Himachal Pradesh High Court
State Of Hp And Others vs Joginder Singh And Others on 28 February, 2025
2025:HHC:5935
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CMP(M) No.2090 of 2024 in LPA
No.64 of 2025 a/w CMP(M) No.77 of
2025 in LPA No.65 of 2025
Decided on: 28.02.2025
__________________________________________________________
1. CMP(M) No.2090 of 2024 in
LPA No.64 of 2025
State of HP and others
..Applicants-Appellants
Versus
Joginder Singh and others
…Respondents
AND
2. CMP(M) No.77 of 2025 in
LPA No.65 of 2025
State of HP and others
..Applicants-Appellants
Versus
Uttam Singh Kaushal
…Respondent
Coram
Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice
Hon’ble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting?
For the applicants/ Mr. Pranay Pratap Singh,
appellants Additional Advocate General, in
both the petitions.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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G.S. Sandhawalia, Chief Justice [Oral]
CMP[M] No.2090 of 2024 in LPA No.64 of
2025 and CMP(M) No.77 of 2025 in
LPA No.65 of 2025
Keeping in view the averments made in the
applications, duly supported by affidavits, we are of
the opinion that sufficient cause has been made out to
condone the delay. Therefore, delay of 153 days
[in CMP(M) No.2090 of 2025] and 238 days [in CMP(M)
No.77 of 2025] in filing the appeals are condoned.
The applications stand disposed of.
The appeals be registered.
LPA Nos.64 and 65 of 2025
2. The present set of appeals have been directed
against the judgments of learned Single Judge dated
14.05.2024 and 15.03.2024. The learned Single Judge
has disposed of the writ petitions by directing to initiate
the acquisition proceedings qua the land used for
construction of road namely Shimla Mataur Road,
keeping in view the law settled by the Apex Court in
Vidya Devi Versus State of Himachal Pradesh &
Others (2020) 2 SCC 569 and Sukh Dutt Ratra &
Anr. Versus State of Himachal Pradesh & Ors.,
(2022) 7 SCC 508.
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3. Learned Single Judge also noticed that no
reply had been filed and similar benefit already stood
extended in the cases of Sat Dev Sharma & Ors.
Versus State of Himachal Pradesh & Ors., in
CWP No.945 of 2022, decided on 29.08.2023, for the
same stretch of land.
4. It is not disputed that the said judgment
passed by learned Single Judge was upheld in LPA
No.177 of 2024, titled as State of Himachal Pradesh
& Ors. Versus Satdev Sharma & Ors., and the
Coordinate Bench, as such, was pleased to observe as
under :-
“6. Learned Additional Advocate General is not
able to point out any ground indicating that
present case is not squarely covered by
aforesaid verdicts of the Court.
7. In aforesaid facts and circumstances, we do
not find any illegality, irregularity or any
other perversity in the impugned judgment.
Therefore, appeal is liable to be dismissed
being devoid of merits.
8. We consider it fit to record that State is
preferring the appeals despite dismissal of
their similar appeals in identical matters.
Such conduct is not in consonance with the
Litigation Policy adopted by the State of HP
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which is causing wasting the time and energy
of the State as well as the Court. It may invite
imposing cost but taking lenient view, no cost
is being imposed.
9. Accordingly, appeal is dismissed with
direction that consequential action, in terms
of judgment dated 29.08.2023 passed in CWP
No.945 of 2022 be taken within four weeks.
Appeal stands disposed of along with all
pending miscellaneous application(s), if any.”
5. The sole argument as such which is now being
raised by learned State Counsel is that an opportunity
should be given to file a reply before learned Single
Judge. The grounds of appeal, however, portray a
different picture and paragraph No.3 states that the
matter was contested on behalf of State by filing reply
and that the road was constructed on popular demand.
The relevant portion of the grounds of appeal, read as
under :-
“3. That the petition was contested on behalf of
the Appellants/State by filing the reply where
it was averred that the road was constructed
on popular demand with verbal consent of
land owners including petitioner of the area.
The villager’s voluntarily surrendered
possession of their land, budgetary provision
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was made by the State and the construction
of said road commenced. The road stood
constructed immediately upon taking over
the possession and the petition was barred by
delay and latches.”
6. The said ground is also against the record as
perusal of the reply filed by the State goes on to show
that in Joginder Singh’s case, notice was issued on
21.12.2023 and the matter was taken up on 22.04.2024.
On the said date, last opportunity of two weeks’ was
granted to file reply, failing which it was observed that
the Court would be constrained to decide the same on
the next date of hearing i.e. 14.05.2024. Unfortunately
on 14.05.2024, State chose not to file reply, leading to
the disposal of the matter by learned Single Judge by
noticing that the reply was not filed.
7. In Uttam Singh Kaushal’s case, notice was
issued on 26.06.2023, directing to file reply within
four weeks. The matter was listed on 20.09.2023 when
four weeks’ more time was granted. From September
2023 till 15th March 2024, the State again chose not
to file reply, leading to disposal of writ petition on the
ground that the matter was covered by the judgment of
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Sat Dev Sharma’s case, which was pertaining to the
same stretch of road.
8. Learned State Counsel submitted that an
SLP is pending against a judgment of the Division Bench.
However, in the absence of any stay order and in view of
the fact that learned Single Judge, as such, had decided
the case on the settled principles of law laid down in
Vidya Devi’s case, keeping in view the Article 300-A of
the Constitution of India, that Welfare State cannot be
permitted to take the plea of adverse possession to grab
the property of its own citizens. We are of the considered
opinion that no question of law arises or any factual
matrix which needs to be redressed since it was a clear
cut case of land owners in the writ petitions that on
account of the construction of road which was started
long back in the year 1970, the road had been widened
thereafter, and respondents have illegally taken land of
petitioners in their possession without initiating any legal
process.
9. Thus, it is not a case as such that dispute is
regarding the initial acquisition of the land as the land
owners were fair enough to submit that possession of
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land was taken during widening which was done without
any acquisition. The claim as such is of 3 Marla in
Khasra No.216 and 10 Marlas in Khasra No.10 and 11 in
the case of Uttam Singh Kaushal [supra].
10. Similar pleadings are in case of Joginder
Singh, wherein the claim is for Khasra No.686
measuring 00-01-84 Hects situated in Mohal Jalari
Badyaran, Tehsil Nadaun District Hamirpur [H.P.],
and specific pleading is that only on account of
widening as such the possession has been taken.
11. In the absence of the State having not
contested the cases on merits and nothing has been
shown in the grounds of appeal that pleadings of
land owners were incorrect or there was any
concealment of facts or that they were not owners of
the land, we do not feel that it would be appropriate to
remand the matters to learned Single Judge. In case of
specific pleadings, it would have been a different fact if
on account of concealment of some facts undue are being
taken through legal process, this Court would have
interfered.
12. The appropriation of private property by the
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State on account of improving infrastructure cannot
be at the cost of the citizens without acquisition
process, as has been laid down in Sukh Dutt Ratra’s
case, which was again the case of utilization of land for
the construction of Narag Fagla Road way back in 1972-
1973.
13. As noticed above, there is no delay and
laches also in the present cases, as the land owners
have been candid enough to only claim compensation
for widening of road.
14. A Co-ordinate Division Bench of this
Court based on the mandate of the Hon’ble Supreme
Court in the case of Tukaram Kana Joshi and
others versus Maharashtra Industrial development
Corporation and others, (2013) 1 SCC 353, Vidya
Devi versus State of Himachal Pradesh and others,
(2020) 2 SCC 569 [supra], Sukh Dutt Ratra and
another versus State of Himachal Pradesh and
others, (2022) 7 SCC 508 [supra], had outlined in LPA
No.54 of 2017, In re: State of Himachal Pradesh and
others versus Upender Kumar and other connected
matters decided on 27.3.2024 that objection regarding
-9- 2025:HHC:5935
limitation or delay and laches cannot be permitted to
come in the way so as render do substantial justice
when, the action of forcible deprivation of private land
owner from his property was without sanction of law,
resulting in expropriation of property by State, resulting
in a continuing cause of action and/or such act
shocks the judicial conscience in the following
terms:
“10. It is now trite law that in dealing
with constitutional rights in the exercise
of writ jurisdiction, one can no longer
apply mutatis mutandis, the time frame
stipulated in limitation law as if they were
attracted. The issue has been dealt with time and
again by the Hon’ble Supreme Court, particularly in
the context of land acquisition.
11. In Tukaram Kana Joshi and others through
Power-of-Attorney Holder versus Maharashtra
Industrial Development Corporation and others
(2013) 1 SCC 353 (“Tukaram”), the Hon’ble
Supreme Court ruled that the constitutional right
to property could not be defeated on technical
grounds citing delay. Though, in the case of State
of Maharashtra versus Digambar (1995) 4 SCC 683
(“Digambar”) the Hon’ble Supreme Court had
denied relief to farmers on the ground of delay,
but delay was not simply declared to be an
absolute bar on filing of a writ petition.
12. It cannot be disputed that while deciding
Tukaram’s case (supra), Digambar‘s case
(supra) had not been noticed, but the same
was later noticed by the Hon’ble Supreme
Court in a fairly recent case of Sukh Dutt
Ratra and another versus State of Himachal Pradesh
and others (2022) 7 SCC 508 (“Sukh Dutt Ratra”)
wherein the Hon’ble Supreme Court has dealt with a
– 10 – 2025:HHC:5935
number of its judgments to emphasis that there can
be no “limitation” to do justice if it is
clear that the right to property has been intruded
into without due process of law. The Hon’ble
Supreme Court has repelled the citation of delay and
laches in enforcement of the constitutional right to
property in land. The Hon’ble Supreme Court, as
observed above, has considered the case of
Digambar.
13. Thus, the law as stands today is that
the State cannot, on the ground of delay
and laches, evade its responsibility towards
those from whom private property has
been expropriated. In any case, what principles a
Court must apply while assessing whether
a writ petition is so hopelessly barred by
delays and laches that a remedy is not
worthy of consideration, is well articulated
in Maharashtra SRTC versus Balwant Regular
Motor Service AIR 1969 SC 329 and these
principles stand extracted and endorsed by
the Hon’ble Supreme Court in Sukh Dutt
Ratra‘s case (supra) wherein it was held
as under:
“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
– 11 – 2025:HHC:5935
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
Anakh Singh v. State of H.P., 2007 SCC
Online HP 220) and 20.12.2013 (in Onkar
Singh vs. State, 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.
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:
“11……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
– 12 – 2025:HHC:5935
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.”
14. By now, it is well settled that right
to property though no longer a fundamental right
and is otherwise a zealous possession of which one
cannot be divested save and except by the authority
of law as is enjoined by Article 300A 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.”
15. The judgment in Upender Kumar’s case
was taken by State Authorities in SLP (C) No. 49057 of
2024, titled as The State of Himachal Pradesh and
others versus Upender Kumar wherein, after
cautioning the State Authorities with exemplary costs,
the SLP was dismissed on 22.11.2024, in the following
terms:
– 13 – 2025:HHC:5935
“SPECIAL LEAVE PETITION (CIVIL) Diary No(s).
49057/2024
[Arising out of impugned final judgment and order
dated 27-03-2024 in LPA No. 54/ 2017
passed by the High Court of Himachal Pradesh at
Shimla]
THE STATE OF HIMACHAL PRADESH &
ORS. Petitioner(s) VERSUS UPENDER KUMAR
Respondent(s)
1. Delay condoned.
2. We have come across several matters
wherein the State of Himachal Pradesh has
challenged the orders passed by the Division
Bench of the High Court of Himachal Pradesh,
thereby directing the compensation to be
paid to the respondent(s).
3. The writ petitioner(s) has approached
the High Court with a grievance that though
the possession of their lands were taken for
road construction, they did not receive
compensation.
4. By the impugned judgment and order,
the High Court has held that the State cannot take
possession of citizen land without paying the
compensation.
5. Although the right to property is no
longer considered a fundamental right, it is still a
constitutional right. The State cannot be
permitted to acquire citizen land without paying
appropriate compensation.
6. In these circumstances, it would have been
justified in dismissing the special leave petition(s)
with exemplary cost. However, we refrain from
doing so now and simply dismiss these special leave
petitions.”
16. We do not find any reason, thus to call
upon the land owners to defend this futile litigation by
the State. Accordingly, both these appeals are
– 14 – 2025:HHC:5935
dismissed for the reasons given hereinabove
alongwith pending miscellaneous application(s), if any.
(G.S. Sandhawalia)
Chief Justice
(Ranjan Sharma)
Judge
February 28, 2025
(Bhardwaj/Chiranjeev)
