Ghansu And 4 Others vs State Of U.P. And 5 Others
2022 Latest Caselaw 4686 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Chief Justice's Court
 
Serial No.309
 

 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
***
 
Writ C No. - 13935 of 2018
 

 
Decided on May 31, 2022 
 
Ghansu and others
 
Through:-   Mr. Hari Om Khare, Advocate with Mr.  Akash Khare, Advocate. 
 
v/s
 
State of U.P. and others
 
Through:-   Mr. Ajay Prakash Paul, State Law Officer for respondent nos. 1 to 6. 
 

 

 
Coram: 	HON'BLE RAJESH BINDAL, CHIEF JUSTICE
 
		HON'BLE PIYUSH AGRAWAL, JUDGE
 

 

 
ORDER

1. By means of present petition, the petitioners, who are 05 in numbers, are seeking a direction to the respondents either to clear the land in question or to pay suitable compensation of their land, which is submerged due to construction of water reservoir situated at Gwalior Road, Jhansi commonly known as ''Pahunj Band Pariyojna'.

2. Brief facts of the case are that the petitioners are stated to be the occupants of the land in question as hereditary tenant having bhumidhar with transferable rights after commencement of U.P. Zamindari Abolition and Land Reforms Act, 1950. The detailed descriptions of the land relating to the petitioners have been mentioned in para 4 of the present petition. It is stated that in the year 1909, a water reservoir commonly known as ''Pahunj Band Pariyojna' situated at Gwalior Road, Jhansi, was constructed with the consent of villagers, on account of which some land was permanently submerged and some land was used for water flow during rainy season. The petitioners are claiming compensation on account of loss of their crop / submerged land caused by water reservoir.

3. The learned counsel for the petitioner urged that the petitioners are recorded owner of their respective land, which are affected by conservation of water more than the prescribed limit due to which the land in question have been submerged. As the land in question was never acquired, the petitioners are claiming compensation for the loss. For the said purpose, the petitioners had made objection before the concerned authority but of no avail. The petitioners also made several representations in this respect but no action was taken. It has been further stated that the petitioners are deprived from cultivation of their valuable land as such suitable compensation may be awarded to them for their loss. It is further urged that since the height of the water reservoir has been raised, the petitioners are facing hardship and due to which they seek a direction to the respondent authority to pay adequate compensation for the loss.

4. Per contra, the learned State Law Officer submitted that the land falling under the submerged area of the water reservoir was willingly given by the villagers for its construction in the year 1909-10 and it was consented that no compensation could be claimed on account of damage of swamping which may cause after construction of reservoir. It is further urged that since the date of construction, the height of the water reservoir is maintained at 786 feet. The petitioners have failed to bring any material on record to show that the height of the water reservoir was ever enhanced. Counsel further urged that the present petition has been filed after huge delay. The petitioners have failed to explain the reason in approaching to this Court after such a huge delay. He prays for dismissal of the present petition on the ground of latches also.

5. After hearing the arguments of the learned counsel for the parties, the Court has perused the records.

6. It is not in dispute that the water reservoir was constructed way back in the year 1909-10 with due consent of the villagers. Pursuant to that an agreement was also executed on 7.7.1910, copy of which has been filed as Annexure No. 1 to the counter affidavit of the respondents. The record shows that in the year 2009, a proposal was only made for raising the height of the water reservoir from 786 feet by 1.27 meters, however, the said proposal was dropped by the High Level Committee of the Government in the meeting held on 21.6.2013. In the said meeting it was decided to construct a retaining wall /non over flow section. Since the height of the water reservoir was not raised and is maintained as 786 feet therefore no loss of any kind could be suffered by the petitioners. There is no question for payment of any compensation to the petitioners for the land in question.

7. The reservoir was constructed in the year 1909-10. The issue sought to be raised by the petitioners for the first time in the year 2010, after more than a century especially when the petitioners were no where in the picture, when the land was taken. No explanation has been submitted for the latches caused in filing the petition. The only bald allegation has been made that they were approaching the authorities and filed representations which were not decided.

8. Recently this Court in Writ C No. 10967 of 2022 titled as Smt. Pushpa Devi Vs. State of U.P. decided on May 5, 2022, after considering the various judgements of the Hon'ble Apex Court has held that the petition filed with the huge delay is required to be dismissed at the threshold.

9. This Court in Writ C No. 4796 of 2022 titled as Ram Avtar Sharma Vs. State of U.P. and others decided on March 7, 2022 has dismissed the petition on the ground of delay and latches. Relevant paras of the said judgement are extracted below:-

"3. After hearing learned Senior Counsel for the petitioner, we do not find any case is made out for interference in the present writ petition, on account of huge delay and laches. The impugned order was passed by the Secretary of the Department concerned on February 10, 2012 and the writ petition has been filed more than a decade thereafter. As to how the petition, filed after huge delay, has to be dealt with has been considered by the Courts on number of occasions and the opinion expressed is that these petitions are required to be dismissed at the threshold.

4. In P. S. Sadasivasway v. State of Tamil Nadu, (1975) 1 SCC 152, wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for the relief.

5. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.

6. In State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others 2013 (6) SLR 629, Hon'ble the Supreme Court, while considering the issue regarding delay and laches observed that even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. Relief to a person, who puts forward a stale claim can certainly be refused relief on account of delay and laches. Anyone who sleeps over his rights is bound to suffer.

7. In Chennai Metropolitan Water Supply and Sewerage Board and others v. T. T. Murali Babu 2014 (4) SCC 108, Hon'ble the Supreme Court opined as under:-

"13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others, AIR 1969 SC 329, the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp, (1874) 5 PC 221, which is as follows:-

"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."

15. In State of M. P. and others etc. etc. vs. Nandlal Jaiswal and others etc. etc., AIR 1987 SC 251, the Court observed that it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. It has been further stated therein that if there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.

16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant "a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. ... A court is not expected to give indulgence to such indolent persons- who compete with `Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."

8. In State of Jammu & Kashmir vs. R. K. Zalpuri and others 2015 (15) SCC 602, Hon'ble the Supreme Court considered the issue regarding delay and laches in raising the dispute before the Court. It was opined that the issue sought to be raised by the petitioners therein was not required to be addressed on merits on account of delay and laches. The relevant paras thereof are extracted below:-

"27. The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "Deo gratias - thanks to God".

28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserves to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present."

9. The aforesaid view was followed by Hon'ble the Supreme Court in Union of India and others v. Chaman Rana 2018 (5) SCC 798.

10. Subsequently, a Constitution Bench of Hon'ble the Supreme Court in Senior Divisional Manager, Life Insurance Corporation v. Shree Lal Meena (2019) 4 SCC 479, considering the principle of delay and laches, opined as under:-

"36. We may also find that the appellant remained silent for years together and that this Court, taking a particular view subsequently, in Sheel Kumar Jain v. New India Assurance Company Limited, (2011)12 SCC 197 would not entitle stale claims to be raised on this behalf, like that of the appellant. In fact the appellant slept over the matter for almost a little over two years even after the pronouncement of the judgment.

37. Thus, the endeavour of the appellant, to approach this Court seeking the relief, as prayed for, is clearly a misadventure, which is liable to be rejected, and the appeal is dismissed."

11. Recently, in Bharat Coking Coal Ltd. And othyers v. Shyam Kishore Singh (Civil Appeal No.1009 of 2020, decided on 5.2.2020), the issue regarding the delay and laches, was considered by Hon'ble the Supreme Court and a petition filed belatedly, seeking change in the date of birth in the service record, was dismissed.

12. Relying on T.T. Murali Babu' case (supra) and R.K. Zalpuri'case (supra), same view has been expressed by Hon'ble the Supreme Court in Union of India and others Vs. N. Murugesan and others (2022) 2 SCC 25 observing:

"We have already dealt with the principles of law that may have a bearing on this case. ... there was an unexplained and studied reluctance to raise the issue .... Hence, on the principle governing delay, laches ... Respondent No. 1 ought not to have been granted any relief by invoking Article 226 of the Constitution of India."

13. In the case in hand, after hearing learned counsel for the parties and taking the above authorities into account, in our opinion, the petitioner is not entitled to any relief. It is, however, sought to be contended that the order dated February 10, 2012 was communicated vide Communication dated December 30, 2021, which is sought to be relied upon to show that the order was communicated to the petitioner quite late in the year 2021. However, a perusal thereof shows that it is not addressed to him. It is merely an inter-departmental communication from the Joint Secretary in the State of U.P. to the Greater NOIDA. In any case, the same cannot be taken to be a reasonable explanation for condoning huge delay in filing the present writ petition. In this case, the direction was issued by this Court about a decade back. The petitioner should have been vigilant and enquired about the status of the application filed by him before the competent authority. There is nothing on record to suggest that he ever made any representation or enquired about the order passed on his representation. In any case, the release of land under Section 48 of the Act is not a matter of right with the landowner. It is a power conferred on the Government."

10. In the case in hand, it is evident that after construction of water reservoir in the year 1909-10, the representations were made for the first time in the year 2010. Thereafter no efforts were taken by the petitioners. In our opinion, the petitioners should have been vigilant enough and enquire about the status of their representation so made before the authorities concerned. There is nothing on record to suggest that the petitioners ever made any inquiry, whatsoever, in respect of the representations so made. It is the definite stand of the State that height of the dam has not been increased and whatever was there a century before, has been retained. Thus in our view, the petitioners are not entitled for any relief.

11. In view of above, the petition is devoid of merit. No interference is called for by this Court. The writ petition is, accordingly, dismissed.

12. There shall be no order as to costs.

(Piyush Agrawal)              (Rajesh Bindal)
 
                                                               Judge                   Chief Justice
 
Allahabad
 
May 31, 2022
 
Rahul Dwivedi/-
 

 

 

 

 

 
Whether the order is reportable: 	Yes