Himachal Pradesh High Court
State Of Himachal Pradesh vs Sita Ram Sharma on 5 April, 2021
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 33 of 2021 & CMP(M) No. 704
.
of 2019 along with Ex. Petition No.
17 of 2019.
Date of decision: 05.04.2021.
1. LPA No. 33 of 2021.
State of Himachal Pradesh .....Appellants.
and others
Versus
Sita Ram Sharma .....Respondent.
2. Execution Petition No. 17 of 2019.
Sita Ram ......Petitioner.
Versus
State of Himachal Pradesh and others
......Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No
LPA No. 33 of 2021.
For the Appellants : Mr. Ashok Sharma, Advocate
General with Mr. Vikas
Rathore, Mr. Vinod Thakur,
Mr. Shiv Pal Manhans,
Additional Advocate
Generals, Mr. J.S. Guleria and
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
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2
Mr. Bhupinder Thakur,
Deputy Advocate Generals.
.
For the Respondent : Mr. C.N.Singh, Advocate.
Execution Petition No. 17 of 2019.
For the Petitioner : Mr. C.N.Singh, Advocate.
For the Respondents : Mr. Ashok Sharma, Advocate
General with Mr. Vikas
Rathore, Mr. Vinod Thakur,
Mr. Shiv Pal Manhans,
Additional Advocate
Generals, Mr. J.S. Guleria
and Mr. Bhupinder Thakur,
r Deputy Advocate Generals.
(Through Video Conferencing)
Tarlok Singh Chauhan, Judge (Oral)
CMP(M) No. 704 of 2019.
By medium of this application, the applicants/ appellants have sought condonation of 2 years, 7 months and 15 days' delay that has crept up in filing of the appeal.
2. It is averred that after the decision of the learned Single Judge, the certified copy of the judgment was sent by the office of the learned Advocate General vide letter dated 19.08.2016 to Secretary (PW) to the Government of HP who vide letter dated 01.09.2016 sent the same to the office of E-in-C vide letter dated 01.09.2016 which was received on ::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 3 07.09.2016. The office of E-in-C vide letter dated 16.09.2016 sought some record from Executive Engineer, Theog. However, .
the certified copy of judgment as forwarded by the office of E-in-C was misplaced in the office of Executive Engineer,Theog and for this reason no further steps were taken for filing the appeal. It was in the month of October, 2017 when letter was received from SDM, Theog for taking action in the matter.
Thereafter, the steps for obtaining the complete records were taken by the office of EE, Theog and record was submitted to SE 4th Circle Winter Field, Shimla-3. The Superintending Engineer, 4th Circle Shimla vide letter dated 17.07.2018 sent the same to the office of E-in-C which was received in his office on 23.07.2018. The Office of E-in-C forwarded the case to the Govt.
vide letter dated 09.08.2018 for obtaining opinion of the Law Department. The opinion of the Law Department was conveyed by Additional Chief Secretary (PW) to the Govt. of H.P. vide letter No. PB-W (B)E(2)108/2018 dated 01.12.2018 to E-in-C(PW). The office of the E-in-C(PW) further conveyed the opinion vide letter dated 04.12.2018 to EE, Theog with copy of SE, 4th Circle, Shimla. Thereafter, the grounds of LPA were drafted in the office of EE, Theog and forwarded to the office of the Superintending Engineer for examination. The ::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 4 Superintending Engineer, Shimla further forwarded the case to Legal Cell, office of E-in-C for vetting vide letter dated .
30.01.2019 and after vetting the same in his office the draft appeal was forwarded to the office of learned Advocate General, H.P. The draft LPA was vetted in the office of Learned Advocate General on 31.01.2019 where some objections were raised about certified copy of order without any further delay.
Thereafter, certified copy of orders was applied on 04.02.2019 which was prepared on 06.03.2019 and delivered on 07.03.2019. Thereafter, the draft appeal along with application for condonation of delay was again vetted in the office of the learned Advocate General, H.P. and fair draft of appeal was prepared on 14.03.2019. Thereafter the appeal was filed promptly.
3. The respondent has vehemently contested the application by filing reply wherein it is averred that since the limitation period of filing LPA is only 30 days, therefore, it was the duty of the officials of the applicants/appellants to take up appropriate steps in the matter and since no serious steps were taken and rather the applicants/appellants slept over the matter till the month of October, 2017, therefore, there is no sufficient reason to condone the delay.
::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 54. The applicants/appellants filed rejoinder wherein they have again sought to explain the delay in paragraph-1(a) which .
reads as under:-
"Para-1(a) That para1(a) of the reply except relating to record is not correct, so denied. It is incorrect that the applicants remained sleeping over the matter and no sufficient reasons have been given for condonation of delay. It is also incorrect that the delay w.e.f. Oct., 2017 to 17.07.2018 has not been explained. It is submitted that the matter was received in the office of Executive Engineer, HPPWD Division, Theog on 26.09.2016 who marked the same to Asstt. Engineer, HPPWD, Matiana Sub Division on 04.10.2016 which was received in his office on 10.10.2016. The then Asstt. Engineer, HPPWD Sub-Divn. Matiana retired on 30.10.2016 and charge of the post was given to another Asstt. Engineer of Theog Sub-Division. The Jr. Engineer, Matiana Sub-Division was also retired during December, 2016 and on account of this reasons matter remained without any action. The matter was not brought to the notice of new Asstt. Engineer, Matiana, who joined the office during November, 2016. The retired officers are being given notices for the lapse in processing the matter diligently. It was only during Oct., 2017 when a letter was received from the O/o SDM Theog about the execution petition filed by the non-applicant that the matter came in the knowledge of Asstt. Engineer Matiana. The Asstt. Engineer Matiana vide letter dated 3.11.2017 requested Executive Engineer, Theog to provide the complete record of the case as the same was not available in his ::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 6 office. The Executive Engineer Theog requested Superintending Engineer, 4th Circle, Shimla to take up the .
matter with legal cell for obtaining opinion in the matter for filing the appeal vide letter dated 20.11.2017. The Asstt. Engineer Matiana vide letter dated 14.12.2017 also requested Tehsildar Theog to verify the factual position on spot. Meanwhile, a representation of non-applicant was received from Govt. in the O/o E-in-C for taking necessary action. The O/o E-in-C vide letter dated 20.12.2017 directed the O/o Executive Engineer Theog and LAC Shimla to provide certain information. Thereafter, in order to supply the information as desired vide letter dated 20.12.2017 by O/o E-in-C the factual position was verified on spot and Asstt. Engineer Matiana vide letter dated 18.05.2018 submitted the information to Executive Engineer Theog. The said information was forwarded by Executive Engineer, Theog vide letter dated 4.06.2018 to the O/o Superintending Engineer 4 th Circle Shimla. The further period has been explained in the application for condonation of delay. Therefore, the delay took place due to above administrative reasons which were beyond control of applicants."
5. No doubt, the delay in filing of the instant appeal is more than 2 years and 7 months, however, for the reasons stated in the application, which are duly supported by an affidavit of the Superintending Engineer of the respondent-
department, we find that there is sufficient cause which prevented the applicants/appellants for not filing the appeal ::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 7 within the prescribed period of limitation. Even otherwise, the issue involved in this appeal has very wide ramifications and in .
such circumstances, the respondent cannot claim a technical walk-over by vehemently contesting the application for condonation of delay. Moreover, the applicants/appellants have not slept over the matter and they have been actively pursuing the same from time to time. Accordingly, delay of 2 years, 7 months and 15 days in filing of the appeal is condoned.
r The
application stands disposed of.
Appeal be registered.
LPA No.33 of 2021 a/w Execution Petition No.17 of 2019.
6. Whether a person whose land has been utilized for construction of road under the 'Pradhan Mantri Gram Sadak Yojna' (for short 'PMGSY'), is entitled for compensation, is one of the moot question involved in these cases?
7. However, keeping in view of the conflicting opinions/judgments rendered by this Court, this issue is required to be authoritatively resolved by a Larger Bench of this Court.
8. The earliest decision on the issue was rendered by a Co-ordinate Bench of this Court (Coram : Hon'ble Mr. ::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 8 Justice Dharam Chand Chaudhary, Judge and Hon'ble Mr. Justice Vivek Singh Thakur, Judge) in LPA No. 79 of 2017, .
titled 'State of H.P. and others versus Bhoop Ram', decided on 08.08.2017, wherein it was observed as under:-
"3. The grouse of the appellants-State as brought to this Court in the present appeal, however, is that the road on the land belonging to the petitioner has been constructed with his consent and to his knowledge and notice; however, admittedly written consent has not been obtained from the petitioner before construction of the road. The law on the point is no more res integra as the apex Court in Civil Appeal No.9105 of 2015 {SLP (C) No. 2373 of 2014}, Raj Kumar versus State of H.P. and Others, a case with similar facts, has directed the State of Himachal Pradesh, as under:-
1. The Deputy Commissioner Collector, Solan shall undertake a verification and determine the exact extent of land utilized for construction of road in question out of Survey No. in which the appellant holds a share and thereby determine the exact extent of land which the appellant has been deprived of on account of such construction/utilization.
2. Upon determination of the extent of land of which the appellant has been deprived of by reason of construction of the road in question, the Deputy Commissioner shall determine the amount of compensation payable to him based on the amount determined towards compensation in Award No.10 of 2008 relating to the land acquired for the very same road in favour of other owners including Kanwar Singh having regard to the classification of the land.::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 9
3. Upon determination of the amount so payable the Deputy Commissioner Collector shall disburse the said amount within a period of three .
months from the date the determination is completed. The payment of the amount so determined shall represent the amount due and payable to the appellant in full and final settlement of all his claims towards the value of the land utilized for the construction of the road. In case however the payment is not made within the time so stipulated even after determination, the amount so determined shall start earning interest @12% p.a. from the date the period of three months expires."
4. In the case before the Hon'ble apex Court also the stand of the appellant-State was that the road under 'Pradhan Mantri Gram Sadak Yojna' was constructed after having the consent of Raj Kumar, the petitioner/owner of the land in that case. The apex Court, however, has observed that for want of a specific assertion regarding donation or documentary evidence in support thereof, it cannot be believed that the petitioner had consented for construction of road over the land belonging to him. Therefore, we find no illegality or irregularity in the judgment under challenge in this appeal as the point in issue rather is covered in favour of the respondent-original petitioner Bhoop Ram by the judgment of the Hon'ble apex Court supra. A Single Bench of this Court in CWP No.3090 of 2009, titled Neem Chand versus State of H.P. & others, decided on 5.7.2016, after placing reliance on the judgment in Raj Kumar's case supra has also taken a similar view of the matter. Therefore, we find no merit in the present appeal and the same is accordingly ::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 10 dismissed. Both the applications shall also stand disposed of."
.
9. Subsequently, the same issue came up before this Bench in LPA No. 93 of 2017 titled 'State of H.P. and others versus Dalip Singh', decided on 28.11.2019, but unfortunately, the decision in Bhoop Ram's case (supra) was not brought to the notice of this Bench. However, after going through the provisions of the Scheme of 'PMGSY', it was held as under:-
"8. That apart, even if it is assumed that the writ petition was maintainable, even then it has to be remembered that rural roads is a State subject and it is the responsibility of the State Government to ensure the availability of land for construction of road under PMGSY. In view of the common benefit generally the land for construction of road under PMGSY is made voluntarily by the villagers/Panchayats free of costs through voluntarily donations.
9. The laudable object of this is to provide network of roads in the rural areas and it is for this reason that there is no provision for acquisition of land on payment of compensation but based on voluntarily surrender of the land by the villagers or over the land which was used by the villagers as 'Aam Rasta'."::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 11
10. Recently, a similar issue came up before the learned Principal Bench of this Court in LPA No. 12 of 2019 .
titled 'State of H.P. and others versus Laiq Ram Dogra', decided on 23.03.2021, wherein the judgment rendered in Bhoop Ram's case (supra) was relied on and it was observed as under:-
"7. The case of the appellants is that in case land of a person is used for construction of road under PMGSY, he is not entitled for compensation. The learned Additional Advocate General draws our attention to Clause 3.6 of PMGSY Guidelines. It is apt to reproduce the said Clause herein:-
"3.6 It will be the responsibility of the Standing Committee to oversee that lands are available for taking up the proposed road works. A Certificate to this effect will accompany all the proposals . No provision is to be made for the Land Acquisition under this Programme."
8. Though, from the perusal of the aforesaid provision, it is clear that under PMGSY, there is no provision for land acquisition. The State had taken the plea in Raj Kumar's case, supra, before the Hon'ble Supreme Court that if the land owners do not raise any objection and voluntarily detonate their lands for construction of road under PMGSY, it is not open for them to approach the Court of law to seek compensation. The said submission of the State was considered by the Hon'ble Supreme Court in Raj Kumar's case, supra and while disposing of the SLP, the following directions were passed:
::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 12"In the circumstances, therefore we are inclined to allow this appeal with suitable directions to give a quietus to the entire controversy in exercise of our .
powers under Article 142 of the Constitution of India. We accordingly allow this appeal, set-aside the orders passed by the High Court and dispose of Writ Petition No. 907 of 2009 with the following directions:
1) That Deputy Commissioner Collector, Solan shall undertake a verification and determine the exact extent of land utilized for construction of road in question out of Survey No. in which the appellant holds a share and thereby determine the exact extent of land which the appellant has been deprived of on account of such construction/utilization.
2) Upon determination of the extent of land of which rthe appellant has been deprived of by reason of construction of the road in question, the Deputy Commissioner shall determine the amount of compensation payable to him based on the amount determined towards compensation in Award No. 10 of 2008 relating to the land acquired for the very same road in favour of other owners including Kanwar Singh having regard to the classification of the land.
3) Upon determination of the amount so payable the Deputy Commissioner shall disburse the said amount within a period of three months form the date the determination is completed. The payment of the amount so determined shall represent the amount due and payable to the appellant in full and final settlement of all his claims towards the value of the land utilized for the construction of the road.
In case however the payment is not made within the time so stipulated even after determination, the amount so determined shall start earning interest @ 12% p.a from the date the period of three months expires."
9. Once the defence taken by the appellants- State with regard to non-availability of land acquisition under PMGSY, has been rejected by the Hon'ble Supreme Court in Raj Kumar's case, supra and thereafter by this Court in Bhoop Ram's case, ::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 13 supra, it is not open for the appellants-State to raise the same plea time and again. Vide judgment dated .
08.08.2017, passed by this Court in LPA No. 79 of 2017, the State's appeal was dismissed by relying upon Raj Kumar's case, supra. Thereafter, the State has not preferred any appeal against the said judgment and thus, the same attained finality. Rather, pursuant to the said judgment, the respondent-State has taken steps to acquire the land of the petitioner in that case, for the purpose of compensation."
11. It would be noticed that even though the judgment rendered by a Co-ordinate Bench in Bhoop Ram's case (supra) was brought to the notice of the learned Principal Bench, however, the judgment delivered in Dalip Singh's case (supra) was neither cited nor brought to the notice of the learned Principal Bench.
12. It would further be noticed that the view taken by this Bench in Dalip Singh's case (supra) is at complete variance and in conflict with the views taken in Bhoop Ram's and Liaq Ram Dogra's cases (supra).
13. In view of the conflicting decisions, the issue is required to be authoritatively resolved by a Larger Bench of this Court.
::: Downloaded on - 09/04/2021 20:18:03 :::HCHP 1414. Accordingly, the Registry is directed to place the papers before Hon'ble the Chief Justice for directing the .
same to be placed before a Larger Bench to answer the following question:-
Whether a person(s) whose land(s) has been utilized for construction of road under 'PMGSY' is entitled to compensation?
r to (Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
5th April, 2021.
(krt)
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