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Friday, April 13, 2018

when 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. - liable to be set aside and is remanded for fresh disposal

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 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
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)
J U D G M E N T
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
dismissed the appeal filed by the appellants herein
and upheld the order dated 08.04.2016 passed by
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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
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(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
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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
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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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