Himachal Pradesh High Court
_________________________________________________________ vs Kanshi Ram (Deceased) Through Lrs on 13 March, 2026
( 2024:HHC:12977 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 112 of 2024
Date of Decision: 13.03.2026
.
_________________________________________________________
The Principal Secretary and others ...Appellants.
Versus
Kanshi Ram (deceased) through LRs ...Respondents.
of
Coram
Hon'ble Mr. Justice Romesh Verma, Judge.
Whether approved for reporting?
For the appellants: rt Mr. Diwakar Dev Sharma, Advocate.
For the respondents: Mr. Malay Kaushal, Advocate.
4._________________________________________________
Romesh Verma, Judge
The present appeal arises out of the judgment
dated 26.04.203, passed by learned District Judge, Bilaspur,
District Bilaspur, H.P. in Civil Appeal No. 19/13 of 2022,
whereby the judgment dated 01.01.2021 passed by learned
Civil Judge, Bilaspur in Civil Suit No. 265-1 of 2015 has been
affirmed.
2. The brief facts of the case are that the
respondents/plaintiffs filed a suit for declaration and
mandatory injunction on the ground that they are the owners
of the suit land comprising in Khata Khatoni No. 38min/47,
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Khasra No. 417, measuring 2-06 bighas situated at Village
Lag, Pargana Rattanpur, Tehsil Sadar, District Bilaspur, H.P .
.
3. Appellants/defendants utilized the land of the
respondents/plaintiffs for construction of link road namely
Deoth Lag Ghat-Jamli in 1987 and assured the
respondents/plaintiffs that compensation upon initiating the
of
acquisition proceedings under the Land Acquisition Act will
be paid to the respondents/plaintiffs. It was further averred
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that land of the other similar situated persons namely, Surjan
Singh and Chet Ram were acquired vide Award No. 1 of
1981, after the construction of the above said road and when
the plaintiff approached the defendants/ appellants for
obtaining the compensation, no action was taken by the
appellants/ defendants and the respondents/plaintiffs were
restrained by issuing notice under Section 80 of CPC.
Though, assurance was given to the respondents/ plaintiffs to
compensate them, but till date, no compensation amount has
been paid, therefore, the respondents/ plaintiffs are entitled
for the possession of the land, which was utilized for the
constructing of road illegally and unathorisedly and further
they are entitled for mandatory injunction by passing a decree
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directing the defendants to hand over the vacant possession
to its original nature.
.
4. Suit was contested by the appellants/
defendants on the ground of maintainability, estoppel, cause
of action etc. On merits, it was averred that the
appellants/defendants have constructed Deoth- Lag Ghat-
of
Jamli link road with the consent of the respondents/plaintiffs
and have not given any assurance to the respondents/
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plaintiffs to pay any kind of compensation.
5. The learned Trial Court framed the following
issues on 30th of March, 2017 in the following manner:-
1. Whether the plaintiffs are entitled for a
decree of declaration, as prayed for ? OPP
2. Whether the plaintiffs are entitled for a
decree of mandatory injunction directingthe defendants to acquire the suit land, in
case of non acquisition of the suit land, as
prayed for ? OPP
3. Whether the plaintiffs are entitled for a
decree of vacant possession of the suit
land by restoring the same to its original
nature ? OPP
4. Relief.
6. The parties were directed to adduce evidence
in support of their contentions and vide its judgment and
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decree dated 01.01.2021, learned Civil Judge, Bilaspur,
District Bilaspur, H.P. partly decreed the suit of the
.
respondents/ plaintiffs and declared the respondents/plaintiffs
to be owners of the suit land and further decree of mandatory
injunction was also passed directing the appellants/
defendants to acquire the suit land by initiating acquisition
of
proceedings forthwith.
7. Feeling dissatisfied, the appellants/ defendants
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preferred an appeal before the learned District Judge,
Bilaspur, H.P. The learned First Appellate Court vide its
judgment and decree dated 26.04.2023 dismissed the same
and affirmed the judgment passed by the learned trial Court.
8. Still feeling dissatisfied, the appellants/
defendants has preferred the present regular second appeal
against the impugned judgments and decrees.
9. It is contended by Mr. Diwakar Dev Sharma,
learned Additional Advocate General that since there was an
oral consent on the part of the respondents/plaintiffs,
therefore, no relief of any kind could have been granted to
the other side. Similarly, it is submitted that the suit has filed
by the respondents/plaintiffs was beyond the period of
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limitation, therefore on that ground, the suit was liable to be
dismissed.
.
10. On the other hand, Mr. Malay Kaushal, learned
counsel for the respondents/plaintiffs has defended the
judgments and decrees of the Courts below and has argued
that the factual matrix of the case has been rightly
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determined by the courts below, therefore, no interference of
any kind is required in the present proceedings.
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11. I have heard learned counsel for the parties.
The appeal is heard finally at the admission stage.
12. The only dispute in the present proceedings is
with respect to the utilization of the land of the respondents/
plaintiffs by the appellants/ defendants for the construction of
the road. It is an admitted fact that the land of the present
respondents/plaintiffs has been utilized for the construction of
the road and it is also admitted that the said utilization is
without adopting due process of law. No amount of
compensation in that regard has been paid to the
respondents/ plaintiffs. The respondents/ plaintiffs have
established their title, therefore, based on the title, they are
entitled for the grant of relief, as granted by the learned
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Courts below until and unless, such right of the respondents/
plaintiffs are defeated by perfection of title by way of adverse
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possession by the other side.
13. The plea of the appellants/ defendants that
there is an oral consent for the construction of the road is
without any basis or any documents. No document has been
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placed on record by the appellants/ defendants to
substantiate their plea that there was an oral consent on the
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part of the respondents/plaintiffs for the construction of the
road. Therefore, the said contention of the state/appellant is
liable to be rejected.
14. Therefore, taking into consideration the entire
oral and documentary evidence placed on record, the
appellants/defendants have not been able to satisfy this court
on what ground that the judgments and decrees as passed
by the learned Courts below are not sustainable.
15. In the present case, villagers have been
deprived of their property without adopting due process of law
including the payment of compensation, therefore, it does not
lie in the mouth of the appellants/ defendants that no relief
can be granted to the respondents/plaintiffs. Once, it has
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been established and proved that the land of the
respondents/ plaintiffs has been utilized for the construction
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of the road, it is incumbent upon the appellants/ defendants
to take appropriate action in the matter in accordance with
the Land Acquisition Act.
16. The learned Trial Court as well as learned
of
Appellate Court have rightly held that the
respondents/plaintiffs are the owners of the suit land and has
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passed the decree of mandatory injunction by directing the
appellants/defendants to acquire the suit land by initiating the
acquisition proceedings forthwith, if the same has not been
initiated and to pay the adequate compensation to
respondents/ plaintiffs.
17. The Hon’ble Apex Court in Vidya Devi vs.
State of Himachal Pradesh & others (2020) 2 SCC 569 has
held that no person can be forcibly dispossessed of his
property without any legal sanction and without following the
due process of law and depriving her payment of just and fair
compensation. The State being a welfare State is governed
by the rule of law cannot arrogate to itself a status beyond
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what is provided by the Constitution. The Court has held as
follows:
.
“12. We have heard learned Counsel for the
parties and perused the record.
12.1. The Appellant was forcibly expropriated of
her property in 1967, when the right to property
was a fundamental right guaranteed by Article 31
in Part III of the Constitution. Vidaya Devi vs Theof
State Of Himachal Pradesh on 8 January, 2020
Article 31 guaranteed the right to private property
1, which could not be deprived without due
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process of law and upon just and fair
compensation.
12.2. The right to property ceased to be a
fundamental right by the Constitution (Forty Fourth
Amendment) Act, 1978, however, it continued tobe a human right 2 in a welfare State, and a
Constitutional right under Article 300 A of theConstitution. Article 300 A provides that no person
shall be deprived of his property save by authorityof law. The State cannot dispossess a citizen of his
property except in accordance with the procedureestablished by law. The obligation to pay
compensation, though not expressly included in
Article 300 A, can be inferred in that Article The
State of West Bengal v. Subodh Gopal Bose and
Ors. AIR 1954 SC 92. 2 Tukaram Kana Joshi &
Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353.
12.3. To forcibly dispossess a person of his private
property, without following due process of law,
would be violative of a human right, as also the
constitutional right under Article 300 A of the::: Downloaded on – 03/04/2026 20:31:49 :::CIS
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Constitution. Reliance is placed on the judgment in
Hindustan Petroleum Corporation Ltd. v. Darius
Shapur Chenai4, wherein this Court held that:
.
” 6. … Having regard to the provisions contained in
Article 300A of the Constitution, the State in
exercise of its power of “eminent domain” mayinterfere with the right of property of a person by
acquiring the same but the same must be for a
public purpose and reasonable compensationof
therefor must be paid.” (emphasis supplied)
12.4 In N. Padmamma v. S. Ramakrishna
Reddy5, this Court held that:
rt
“21. If the right of property is a human right as also
a constitutional right, the same cannot be takenaway except in accordance with law. Article 300A
of the Constitution protects such right. The
provisions of the Act seeking to divest such right,keeping in view of the provisions of Article 300A of
the Constitution of India, must be strictlyconstrued.” (emphasis supplied) 4 (2005) 7 SCC
627.
12.5 In Delhi Airtech Services Pvt. Ltd. & Ors. v.
State of U.P. & Ors., this Court recognized theright to property as a basic human right in the
following words:
“30. It is accepted in every jurisprudence and by
different political thinkers that some amount of
property right is an indispensable safeguard
against tyranny and economic oppression of the
Government. Jefferson was of the view that liberty
cannot long subsist without the support of
property.
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“Property must be secured, else liberty cannot
subsist” was the opinion of John Adams. Indeed
the view that property itself is the seed bed which
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must be conserved if other constitutional values
are to flourish is the consensus among political
thinkers and jurists.” (emphasis supplied)
12.6 In Jilubhai Nanbhai Khachar v. State of
Gujarat,7 this Court held as follows :
“48. …In other words, Article 300A only limits the
of
powers of the State that no person shall be
deprived of his property save by authority of law.
There has to be no deprivation without any
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sanction of law. Deprivation by any other mode is
not acquisition or taking possession under Article300A. In other words, if there is no law, there is no
deprivation.” (emphasis supplied) 10.3. In this
case, the Appellant could not have been forciblydispossessed of her property without any legal
sanction, and without following due process of law,there is no deprivation.”
12.6 In this case, the Appellant could not have
been forcibly dispossessed of her property without
any legal sanction, and without following due
process of law, and depriving her 6 (2011) 9 SCC
354. 7 (1995) Supp. 1 SCC 596. payment of just
compensation, being a fundamental right on the
date of forcible dispossession in 1967.
12.8. The contention of the State that the Appellant
or her predecessors had “orally” consented to the
acquisition is completely baseless. We find
complete lack of authority and legal sanction in
compulsorily divesting the Appellant of her
property by the State.
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12.9. In a democratic polity governed by the rule of
law, the State could not have deprived a citizen of
their property without the sanction of law. Reliance
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is placed on the judgment of this Court in Tukaram
Kana Joshi & Ors. v. M.I.D.C. & Ors. wherein it
was held that the State must comply with the
procedure for acquisition, requisition, or any other
permissible statutory mode. The State being a
welfare State governed by the rule of law cannot
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arrogate to itself a status beyond what is provided
by the Constitution.
12.10. This Court in State of Haryana v. Mukesh
rt
Kumar held that the right to property is now
considered to be not only a constitutional or
statutory right, but also a human right. 8 (2013) 1
SCC 353. Human rights have been considered in
the realm of individual rights such as right to
shelter, livelihood, health, employment, etc.
Human rights have gained a multi− faceted
dimension.
12.11. 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. 12.12. The
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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
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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
of
breach of fundamental rights, and the remedy
claimed, and when and how the delay arose.
There is no period of limitation prescribed for the
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courts to exercise their constitutional jurisdiction to
do substantial justice.
12.13. 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.
12.14. 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
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226 of the Constitution, the case at hand deals
with a different scenario altogether. Functionaries
of the State took over possession of the land
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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.” (emphasis supplied)
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13. 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
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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 direct the State to pay
compensation to the appellant.
18. To the similar effect, the Hon’ble Apex Court in
(2022) 7 SCC 508 titled as Sukh Dutt Ratra and another vs.
State of H.P. and others has held as under:
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“14. It is the cardinal principle of the rule of law,
that nobody can be deprived of liberty or property
without due process, or authorization of law. The
recognition of this dates back to the 1700s to the.
decision of the King’s Bench in Entick v.
Carrington17 and by this court in Wazir Chand v.
The State of Himachal Pradesh18. Further, in
several judgments, this court has repeatedly held
that rather than enjoying a wider bandwidth of
lenience, the State often has a higher
responsibility in demonstrating that it has acted
within the confines of legality, and therefore, not
tarnished the basic principle of the rule of law.
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15. When it comes to the subject of private
property, this court has upheld the high threshold
of legality that must be met, to dispossess an
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individual of their property, and even more so
when done by the State. In Bishandas v. State of
Punjab19 this court rejected the contention that
the petitioners in the case were trespassers and
could be removed by an executive order, and
instead concluded that the executive action taken
by the State and its officers, was destructive of the
basic principle of the rule of law. This court, in
another case – State of Uttar Pradesh and Ors. v.
Dharmander Prasad Singh and Ors. 20, held: “A
lessor, with the best of title, has no right to resume
possession extra-judicially by use of force, from a
lessee, even after the expiry or earlier termination
of the lease by forfeiture or otherwise. The use of
the expression ‘re-entry’ in the lease-deed does
not authorise extrajudicial methods to resume
possession. Under law, the possession of a
lessee, even after the expiry or its earlier
termination is juridical possession and forcible
dispossession is prohibited; a lessee cannot be
dispossessed otherwise than in due course of law.
In the present case, the fact that the lessor is the
State does not place it in any higher or better
position. On the contrary, it is under an additional
inhibition stemming from the requirement that all
actions of Government and Governmental
authorities should have a ‘legal pedigree'”.
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
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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
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proceedings initially in 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
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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 CWP
No. 1192/2004) and 20.12.2013 (in 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, 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::: Downloaded on – 03/04/2026 20:31:49 :::CIS
16 ( 2024:HHC:12977 )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
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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
of
injustice in taking the one course or the other, so
far as relates to the remedy.”
19. The facts of the present case reveal that the
State has, in a clandestine and arbitrary manner,
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actively tried to limit disbursal of compensation as
required by law, only to those for which it was
specifically prodded by the courts, rather than to
all those who are entitled. This arbitrary action,
which is also violative of the appellants’ prevailing
Article 31 right (at the time of cause of action),
undoubtedly warranted consideration, and
intervention by the High Court, under its Article
226 jurisdiction. This court, in Manohar (supra) – a
similar case where the name of the aggrieved had
been deleted from revenue records leading to his
dispossession from the land without payment of
compensation – held: 6″Having heard the learned
counsel for the appellants, we are satisfied that
the case projected before the court by the
appellants is utterly untenable and not worthy of
emanating from any State which professes the
least regard to being a welfare State. When we
pointed out to the learned counsel that, at this
stage at least, the State should be gracious
enough to accept its mistake and promptly pay the
compensation to the respondent, the State has
taken an intractable attitude and persisted in
opposing what appears to be a just and
reasonable claim of the respondent.
Ours is a constitutional democracy and the
rights available to the citizens are declared by the
Constitution. Although Article 19(1)(f) was deleted
by the Forty-fourth Amendment to the
Constitution, Article 300-A has been placed in the
Constitution, which reads as follows: “300-A.
Persons not to be deprived of property save by
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authority of law.–No person shall be deprived of
his property save by authority of law.” 8.This is a
case where we find utter lack of legal authority for
deprivation of the respondent’s property by the
.
appellants who are State authorities. In our view,
this case was an eminently fit one for exercising
the writ jurisdiction of the High Court under Article
226 of the Constitution…
20. Again, in Tukaram Kana Joshi (supra) while
dealing with a similar fact situation, this court held
as follows: (SCC p. 359 para11)
“11”There are authorities which state that delay
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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
rt
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 32 or 226 of the
Constitution, the case at hand deals with a
different scenario altogether. The 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.”
21. Having considered the pleadings filed, this
court finds that the contentions raised by the
State, do not inspire confidence and deserve to be
rejected. The State has merely averred to the
appellants’ alleged verbal consent or the lack of
objection, but has not placed any material on
record to substantiate this plea. Further, the State
was unable to produce any evidence indicating
that the land of the appellants had been taken
over or acquired in the manner known to law, or
that they had ever paid any compensation. It is
pertinent to note that this was the State’s position,
and subsequent findings of the High Court in 2007
as well, in the other writ proceedings.”
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19. The similar position has been reiterated by the
Hon’ble Division Bench of this Court in CWP No. 491 of 2022,
.
titled as Sakuntla Devi and another vs. State of Himachal
Pradesh & another dated 20.10.2023. After relying upon the
judgment of the Apex Court in Vidya Devi & SukhDutt Ratra’s
case, the Court held as follows:
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“7. In the aforesaid judgments, Hon’ble Apex
Court has categorically held that contention
advanced by the State of delay and laches of the
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appellant in moving the Court is liable to be
rejected especially when it is not in dispute thatpetitioner are suffering continuous loss coupled
with the fact that they repeatedly requested the
authorities to initiate acquisition proceedings.
8. If the aforesaid judgments are read in their
entirety, it clearly emerges that land owners
cannot be deprived of their land, without followingdue process of law. If it is so, ground raised by the
respondents that petitioners have made their land
available with consent, is of no consequencerather, this court, having taken note of the fact that
the land of petitioners stands utilized for the
construction of road in question, is compelled to
agree with the submission of learned counsel for
the petitioners that her clients are entitled for
compensation qua the land utilized by
respondents for construction of road in question.
10. Admittedly, land of the petitioners stands
utilized for construction of road but till date, they
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19 ( 2024:HHC:12977 )the respondent-State certainly amounts to forcible
dispossession of the petitioners from their land,
which is violative of provision contained under Art.
.
300-A of the Constitution of India.
14. In case titled, State of Himachal Pradesh v.
Umed Ram Sharma (1986) 2 SCC 68, Hon’ble
Apex Court has held that entire State of Himachal
Pradesh is a hilly area and without workable
roads, no communication is possible; every
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person is entitled to life as enjoined in Article 21 of
the Constitution of India; every person has right
under Article 19 (1) (b) of the Constitution of India
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to move freely, throughout the territory of India; for
the residents of hilly areas, access to road is
access to life itself. Stand taken by the
respondents that there was a policy for providing
roads on demand of residents as a favour to them
on conditions that they would not claim
compensation, cannot be sustained because such
stand is violative of Article 300A of the
Constitution of India.
15. In case titled Hari Krishna Mandir Trust v.
State of Maharashtra and others, 2020 9 SCC
356, Hon’ble Apex Court has held that though
right to property is not a fundamental right, but it is
still a constitutional right under Article 300A of the
Constitution of India and also a human right; in
view of the mandate of Article 300A, no person
can be deprived of his property save by the
authority of law. No doubt, State possesses the
power to take or control the property of the owner
of the land for the benefit of public, but at the
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20 ( 2024:HHC:12977 )
same time, it is obliged to compensate the injury
by making just compensation.”
.
20. The Courts below, after appreciating the oral as
well as documentary evidence placed on record and on the basis
of the title, decreed the suit as filed by the respondents and have
rightly came to the conclusion that they are entitled for mandatory
of
injunction with the direction to acquire the portion of the suit land
which has been utilized by the present appellants for the
rt
construction of the road.
21. The Hon’ble Apex Court has repeatedly held that
no person can be deprived of his property without adopting due
process of law, therefore, under such circumstances, the plea as
set up by the appellants-State is not tenable in the facts and
circumstances of the case, once they have utilized the land of the
villagers without adopting due process of law. There are
concurrent findings of fact by the Courts below which does not call
for any interference.
22. The Hon’ble Supreme Court in catena of
judgments has held that the first appellate is the final court of the
fact. No doubt, second appellate court exercising the power under
Section 100 CPC can interfere with the findings of fact on limited
grounds such as – (a) where the finding is based on inadmissible
evidence; (b) where it is in ignorance of the relevant admissible
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21 ( 2024:HHC:12977 )
evidence; (c) where it is based on misreading of evidence; (d)
where it is perverse, but that is not case in hand.
.
23. The Hon’ble Supreme Court while dealing with
scope of interference under Section 100 in Hero Vinoth (minor)
vs. Seshammal, (2006) 5 SCC 545 has held as under:
“18. It has been noted time and again that without
of
insisting for the statement of such a substantial
question of law in the memorandum of appeal and
formulating the same at the time of admission, the
High Courts have been issuing notices and
rt
generally deciding the second appeals withoutadhering to the procedure prescribed under
Section 100 of the CPC. It has further been found
in a number of cases that no efforts are made to
distinguish between a question of law and asubstantial question of law. In exercise of the
powers under this section in several cases, thefindings of fact of the first appellate court are
found to have been disturbed. It has to be kept inmind that the right of appeal is neither a natural
nor an inherent right attached to the litigation.
Being a substantive statutory right, it has to be
regulated in accordance with law in force at the
relevant time. The conditions mentioned in the
section must be strictly fulfilled before a second
appeal can be maintained and no court has the
power to add or to enlarge those grounds. The
second appeal cannot be decided on merely
equitable grounds. The concurrent findings of
facts will not be disturbed by the High Court in::: Downloaded on – 03/04/2026 20:31:49 :::CIS
22 ( 2024:HHC:12977 )exercise of the powers under this section. Further,
a substantial question of law has to be
distinguished from a substantial question of fact.
.
This Court in Sir Chunilal V. Mehta and Sons Ltd.
v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC
1314) held that : “The proper test for determiningwhether a question of law raised in the case is
substantial would, in our opinion, be whether it is
of general public importance or whether it directlyof
and substantially affects the rights of the parties
and if so whether it is either an open question in
the sense that it is not finally settled by this Court
rt
or by the Privy Council or by the Federal Court or
is not free from difficulty or calls for discussion ofalternative views. If the question is settled by the
highest court or the general principles to be
applied in determining the question are wellsettled and there is a mere question of applying
those principles or that the plea raised is palpablyabsurd the question would not be a substantial
question of law.
” 19. It is not within the domain of the High Court
to investigate the grounds on which the findingswere arrived at, by the last court of fact, being the
first appellate court. It is true that the lower
appellate court should not ordinarily reject
witnesses accepted by the trial court in respect of
credibility but even where it has rejected the
witnesses accepted by the trial court, the same is
no ground for interference in second appeal when
it is found that the appellate court has given
satisfactory reasons for doing so. In a case where
from a given set of circumstances two inferences::: Downloaded on – 03/04/2026 20:31:49 :::CIS
23 ( 2024:HHC:12977 )of fact are possible, one drawn by the lower
appellate court will not be interfered by the High
Court in second appeal. Adopting any other.
approach is not permissible. The High Court will,
however, interfere where it is found that the
conclusions drawn by the lower appellate courtwere erroneous being contrary to the mandatory
provisions of law applicable or its settled position
on the basis of pronouncements made by theof
Apex Court, or was based upon inadmissible
evidence or arrived at by ignoring material
evidence. 20. to 22 xx xx xx xx
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23. To be “substantial” a question of law must be
debatable, not previously settled by law of theland or a binding precedent, and must have a
material bearing on the decision of the case, if
answered either way, insofar as the rights of theparties before it are concerned. To be a question
of law “involving in the case” there must be first afoundation for it laid in the pleadings and the
question should emerge from the sustainablefindings of fact arrived at by court of facts and it
must be necessary to decide that question of lawfor a just and proper decision of the case. An
entirely new point raised for the first time before
the High Court is not a question involved in the
case unless it goes to the root of the matter. It will,
therefore, depend on the facts and circumstance
of each case whether a question of law is a
substantial one and involved in the case, or not;
the paramount overall consideration being the
need for striking a judicious balance between the
indispensable obligation to do justice at all stages::: Downloaded on – 03/04/2026 20:31:49 :::CIS
24 ( 2024:HHC:12977 )and impelling necessity of avoiding prolongation in
the life of any lis.”
24. The Hon’ble Supreme Court in Annamalai vs.
.
Vasanthi, 2025 INSC 1267, has held as follows:-
“16. Whether D-1 and D-2 were able to discharge
the aforesaid burden is a question of fact which
had to be determined by a court of fact after
appreciating the evidence available on record.
of
Under CPC, a first appellate court is the final court
of fact. No doubt, a second appellate court
exercising power(s) under Section 100 CPC can
rt
interfere with a finding of fact on limited grounds,
such as, (a) where the finding is based oninadmissible evidence; (b) where it is in ignorance
of relevant admissible evidence; (c) where it is
based on misreading of evidence; and (d) where itis perverse. But that is not the case here.
17. In the case on hand, the first appellate court, in
paragraph 29 of its judgment, accepted the
endorsement (Exb. A-2) made on the back of aregistered document (Exb. A-1) after considering
the oral evidence led by the plaintiff-appellant andthe circumstance that signature(s)/thumbmark of
D-1 and D-2 were not disputed, though claimed as
one obtained on a blank paper. The reasoning of
the first appellate court in paragraph 29 of its
judgment was not addressed by the High Court. In
fact, the High Court, in one line, on a flimsy
defense of use of a signed blank paper, observed
that genuineness of Exb. A-2 is not proved. In our
view, the High Court fell in error here. While
exercising powers under Section 100 CPC, it::: Downloaded on – 03/04/2026 20:31:49 :::CIS
25 ( 2024:HHC:12977 )
ought not to have interfered with the finding of fact
returned by the first appellate court on this aspect;
more so, when the first appellate court had drawn
.
its conclusion after appreciating the evidence
available on record as also the circumstance that
signature(s)/thumbmark(s) appearing on the
document (Exb.A2) were not disputed. Otherwise
also, while disturbing the finding of the first
appellate court, the High Court did not hold that
of
the finding returned by the first appellate court is
based on a misreading of evidence, or is in
ignorance of relevant evidence, or is perverse.
rt
Thus, there existed no occasion for the High Court,
exercising power under Section 100 CPC, to
interfere with the finding of the first appellate court
regarding payment of additional Rs. 1,95,000 to D-
1 and D-2 over and above the sale consideration
fixed for the transaction. 18. Once the finding
regarding payment of additional sum of
Rs.1,95,000 to D-1 and D-2 recorded by the first
appellate court is sustained, there appears no
logical reason to hold that the plaintiff (Annamalai)
was not ready and willing to perform its part under
the contract particularly when Rs. 4,70,000, out of
total consideration of Rs. 4,80,000, was already
paid and, over and above that, additional sum of
Rs.1,95,000 was paid in lieu of demand made by
D-1 & D-2. This we say so, because an opinion
regarding plaintiff’s readiness and willingness to
perform its part under the contract is to be formed
on the entirety of proven facts and circumstances
of a case including conduct of the parties. The test
is that the person claiming performance must
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26 ( 2024:HHC:12977 )
satisfy conscience of the court that he has treated
the contract subsisting with preparedness to fulfill
his obligation and accept performance when the
.
time for performance arrives.”
25. No other point was raised by the learned counsel
for the parties.
26. Both the Courts below have rightly appreciated
of
the Point in controversy after considering the oral as well as
documentary evidence placed on record. No question of law much
rt
less the substantial question of law arises in the present case.
27. In view of above, the present appeal being devoid
of any merit deserves to be dismissed. Ordered accordingly.
Pending application(s), if any, also stands disposed of.
(Romesh Verma)
Judge
March 13, 2026 (Nisha)
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