::CIS 16
128. In a catena of decisions of this court, this prize privilege has also been equated to human right. In State of Haryana versus Mukesh Kumar (2011) 10 SCC 404, .
this Court has succinctly propounded this proposition in the following terms: (SCC p. 415, paras 33-34) "33. The right to property is now considered to be not only a constitutional or statutory right but also a human right. Human rights have already been considered in the realm of individual rights such as the right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension.
Therefore, even the claim of adverse possession has to be read in that context.
34. The changing attitude of the English courts is quite visible from the judgment of Beaulane Properties Ltd. vs. Palmer (2005)4All ER 461. The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimensions of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession.
129. In summa, the right to property having been elevated to the status of human rights, it is inherent in every individual, and thus has to be venerably acknowledged and can, by no means, be belittled or trivialized by adopting an unconcerned and nonchalant disposition by anyone, far less the State, after compulsorily acquiring his land by invoking an expropriatory legislative mechanism. The judicial mandate of human rights dimension, thus, makes it incumbent on the State to solemnly respond to its constitutional obligation to ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 17 guarantee that a land looser is adequately compensated. The proposition does not admit of any compromise or laxity."
.
16 Here, it shall also be noteworthy to refer to the relevant observations as made in Sukh Dutt Ratra's case (supra) as contained in paras 13 to 15 which read as under:
"13. While the right to property is no longer a fundamental right ["Constitution (Forty-fourth Amendment) Act, 1978"], it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.
14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington 1765 EWHC (KB) J98 and by this court in Wazir Chand v. The State of Himachal Pradesh (1955) 1 SCR 408. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.
15. When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State. In Bishandas v.::: Downloaded on - 28/03/2024 20:31:35 :::CIS 18
State of Punjab (1962) 2 SCR 69 this court rejected the contention that the petitioners in the case were trespassers and could be removed by an executive order, .
and instead concluded that the executive action taken by the State and its officers, was destructive of the basic principle of the rule of law. This court, in another case - State of Uttar Pradesh and Ors. v. Dharmander Prasad Singh and Ors. (1989) 2 SCC 505, held: (SCC p.516, para
30) "30. A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease-deed does r not authorise extra- judicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree'".
17 In Vidya Devi versus State of Himachal Pradesh and others (2020) 2 SCC 569, the Hon'ble Supreme Court held as under:
::: Downloaded on - 28/03/2024 20:31:35 :::CIS 19Article 300-A:
.
12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right 2 in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article. 12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd.
v. Darius Shapur Chenai (2005) 7 SCC 627, wherein this Court held that: (SCC p.634, para 6) "6. ... Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid." (emphasis supplied) ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 20 12.4. In N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517, this Court held that: (SCC p. 526, para 21) "21. If the right of property is a human right as .
also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed." (emphasis supplied) 12.5. In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors. (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words: (SCC p. 379, para 30) "30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. "Property must be secured, else liberty cannot subsist"
was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists."
(emphasis supplied) 12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp (1) SCC 596 this Court held as follows : (SCC p. 627, para 48) "48. ...In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 21 any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation."
.
(emphasis supplied) Delay & Laches:
"12.12. 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 delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
12.13. 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.
12.14. In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., (2013) 1 SCC 353, this Court while dealing with a similar fact situation, held as follows : (SCC p. 359, para
11) ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 22 "11.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 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, r or requisition, or any other permissible statutory mode."
(emphasis supplied) Waiver:
18 It is urged on behalf of the State that there was an oral consent on behalf of the owners of the property and it is contended that only after obtaining the oral consent of the owners that their properties were taken and roads constructed.
19 However, we find this contention to be not sustainable in the eyes of law in view of the observations made by the Hon'ble Supreme Court in para 12.8 in Vidya Devi's case (supra) wherein it was held as under:::: Downloaded on - 28/03/2024 20:31:35 :::CIS 23
"12.8. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack .
of authority and legal sanction in compulsorily divesting the Appellant of her property by the State."
20 We may, at this stage, make note of the fact that somewhat identical submissions were made by the State before the Hon'ble Supreme Court in Sukh Dutt Ratra's case (supra) regarding there being verbal consent or lack of objection on behalf of the land owners but the said contention was repelled in para-21 of the said judgment in the following manner:
"21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings."
::: Downloaded on - 28/03/2024 20:31:35 :::CIS 2421 Moreover, the respondents have not placed any document on record to establish the consent of the owners at .
the time of construction of road or any point of time thereafter.
22 We may show utmost dismay and anguish in the manner in which the respondent State has been filing theses indiscriminately appeals more particularly in land acquisition cases when the State is fully aware that the legal position now stands well settled not only by the judgments of the Hon'ble Supreme Court, some of which have been noticed above, but also series of judgments rendered by the learned Division Benches and Full Bench of this Court which obviously as per mandate of Section 148 of the Constitution of India is binding upon this Court. Reference in this regard can conveniently be made to the Division Benches Judgments in LPA No. 12/2019, titled as State of H.P. & ors. vs. Laiq Ram Dogra, decided on 23.3.2021, CWP No. 1465/2022, titled as Rajender Singh & ors. vs. State of H.P. & ors., decided on 31.10.2022, LPA No. 155/2022, titled as State of H.P. vs. Hem Raj & ors., decided on 10.3.2023, CWP No. 6581/2021, titled as Labdhu Ram vs. State of H.P. & ors, decided on 28.6.2023, CWP No. 491/2022, titled as Shakuntla Devi & ors. vs. State of H.P., decided on ::: Downloaded on - 28/03/2024 20:31:35 :::CIS 25 20.10.2023 and Full Bench decision of this Court in LPA No. 33/2021, along with Execution Petition No. 17/2019, .
titled as State of H.P. vs. Sita Ram.
23 It can be said with certainty that the legal position with regard to utilization of the land by the State without acquisition is un-exceptionable and the State has no other option but to clear the land in accordance with law and pay compensation subject to of course to the limited scope of contest, except for the limited grounds as held by the Hon'ble Supreme Court.
24 In view of aforesaid discussions and for the reasons stated above, all LPAs filed by the State are dismissed, whereas as regards writ petitions, we find merit therein and the same are accordingly allowed directing the respondent-State to initiate acquisition proceedings with respect to land belonging to the petitioners having been acquired by the respondent-State for construction of the roads in question and pay compensation in accordance with law. All pending application(s), if any, stands disposed of.
::: Downloaded on - 28/03/2024 20:31:35 :::CIS 26.
COPC No. 60/201925 In view of aforesaid order, the instant petition is rendered infructuous and closed as such.
(Tarlok Singh Chauhan)
Judge
27.3.2024
(pankaj)
r to (Sushil Kukreja)
Judge
::: Downloaded on - 28/03/2024 20:31:35 :::CIS