Ishwar Chand And 31 Others vs State Of U.P. And 3 Others
2021 Latest Caselaw 8586 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40												
 
Case :- WRIT - C No. - 15641 of 2021
 

 
Petitioner :- Ishwar Chand And 31 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vishesh Rajvanshi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Jayant Banerji,J.

1. Heard learned counsel for the petitioners; the learned Standing Counsel for the State-respondents; and perused the record.

2. The case of the petitioners is that their ancestors were owners of plot nos. 238, 239, 340, 242, 243, 245 and 246 at village Saidbhar, Tehsil and District Baghpat. For construction of road from Sarai Mod (turn) of Baghpat road to Binauli, having a length of 16.45 kms, acquisition of land in favour of Public Works Department (PWD) was made sometime in the year 1980 with assurance that fair compensation would be offered to the land owners. The land of petitioners' ancestors was utilised for the purpose but no compensation was paid/ awarded to them. However, on the representations of the petitioners, on 19.01.2004, a Committee was constituted to look into the issue but the Committee took no action. As result, the petitioners continued to represent their cause. It is alleged that on 01.09.2010 in respect of some other plots, an award was passed in favour of one Smt. Angoori. Therefore, again, representations were made for payment of compensation but to not avail. Later, a survey was conducted in the year 2017 to ascertain whether the land of petitioners' ancestors was utilised for the road. The Survey report dated 20.06.2017 confirmed that the land was utilised. Thereafter, on representations, the matter was taken up again and, under the order of District Magistrate, Baghpat dated 25.06.2018, a five-member Committee was constituted to submit a report. The Committee submitted an ex parte report, dated 10.02.2021, of which copy was not provided. Acting on the report dated 10.02.2021, by the impugned order dated 12.02.2021, the representations/claims of the petitioners were rejected by the third respondent (Additional District Magistrate (Finance & Revenue), Baghpat).

3. A perusal of the impugned order dated 12.02.2021 would indicate that as per the report dated 10.02.2021 the road, namely, Binauli Baghpat Sarai Marg was built in between 1972 and 1984. Its length is 16.43 kms. The survey indicated that 2.13 hectare of land of the villagers of village Saidbhar was affected by construction of the road. It is stated in the report that the ancestors of the petitioners, keeping in mind the constraints of the existing chak- road and the benefits of a wider road, had voluntarily contributed small portions of their land for construction of the road and with their contribution and participation, a 12 meter wide road could be built which had been in existence for last nearly 40 years. The report further indicated that though the claimants claim the width of the road as 80 feet i.e. 34.2 meter but, on spot, the road is 12 meter wide. On the basis of this report, the third respondent, by placing reliance on a decision of the Apex Court in Syed Maqbool Ali vs. State of U.P. : (2011) 15 SCC 383, upon finding that the claim was highly belated; that the ancestors raised no objection; and that the road was constructed for the benefits of the villagers with their consent, rejected the representation of the petitioners as not maintainable.

4. Aggrieved with the impugned order, this petition has been filed by claiming that the third respondent wrongly placed reliance on the decision of the Supreme Court in Syed Maqbool Ali's case (supra) inasmuch as the petitioners had been actively pursuing their cause and since it is proved on record that their bhumidhari land has been utilised for construction of road, they are entitled to compensation at the market rate.

5. Per contra, the learned Standing Counsel submitted that it is admitted in the petition that the road was completed sometime in the year 1980 and as it has not been demonstrated that any claim for compensation was made prior to the year 2004, the claim of the petitioners is hopelessly barred by laches and mere subsequent examination of the claim, to reject it later, will not make the laches condonable. Hence, the third respondent rightly rejected the claim by placing reliance on the decision of the Apex Court in Syed Maqbool Ali's case (supra).

6. We have given our thoughtful consideration to the rival submissions and have perused the record carefully.

7. The factual position that emerges from the record is that a road was constructed up to a length of 16.43 kms. in the year 1980 or before. In construction of the road, small pieces of land belonging to different farmers was used apart from the chak-road that existed from before. The report of the Committee is that the land of the farmers was utilised with their consent and for their own benefit and no force was used upon them.

8. No doubt, the case of the petitioners is that their land was utilised under a promise that they would be paid compensation. But there is nothing on record that any promise was extended by the State or its agencies in respect of payment of compensation either to the petitioners or to their ancestors, though, it is alleged by the petitioners that on their representations, a Committee was set up in the year 2004 to examine their claim. Further, from our query to the learned counsel for the petitioners, it transpires that the petitioners are not those farmers whose land was utilised but are successors in interest of those farmers. Thus, in absence of a specific stand in the petition that any of the petitioners had been promised compensation at the time when the land was utilised for construction of road, it would be any body's guess as to what transpired at the time when the land was utilised for constructing the road. Whether the ancestors of the petitioners voluntarily contributed their land or it was forcible acquisition would be a matter of speculation. But what is clear on the record is that there is no material put forth to suggest that the ancestors of the petitioners had claimed compensation. Whether the ancestors of the petitioners had provided their land voluntarily with a view to have a road for the village and for their benefit or they were forced to provide land for construction of the road cannot be decided by us, at this stage, particularly, because those farmers, namely, ancestors of the petitioners, are no longer alive.

9. In this context, it would be apposite to notice the judgment of the Apex Court in Syed Maqbool Ali's case (supra). In Syed Maqbool Ali's case (supra), in paragraph 9, it was observed as follows:-

"The remedy of a land holder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation, or approach the High Court by filing a writ petition if the action can be shown to be arbitrary, irrational, unreasonable, biased, mala fide or without the authority of law, and seek a direction that the land should be acquired in a manner known to law."

In paragraph 10 of the aforesaid judgment, the apex court went on to observe as follows:-

"But that does not mean that the delay should be ignored or appellant should be given relief. In such matters, the person aggrieved should approach the High Court diligently. If the writ petition is belated, unless there is good and satisfactory explanation for the delay, the petition will be rejected on the ground of delay and laches."

In paragraph 12 of the aforesaid judgment, it was further observed as follows:-

"The High Courts should also be cautious in entertaining writ petitions filed decades after the dispossession, seeking directions for acquisition and payment of compensation. It is not uncommon for villagers to offer/donate some part of their lands voluntarily for a public purpose which would benefit them or the community - as for example, construction of an access road to the village or their property, or construction of a village tank or a bund to prevent flooding/erosion. When they offer their land for such public purpose, the land would be of little or negligible value. But decades later, when land values increase, either on account of passage of time or on account of developments or improvements carried out by the State, the land holders come up with belated claims alleging that their lands were taken without acquisition and without their consent. When such claims are made after several decades, the State would be at a disadvantage to contest the claim, as it may not have the records to show in what circumstances the lands were given/donated and whether the land was given voluntarily. Therefore, belated writ petitions, without proper explanation for the delay, are liable to be dismissed."

10. As a legal principle, there is no limitation provided for entertaining a writ petition under Article 226 of the Constitution of India. But, ordinarily, where no limitation is provided, the person must approach the Court within a reasonable time. As to what is the reasonable time is dependent on the facts of a case. Ordinarily, where a civil court remedy would get barred by limitation, the prayer should not be entertained in writ jurisdiction. In State of Madhya Pradesh v. Bhailal Bhai and others : AIR 1964 SC 1006, a constitution bench of the Apex Court, in paragraph 21 of the judgment, observed as follows:

"Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."

Following the decision of the Apex Court in State of Madhya Pradesh v. Bhailal Bhai's case (supra), in Banda Development Authority, Banda v Moti Lal Agarwal and others; 2011 (5) SCC 394, the Apex Court, in paragraph 17 of its judgment, observed as under :-

"It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits"

11. When we examine the facts of the instant case in the light of the legal principle noticed above, we find that the cause of action to institute a suit for compensation first arose when the land was utilised. Admittedly, the land was utilised in the year 1980 or before. There is no documentary material on record to indicate that either within three years or even twelve years of such utilisation of the land any promise was extended by the State or its agencies to compensate the farmers. Under these circumstances, where even the remedy to seek possession was barred by limitation, that is on expiry of 12 years from the date the possession of land was taken from the farmers, in our view, the writ petition, filed after 41 years, to stake a claim for compensation is hopelessly barred by laches and is liable to be dismissed as such.

12. At this stage, the learned counsel for the petitioners submitted that the cause of action for filing the writ petition should be taken as the date when the impugned order was passed i.e. 12.02.2021.

13. In our view, the aforesaid contention is liable to be rejected for the simple reason that the impugned order rejects the claim of the petitioners on the ground of limitation. Even otherwise, the period of limitation is to be counted from the date when the original cause of action arose. A later examination of dead and stale issue would not give a fresh cause of action to revive a time-barred issue. In this context, we may refer to the decision of the Apex Court in Union of India and another v. V.M. Sarkar : 2010 (2) SCC 59, wherein the Apex Court, in paragraph 15 of the judgement, observed as under:-

"When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction"

14. Though, in this case, it does not appear from the record that the representation of the petitioners was decided under court's direction but there is nothing on record to demonstrate that the claim of the petitioners was raised, or was under consideration from, within the period of limitation. As we have already noticed above that there is nothing to indicate that the claim was raised and was taken up for consideration up to the year 2004, the original cause of action, which arose sometimes in the year 1980, became barred by limitation. No doubt, the State-respondents did examine the plea and, ultimately, rejected the plea to be barred by limitation but that would not provide fresh limitation for a claim which had already become barred by limitation. Under these circumstances, it cannot be said that the rejection of the time barred claim by the impugned order gave the petitioners a new cause of action for staking a claim for compensation.

15. For all the reasons noticed above, we are of the considered view that the claim of the petitioners raised in this petition is hopelessly barred by laches and the same cannot be entertained. The petition is therefore dismissed as barred by laches.

Order Date :- 26.7.2021

Sunil Kr Tiwari