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Smt. Nirmal Khosla Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberLetters Patent Appeal No. 284 of 1972
Judge
Reported inAIR1976P& H22
ActsConstitution of India - Article 226; Limitation Act, 1963 - Sections 5; Land Acquisition Act, 1894 - Sections 23
AppellantSmt. Nirmal Khosla
RespondentThe Union of India (Uoi) and ors.
Appellant Advocate K.P. Bhandari, Adv.
Respondent Advocate H.S. Brar, Sr. Dy. Adv. General
DispositionAppeal allowed
Cases ReferredKhushal Singh v. Rameshwar Dayal
Excerpt:
.....100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - bhandari (filed by him under hisown signature) clearly show that one cay'sdelay was caused in the filing of this appealdue to a bona fide mistaken impression of thelaw by mr. in these..........the government may now issue the appropriate notifications under sections 4 and 6 of the land acquisition act, 1894, and determine the compensation on that basis and pay the same to the appellant in accordance with law. whatever course the state may adopt, it does not he in its mouth to deny to the appellant the compensation for her land which has admittedly been acquired and taken over by the government unless, of course, the government is prepared to give back the land and mesne profits for its use from 1935 to 1975.8. for the foregoing reasons we allow this appeal, set aside the judgment and order of the learned single judge, grant the appellant's writ petition and issue a mandamus to the respondents to determine and pay in accordance with law the compensation to which the.....
Judgment:

Narula, C.J.

1. The under mentioned history of this case which has led to the filing of the present appeal under Clause 10 of the Letters Patent against the judgment of a learned Single Judge of this Court dismissing the writ petition of the appellant on the short ground that it involved disputed questions of fact and a dispute regarding limitation unfortunately reveals that even after the independence of the country and the establishment of a socialistic welfare State committed to the rule of law, some Government agencies continue to have a bureaucratic outlook, and their conscience is not pricked by mercilessly trampling over the legal rights of the citizens and then trying to outwit them by defenceless defences.

2. Possession of the land belonging to the appellant was taken over by the Punjab Government through the Engineer of the Aerodrome at Patiala in 1935 for State purposes. Proceedings for determining compensation payable for the acquisition of land were started, but some years later the file relating to those proceedings was lost in the Government's office. The appellant thereafter went on representing to the Government to determine and pay the compensation for her land and proceedings were restarted after many years. The Collector, Patiala, who was dealing with the matter ultimately passed an order, dated November 2, 1964 (Annexure 'B' to the writ petition), wherein it was observed that no order for acquiring the land was available on the file, and since the land-owner had notproduced a copy of the notification for acquisition of the land it was not necessary to proceed any further with the matter relating to the determination of compensation. It is a matter of regret that the Collector thought that it lay on the land-owner to produce evidence of acquisition of the land belonging to her when it was the admitted case of the Government that the land had in fact been acquired and the appellant had in fact been dispossessed of the same since 1935, and it was not disputed that the land was (as it continues till today) in the possession of the State.

Be that as it may, the fact remains that the appellant went on representing for determination and payment of compensation to her till February 11, 1971. No dent having been created on the mind of the concerned officials of the State, the appellant was driven to file a writ petition in this Court for the issuance of a writ of mandamus against the respondents (who are the Union of India, the State of Punjab, the Secretary, Patiala Aviation Club, and the Collector, Patiala) directing them to do their duty in the above-mentioned matter in accordance with law, and to proceed with the acquisition of the land in question according to the provisions of law, and to pay due compensation for the same to the appellant or in the alternative to restore possession of the land in question to the appellant along with damages for use and occupation thereof for the entire period during which the appellant has been deprived of the same.

3. At the hearing of the writ petition, an objection was raised which was noticed in the judgment of the learned Single Judge in the following words :--

'Mr. Rampal, learned counsel for the State contends that complicated questions of fact necessitating the examination of witnesses and an elaborate investigation arise in this case. It is added that such questions cannot be properly decided in these summary proceedings under Articles 226 and 227 of the Constitution and that the proper remedy of the petitioner is to seek redress by a regular suit.'

Immediately after noticing the above-quoted objection the learned Judge proceeded to observe:--

'It appears to me that this objection must prevail.'

The learned Single Judge purported to follow the ratio of the Full Bench judgment of thin Court in Jagdish Mitter v. The Union of India, ILR 0969) 2 Punj and Har 96 = (AIR 1969 Punj & Har 441) for dismissing the writ petition by allowing the above-quoted preliminary objection.

4. At the hearing of this appeal, a preliminary objection has been raised by Mr. H. S. Brar, learned Senior Deputy Advocate-General for the State of Punjab, to the effect that this appeal is barred by time, and thatthe application of the appellant (C. M 2230of 1973) for condonation of delay and extension of time by one day should be dismissed.The judgment of the learned Single Judge waspronounced on January 27. 1972. The limitation for filing on appeal under Clause 10 ofthe Letters Patent is thirty days. The appealif filed on February 26, 1972, would havebeen within time. The appellant is also entitled to exclude from the above quoted statutory period allowed for preferring the appealthe time if any spent in obtaining the requisite certified copy of the judgment of thelearned Single Judge. The time spent in obtaining such a copy (if such a copy was obtained) has not been disclosed in the application. Assuming that no certified copy was obtained by the appellant, this appeal could havebeen filed within limitation by February 26,1972. February 27, 28 and 29, 1972, wereadmittedly holidays, and the Court was closedon those days. The appeal was actually filedon 1-3-1972, by Mr. I. B. Bhandari, Advocate, who was at that time a rank junior inthe profession. It appears from the application filed by him under his own signature thathe did not distinguish between a month of31 days and a month of 30 days in calculating the period of limitation for filing the appeal, and thinking that one month and notthirty days was the prescribed period of limitation and the appeal could be filed onFebruary 27, 1972 (the closed day), actuallyfiled it on the reopening day of the Courtafter the above-mentioned holidays. Theabove-mentioned facts stated in the applicationof Mr. I. B. Bhandari (filed by him under hisown signature) clearly show that one cay'sdelay was caused in the filing of this appealdue to a bona fide mistaken impression of thelaw by Mr. I. B. Bhandari. It is settled lawthat no litigant should ordinarily suffer forsuch a mistake of his counsel. In these circumstances we are satisfied that there wassufficient cause for one day's delay in preferring the appeal. We accordingly allowthe application for condonation of delay andtreat the appeal as having been filed within;time.

5. On the merits of the controversy Mr. H. S. Brar, learned counsel for the State, could not point out to us as to what is that blooming disputed question of fad which would necessitate the examination of witnesses and require an elaborate investigation. He has candidly admitted that the land in question belonged to the appellant, that it was acquired by the Government, that the possession of the said land is still with the Government, that the State does not intend to give back the land, and that no compensation for acquiring that land has so far been determined or paid to the appellant. We are unable to understand as to what disputed question of fact still requires determination in the face of these admissions. The preliminary objection on the basis of which the petition was dismissed does not, therefore, appear to bold much water. Mr. Brar has then contended on the authroity of the Full Bench in lagdish Mitter's case (AIR 1969 Punj & Har 441) (supra) that the question of limitation for allowing the claim of the appellant would come in. Learned counsel for the State appears to be thinking that this is a suit for payment of money. The appellant is not claiming any money in the present proceedings, but has merely come to the Court for compelling the Governmental authorities to do the duty enjoined on them by law. For the issuance of a writ of mandamus in a case of this type there is no period of limitation prescribed by the Limitation Act. Question of delay in approaching the Court can certainly be one of the valid considerations in the matter of exercise of the High Court's discretion under Article 226 of the Constitution, but no limitation is prescribed for ap-iproaching this Court. If there is any fit case in which the Court would ignore delay in coming to the Court for an appropriate writ, order or direction under Article 226, it is this one. We have, therefore, no hesitation in holding that no question of limitation is involved in the writ petition and nothing stated in Jagdish Mitter's case (supra) bars the grant of appropriate relief to the appellant.

6. The merits of the appellant's claim for a mandamus do not appear to us to present any difficulty at all. Even during the British colonial regime it had been held by their Lordships of the Privy Council in England in a case from Nigeria -- Eshugbayi Eleko v. Officer Administering the Government of Nigeria, AIR 1931 PC 248, as follows:

'In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.'

The above-quoted dictum of the Privy Council was approved by a Division Bench of this Court in Khushal Singh v. Rameshwar Dayal, AIR 1954 Punj 151. We are committed by our traditions and the Constitution to no lower norms of jurisprudence.

7. When the possession of the appellant's land was taken over in 1935 the rights of the appellant were secured by Section 299(1) of the Government of India Act, 1935, which stated :--

'299(1) No person shall be deprived of his property save by authority of law.'

If the appellant's land had not been lawfully acquired, she was and is entitled to restoration of the possession of the land. But the fact that proceedings for determination of compensation started and went on for some time does tend to show that the acquisition was lawful. The loss of the original acquisition file accounts for non-availability of the notifications relating to the acquisition. Butthe choice still lies with the Government. Either it can treat the land as having been lawfully acquired in 1935, and determine the compensation on that basis and pay the same to the appellant in accordance with law, or if it is advised that the acquisition proceedings were not regular for want of the requisite notification the Government may now issue the appropriate notifications under Sections 4 and 6 of the Land Acquisition Act, 1894, and determine the compensation on that basis and pay the same to the appellant in accordance with law. Whatever course the State may adopt, it does not He in its mouth to deny to the appellant the compensation for her land which has admittedly been acquired and taken over by the Government unless, of course, the Government is prepared to give back the land and mesne profits for its use from 1935 to 1975.

8. For the foregoing reasons we allow this appeal, set aside the judgment and order of the learned Single Judge, grant the appellant's writ petition and issue a mandamus to the respondents to determine and pay in accordance with law the compensation to which the appellant may be found to be entitled for her land which was acquired in 1935 or to restore the possession of the land to the appellant. If the Government treats the land as having been properly acquired in 1935, the amount of compensation would be payable to her according to the market value and potential value of 1935, along with the statutory interest and solatium. If, however, the acquisition proceedings are sought to be now regularised by issuing a fresh notification, the market value at which the compensation would be payable to the appellant would be of the date on which the notification under Section 4 of the Land Acquisition Act is issued. The appellant would be entitled to her costs in the appeal as well as in the writ petition. Counsel's fee Rs. 300/-.

Sharma, J.

9. I agree.


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