Tripura High Court
The State Of Tripura Represented By The ... vs Fortuna Agro Plantations Limited on 28 September, 2022
Author: S.G.Chattopadhyay
Bench: Indrajit Mahanty, S.G.Chattopadhyay
1
HIGH COURT OF TRIPURA
AGARTALA
WA 268 of 2021
1. The State of Tripura represented by the Secretary to the
Government of Tripura, Revenue Department, New Secretariat
Building, Capital Complex, Agartala-799006.
2. The Secretary to the Government of Tripura, Revenue
Department, New Secretariat Building, Capital Complex, Agartala-
799006.
3. District Magistrate and Collector, District Unakoti, P.O.
Gournagar, Kailashahar, Tripura-799277.
4. Sub-Divisional Magistrate, District- Unakoti, Kailashahar,
Tripura-799277.
-----Appellant(s)
Versus
1. Fortuna Agro Plantations Limited, a company registered under
Companies Act, 1956 having its registered officer at P.O.
Sadhanasram, District- Unakoti, Kailashahar, Tripura-799277.
2. Union of India, New Delhi, represented by the Secretary,
Ministry of Home Affairs, (Border Management Division), Room
No.209, Griha Mantralaya, North Block, New Delhi-110001.
3. The Land Acquisition Collector, District: Unakoti, Kailashahar,
Tripura-799277.
-----Respondent(s)
WA 268 of 2021
2
BEFORE
HON'BLE THE CHIEF JUSTICE MR.INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
For Appellant(s) : Mr. Debalay Bhattacharya, GA.
For Respondent(s) : Mr. Bidyut Majumder, ASGI
Mr. S.M. Chakraborty, Sr. Adv.
Mr. Pawan Shree Agrawal, Adv.
Date of hearing : 23.08.2022
Date of delivery of : 28.09.2022
Judgment
Whether fit for reporting: YES / NO
JUDGMENT
(Per S.G.Chattopadhyay) J [1] The present writ appeal is directed against the judgment and order dated 05.01.2021 passed by the learned Single Judge in WP(C)No.1381 of 2016 whereby the learned Single Judge has directed the Land Acquisition Collector of Unakoti District to assess compensation for the damage sustained by the petitioner by reason of severance of land from his other land as a result of land acquisition for the purpose of construction of IBB fencing and make payment of such compensation to the petitioner in terms of the Land Acquisition Act, 1894.
[2] The factual context of the case is as under:
WA 268 of 2021 3
(i) The petitioner-company is the owner of a tea garden named Murticherra Tea Estate, situated at Kailashahar in Unakoti Tripura district. An area of land, measuring 18.31 acres, belonging to the petitioner's said tea garden, has been acquired by the Government by notification dated 28.07.05, issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to 'the L.A Act), for the purpose of construction of barbed wire fencing on the Indo-Bangladesh border, and the requisite declaration was published, in this regard on 30.08.2008, under Section 6 of the L.A Act. Before, however, even the notification under Section 4(1) of the LA Act was issued, the National Building Construction Company (for short, 'the NBCC'), which was the executing agency for the said barbed wire fencing , had taken possession of the land, in question, as far back as on 11.10.2004.
(ii) Due to acquisition of such land, huge land belonging to the petitioner company had fallen on the other side of the border fencing. On 11.10.2004, M/S NBCC had taken over the possession of about 50 acres of land of the petitioner and started felling tree and bamboos from the land of the petitioner falling on the other side of the IBB fencing without acquisition of those lands.
WA 268 of 2021 4
(iii) Aggrieved petitioner filed several representations to the concerned authorities claiming compensation for the severed land and botanical assets removed therefrom which yielded no result. The petitioner then approached the High Court seeking relief under Article 226 of the Constitution of India by filing WP(C) No.348 of 2006 and claiming that the award dated 23.12.2005 of the LA Collector, did not include the market value claimed by the petitioner in respect of the trees and the bamboos and that at the time of assessment, all the 42 species of trees and 2 species of bamboos had not been taken into account. The petitioner, therefore, filed a writ petition being WP(C) No. 348 of 2008, seeking a direction for early assessment of the compensation payable to the writ petitioner.
(iv) The High Court decided the matter by order dated 01.11.2006 passed in WP(C) No.348 of 2006. It was observed by the High Court that total area of land acquired from the petitioner company was 18.31 acres for which the petitioner was paid compensation of a sum of Rs.54,53,401/-.High Court passed a consented order in the case which reads as under:
"The petitioner is a company registered under the Companies Registration Act, 1956. Certain lands with WA 268 of 2021 5 valuable trees owned by the petitioner have been acquired for the purpose of construction of Indo Bangladesh Border fencing in a land acquisition proceeding which commenced with a notification dated 28.07.2005 under Section 4 of the Land Acquisition Act, 1894 (for short, 'Act'). The area of the land acquired belonging to the petitioner is 18.31. acres for which the petitioner has already received Rs.54,53,401/-. The admitted position is that out of 42 species of trees and two species of bamboo only six species of trees and one species of bamboo have been covered by the assessment made by the LA Collector. Thus the award was only in part. The LA Collector is required to determine the compensation for the remaining 36 species of trees and one species of bamboo. The only grievance of the petitioner is that the LA Collector, inspite of repeated requests, has not made the assessment for awarding the compensation for the aforementioned trees and bamboo.
Mr. Majumder has shown the parawise comments furnished by the respondents from which it appears that the LA Collector could not assess the compensation for the remaining trees and bamboo only because the approved rate therefor could not be obtained from the Revenue Department of the State Government. As soon as the rate would be available the LA Collector would complete the assessment and make the award. Mr.Das, learned senior counsel would, however, emphatically submit that the Revenue Department is believed to have made available the approved rare for the said purpose. In spite of this position, the LA Collector is slow in concluding the proceeding.
Be that as it may, in view of the above admitted position, this writ petition is disposed of by a consented order that within a period of one month from today the Revenue Department of the State Government shall make available to the LA Collector the approved rate for assessment of the compensation for the trees and bamboo after receipt of the approved rate said LA Collector shall finally make the assessment and award the compensation within a period of one month more."
WA 268 of 2021 6
(v) But no compensation was given for the loss of the petitioner due to severance of land. The petitioner represented to the Land Acquisition Collector, Unakoti District for assessment of compensation for the severed land and damage sustained by him for removal of the botanical assets therefrom. The LA Collector, instead of acting independently, referred the representation of the petitioner company to the Revenue Department to initiate action.
(vi) It is further pleaded by the petitioner that petitioner filed another Writ Petition being WP(C)No315 of 2007 in the High Court claiming compensation for the damage caused to the trees and bamboos standing on the severed land. The said petition was dismissed. Against the order of dismissal petitioner filed writ appeal No.31 of 2007. The writ appeal was also dismissed by the High Court by order dated 05.08.2009. The aggrieved petitioner then filed Review Petition No.13 of 2009 seeking review of judgment rendered in the Writ Appeal. The said review petition was later renumbered as Review Petition No.36 of 2011. Said review petition was decided by the High Court observing as under:
"124.In the result and the reasons discussed above, this review petition succeeds. The judgment and order, under review, shall WA 268 of 2021 7 accordingly stand set aside and vacated and the appeal stands disposed of with direction to the respondent No.4, namely, Land Acquisition Collector, North Tripura, Kailashahar, to determine the value of the felled trees and bamboos, which have not been returned to the review petitioner and pass award accordingly. Any sum of money, which may have already been paid to the review petitioner as damage under clause 'secondly' of Section 23(1) of the LA Act, shall accordingly be adjusted inasmuch as the review petitioner is not entitled to receive any sum of money under Clause 'secondly' of Section23(1). It is further directed that the determination of the value, in terms of the direction given herein, shall be completed by the respondent-authority concerned within a period of three months from today."
Against the said order passed in Review Petition 13 of 2009 renumbered as Review Petition 36 of 2011, State and Union of India being appellants filed SLP before the Hon'ble Apex Court which was registered as Civil Appeals No.6383 and 6384 of 2013 and the same are pending before the Hon'ble Apex Court.
(vii) The petitioner again approached the High Court by filing WP(C) No.133 of 2007 which was later withdrawn on technical ground with a liberty to file fresh petition. [3] Thereafter, the petitioner approached this Court by filing WP(C) No.1381 of 2016 seeking direction to the LA collector of Unakoti District for assessment of compensation for the loss sustained by him due to severance of land and damages caused to the WA 268 of 2021 8 plant and trees standing thereon. The reliefs claimed by the petitioner are as under:
"It is therefore, prayed that the Hon'ble Court would graciously be pleased to :-
(a) admit the petition of the Petitioner and call for records relevant to the subject matter of the petition from custody of the Respondents;
(b) issue writ directing and compelling the Respondents and each of them to make assessment of Compensation for the loss and damage caused to the Petitioner Company for severance of its land due to the land acquisition for construction of barbed-wire fencing and also for causing damages to the standing plants on the said land including interest etc.; to which the Petitioner is entitled as per law;
(c) grant costs of and incidental to this petition to the Petitioner
(d) pass such further or other order or orders or directions as seem fit and proper having regard to the fact and circumstances involved in the matter And for this gracious act, the Petitioner shall as in duty bound ever pray"
[4] In the counter affidavit filed on behalf of the State Respondents it was asserted that value of the trees and bamboos falling on the land which was acquired for construction of IBB road has already been paid to the Writ petitioner and the claim of the petitioner was devoid of merit. In the affidavit dated 01.12.2017 filed on behalf of state respondents No.2 to 6, it was further stated as under:
WA 268 of 2021 9 "14. That, in reply to the averments and/ or contentions made in Paragraph No. 12 of the Writ petition I state that, the averment made in this paragraph is not true. Assessment of damage cost of 6(six) species of trees and 1( one) species of bamboos had been made as per govt. Approved rate. The L.A. Collector has awarded Rs.54,53,401/- on 23.12.2005 for land value and cost of 6(six) species of trees and 1 ( one species of bamboo. Subsequently, on receipt of Govt. approved rate from Rev. Department relating to rest 36 species of trees and 1 species of bamboo, the L.A. Collector again awarded compensation for Rs. 57,36,918/- on 06.01.2007. Besides such awards, the L.A. Collector has also made further award as interest from the date of taking over possession of the acquired land for Rs.42,79,805/- in total Rs.
1,54,50,124/-.
Copies of awards are enclosed herewith & marked as Annexure as R/4.
15. That in reply to the averments and/or contentions made in Paragraph No. 13 & 14 of the Writ petition I state that, as per claim of the petitioner, the D.M. & Collector, North Tripura ( now Unakoti) had requested vide his letter dated 06.12.2006 to the DFO, Northern Division, Kailashahar for issuance of necessary permit to the land owner for extraction of trees from the other side of the IBB fencing towards Bangladesh in connection with earning of Govt. revenue.
16. That in reply to the averments and/ or contentions made in Paragraph No. 15 of the Writ petition I state that, as per Order of the Hon'ble High Court dated 01.11.2006, further award of Rs.57,36,918/- had been made on 06.01.2007 for rest 36 species of trees and 1 species of bamboo as per Govt. approved rate.
17. That in reply to the averments and /or contentions made in Paragraph Nos. 16 of the Writ petition I state that, as per Govt. approved rate the award of damage cost of all species of Trees and Bamboos had been made and paid to the petitioner as per Order of the Hon'ble High Court. Regarding payment of cost of such trees/market value of trees, the NBCC has clearly mentioned in their letter dated 22.12.2006 to the Land Acquisition Collector that NBCC are paying only compensation to the losses of trees & bamboos not the cost of trees and bamboos. Moreover, NBCC WA 268 of 2021 10 stated that have not utilized any felled trees and bamboos to land owner though they have not maintained any document of handing over except making the list of felled trees etc. jointly as the felled trees and bamboos are the property of the land owner. The trees and bamboos were cut/felled by NBCC before issuance of Notification U/S. 4.
As such the claim towards the cost/value of such trees and bamboos does not come under provision of L.A. Act as the incident took place before starting of instant acquisition process. It is also to mention here that Notification U/S-4 was issued only on 30.08.2005, whereas the alleged no. of trees were felled between 28.11.2004 to 31.12.2004. Regarding award for land falling between the Zero outskirt of the fencing and as such no compensation is allowed to the petitioner for those land which was not acquired.
A copy of the letter of NBCC dated 22.12.2006 is enclosed herewith for ready reference and marked as Annexure-R/5"
[5] On appreciation of the pleadings of the parties, documents adduced on their behalf and the submissions presented by the counsel of the respective parties, the learned Single Judge decided the matter by the judgment impugned observing as under:
"[3] There is no dispute in respect of making the payment relating to the other components as provided under Section-23 of the Land Acquisition Act. Even the compensation money has been paid. It appears that the petitioner had taken to several actions before the Gauhati High Court relating to the assessment of the said compensation and the controversy had been settled finally. In the present writ petition, the grievance is confined to a limited area vis-a-vis thirdly as provided below Section-23 of the Land Acquisition Act, 1894. The said example illustrates the element of assessing compensation to be awarded for the land, if any, damage is sustained by the person interested at the time of taking possession of the land by reason of severance of the land to serious disadvantage of the land-loser.
WA 268 of 2021 11 [4]It is not in dispute that acquisition of the land, as referred, was principally made for construction of Indo-Bangladesh Border Fencing stalling the movement across the border. For construction of the said IBB fencing according to the petitioner, a substantial amount of land had fallen on the other side of the border. As a result, the petitioner has been, for all purposes, barred to utilize land. The petitioner has exposited his grievance stating that the compensation was given only for the land but not for damages caused to the trees and bamboos. No compensation has been paid either for market value of trees and bamboos standing over the land so severed. The land had fallen within the zero point and the fencing. Even though the petitioner-company has sustained serious loss and damages. The petitioner has also advanced that several representations for this purpose had been made but without any yield. In para-18 of the petition, the petitioner has averred about such representation claiming the relief of payment of compensation for the land so severed and the damage caused to thebotanical assets over that land.
[5 ]Despite having the statutory power to assess his damage, the Land Acquisition Collector, Unakoti District, Kailashahar has not acted upon his statutory power to give the petitioner due damage as it has suffered for such severance as an effect of the acquisition. In para-27, the petitioner has asserted as under:
"That the Petitioner were continuously asking Learned LA Collector to assess and pay the other claims as made i.e, compensation for the severance of the land and the loss of botanical assets thereon but no result has come forth from the LA Collector. On 01-08-2008 the Petitioner Company filed a(sic.) Application under RTI in the office of DM & Collector to know the fate of the claim and in reply, the office of DM & Collector informed that the other claims made by the company has neither been assessed nor paid."
The said reply has been enclosed with the writ petition asAnnexure-9.
[6] Having scrutinized the said reply, it appears that in response to the query No.4 in the RTI application which has been phrased as total payment made by the office of the WA 268 of 2021 12 Land Acquisition Collector to Fortuna Agro Plantations Limited on account of severance of Land on the other side of IBB fencing in L.A. Case No.7/Kai/2005, it has been stated that information not available meaning, no compensation on that account was paid to the petitioner. The respondents however did not controvert that a substantial amount of land of the petitioner has fallen between zero point to the IBB fencing and for construction of the IBB fencing, it has become actually impossible for the petitioner as to utilize the said land. Thus, the petitioner has claimed compensation for severance of the land and the compensation for the standing trees over the said land. It has been also admitted that no such compensation has been granted on that account.
[7] Mr. B. Majumder, learned ASGI appearing for the respondent No.1 has submitted that as the requiring department they have paid the entire compensation as determined by the Land Acquisition Collector and there is no outstanding on that account.
[8] Mr. D. Bhattacharya, learned G.A. appearing for the respondents No.2, 3, 4, 5 and 6 has submitted that the land which had fallen on the other side of the fencing is required to be surveyed as in the writ petition the exact amount of the land supported by the document has not been placed. But Mr. Bhattacharya, learned G.A. has also not controverted that the substantial amount of land hasnot been severed from the land of the petitioner for the construction of the IBB fencing. Mr. Bhattacharya, learned G.A. has clearly stated that neither the respondent No.2 nor the other respondents have any claim on the standing trees. The petitioner can use the usufruct from the trees standing on vacant land and sell the timber. The nature of the trees are also not catalogued in this writ petition. [9] Having read the entire reply of the respondents No.2-6 it appears that no specific reply to the allegation has been made by the petitioner. The reply, on the other hand, is totally evasive and not relating to the specific allegations. Thus, this court is of the view that if the land is severed for reason of acquisition and construction of the IBB fencing, the petitioner has a right to get compensation for the damage which has occurred for severance of the land in terms ofthe said provision of law as reproduced above. It appears that the respondents have failed to produce a chit of paper in this regard. The WA 268 of 2021 13 cumulative effect of such observations is that there should be a serious exercise for determining the damage which has been caused by severance. Therefore, the Land Acquisition Collector, Unakoti District is directed to cause survey by the technically sound persons to determine the land which has been severed for construction of the IBB fencing. The damage shall be assessed ascertaining the value of the land and the damage that has been caused for acquisition. It is clearly mentioned that this court has not endorsed to any fact to be considered. The Land Acquisition Collector shall exercise his statutory power for determining the damage including the damage caused by severance.
[10] Taking a holistic view of that aspect, it is directed that within 4(four) months from the date on which the petitioner shall supply a copy of this order to the Land Acquisition Collector, Unakoti District, the said exercise as indicated above, shall be completed and the payment be made in terms of the Land Acquisition Act, 1894 if itis so ascertained.
Hence, this writ petition stands allowed to the extent as indicated above."
[6] The State appellants have challenged the judgment of the learned Single Judge mainly on the following grounds:
(i) Learned Single Judge did not appreciate the fact that on the basis of the assessment report of the LA Collector of Unakoti District compensation has already been paid in whole to the writ petitioner (respondent herein) for his acquired land as well as the botanical assets standing thereon.
(ii) Learned Single Judge did not appreciate the fact that the petitioner is given a right of access to the severed land for the WA 268 of 2021 14 purpose of cultivation, farming etc for which fencing gates have been made by BSF. Therefore, the petitioner is not entitled to any compensation for the severed land.
(iii) Learned Single Judge should not have passed any direction in the judgment impugned in view of the fact that Civil Appeals No.6383 and 6384 of 2013 against the order passed in Review Petition No.36 of 2011 arising out of the acquisition of the land of the petitioner is pending before the Hon'ble Apex Court.
[7] Heard Mr.D.Bhattacharya, learned GA appearing for the State appellants. Heard Mr.S.M.Chakraborty, learned Sr. Advocate appearing along with Mr.P.S.Agrawal, learned Adv. for the respondent company and Mr. Bidyut Majumder, learned ASGI, representing the Union of India.
[8] The State counsel has mainly argued that the acquisition was made in the year 2005. Thereafter, the petitioner company approached the High Court claiming compensation for the trees and crops standing on the acquired land. He never raised the issue of severance of land at that point of time. After a long lapse of time he came forward with a claim of compensation for severance of land by WA 268 of 2021 15 filing WP(C) No.1381 of 2016 which is apparently barred by delay and latches. Counsel has argued that petitioner has been given adequate compensation for the acquisition of land and also for the loss caused to the petitioner for the trees and crops standing thereon. Aggrieved petitioner approached the High Court by filing writ petition which was dismissed. High Court also dismissed the appeal against the judgment of the learned Single Judge and subsequently a Review petition being Review Petition No. 36 of 2011 filed by the petitioner was allowed by the High Court and against the order passed in the Rev. Petition, the State appellants had approached the Supreme Court by filing Civil Appeals No.6383 and 6384 of 2013 which are pending before the Supreme Court. Counsel has argued that in terms of the direction issued by the learned Single Judge by the judgment impugned, the LA Collector has assessed compensation of a sum of Rs.2.35 crores for the severed land without observing the codal formalities and even without the approval of the government. [9] Counsel contends that the judgment impugned by the learned Single Judge is devoid of merit and as such the assessment made by the LA Collector, Unakoti, Tripura has no sanction of law. WA 268 of 2021 16 [10] In support of his contention, learned State counsel has relied on several decisions. To nourish his contention with regard to delay and laches on the part of the writ petitioner in raising the issue of severance of land, counsel has relied on the decision of the Apex Court in VISHWAS NAGAR EVACUEES PLOT PURCHASERS ASSOCIATION AND ANOTHER Versus UNDER SECRETARY, DELHI ADMINISTRATION AND OTHERS reported in (1990) 2 SCC 268 wherein the Apex Court observed as under:
"4. Coming to the question as to whether the petitioners were prompt in challenging the acquisition proceeding before the High Court, it is relevant to state that the first, objection petition by the petitioners was filed in September 1971, that is, more than two and half years after the publication of the notification under Section 6. The petitioners claim to have represented again in 1973, 1977 and 1978. Assuming their case to be correct that they had no information of the proceeding for acquisition of their lands before January 1969 they should have acted promptly thereafter. There is no justification for them to ignore the land acquisition proceedings for about two years and eight months when the letter marked as Annexure P-5 (A) was sent to the Land Acquisition Collector, Tis Hazari in 1971. Even, thereafter, the appellants were not justified in not moving the High Court and sending representations at intervals of several years. The next letter is marked as Annexure P-6 (B) and is claimed to have been dispatched in 1973. The other letters relied upon are Annexures P-6 (D) dated October 29, 1977 and P-6 (E) dated May 18, 1978. It has been contended on behalf of the appellants that they received a reply, Annexure P-6 (F), dated June 9, 1983 from the Deputy Director (New Leases), Delhi Development Authority, which after acknowledging the appellants' letter stated thus: "I am directed to inform you that you may apply to the Secretary, Land and Building Deptt., Delhi Admn., Vikas Bhawan, New Delhi for allotment of residential plot in lieu of your alleged plots." The petitioners do not claim to have made an application before the aforesaid authority as directed, and ignored the matter WA 268 of 2021 17 again for more than three years before filing the writ petition in the High Court on July 8,1986. The negligence on the part of the appellants for about two years and eight months between January 1969 and September 1971; four years between 1973 and 1977, and again for three years between 1983 and 1986 has remained unexplained. The finding of the High Court about laches, therefore, cannot be held to be erroneous."
[11] The state counsel has also pleaded that claim of the writ petitioner is barred by the principle of constructive res judicata because in the earlier litigations arising out of the same land acquisition, petitioner never raised this issue relating to the severance of land. His claims for compensation owing to damages to the trees and crops standing on the acquired land have already been decided. In those litigations the writ petitioner never claimed that petitioner was also entitled to compensation for severance of land. The plea made by the petitioner in the present case is completely a new plea which is impermissible under the principle of constructive res judicata. In support of his contention, Mr. Bhattacharya, learned GA has referred to the decision of the Apex Court in the cases of M.NAGABHUSHANA VERSUS STATE OF KARNATAKA AND OTHERS reported in (2011) 3 SCC 408 in which the Apex Court has held as under:
"16. It is nobody's case that the appellant did not know the contents of the FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which WA 268 of 2021 18 was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of constructive res judicata."
[12] On the issue of constructive res judicata, counsel has also relied on the decision of the Apex Court in SHANKARA COOPERATIVE HOUSING SOCIETY LIMITED Versus M.PRABHAKAR AND OTHERS reported in (2011) 5 SCC 607 wherein the Apex Court in paras 88 and 89 has held as under:
88. In our view, this issue need not detain us for long. This Court in Devilal Modi, v. STO (AIR 1965 SC 1150), has observed that: (AIR p.1152, para 8 ) "8.......the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding, which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy....."
89. In the present case, it is admitted fact that when the contesting respondents filed W.P. No. 1051 of 1966, the ground of non-compliance with statutory provision was very much available to them, but for the reasons best known to them, they did not raise it as one of the grounds while challenging the notification dated 11-12-1952 issued under WA 268 of 2021 19 the Evacuee Property Act. In the subsequent writ petition filed in the year 1990, initially, they had not questioned the legality of the notification, but raised it by filing an application, which is no doubt true, allowed by the High Court. In our view, the High Court was not justified in permitting the petitioners therein to raise that ground and answer the same since the same is hit by the principles analogous to constructive res judicata."
[13] The state counsel has argued that in the present case the writ petitioner has taken different contradictory stands at different times while litigating on the same issue. Counsel argues that a party cannot be permitted to probate and reprobate on the same facts and take inconsistent shifting stands. In support of his contention, learned counsel has relied on the decision of the Apex Court in the case of SUZUKI PARASRAMPURIA SUITINGS PRIVATE LIMITED Versus OFFICIAL LIQUIDATOR OF MAHENDRA PETROCHEMICALS LIMITED (IN LIQUIDATION) AND OTHERS reported in (2018) 10 SCC 707 in which the Apex Court has observed as under:
12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69, observing as follows: (SCCP.86, para 50) "50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions."
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13. A similar view was taken in Joint Action Committee of Air Line Pilots' Assn. of India vs. DGCA, (2011) 5 SCC 435, observing:(SCC P.443, para 12) "12. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity..... Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily."
[14] The learned counsel appearing for the respondent company has taken the following stands:
(i)The appeal is liable to be dismissed because the appellants have concealed the material facts. Counsel has relied on the decision of the Apex Court in the case of G.NARAYANASWAMY REDDY (DEAD) BY LRS. AND ANOTHER Versus GOVERNMENT OF KARNATAKA AND ANOTHER reported in (1991) 3 SCC 261 wherein the Hon'ble apex court has held as under:
"2.................................................................................................... Curiously enough, there is no reference in the special leave petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter-affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the special leave petitions are liable to be rejected. It is well settled in law that the WA 268 of 2021 21 relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the special leave petitions."
(ii) Contention of the state appellants that the LA Collector of the Unakoti District has assessed compensation in terms of the impugned judgment of the learned Single Judge without approval of the Government is not correct because at every stage of the process the LA Collector has taken approval of the competent authorities and kept them informed.
(iii) The LA Collector steeped into action for compliance of the direction of the learned Single Judge pursuant to direction of the State Government for early compliance of the judgment of the Court.
(iv) Under the principle of waiver and estoppels, the appellants are debarred from challenging the impugned judgment of the learned Single Judge because they have in fact, complied with the judgment.
(v) The principle of constructive res judicata does not apply in this case because the respondent company filed Writ WA 268 of 2021 22 Petition being WP(C) No. 1381 of 2016 for enforcement of a constitutional right. The respondent has relied on the decision of the Apex Court in the case of LALARAM AND OTHERS Versus JAIPUR DEVELOPMENT AUTHORITY AND ANOTHER reported in (2016) 11 SCC 31 in which the Apex Court has held as under:
"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 300-A 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 [Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemical 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 SAIL[SAIL v. Sutni Sangam, (2009)16 SCC 1: (2011)2SCC(Civ) 647].
127. While recognising the power of the State to acquire the land of its citizens, it has been proclaimed in Dev Sharan [Dev Sharan v. State of U.P.,(2011)4SCC769:(2011)2SCC(Civ) 483] that even though the right to property is no longer a fundamental right WA 268 of 2021 23 and was never a natural right, it has to be accepted that without the right to property, other rights become illusory.
128. In a catena of decisions of this court, this prize privilege has also been equated to human right. In Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011)10SCC404: (2012)3 SCC (Civ) 769], this Court has succinctly propounded this proposition in the following terms:(SCCP 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. v. Palmer[ 2005 EWHC 817 : (2005) 3 WLR 554 : (2005) 4 All 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."
(emphasis supplied)
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 guarantee that a land looser is adequately compensated. The proposition does not admit of any compromise or laxity."
WA 268 of 2021 24 [15] Learned counsel of the petitioner contends that it is admitted by the appellants in their counter affidavit submitted in Writ Petition being WP(C) No.1381 of 2016, that as a result of the said acquisition of land, petitioner's land has been severed from his other land for which no compensation has been awarded. [16] According to petitioner's counsel, as a result of this admitted position, the principle of constructive res judicata and delay and laches cannot apply to the case. In support of the said contention, learned counsel has relied on the decision of the Apex Court in the case of JEYPORE SUGER COMPANY LTD. Versus SALES TAX OFFICER AND OTHERS reported in (1998) 9 SCC 358 in which the Apex Court has held as under:
"5. We have heard Shri Salve, the learned Senior Counsel for the appellant, and Shri Mohanty for the respondents. Shri Mohanty has sought to support the impugned order of the High Court on the ground that as the point now raised by the appellant was available earlier and was not taken and as the aforesaid application for clarification was withdrawn, the appellant may not be permitted to raise the same ground. According to us, it would not be just and proper to deny relief to the appellant, which is otherwise due, on the ground that earlier it had only assailed the question of exigibility to tax. It is correct that the plea now taken could have been advanced earlier as well, but the fact this was not done, should not be a ground to deny the relief which is otherwise due to the appellant. The technical plea of constructive res judicata should not stand in the way of the appellant in a case of the present nature."
WA 268 of 2021 25 [17] Petitioner's (respondent herein) counsel has further contended that Writ Petition No.133 of 2007 claiming compensation for severance of land was withdrawn by the petitioner with a liberty to file fresh writ petition on the same cause of action. Once the liberty was granted by the Court, the question of constructive res judicata will never arise. A just claim cannot be denied on technical ground. Reliance has been placed on the decision of the Apex Court in the case of MADRAS PORT TRUST Versus HYMANSHU INTERNATIONL BY ITS PROPERIETOR V.VENKATADRI (DEAD) BY L.R.s reported in (1979) 4 SCC 176 which reads as under:
"2.We do not think that is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. Here, it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal WA 268 of 2021 26 and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act(II of 1905)."
[18] Counsel argues that entitlement to just compensation for severance of land which is recognized under Section 23 of the Land Acquisition Act cannot extinguish particularly when it is admitted that no assessment has been made for such severed land. Reliance has been placed on the decision of the Apex Court in the case of Sukh Dutt Ratra & Ors. Versus State of Himachal Pradesh & Ors. S.L.P (C) Diary No. 13202 of 2020 wherein the Apex Court held 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) 198] 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. 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 WA 268 of 2021 27 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 (1) SCR 176], held:
"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 not authorise extrajudicial 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'".
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 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 CWP No. 1192/2004) and 20.12.2013 (in 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.
WA 268 of 2021 28
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:
"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 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 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."
[19] Petitioner's counsel contends that damages on account of severance is a genuine claim for which there is a continuous cause of action and therefore the principle of delay and laches will not come in the way of approaching the Court for remedy. Reliance has been placed on the decision of the Apex Court in the case of VIDYA DEVI Versus STATE OF HIMACHAL PRADESH AND OTHERS reported in (2020) 2 SCC 569 wherein the Apex Court held as under:
WA 268 of 2021 29 "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.[P.S. Sadasivaswamy v. State of T.N.,(1975)1 SCC 152:1975 SCC(L&S)22] "
[20] Counsel appearing for the petitioner (respondent herein) contends that the appeal is devoid of merit and as such it is liable to be dismissed.
[21] We have considered the submissions of learned counsel representing the respective parties. Perused the entire record.
[22] Counsel appearing for the respondents has highlighted that the state has not disputed before the learned Single Judge the fact that as a result of acquisition of land for the purpose of construction of barbed wire fencing on the Indo-Bangladesh border, huge land of the respondent was severed from the other land of the respondent and the severed land has fallen on the other side of the border stalling the movement of the respondent to his severed land WA 268 of 2021 30 across the border. As a result, the respondent has been, for all purposes, prevented from utilizing the said land. Respondent's counsel has referred to the following averments of the appellant in paragraph 17 of the counter affidavit dated 01.12.2017 filed in case No.WP(C)No. 1381 of 2016:
"17...... Regarding award for land falling between the Zero outskirt of the fencing and as such no compensation is allowed to the petitioner for those land which was not acquired."
[23] It is thus apparent that no compensation has been assessed and paid to the respondent for his severed land which has fallen on the other side of the barbed fencing though the writ petitioner [respondent herein] has lost utility of the land for all purposes and sustained huge loss and damages therefrom. Learned Single Judge has observed that the writ petitioner also advanced several representations for this purpose which yielded no result. The Land Acquisition Collector of the Unakoti District despite having statutory power to give the petitioner due damages for severance of land, did not exercise his power.
WA 268 of 2021 31 [24] Learned Single Judge has further viewed that respondents did not controvert that a substantial amount of land of the petitioner has fallen between the zero point and the IBB fencing and due to the IBB fencing, it has become actually impossible for the writ petitioner to utilize the said land and it has been admitted by the appellants that no compensation has been granted to the writ petitioner on that account.
[25] The learned Single Judge has categorically held that the severance of land has occurred solely for the reason of acquisition of land and construction of IBB fencing and therefore, the petitioner has a right to get compensation for the damage which has occurred for severance of the land in terms of the provision of law. Since the work of assessment of compensation for the severed land was not undertaken, learned Single Judge directed the Land Acquisition Collector, Unakoti District to cause survey by technically sound persons to survey the land which has been severed for construction of IBB fencing and assess the damages ascertaining the value of the land in exercise of the statutory power of the LA Collector and make payment of compensation in terms of the Land Acquisition Act,1894 within a period of 4 months from the date of communication of the WA 268 of 2021 32 order of the learned Single Judge to the LA Collector of Unakoti District by the writ petitioner.
[26] Section 23 of the Land Acquisition Act 1894 contemplates that for determining the amount of compensation to be awarded for land acquired under the Act, damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land shall also be taken into consideration. Therefore, the writ petitioner is, undoubtedly, entitled to compensation for severance of land arising out of the land acquisition for construction of barbed wire fencing at the Indo-Bangladesh border particularly when the fact of severance of land has not been controverted by the state. Apparently, the writ petitioner has lost the utility of the severed land for all purposes as a result of the stalling of his free movement to the severed land.
[27] For the reasons stated above, we find no infirmity in the judgment of the learned single Judge. Resultantly the appeal stands dismissed. Appellants are directed to comply with the judgment of the learned Single Judge within a period of 6 months from today. WA 268 of 2021 33 [28] In terms of the above, the appeal stands disposed of.
Pending application(s),if any, shall also stand disposed of.
(S.G.CHATTOPADHYAY), J (INDRAJIT MAHANTY),CJ Saikat Sarma WA 268 of 2021