Himachal Pradesh High Court
Inder Singh And Others vs State Of H.P And Others on 3 May, 2024
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No.141, 138 and 143 of 2018
Reserved on: 20.04.2024
Decided on: 03.05.2024
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Inder Singh and others ..Appellants
Versus
State of H.P and others ..Respondents.
2. RSA No. 138 of 2018
Julfu and others ..Appellants
Versus
State of H.P and others ..Respondents.
3. RSA No. 143 of 2018
Vidhi Chand .Appellants
Versus
State of H.P and others ..Respondents.
________________________________________________________
Coram
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice
Whether approved for reporting? 1
For the Appellants: Mr. Sudhir Thakur, Senior Advocate
with Mr. Karun Negi, Advocate.
For the Respondents: Mr. Rakesh Dhaulta, Additional Advocate
General.
M.S. Ramachandra Rao, Chief Justice
In these three second Appeals, the suits filed by the
respective appellants/plaintiffs had been dismissed by the trial court
Whether reporters of Local Papers may be allowed to see the judgment?
and the said judgment has been confirmed by the lower appellate
court on the ground that they are barred by limitation and holding that
they had approached the Court long after cause of action accrued to
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them individually.
2) The appellants in these three Appeals had filed three separate
suits before the trial Court contending that they are owners of certain
property, out of which, the State Government/PWD Department had
laid a road; and that they came to know about the same on 02.02.2012
and 08.07.2010 respectively when demarcation on the spot was
conducted; and therefore they are entitled to a decree for mandatory
injunction directing the respondents/defendants to initiate proceedings
under the Land Acquisition Act, 1894 to acquire their respective
properties and to pay compensation to them with all statutory benefits
as admissible under the law for the land used by the respondents for
the construction of road through their respective lands.
3) I may point out that the appellants in RSA No. 138 of 2018 had
filed the suit on 31.10.2012, the appellants in RSA No. 141 of 2018
had filed their suit on 31.10.2014 and the appellant in RSA No. 143
of 2018 had filed his suit on 31.10.2012.
4) The respondents in turn had pleaded that the road in question in
all the three cases was laid in 1981-1982 on the demand of inhabitants
of the village and other people of the area and claimed that the land
had been donated by the land owners for the road without claiming
any compensation. It is also asserted that the respective appellants
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and their predecessors did not object for the carving out of the road at
that time and gave implied consent for that purpose. It is specifically
alleged that the suits are hopelessly time barred.
5) As stated above, the trial Court as well as the first appellate
Court agreed with the plea of the State/respondents/defendants and
dismissed the suit and the first Appeals.
6) These appeals had been admitted in 2018 and the following
question of law has been framed:-
"Whether on account of mis-appreciation of the pleadings and
law and also misreading of the oral as well as documentary
evidence available on record, the findings recorded by both
Courts below are erroneous and, as such, the judgment and
decree impugned in this appeal being perverse and vitiated is not
legally sustainable?"
7) Thereafter another question of law was framed by this Court on
05.04.2024 as under:
"Whether the Courts below were right in holding that the
Suits filed by the appellants were barred by limitation in
the facts and circumstances of the case?"
8) Counsel for the appellants placed reliance on the decisions
rendered by the Supreme Court in Vidya Devi vs. The State of
Himachal Pradesh2 and Sukh Dutt Ratra and others vs. State of
.
Himachal Pradesh and others3, and contended that there is a
continuing cause of action for the injuries suffered by the appellant as
per the above decisions, and so the judgments of the trial Court as
well as the appellate Court in these appeals be set aside and their
respective suits be decreed.
The judgment in Vidya Devi ( 2 supra)
9) In the judgment rendered by the Supreme Court in Vidya Devi
case (supra 2), the appellant before the Supreme Court had initially
filed a Writ petition before this Court praying that the State be
directed to pay compensation for her land, which had been acquired in
1967-1968 or in the alternative for issuance of a direction to the State
to initiate acquisition proceedings under the Land Acquisition Act,
1894.
10) The State filed reply in the Writ petition admitting that it had
used the land in the ownership of appellant for construction of the
road in 1967-1968. It contended that it was in continues possession of
(2020) 2 SCC 569
(2022) 7 SCC 508
the property since then for more than 42 years, that it acquired title
through adverse possession, that the Writ petition was not
maintainable and she had to file a Civil Suit.
.
11) The High Court dismissed the Writ petition on the ground that
it involves adjudication of disputed questions of law and fact for
determining the starting point of limitation, and the same could not be
adjudicated in the Writ proceedings.
12) The Supreme Court set aside the judgment of the High Court
and held in paragraphs 10.6,10.7 and 11 as under:
"10.6. We are surprised by the plea taken by the State before the
High Court, that since it has been in continuous possession of the
land for over 42 years, it would tantamount to "adverse"
possession. The State being a welfare State, cannot be permitted to
take the plea of adverse possession, which allows a trespasser i.e. a
person guilty of a tort, or even a crime, to gain legal title over such
property for over 12 years. The State cannot be permitted to perfect
its title over the land by invoking the doctrine of adverse possession
to grab the property of its own citizens, as has been done in the
present case.
10.7. 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. 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. In Tukaram Kana Joshi & Ors. v.
M.I.D.C. & Ors.,10 this Court while dealing with a similar fact
situation, held as follows :
"There are authorities which state that delay and laches
extinguish the right to put forth a claim. Most of these authorities
pertain to service jurisprudence, grant of compensation for a
wrong done to them decades ago, recovery of statutory dues, claim
for educational facilities and other categories of similar cases, etc.
Though, it is true that there are a few authorities that lay down that
delay and laches debar a citizen from seeking remedy, even if his
fundamental right has been violated, under Article 9 P.S.
Sadasivaswamy v. State of T.N. (1975) 1 SCC 152. 10 (2013) 1
SCC 353. 32 or 226 of the Constitution, the case at hand deals with
a different scenario altogether. Functionaries of the State took over
possession of the land belonging to the Appellants without any
sanction of law. The Appellants had asked repeatedly for grant of
the benefit of compensation. The State must either comply with the
procedure laid down for acquisition, or requisition, or any other
permissible statutory mode."
11. In the present case, the Appellant being an illiterate person,
who is a widow coming from a rural area has been deprived of her
private property by the State without resorting to the procedure
prescribed by law. The Appellant has been divested of her right to
property without being paid any compensation whatsoever for over
half a century. The cause of action in the present case is a
continuing one, since the Appellant was compulsorily expropriated
of her property in 1967 without legal sanction or following due
process of law. The present case is one where the demand for
justice is so compelling since the State has admitted that the land
was taken over without initiating acquisition proceedings, or any
procedure known to law. We exercise our extraordinary
jurisdiction under Articles 136 and 142 of the Constitution, and
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direct the State to pay compensation to the Appellant."
(emphasis supplied)
13) A reading of the above judgment indicates that the basis of
exercise of jurisdiction by the Supreme Court in that case was it's
constitutional jurisdiction and that was why delay and laches were
held not to be a bar for grant of relief to the appellant therein as the
conduct of the State was found to have shocked the conscience of the
Court. The judgment also makes specific reference to the exercise of
the extra ordinary jurisdiction conferred on the Supreme Court under
Articles 136 and 142 of the Constitution of India.
The Sukh Dutt Ratra case ( 3 supra)
14) The principle laid down in Vidya Devi's case (2 supra) was
reiterated in Sukh Dutt Ratra case (supra 3) as well, where the facts
are identical.
15) In that case also, the respondent-State had utilized the land
belonging to the appellant and adjoining lands for construction of
road in 1972-1973 without initiating any proceedings for acquisition
of the land and without paying any compensation to the appellants.
16) A Writ petition was filed in the High Court in 2011 seeking
compensation for the deprivation of the property or initiation of
the acquisition proceedings under the land Acquisition Act.
17) A Full Bench of this Court in Shankar Dass vs. State of H.P
.
and another4, held that the matter involved disputed questions of law
and fact for determination on the starting point of limitation, which
cannot be adjudicated in the Writ proceedings. The High Court
disposed of the Writ petition with liberty to file a Civil Suit in
accordance with law.
18) The Supreme Court reversed the judgment of the High Court
and granted relief to the appellant following the judgment in Vidya
Devi (supra 2) and invoking the Supreme Court's extra ordinary
jurisdiction under Articles 136 and 142 of the Constitution and
directed the State to treat the subject land as deemed acquisition and
appropriately disburse compensation to the appellants.
The Consideration by the Court
19) The instant appeals are not however cases, which have come
before the Court for adjudication under Article 226 of the Constitution
of India and but as Civil Suits to be decided in exercise of ordinary
Civil Jurisdiction. Exercise of constitutional jurisdiction is not
permissible in these proceedings.
2013 SCC Online HP 681
20) There are findings of fact recorded by the trial Court in these
three cases that the utilization of the property of the appellants for
construction of a road by the State had happened long back in 1981-
.
1982, but the suits had been filed on various dates in 2012 and 2014,
respectively.
21) The trial court and the lower appellate Court have taken a view
that it was not a continuing wrong so as to give cause of action de die
in diem or that these cases are covered by Article 113 of Limitation
Act; that the injury caused to the appellant was the construction of the
road which was completed in the year 1981-1982; the injury was
inflicted and completed with the construction of the road; the
appellants or their predecessors were completely dispossessed and
ousted from the suit land in 1981-1982 with the construction of the
road; and so it cannot be a continuing wrong, but it was a wrong
which was completed at the time of construction of the road.
22) The Courts below have noted that the appellants had admitted
that the road in question was constructed in 1981-1982 and they
cannot plead that cause of action accrued only on the date when the
demarcation was done. They held that that cause of action actually
accrued to them on the date when the road was carved out through the
suit land. They have also held that the appellants or their predecessors
- 10 -
slept over their right for long period of time exceeding 30 years.
23) Having regard to the concurrent findings of facts recorded by
both the trial Court as well as the lower appellate Court in all the three
.
cases, and also having regard to the fact that this Court is not
exercising jurisdiction under Article 226 of the Constitution of India
i.e. constitutional jurisdiction and is only exercising ordinary civil
jurisdiction, I see no reason to interfere with such findings. Therefore,
substantial questions of law are answered against the appellants and
all the Appeals are dismissed.
24) All pending applications stand disposed of accordingly.
25) No costs.
( M.S. Ramachandra Rao )
Chief Justice
May 03, 2024
(priti)
