Bombay High Court
Mrs. Rajshri Sanjay Gharve And Ors vs The District Collector, Raigad ... on 25 February, 2021
Bench: S.J. Kathawalla, V. G. Joshi
1 Judg-WPST 99276-20.odt
Kanchan
P. Dhuri
Digitally signed IN THE HIGH COURT OF JUDICATURE AT BOMBAY
by Kanchan P.
Dhuri CIVIL APPELLATE JURISDICTION
Date:
2021.03.09
11:36:07 +0530
WRIT PETITION (STAMP) NO.99276 OF 2020
1. Mrs. Rajshri Sanjay Gharve
Age : 62 years, Occ : Housewife,
R/at : Aadarsh Nagar, Chatrapati Shivaji Road,
Mahad-Raigad.
2. Mrs. Sujata Janardhan Patil alias
Ujjvala Shivram Nikam
Age : 60 years, Occ : Housewife,
R/at : Rajhanse, Lokmanya Hsg Society,
Pen-Raigad.
3. Mrs. Shaila Shivram Nikam alias
Mrs. Shaila Chandrashekhar Patil
Age : 52 years, Occ : Housewife,
R/at : 101, C wing, M-2 Co-op Hsg Society,
Pratiksha Nagar, Mala Garden Koliwada,
Sion, Mumbai - 400 022.
(Through their Power of Attorney Holder
Mr. Vinod Eknath Khopade
Age : 36 years, Occ : Business,
R/at : Shashi Plaza, Opp N.M. Joshi School,
At Post Goregaon, Tal Mangaon,
Dist Raigad 402103.) ... Petitioners
Vs.
1. The District Collector, Raigad, Alibaug-Raigad.
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2. The Principal Secretary,
State of Maharashtra, Secretariat,
Mantralaya, Mumbai.
3. Chief Secretary, Urban Development.
4. Chief Secretary, Rural Development.
5. Chief Secretary, Health Department.
6. State of Maharashtra
Respondent Nos.3 to 6 to be served
Through Assistant Government Pleader,
High Court, Appellate Side, Mumbai.
7. Deputy Collector & Land Acquisition
Kal Project No.2 Ofcer, Mangaon.
8. Superintendent, Cottage Hospital,
Sub District-Mangaon. ... Respondents
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Mr. Sandesh D. Patil instructed by Ms. Anusha P. Amin for the Petitioners.
Ms. M.P. Thakur, AGP for the State.
-------
CORAM : S.J. KATHAWALLA &
VINAY JOSHI, JJ.
DATE : 25TH FEBRUARY, 2021
ORAL JUDGMENT (PER : VINAY JOSHI, J.) :
1. Rule. Rule made returnable forthwith. Heard fnally by consent
of the learned counsel appearing for the parties.
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2. The Petitioners are seeking directions for acquisition of their
land and for payment of compensation as per the provisions of law.
3. Late Shivram Mahadeo Nikam had purchased a land, situated
at Village Khandad, Taluka Mangaon, District Raigad (subject land),
bearing Gat No.686, Survey No.3/4, vide Sale Deed dated 15 th October,
1941. Likewise, he had purchased another land admeasuring 9R, bearing
Gat No.686, Survey No.3/2 vide Sale Deed dated 10th June, 1945. The
Petitioners are the legal heirs of the deceased owner, viz., Shivram Nikam.
In the consolidation scheme, both survey numbers have been merged into
Gat No.686 of Village Khandad. On the basis of Sale Deeds, the name of
Shivram Nikam was mutated in the revenue record of the subject land and
on his demise, the Petitioners names were entered into the revenue record.
4. It is the Petitioners' case that the said property was not
acquired by the State Government at any point of time. However, in the
year 1965 a cottage hospital was constructed on the subject land. Later on,
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the structure of the cottage hospital was expanded and was converted into
the sub-district hospital of District Raigad. According to the Petitioners, the
construction of the hospital was on their land, that too without acquisition.
The Petitioners have inquired with the Deputy District Collector
(Acquisition) about the acquisition, if any. However, they were informed
that there is no record of acquisition.
5. The Petitioners contended that the Government has no right to
erect a structure on a private property without acquisition; the original
owner Shivram died in the year 1978 and thereafter the Petitioners, who are
his married daughters, took charge of the afairs; since the Petitioners' land
was utilised by the Government for constructing a hospital without
acquisition, the Petitioners urged for initiating acquisition proceedings and
for payment of compensation.
6. The Respondent-State resisted the Writ Petition vide reply
afdavit. The original ownership of Shivram Nikam of the subject land has
not been disputed. It is contended that the Petitioners were never in
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possession of the subject land. The revenue extract shows that it was a
barren land. According to the Respondent-State, the subject land was
acquired long back prior to the year 1965 and at that time itself a cottage
hospital had been erected. It is stated that at the time of acquisition, due
compensation had been paid to the original owner Shivram Nikam.
Moreover, the statement of Shivram was recorded on 13 th April, 1966
showing that he had accepted the compensation and had no grievance at all.
Lastly, the State has seriously objected to the maintainability of Petition on
account of delay and lapses. According to the State, the subject land was
acquired prior to the year 1965 and construction was raised thereon at that
time. After a lapse of 55 years, the Petitioners have raised a claim, which is
not tenable due to inordinate delay and lapses on the part of the Petitioners.
7. Heard both sides. Perused the record and considered the
reported judgments cited by the parties.
8. The frst and foremost objection of the Respondent-State is
about the maintainability of the Petition on account of inordinate delay of 55
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years. It is not in dispute that on the subject land, government cottage
hospital had been erected in the year 1965, whilst this Petition has been fled
in the year 2020, i.e., after a lapse of 55 long years. The learned AGP has
placed strong reliance on the decision of the Supreme Court in the case of
State of Maharashtra V/s. Digambar 1, to contend that the Writ Petition is not
maintainable on account of delay and lapses. The learned AGP has argued
that the Petitioners have failed to satisfy the Court with respect to the delay
in fling the present Writ Petition and the same be dismissed on this ground
alone.
9. The learned counsel for the Petitioners admits that there is a
delay of 55 years in fling the above Writ Petition. However he tried to
justify his stand by placing reliance on some reported decisions. Initially, he
relied on the decision of the Hon'ble Supreme Court in the case of Vidya
Devi V/s. State of Himachal Pradesh & Others 2, wherein the Court has
emphasised about the right to property, which has been considered a human
right. Particularly, he has drawn our attention to Paragraph 12.12 of the
1 (1995) 4 Supreme Court Cases 683
2 (2020) 2 Supreme Court Cases 569
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judgment, wherein it is observed that the ground of delay and lapses cannot
be raised in a case of a continuing cause of action or if the circumstances
shock the judicial conscience of the Court. In the case at hand, there is no
justifcation for the long standing delay. It is not the case that either the
Petitioners or their predecessor, i.e., Late Shivram Nikam were unaware
about the construction of the hospital on the subject land. It is pertinent to
note that the revenue record contains an entry regarding the construction of
a hospital on the subject land. It is worthwhile noting that Late Shivram
Nikam during his lifetime till the year 1978, despite alleged encroachment
in the year 1965 by the construction, had not registered any grievance.
Thereafter, again for several decades the Petitioners did not approach any
Court for redressal of their grievance. It cannot be said that there was a
continuous cause of action since the construction was completed in the year
1965 giving a cause of action to put their grievance. The facts of the present
Writ Petition cannot be considered to be circumstances which shock the
judicial conscience of the Court.
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10. Further, the Petitioners have also relied on the decision of the
Supreme Court in the case of Dhiraj Singh (Deceased) Through Legal
Representatives & Others V/s. State of Haryana & Others 3, wherein while
considering the aspect of the condonation of delay relating to Section 5 of
the Limitation Act, 1963, the Court has laid a general preposition that in
such matters the approach of the court should be pragmatic and not
pedantic. It was a case of poor farmers, who had not diligently approached
the Supreme Court for grant of compensation on the ground of parity. In
such peculiar circumstances, the delay was condoned. The facts of the
present Writ Petition are diferent and the said ratio cannot be applied to
the case in hand. Lastly, the Petitioners have relied on the decision of the
Supreme Court in the case of State of Haryana V/s. Mukesh Kumar &
Others4, which would not assist the Petitioners in any manner, since it
relates to the claim of adverse possession, vis-a-vis, the right to property.
11. Coming to the decision relied upon by the Respondent-State
i.e. State of Maharashtra V/s. Digambar (supra), the same pertained to a case,
3 (2014) 14 Supreme Court Cases 127
4 (2011) 10 Supreme Court Cases 404
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involving delay of 20 years in invoking the writ jurisdiction of the Court
under Article 226 of the Constitution of India. In that context, certain
observations were made by the Supreme Court in Paragraph 14, which reads
as follow :-
"14. .............................................. Further, where
granting of relief is claimed against the State on alleged
unwarranted executive action, is bound to result in loss to the
public exchequer of the State or in damage to other public interest,
the High Court before granting such relief is required to satisfy
itself that the delay or laches on the part of a citizen or any other
person in approaching for relief under Article 226 of the
Constitution on the alleged violation of his legal right, was wholly
justified in the facts and circumstances, instead of ignoring the
same or leniently considering it. Thus, in our view, persons
seeking relief against the State under Article 226 of the
Constitution, be they citizens or otherwise, cannot get
discretionary relief obtainable thereunder unless they fully satisfy
the High Court that the facts and circumstances of the case
clearly justified the laches or undue delay on their part in
approaching the Court for grant of such discretionary relief.
.........................."
12. Certainly the conduct of the Petitioners is blame-worthy, since
there was total inaction on their part, in fling the Writ Petition for a period
of more than fve decades, from the date of construction on the land.
Generally the Court should be liberal on the aspect of delay, since the
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courts are meant to advance the cause of justice rather than to dismiss
matters on technicality. However, in this case for near about half a century
the Petitioners did nothing. The available material suggests neglect of their
own rights for a long time in preferring a Writ Petition. The court cannot
enquire into belated and stale claims on the ground of equity. Delay defeats
equity. The court helps those who are vigilant and not those who delay in
claiming their rights. It is not prudent for anybody to knock the doors of
courts after decades requiring the State to fnd its old record, which perhaps
may not be available due to passage of time. Therefore, this is a clear case
wherein the Petition is not maintainable on account of inordinate delay and
lapses on the part of the Petitioners.
13. Though, the Petition deserves to be dismissed on the ground of
delay and lapses, still we have gone through the factual aspects. It is the
Petitioners' case that the State has raised a structure on their land without
acquisition. The Respondent-State, though admitted that a cottage hospital
has been erected on the subject land, however, they have categorically
denied that there was no acquisition. On the other hand, it has been
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contended that the subject land was acquired prior to the year 1966 and due
compensation was also paid to the original owner Late Shivram Nikam. In
order to support the said contention, the State has endeavoured to produce
the record, which was available with the ofce. It appears that the tenant of
subject land has taken out proceedings under Section 32G of the Bombay
Tenancy and Agricultural Lands Act, 1948. In the said proceedings, a
statement of the Petitioners' predecessor Late Shivram Nikam (original
owner) has been recorded by revenue authorities on 13th April, 1966. A copy
of the statement clearly discloses that Late Shivram Nikam has admitted
that the subject land has been acquired in the year 1961 and for which
compensation was received by him.
14. Old mutation entry No.1025 carried out in the year 1966
clearly shows that the subject land was acquired for constructing a cottage
hospital and that the compensation for the same has been paid to the owner.
The said old mutation entry conspicuously goes against the Petitioners'
case. Certainly, precedence has to be given to the old revenue entry over the
letters dated 21st October, 2016 and 2nd February, 2021 issued by the Deputy
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Collector informing that they do not have any record about the acquisition
of the subject land. Therefore, on facts also, it is evident that long back in
the year 1961, the subject land was acquired and for the same compensation
has been paid to the original owner Shivram Nikam. For the reasons
mentioned hereinabove, the Writ Petition is not tenable. In view thereof,
the present Writ Petition is dismissed. No order as to costs.
(VINAY JOSHI, J.) (S.J. KATHAWALLA, J.)
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