Hemraj Chandrakar vs State Of Chhattisgarh

CIVIL APPEAL NO.3778 OF 2018 [Arising out of SLP (C) No.36272 of 2016]

Hemraj Chandrakar & Anr. .. Appellant(s)

Versus

State of Chhattisgarh & Ors. .. Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal arises from the final judgment and

order dated 28.09.2016 passed by the High Court of

Chhattisgarh at Bilaspur in W.A. No.467 of 2016

whereby the Division Bench of the High Court Signature Not Verified

dismissed the appeal filed by the appellants herein Digitally signed by ASHA SUNDRIYAL Date: 2018.04.13 15:11:14 IST Reason:

and upheld the order dated 08.04.2016 passed by

1 the Single Judge in Writ Petition (c) No.696 of 2016

by which the writ petition filed by the appellants

herein was dismissed on the ground of delay and

laches.

3) In order to appreciate the short legal issue

involved in the appeal, few relevant facts, which lie in

a narrow compass, need to be mentioned

herein-below.

4) The appellants are the writ petitioners before

the High Court.

5) Challenging the land acquisition proceedings,

the appellants filed petition being Writ Petition (C)

No.696/2016 before the High Court.

6) The Single Judge of the High Court dismissed

the writ petition by order dated 08.04.2016 on the

ground of delay and laches. Since the writ petition

was dismissed on the ground of delay and laches, no

ground of challenge raised by the writ petitioners

2 (appellants herein) was gone into by the Single

Judge.

7) The writ petitioners felt aggrieved and filed

intra-court appeal before the Division Bench. By

impugned judgment, the Division Bench dismissed

the appeal and upheld the order of the Single Judge

with the following observations contained in Para 4 of

the judgment:

“4. We have perused the record of the writ petition and in the writ petition there is not a single averment that the possession of the land has not been taken. In the writ petition, there is no averment much less any proof of the fact that this land has been taken over. Therefore, we have no reason to discard clear cut finding given by the learned Single Judge that the land has been used for development of Naya Raipur. Therefore, we find no merit in the appeal, which is accordingly dismissed.”

8) It is against this judgment, the appellants (writ

petitioners) felt aggrieved and filed this appeal by way

of special leave before this Court.

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9) Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

inclined to allow the appeal, set aside the impugned

judgment and remand the case to the Division Bench

for deciding Writ Appeal No.467 of 2016 afresh in

accordance with law.

10) The need to remand the case to the Division

Bench of the High Court has arisen because from the

perusal of Para 4 of the impugned judgment quoted

supra, we find that the Division Bench observed,

“there is not a single averment that the possession of

the land has not been taken. In the writ petition, there

is no averment much less any proof of the fact that this

land has been taken over”.

11) Learned counsel for the appellants (writ

petitioners), however, pointed out, by referring to the

prescribed Column No.3 (particulars of the

cause/order against which the petition is made) of

4 the writ petition, Para 4 of the application for grant of

interim relief dated 29.02.2016 filed along with the

writ petition, and paras 1.1, 1.20, 2.2, 2.4 and 2.7 of

the writ appeal memo that the writ petitioners have

made specific averments in these paras that they are

in possession of the land in question.

12) Learned counsel, therefore, contended that the

observation made by the Division Bench on this

issue, which led to dismissal of their appeal, does not

appear to be correct being contrary to the record of

the case.

13) In our opinion, in the light of the averments

made by the writ petitioners in the aforementioned

paras, as detailed above, which seem to have escaped

the attention of the Division Bench, the impugned

judgment needs to be set aside.

14) We, therefore, consider it just and proper to

remand the case to the Division Bench of the High

5 Court and request the Division Bench to decide the

writ appeal afresh in accordance with law.

15) We, however, leave all the questions including

the maintainability of the writ petition on any other

grounds open for its decision. Indeed, it is for the

Division Bench to decide the issues, while deciding

the writ appeal, uninfluenced by any of our

observations made in this judgment.

16) In view of the foregoing discussion, the appeal

succeeds and is, accordingly, allowed. Impugned

judgment is set aside. The appeal is restored to its

original number before the Division Bench of the

High Court for its disposal in accordance with law.

………………………………..J (R.K. AGRAWAL)

..………………………………J. (ABHAY MANOHAR SAPRE) New Delhi, April 13, 2018

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