Bombay High Court
Shankar Ganpati Khapre And Anr vs The Deputy Collector Kolhapur And Ors on 2 May, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:19937-DB WP [email protected]
Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4987 OF 2022
Mrs. Sumitra Shridhar Khane ...Petitioner
Versus
1.The Deputy Collector, Spl. Land Acquisition No.12,
Kolhapur
2. Deputy Collector (Rehabilitation) Kolhapur,
3. Collector, Kolhapur,
4. State of Maharashtra ...Respondents
AND
WRIT PETITION NO. 4991 OF 2022
1. Shankar Ganpati Khapre
2. Dattatrya Ganpati Khapre ...Petitioners
Versus
1.The Deputy Collector, Spl. Land Acquisition No.12,
Kolhapur
2. Deputy Collector (Rehabilitation) Kolhapur,
3. Collector, Kolhapur,
4. State of Maharashtra ...Respondents
AND
WRIT PETITION NO. 4988 OF 2022
Nivrutti Ganu Parit Decd. Thr. Legal heirs Muktabai
Nivrutti Parit(since Decd) Thr. Its legal heirs & Ors. ...Petitioners
Versus
1.The Deputy Collector, Spl. Land Acquisition No.12,
Kolhapur
2. Deputy Collector (Rehabilitation) Kolhapur,
3. Collector, Kolhapur,
4. State of Maharashtra ...Respondents
AND
WRIT PETITION NO.11372 OF 2022
Maruti Rama Bhoite Decd Thru. Legal heirs ...Petitioners
Versus
1.The Deputy Collector, Spl. Land Acquisition No.12,
Page 1 of 48
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Kolhapur
2. Deputy Collector (Rehabilitation) Kolhapur,
3. Collector, Kolhapur,
4. State of Maharashtra ...Respondents
AND
WRIT PETITION NO.15996 OF 2022
Rama Yallappa Bharmal & Anr. ...Petitioners
Versus
1.The Deputy Collector, Spl. Land Acquisition No.12,
Kolhapur
2. Deputy Collector (Rehabilitation) Kolhapur,
3. Collector, Kolhapur,
4. State of Maharashtra ...Respondents
__________
Mr. Nitin P. Deshpande with Ms. Kanchan Phatak, Ms. Rachana Harpale for
Petitioners.
Mr. S. B. Kalel, AGP for the Respondent/State.
__________
CORAM: G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
DATE : 02 MAY 2025
ORAL JUDGMENT (Per G. S. Kulkarni, J.):-
Preface
1. In a society governed by the rule of law, there can be no discrimination in
the application of law to persons who are similarly placed. In this situation, there
cannot be different standards, yardsticks and methods in the application of law, to
persons of limited means, who are not literate or who are not well versed of their
legitimate legal and constitutional rights or on a consideration that they belong to
rural areas. Likes should be treated alike. This is a Constitutional guarantee of
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equality before the law and equal protection of the laws in a welfare state. It is the
solemn duty and responsibility of the State to uniformly apply the law, as also
take corrective actions when it is noticed that the State's actions are in breach of
law and the constitutional rights. Any breach of such fundamental mandates has
no place in a civilized society. These issues, which stem from the guarantee of
equality of rights and the constitutional recognition of a right not to be deprived
of property, save by authority of law, confronts us in the present proceedings.
2. Rule. Respondents waive service. By consent of the parties, heard finally.
3. These proceedings under Article 226 of the Constitution of India raise
common issues of facts and law. Hence, they are being decided by this common
judgment. The first writ petition was argued as the lead petition. For convenience,
we refer to the pleadings on this petition.
Facts
4. The petitioner is the owner of land bearing Gat No.156 admeasuring 1 H.
12 R. situated at village Vhanur, Tal. Kagal, District-Kolhapur. It is the
petitioner's case that in the year 1990 various lands in the petitioner's village were
notified for mass acquisition, for a public project of rehabilitation of the persons
affected by the Dudhganga Irrigation Project. To further such intention, mutation
entries made in the revenue records indicating that the land would be acquired for
the said project. The mutation entry qua the petitioner's land was dated 6
October 1990. A notification under Section 4 of the Land Acquisition Act, 1894
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(for short "the 1894 Act") was issued on 20 December 1990; thereafter a
notification under Section 6 was issued on 8 March 1991. Subsequent thereto,
notices under Section 9(1) & (3) were issued on 16 March 1991. On such
backdrop, a "land acquisition award" came to be published on 28 February 1992.
5. The petitioner contends that prior to the issuance of the aforesaid statutory
notifications as the petitioner's land was subject matter of mass acquisition,
following the pattern being adopted by the Special Land Acquisition Officer
and/or a fait accompli, she voluntarily handed over the possession of her land
admeasuring 1H 12 R to the State Government on 19 September 1990 which
being recorded in a formal affidavit dated 19 September 1990 taken from the
petitioner by respondent No.1, which we would refer hereafter. This was also
reflected in Mutation Entry No. 729 as borne by the revenue records.
Admittedly, the petitioner was not paid the land acquisition compensation. The
reason appears to be that the petitioner hailing from a rural area was certainly not
a person well versed with her legal rights, that her land could only be taken away
or her ownership divested only by following due process of law, and on payment
of compensation. The petitioner appears to have bowed down before the might
of the State Officers and handed over the possession of her land, without an
award much less a farthing under any award. It was a legitimate expectation that a
land acquisition award would be published, or in a manner known to law, an
adequate compensation would be paid to the petitioner. In these circumstances,
on 3 December 2021, petitioner applied to the Deputy Collector, (Rehabilitation)
for payment of compensation. On such application, the Deputy Collector
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reported that the petitioner's land was already allotted to the project affected
persons. It was acknowledged that the petitioner's land was not included in the
land acquisition award, indicating that the process of acquisition of land was not
completed. A copy of the report in that regard dated 2 February 2022 of the
Deputy Collector is annexed to the petition, the contents of which are required to
be noted which read thus:-
"(Official Translation of a photocopy of typewritten in Marathi)
EXHIBIT-E
COLLECTOR OFFICE, KOLHAPUR.
Office of the Deputy Collector (Land Acquisition) No.12
Swaraj Bhavan, Nagala Park, Kolhapur
--------------------------------------------------------------------------------
Number : L.A.-12/R.R./472/2021
Date : 02.02.2022
To,
The Deputy Collector (Rehabilitation)
Kolhapur.
Subject:- Regarding getting consideration for the acquired lands
situated at village Vhannur, Tal. Kagal, District
Kolhapur, for rehabilitation of the Dudhganga Project
Affected persons.
Reference:- Application dated 03.12.2021 of Sau. Sumitra wife of
Shridhar Khane, residing at village Vhannur, Tal. Kagal,
District Kolhapur, submitted to this Office.
The Applicant vide the above-referred application on the above-
mentioned subject, has requested to grant as early as possible and as per
today's market rate, maximum consideration in respect of the land
bearing Gat number 156, area admeasuring 1.12.00 hectares Are, situated
at village Vhannur, Tal. Kagal, District Kolhapur, voluntarily given into
possession.
In pursuance thereof, on verifying the records of this Office, the
below-mentioned facts are noticed.
11 pt
As per the Land Acquisition Matter No. L.A./S.R./ Vhannur-72
of the Office of the then Special Land Acquisition Officer No.12,
Kolhapur, the process of acquisition of the area adm. 1.12 Hechare-Are
from out of the area of the Land bearing Gat No.156 belonging to the
Khata-holder Sau. Sumitra w/of Shridhar Khane was in progress. On
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perusing the available records, it is found that in the Notification issued
under Section-6 under the said land acquisition process, the area adm.
1.12 Hechare-Are from out of the area of the Land bearing Gat No.156
was notified for acquisition. However, in the Award in respect thereof, the
said Gat number has not been included. Further, on Page No.3 of the said
Award, it is mentioned about the aforesaid Gat number as :
".......However, the Commissioner, Pune Division, Pune, by his
order No. Rehabilitation - W.S.-3/50/91 dated 08.03.1991, issued
directions to conduct re-enquiry, to carry out site-inspection and to again
submit Report in respect thereof and therefore, the said land has not been
included in this Award. Hence, pursuant to the order of the
Commissioner, re-enquiry has been conducted and the aforesaid lands or
instead of the same, other lands of the Khata-holder are again notified
under section 4.
Gat Number Area Gat Number Area
Hectare Are Hectare Are
152 Part 2.02 841 4.35 Po.Kha.
0.03
156 Part 1.12 864 0.37
381 Part 0.10 913 part 1.55
529 Part 0.45 958 part 0.41
528 Part 4.06 965 part 2.02
705 Part 0.48 1129 part 0.88
723 Part 0.05 1156 part 3.90
719 Part 2.61 1124 part 0.33
Further, as the entire land bearing Gat Number 209 is fallow land,
the said land has not been included in the present Award.
Aforesaid facts have been mentioned in the said Award. However,
as regards the land bearing Gat No. 156 belonging to Sau. Sumitra, w/of
Shridhar Khane, it is not understood from the available documents, as to
which further steps have been taken by your Office about the report
submitted again. It is further found that the process of acquisition in
respect of the land bearing the aforesaid Gat Number, has not been
completed. Therefore, it is requested to verify even from the documents
maintained i8 ptn the Records with your office, the facts about the said
process.
On perusing the Mutation Entry No. 729 recorded in 7/12
extract in respect of the land bearing Gat No. 156 in this matter, it is
found that Sau. Sumitra, w/of Shridhar Khane has voluntarily given
possession of the land adm. 1.12 hectares-Are from out of the land bearing
Gat No.156 and that in pursuance thereof, the name of the Collector and
Deputy Director, Project Rehabilitation (Land), Kolhapur" has been
entered in 7/12 extract in respect of the said land bearing Gat Number
156 and that the said land has been allotted to the Project affected
persons.
The aforesaid facts are found in respect of the land bearing Gat
No.156 mentioned by the Applicant. Therefore, you are requested to
ascertain the facts as to which steps have been by your Office about the
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proposal of the acquisition of the land bearing the aforesaid Gat number
and thereafter, to take further appropriate steps as per the Rules
accordingly.
(Signature Illegible)
(Vivek V. Kale)
Deputy Collector (Land
Acquisition) No.12
Kolhapur
Copy to : Sau. Sumitra, w/of Shridhar Khane,
residing at Vhannur,
Tal. Kagal, District Kolhapur."
(emphasis supplied)
6. It is apparent from the aforesaid report of the Deputy Collector, Land
Acquisition, Kolhapur, as addressed to the Deputy Collector (Rehabilitation),
Kolhapur, that the Government record revealed that the process to acquire the
petitioner's land was set into motion and was in progress, however, qua the
petitioner's land admeasuring 1 H 12 R, in Gat No.156, the award did not include
the petitioner's land, so as to conclude the acquisition. Also, there is no dispute
that sans an award qua the petitioner's land, mutation entry No.729 was
incorporated in the revenue records (7/12 extracts) , which indicated that the
petitioners land admeasuring 1H 12R in Gat No.156 was handed over to the
Deputy Director, Project Rehabilitation (Land), Kolhapur. It is also clear that the
name of the said State authority was incorporated in the revenue records as the
owner of the land. It is in such context, the Deputy Collector observed that in the
petitioners case, further appropriate steps would be required to be taken as per
rules. As noted above, it was already a fait accompli for the petitioner as the
petitioner is not only rendered landless, but further as the petitioner's land has
already been allotted to the Project Affected Persons. The petitioner's land for
quite sometime is now in possession and in use of third parties / allottees, without
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the petitioner being divested of her ownership rights in a manner the law would
mandate.
7. It is the petitioner's case that the respondents have not taken any action on
the aforesaid report of the Deputy Collector (Land Acquisition) dated 2 February
2022. The petitioner contends that such action of the respondents to take away
petitioner's land and indisputedly utilize the same for public purpose without
payment of compensation to the petitioner is in the teeth of law laid down by the
Supreme Court in Vidya Devi Vs. State of Himachal Pradesh & Ors. 1 wherein the
Supreme Court has recognized the constitutional rights guaranteed under Article
300A of the Constitution of India to hold that in land acquisition cases, no
person shall be deprived of his property save by authority of or procedure
established by law, that is by adhering to the provisions of the land acquisition
law. The petitioner contends that such invaluable rights guaranteed to the
petitioner under the Constitution stand breached by the respondents by non-
payment of compensation to the petitioner and in taking away the petitioner's
land. It is in these circumstances, the petitioner has approached this Court
praying for the following substantive relief:-
"(a) this Hon'ble Court may by way of appropriate writ Order or
direction direct the respondents to complete the acquisition of the
Petitioner' land bearing Gat No. 156 admeasuring 01 H 12 R situated at
village Vhannur, Tal. Kagal, Dist. Kolhapur and further direct them to pay
to the petitioners monetary compensation and 15% interest p.a. as per
Sec. 80 of Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 on the
compensation within four weeks from the date of order of this Hon'ble
Court."
1 (2020) 2 SCC 569
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Counter Affidavits :-
8. The first counter affidavit is a short / one page affidavit of Mr. Vivek Kale,
Deputy Collector (Land Acquisition) no. 12, Kolhapur, opposing the petition on
behalf of respondent no. 1, which inter alia records the indisputed facts to
contend the following:
i. The land acquisition proceedings to acquire the petitioner's (Mrs. Sumitra
Shridhar Khane) land bearing Gat No. 156, for area admeasuring 1 H 12 R of
village Vhannur, Taluka - Kagal, were initiated. The land was also notified under
section 6 of the 1894 Act for acquisition for a public purpose.
ii. The petitioner voluntarily offered the possession of the land.
iii. The Divisional Commissioner, Pune directed to make a fresh enquiry with
spot inspection of the land bearing Gat no. 156, area admeasuring 1 H 12 R.
iv. The petitioner's land was however not included in passing of the land
acquisition award dated 28 February 1992.
9. There is a second counter affidavit of Ms. Varsha Tanaji Shingan, Deputy
Collector (Resettlement) Kolhapur filed on behalf of Respondent no. 2. In this
affidavit, it is not disputed that the land owned by the petitioner falls in Village
Vhannur, which was situated in the benefited zone of Dudhganga Irrigation
Project. That lands in Village Vhannur were acquired for the purpose of
resettlement of Project Affected Persons of Dudhganga Irrigation Project. It is
stated that several farmers, including the Petitioner, voluntarily surrendered and
handed over their lands for the Dudhganga Project and to that effect, the
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petitioner executed an "Affidavit of Voluntary Possession" dated 19 September
1990 surrendering and handing over the possession of the land bearing Gat no.
156 admeasuring 1H 12 R. It is stated that accordingly, the Collector and Dy.
Director Project Resettlement (Land), Kolhapur passed an order dated 19
September 1990, under which the name of the Collector and Dy. Director, Project
Resettlement (Land), Kolhapur was mutated in the 7/12 extract of the said land
vide mutation entry no. 729 dated 25 September 1990. It is next stated that the
Additional Collector, Kolhapur, issued multiple orders in favour of several
persons allotting portions of land including the petitioner's land from Gat No.
156. The affidavit further states that by an order dated 21 June 2014, the
Additional Collector allotted land admeasuring H 0.40 R to Maruti Bhau Tamkar,
and land admeasuring H 0.40 R to the Ananda Krishnat Belekar from the land
which belonged to the petitioner. It is stated that thereafter, by an order dated 13
December 2013, the Additional Collector allotted land admeasuring H 0.17 R to
Vasant Babu Kamble, and by a further order dated 21 March 2016, land
admeasuring H 0.15 R was allotted in favour of some other Project Affected
Persons. This reply affidavit thus clearly states that vacant and peaceful possession
of the land belonging to the petitioner and other similar persons was handed over
to the Project Affected Persons with their names mutated in the 7/12 extract. It is
contended that as on today, the possession of the petitioner's land and similar
such lands is with the Project Affected Persons.
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10. It is next contended that in 2021, the petitioner filed an application dated
3 December 2021 with respondent no. 2, seeking compensation on the
acquisition of the petitioner's land for land allotment to the Project Affected
Persons, as per market valuation. On such application, respondent no. 2 issued a
letter to respondent no. 1, who submitted a detailed report. Insofar as the
possession of the petitioner's land is concerned, it is stated that the same was
taken over in the year 1990, and as per the decision of the Supreme Court in State
of Maharashtra v. Digambar 2, the petitioner is not entitled to seek compensation
on the ground of unexplained delay in filing the petition after 20 years. It is next
contended that the petitioner filed an application for payment / release of
compensation in 2021 and the present petition is filed after over 32 years, after
the possession of the petitioner's land was taken over. Hence, it ought not be
entertained. It is next contended that since the possession of the said land was
already handed over to the State Government long back, as per Article 123 of the
Limitation Act, 1963, the reasonable period to pursue the cause of action against
the same was three years. It is asserted that the petitioner, having voluntarily
surrendered the land long years back, has filed the present writ petition, without
any justifiable explanation on the prolonged delay in approaching this Court,
hence the petition be not entertained. It is next contended that Government of
Maharashtra vide Government Resolution dated 26 October 2010 has decided
that whenever any person hands over his land to the Government for public
purpose, he loses the right to seek compensation after a specified period of time,
2 (1995) 4 SCC 683
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and it is to be presumed that such person has waived his right to seek
compensation for giving land to Government.
Submissions
11. Mr. Deshpande, learned counsel for the petitioner has made elaborate
submissions asserting the petitioner's case as pleaded in the writ petition.
He submits that the respondents' contention that there is a delay in filing of
the petition is misconceived. His submission is that it is a settled principle of
law, as laid down by the Supreme Court that the petitioner's land could not
have been taken away without granting land acquisition compensation to
the petitioner. He submits that the right to receive compensation being a
continuing cause of action, it will survive till the date compensation is paid
to the petitioner. Hence, the case of the respondents as pleaded in the
counter affidavits cannot be accepted. It is next submitted that in the
present facts, the Government Resolution dated 26 October 2010 is per se
not applicable and in fact, the same would be contrary to the decisions of
the Supreme Court, if the same is sought to be applied in the present facts.
In support of his contention, Mr. Deshpande has placed reliance on the
decisions which we would hereafter discuss.
12. On the other hand Mr. Kalel, learned AGP has supported the
respondents case relying on the affidavits, which we have discussed herein
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before in some detail. His primary contention is that as there is a delay in
filing the petition, in supporting this submission, reliance is placed on the
decision of the Supreme Court in State of Maharashtra Vs. Digambar
(supra) and Chairman, State Bank of India Vs. M.J. James 3. He would
submit that the petition accordingly needs to be dismissed.
Reasons and Conclusion:-
13. We have heard learned Counsel for the parties. With their assistance, we
have perused the record.
14. It is not in dispute that the petitioner is the owner of the land bearing Gat
no. 156 admeasuring 1 H 12 R situated at village Vhanur, Taluka Kagal,
Kolhapur. It is also not in dispute that the petitioner voluntarily handed over the
possession of her land to the State Government by executing an Affidavit of
Voluntary Possession dated 19 September 1990, which is reflected in the
Mutation Entry No. 729 dated 25 September 1990. Notification under Section 6
of the 1894 Act was published on 8 March 1991 seeking to acquire lands in the
petitioner's village for the purpose of rehabilitation of project affected persons of
the 'Dudhganga Irrigation Project', which included the petitioner's land.
However, the land acquisition award published on 28 February 1992, which was
in respect of several lands, the same did not include the petitioner's land, hence
no compensation was paid to the petitioner.
3 (2022) 2 SCC 301
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The Question
15. On such conspectus, the primary issue as involved in these proceedings is
whether in the facts and circumstances of the case the petitioner would be entitled
for the land acquisition compensation qua her land which indisputedly stands
acquired/utilized for a public purpose of rehabilitation of Project Affected
Persons. Also, whether the delay as alleged by the respondents in the petitioner
asserting her rights to demand compensation and in approaching the Court, can
be regarded to be fatal, so as to disentitle the petitioner to the compensation.
16. At the outset, we may observe that a person can be deprived of his
property only by a process known to law, which is the constitutional mandate
flowing from Article 300A of the Constitution of India. Article 300A reads thus:-
"Article 300A. Persons not to be deprived of property save by
authority of law -
No person shall be deprived of his property save by authority
of law."
17. Article 300A was inserted in the Constitution by the Constitution (Forty-
fourth Amendment) Act, 1978, prior to which, right to property was guaranteed
under Article 31 of the Constitution, which was a fundamental right falling under
Part III of the Constitution. The effect being that the right to hold property
ceased to be a fundamental right under the Constitution and the same was
recognized as a special right being 'a right to property', outside Part III of the
Constitution. Consequently if a person is being deprived of his property, not as
per the authority of law, it would be regarded as a breach of such constitutional
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right and a person, whose rights in such manner stand breached, would be
entitled to seek remedy under Article 226 of the Constitution.
18. It is now well settled that when Article 300A grants such protection and
ensures that a person cannot be deprived of his property, no executive action can
deprive the person of his property by any method not known to law. Also, the
right to property can be curtailed, abridged and modified only by law as declared
by the legislature. If the law which relates to deprive the person of his property
and when such law provides for compensation to be provided for such
expropriation, in such event, any action to take over the land without following
the due process of law, much less to acquire the land without payment of
compensation, would certainly amount to an unconstitutional and arbitrary
action, not only resulting into a breach of the constitutional right guaranteed
under Article 300A, but also violative of the law under which the person is sought
to be deprived of his land. Such person cannot be deprived of his / her land
without payment of compensation, as the law would mandate. There cannot be
any other reading of such constitutional protection guaranteed under Article
300A as also granted under the statute.
19. Thus, when the property of the person is acquired and the possession is
taken over, so as to bring about a situation that the land has stood vested with the
Government, without payment of compensation, it would be illegal and denying
the person of the right guaranteed under Article 300A. It is settled principle of
law that right to acquire a person's property under the Act is coupled with the
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duty to pay compensation as it is an implied duty to pay compensation "as
expeditiously as possible" and any delay in payment would be illegal, being
violative of Article 300A of the Constitution. Similarly taking possession of land
without payment of compensation also amounts to violation of Article 300A. It
would also amount to an high-handed action as held by the Supreme Court in
State of Uttar Pradesh & Ors. vs. Manohar4.
20. We discuss the position in law as enunciated in various decisions of the
Supreme Court, which recognizes such basic tenets of the rule of law and its strict
adherence in land acquisition cases.
21. In State of Uttar Pradesh & Ors. Vs. Manohar (supra), the Supreme Court
was dealing with a case wherein the respondent filed a writ petition before the
Allahabad High Court, seeking a writ of mandamus directing the State of Uttar
Pradesh to determine compensation for his land (Plot Nos. 3-ka, 4-ka, and 3-kaa)
in Village Chakia Bhagwanpur, Azamgarh. The respondent claimed that his land
was forcibly taken in 1955 without following due process of law or compensation,
and structures were built on it. Despite repeated appeals, no compensation was
paid. He supported his claim with a 1991 letter from the Collector, Azamgarh, to
the Special Land Acquisition Officer, referencing the issue. The Court held that
the appellants failed to provide any evidence showing that the respondent's land
was lawfully acquired or compensation ever paid. It was undisputed that the land
was later built upon. The Supreme Court criticized the State's stance, which was
4 (2005) 2 SCC 126
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held to contradict the principles of a welfare state, and urged the State to
acknowledge its mistake and promptly compensate the respondent, emphasizing
that India is a constitutional democracy. Referring to Article 300A of the
Constitution, the respondent's right to just compensation was recognised.
22. In Tukaram Kana Joshi & Ors. v. Maharashtra Industrial Development
Corporation & Ors.5, the land owned by the predecessors-in-interest of the
appellants stood notified under Section 4 of the 1894 Act, for an industrial
development project, however, no steps to acquire the land were taken up and in
fact the acquisition had lapsed. The predecessors-in-interest of the appellants were
illiterate farmers, who were absolutely unaware of their rights and hence were
inarticulate to claim them. The farmers were persuaded by the authorities to hand
over the actual physical possession of the lands in 1964 itself. However, certain
similarly situated persons who were also deprived of their rights in a similar
manner were granted compensation in 1966. The authorities realized in 1981 that
grave injustice had been done to the appellants. In respect of the land in dispute, a
fresh Notification under Section 4 of the 1894 Act was issued in 1981. In 1988,
Development Corporation, under the instructions of the Government of
Maharashtra handed over possession of the land to CIDCO. A writ petition filed
by appellants against the inaction of the respondent authorities was dismissed by
the High Court only on the ground of delay, and on non-availability of certain
documents. In the appeal before the Supreme Court, it was held that the State
must either comply with the procedure laid down for acquisition, or requisition,
5 (2013) 1 SCC 353
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or under any other permissible statutory mode. The Supreme Court held that the
State, especially a welfare State which is governed by the rule of law, cannot
arrogate itself to a status beyond the one, that is provided by the Constitution.
The following observations of the Supreme Court and the ratio of the decision
aptly applies to the facts in hand:-
"12. The State, especially a welfare State which is governed by the rule
of law, cannot arrogate itself to a status beyond one that is provided by the
Constitution. Our Constitution is an organic and flexible one. Delay and
laches is adopted as a mode of discretion to decline exercise of jurisdiction
to grant relief. There is another facet. The Court is required to exercise
judicial discretion. The said discretion is dependent on facts and
circumstances of the cases. Delay and laches is one of the facets to deny
exercise of discretion. It is not an absolute impediment. There can be
mitigating factors, continuity of cause action, etc. That apart, if the whole
thing shocks the judicial conscience, then the Court should exercise the
discretion more so, when no third-party interest is involved. Thus
analysed, the petition is not hit by the doctrine of delay and laches as the
same is not a constitutional limitation, the cause of action is continuous
and further the situation certainly shocks judicial conscience.
13. The question of condonation of delay is one of discretion and has
to be decided on the basis of the facts of the case at hand, as the same vary
from case to case. It will depend upon what the breach of fundamental
right and the remedy claimed are and when and how the delay arose. It is
not that there is any period of limitation for the courts to exercise their
powers under Article 226, nor is it that there can never be a case where the
courts cannot interfere in a matter, after the passage of a certain length of
time. There may be a case where the demand for justice is so compelling,
that the High Court would be inclined to interfere in spite of delay.
Ultimately, it would be a matter within the discretion of the Court and
such discretion, must be exercised fairly and justly so as to promote justice
and not to defeat it. The validity of the party's defence must be tried upon
principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of
T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22 : AIR 1974 SC 2271] ,
State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251]
and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2
SCC (L&S) 119] )
14. No hard-and-fast rule can be laid down as to when the High
Court should refuse to exercise its jurisdiction in favour of a party who
moves it after considerable delay and is otherwise guilty of laches.
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Discretion must be exercised judiciously and reasonably. In the event that
the claim made by the applicant is legally sustainable, delay should be
condoned. In other words, where circumstances justifying the conduct
exist, the illegality which is manifest, cannot be sustained on the sole
ground of laches. When substantial justice and technical considerations are
pitted against each other, the cause of substantial justice deserves to be
preferred, for the other side cannot claim to have a vested right in the
injustice being done, because of a non-deliberate delay. The court should
not harm innocent parties if their rights have in fact emerged by delay on
the part of the petitioners. (Vide Durga Prashad v. Chief Controller of
Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] , Collector
(LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172 : AIR 1987 SC
1353] , Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur
[(1992) 2 SCC 598 : AIR 1993 SC 802] , Dayal Singh v. Union of India
[(2003) 2 SCC 593 : AIR 2003 SC 1140] and Shankara Coop. Housing
Society Ltd. v. M. Prabhakar [(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56 :
AIR 2011 SC 2161] .)"
23. The legal position as enunciated by the Supreme Court in Vidya Devi v.
State of Himanchal Pradesh & Ors.(supra) would also squarely apply in the facts
of the present case. In this decision, the Supreme Court was dealing with the case
of the appellant whose land was taken over by the State in 1967-68 for the
construction of a major district road, Nadaun-Sujanpur Road, without taking
recourse to acquisition proceedings or following due process of law. The
appellant, being an illiterate 80 year old widow, from a rural background was
unaware of her rights and entitlement in law, who did not initiate any proceedings
for compensation of the land compulsorily taken over by the State. The Supreme
Court held that the cause of action in the case was a continuing cause of action as
the appellant was compulsorily expropriated of her property in the year 1967,
without following the due process of law. While allowing the appeal and directing
the State to pay compensation along with all statutory benefits, including
solatium, interest, etc., the Supreme Court observed as under:
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"12.2. The right to property ceased to be a fundamental right by the
Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued
to be a human right [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 :
(2013) 1 SCC (Civ) 491] in a welfare State, and a constitutional right
under Article 300-A of the Constitution. Article 300-A provides that no
person shall be deprived of his property save by authority of law. The State
cannot dispossess a citizen of his property except in accordance with the
procedure established by law. The obligation to pay compensation, though
not expressly included in Article 300-A, can be inferred in that Article.
[K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4
SCC (Civ) 414]
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 Constitution. Reliance
is placed on the judgment in Hindustan Petroleum Corpn. Ltd. v. Darius
Shapur Chenai [Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai, (2005) 7 SCC 627] , wherein this Court held that: (SCC p. 634,
para 6)
"6. ... Having regard to the provisions contained in Article 300-A of
the Constitution, the State in exercise of its power of "eminent
domain" may interfere with the right of property of a person by
acquiring the same but the same must be for a public purpose and
reasonable compensation therefor must be paid."
(emphasis supplied)
............
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 is placed on the judgment of this Court in Tukaram Kana Joshi v.
MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC
(Civ) 491] 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
arrogate to itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar [State of
Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ)
769] held that the right to property is now considered to be not only a
constitutional or statutory right, but also a human right. 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.
.........
12.12. The 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 raised in a case of a continuing cause of action, or if the
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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 breach of fundamental rights, and the remedy claimed, and when
and how the delay arose. There is no period of limitation prescribed for the
courts to exercise their constitutional jurisdiction to do substantial justice.
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 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."
(emphasis supplied)
24. In a decision of a recent origin in Sukh Dutt Ratra & Anr. Vs. State of
Himachal Pradesh & Ors.6 the Supreme Court was considering a challenge to the
decision of the High Court which had not entertained the Writ Petition filed by
the appellants. The appellants were the owners of land, the possession of which
was taken over by the State in the year 1972-73, for constructing the Narag Fagla
road, without initiating the land acquisition proceedings or paying compensation.
The appellant had filed a writ petition seeking compensation and/or initiation of
land acquisition proceedings. However, the High Court, not entertaining the writ
petition, granted liberty to the appellants to file a civil suit on the ground that an
issue of limitation was involved in the prayers as made by the appellants in
demanding compensation. Aggrieved by such order of the High Court, the
6 (2022) 7 SCC 508
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appellants had approached the Supreme Court. The Supreme Court, taking
review of the legal position, in the context of the rights which would accrue to the
appellants under Article 300A of the Constitution, made significant observations
to hold that it was imperative to recognize the rights of the appellants to receive
compensation and the process of law being required to be followed. It was held
that the valuable Constitutional right of a person were required to be protected. It
was held that dispossession of the appellants of their private property without
following due process of law was violative of both their human right and
Constitutional right under Article 300A, by approving the principles of law as
laid down in Vidya Devi (supra). The relevant observations as made by the
Supreme Court are required to be noted which reads thus:
13. While the right to property is no longer a fundamental right
["Constitution (Forty-fourth Amendment) Act, 1978"], it is pertinent to
note that at the time of dispossession of the subject land, this right was
still included in Part III of the Constitution. The right against deprivation
of property unless in accordance with procedure established by law,
continues to be a constitutional right under Article 300-A.
14. It is the cardinal principle of the rule of law, that nobody can be
deprived of liberty or property without due process, or authorisation of
law. The recognition of this dates back to the 1700s to the decision of the
King's Bench in Entick v. Carrington [1765 EWHC (KB) J98 : 95 ER
807] and by this Court in Wazir Chand v. State of H.P. [(1955) 1 SCR
408 : AIR 1954 SC 415] 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.
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
individual of their property, and even more so when done by the State.
In Bishan Das v. State of Punjab [(1962) 2 SCR 69 : AIR 1961 SC 1570]
this Court rejected the contention that the petitioners in the case were
trespassers and could be removed by an executive order, and instead
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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 U.P. v. Dharmander Prasad Singh [(1989) 2 SCC 505 :
(1989) 1 SCR 176] , held : (SCC p. 516, para 30)
"30. 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 extra-
judicial 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-à-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 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 landowners, pursuant to the orders dated 23-4-2007 (in Anakh
Singh v. State of H.P. [2007 SCC OnLine HP 220] ) and 20-12-2013
(in Onkar Singh v. State [CWP No. 1356 of 2010, order dated 20-12-
2013 (HP)] ), 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
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appellant landowners. 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
SRTC v. Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969
SC 329] , held : (AIR pp. 335-36, para 11)
"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 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'."
19. The facts of the present case reveal that the State has, in a clandestine
and arbitrary manner, 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 State of U.P. v. Manohar [(2005) 2 SCC 126] --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 : (SCC pp. 128-29, paras 6-8)
"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.
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7. 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 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."
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.
23. This Court, inVidya Devi v. State of H.P., [(2020) 2 SCC 569 :
(2020) 1 SCC (Civ) 799] facing an almost identical set of facts and
circumstances -- rejected the contention of "oral" consent to be baseless
and outlined the responsibility of the State : (SCC p. 574, para 12)
"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 is placed on the judgment of this Court
in Tukaram Kana Joshi v. Maharashtra Industrial Development
Corpn. [(2013) 1 SCC 353] 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 arrogate to itself a status beyond what is
provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar [(2011) 10
SCC 404 : (2012) 3 SCC (Civ) 769] held that the right to property is
now considered to be not only a constitutional or statutory right, but
also a human right. Human rights have been considered in the realm
of individual rights such as right to shelter, livelihood, health,
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employment, etc. Human rights have gained a multi-faceted
dimension."
24. And with regard to the contention of delay and laches, this Court
went on to hold : (Vidya Devi v. State of H.P., (2020) 2 SCC 569], SCC
pp. 574-75, para 12)
"12.12. The 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 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 breach of fundamental rights, and the
remedy claimed, and when and how the delay arose. There is no
period of limitation prescribed for the 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. [ P.S. Sadasivaswamy v. State of
T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22] "
25. Concluding that the forcible dispossession of a person of their private
property without following due process of law, was violative [ Relying
on Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7
SCC 627 : 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna
Reddy, (2008) 15 SCC 517; Delhi Airtech Services (P) Ltd. v. State of
U.P., (2011) 9 SCC 354 : (2011) 4 SCC (Civ) 673 : (2011) 12 SCR 191
and Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC
596 : 1994 Supp (1) SCR 807.] of both their human right, and
constitutional right under Article 300-A, this Court allowed the appeal.
We find that the approach taken by this Court in Vidya Devi is squarely
applicable to the nearly identical facts before us in the present case.
27. For the above reasons, the appeal is allowed and the impugned order
[Sukh Dutt Ratra v. State of H.P., 2013 SCC OnLine HP 3773] of the
High Court is hereby set aside. Given the disregard for the appellants'
fundamental rights which has caused them to approach this Court and
receive remedy decades after the act of dispossession, we also deem it
appropriate to direct the respondent State to pay legal costs and expenses
of Rs 50,000 to the appellants. Pending applications, if any, are hereby
disposed of.
(emphasis supplied)
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25. Thus, the Supreme Court in the aforesaid decision concluded that the
forcible dispossession of a person of his private property without following due
process of law, was violative of both their human rights and the constitutional
right guaranteed under Article 300A, and accordingly allowed the appeal. Also,
the State's contention of delay and laches of the appellant in moving the Court
was rejected, observing that delay and laches cannot be raised in a case of a
'continuing cause of action' or if the circumstances shock the judicial conscience
of the Court. It was held that 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 breach of fundamental rights, and
the remedy claimed, as to when and how the delay arose. There is no period of
limitation prescribed for the courts to exercise their constitutional jurisdiction to
do substantial justice. Such principles of law as enunciated in Vidya Devi (supra)
are squarely applicable to the facts in hand.
26. In Rajeev Kumar Damodarprasad Bhadani & Ors. Vs. Executive Engineer,
Maharashtra State Electricity Distribution Company Ltd. (MSEDCL) & Ors. 7, a
Division Bench of this Court of which one of us (Somasekhar Sundaresan, J.) was
a member was dealing with a challenge to the acquisition of land by the
Maharashtra State Electricity Board (now MSEDCL) without complying with due
process of law as stipulated under the 1894 Act. The respondent-MSEDCL
resisted the proceedings on several grounds, one of the main grounds being that
the Writ Petition was vitiated by delay and laches. According to the MSEDCL,
7 2024 SCC OnLine Bom 35
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the writ petition was filed merely 40 years after taking over possession of the
subject land, and merely 28 years after the construction of the sub-station on the
petitioners' land. It is in such context, the Court considering the doctrine of delay
and latches observed that in dealing with the constitutional rights in exercise of
writ jurisdiction, one can no longer apply mutatis mutandis the time frame
stipulated in limitation law as if they were attracted. Referring to the decision in
Tukaram Kanha Joishi Vs. MIDC (supra) as also the decision in State of
Maharashtra Vs. Digambar (supra) and the decision of the Supreme Court in
Sukh Dutt Ratra Vs. State of Himachal Pradesh (supra), it was observed that there
can be no limitation "to doing justice" if it is clear that the right to property has
been intruded without due process of law. The Court made the following
observations:
"30. In Tukaram Kana Joshi v. Maharashtra IDC [(2013) 1 SCC 353:
(2013) 1 SCC (Civ) 491] (Tukaram), the Supreme Court ruled that the
constitutional right to property could not be defeated on technical
grounds citing delay. Indeed, in State of Maharashtra v. Digambar
(Digambar), the 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 a writ petition. A plain reading of Tukaram case would suggest
that Digambar case had not been noticed. In Digambar case, the Supreme
Court was dealing with farmers who had consciously gifted land to the
State under a specific scheme for drought relief, to build roads and
infrastructure on the land donated, so that income could be generated for
them. Decades later, the very same farmers filed writ petitions claiming
compensation for the land acquired, and were awarded compensation by
writ courts, only to be eventually struck down by the Supreme Court.
31. More recently, in Sukh Dutt Ratra v. State of H.P. [(2022) 7 SCC
508 (2022) 3 SCC (Civ) 754] (Sukh Dutt), the Supreme Court has dealt
with a whole line of judgments of the Supreme Court to emphasise that
there can be no "limitation" to doing justice, if it is clear that the right to
property has been intruded into without due process of law. Effectively,
Sukh Dutt case has repelled the citation of delay and laches in
enforcement of the constitutional right to property in land. It is
noteworthy that Digambar case was cited at the Bar when Sukh Dutt case
was argued, since the reliance by the State on Digambar case has been
recorded. However, the Supreme Court did not think it necessary to deal
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with Digambar case, in Sukh Dutt case. Suffice it to say, Digambar
case[State of Maharashtra v. Digambar, was a case where equity principles
worked in favour of denial of relief rather than for considering grant of
relief. In our opinion, the consideration of the facet of delay in Digambar
case, must be read in that context and the adjustment of equities that was
presented in the facts of that case.
34. 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 when
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 v. Balwant Regular Motor Service [1968 SCC OnLine
SC 54 AIR 1969 SC 329] ("Maharashtra SRTC"). These principles are
extracted and endorsed in Sukh Dutt case. When one analyses Digambar
case, it is noteworthy that these are in fact the principles on which the
land-donor farmers claiming compensation decades later, were denied
consideration by the Supreme Court."
27. We may also refer to a recent decision of the Supreme Court in Kolkata
Municipal Corporation and Another vs. Bimal Kumar Shah & Ors. 8 in which the
Court was dealing with a case where the appellant-Municipal Corporation had
claimed to have acquired property of respondent no.1 in exercise of powers under
Section 352 of the Kolkata Municipal Corporation Act, 1980. A Single Judge and
the Division Bench of the High Court concurrently held that there is no such
power of compulsory acquisition of immovable property under Section 352 of the
said Act. The Supreme Court in such context held that there are seven sub-rights
which are foundational components of the law, which are in tune with Article
300A of the Constitution. It was held that the absence of one of these or some of
them being breached, the land acquisition would be required to be held illegal. In
dealing with the right to restitution or entitlement to the fair compensation, the
Court observed thus:-
"28. While it is true that after the 44th Constitutional Amendment [the
8 (2024) 10 SCC 533
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Constitution (44th Amendment) Act, 1978], the right to property drifted
from Part III to Part XII of the Constitution, there continues to be a
potent safety net against arbitrary acquisitions, hasty decision-making and
unfair redressal mechanisms. Despite its spatial placement, Article 300-A
which declares that "no person shall be deprived of his property save by
authority of law" has been characterized both as a constitutional and also a
human right. To assume that constitutional protection gets constricted to
the mandate of a fair compensation would be a disingenuous reading of
the text and, shall we say, offensive to the egalitarian spirit of the
Constitution.
29. The constitutional discourse on compulsory acquisitions, has hitherto,
rooted itself within the "power of eminent domain". Even within that
articulation, the twin conditions of the acquisition being for a public
purpose and subjecting the divestiture to the payment of compensation in
lieu of acquisition were mandated. Although not explicitly contained in
Article 300-A, these twin requirements have been read in and inferred as
necessary conditions for compulsory deprivation to afford protection to
the individuals who are being divested of property. A post-colonial
reading of the Constitution cannot limit itself to these components alone.
The binary reading of the constitutional right to property must give way
to more meaningful renditions, where the larger right to property is seen
as comprising intersecting sub-rights, each with a distinct character but
interconnected to constitute the whole. These sub-rights weave
themselves into each other, and as a consequence, State action or the
legislation that results in the deprivation of private property must be
measured against this constitutional net as a whole, and not just one or
many of its strands.
30. What then are these sub-rights or strands of this swadeshi
constitutional fabric constituting the right to property? Seven such sub-
rights can be identified, albeit non-exhaustive. These are:
(i) The duty of the State to inform the person that it intends to acquire his
property --the right to notice,
(ii) The duty of the State to hear objections to the acquisition -- the right
to be heard,
(iii) The duty of the State to inform the person of its decision to acquire
-- the right to a reasoned decision,
(vi) The duty of the State to demonstrate that the acquisition is for public
purpose -- the duty to acquire only for public purpose,
(v) The duty of the State to restitute and rehabilitate -- the right of
restitution or fair compensation,
(vi) The duty of the State to conduct the process of acquisition efficiently
and within prescribed timelines of the proceedings -- the right to an
efficient and expeditious process, and
(vii) The final conclusion of the proceedings leading to vesting -- the
right of conclusion.
31. These seven rights are foundational components of a law that is tune
with Article 300-A, and the absence of one of these or some of them
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would render the law susceptible to challenge. The judgment of this Court
in K.T. Plantation (P) Ltd. v. State of Karnataka, [(2011) 9 SCC 1]
declares that the law envisaged under Article 300-A must be in line with
the overarching principles of rule of law, and must be just, fair,
and reasonable. It is, of course, precedentially sound to describe some of
these sub-rights as "procedural", a nomenclature that often tends to
undermine the inherent worth of these safeguards. These seven sub-rights
may be procedures, but they do constitute the real content of the right to
property under Article 300-A, non-compliance of these will amount to
violation of the right, being without the authority of law.
32. These sub-rights of procedure have been synchronously incorporated
in laws concerning compulsory acquisition and are also recognised by our
constitutional courts while reviewing administrative actions for
compulsory acquisition of private property. The following will
demonstrate how these seven principles have seamlessly become an
integral part of our Union and State statutes concerning acquisition and
also the constitutional and administrative law culture that our courts have
evolved from time to time.
33. Following are the seven principles:
33.1.The Right to notice
33.1.1. A prior notice informing the bearer of the right that the State intends
to deprive them of the right to property is a right in itself; a linear extension
of the right to know embedded in Article 19(1)( a). The Constitution does not
contemplate acquisition by ambush. The notice to acquire must be clear,
cogent and meaningful. Some of the statutes reflect this right.
33.1.2. Section 4 of the Land Acquisition Act, 1894, Section 3(1) of the
Requisitioning and Acquisition of Immovable Property Act, 1952, Section
11 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, and Section 3-A
of the National Highways Act, 1956 are examples of such statutory
incorporation of the right to notice before initiation of the land
acquisition proceedings.
33.1.3. In a large number of decisions, our constitutional courts have
independently recognised the right to notice before any process of
acquisition is commenced.
33.2.The Right to be heard
33.2.1. Following the right to a meaningful and effective prior notice of
acquisition, is the right of the property-bearer to communicate his
objections and concerns to the authority acquiring the property. This right
to be heard against the proposed acquisition must be meaningful and not
a sham.
33.2.2. Section 5-A of the Land Acquisition Act, 1894, Section 3(1) of
the Requisitioning and Acquisition of Immovable Property Act, 1952,
Section 15 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, and Section 3-C
of the National Highways Act, 1956, are some statutory embodiments of
this right.
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33.2.3. Judicial opinions recognising the importance of this right are far
too many to reproduce. Suffice it to say that that the enquiry in which a
landholder would raise his objection is y ambush. The notice to acquire
must be clear, cogent and meaningful. Some of the statutes reflect this right.
33.3.The Right to a reasoned decision
33.3.1. That the authorities have heard and considered the objections is
evidenced only through a reasoned order. It is incumbent upon the
authority to take an informed decision and communicate the same to the
objector.
33.3.2. Section 6 of the Land Acquisition Act, 1894, Section 3(2) of the
Requisitioning and Acquisition of Immovable Property Act, 1952, Section
19 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 and Section 3-D
of the National Highways Act, 1956, are the statutory incorporations of
this principle.
33.3.3. Highlighting the importance of the declaration of the decision to
acquire, the Courts have held that the declaration is mandatory, failing
which, the acquisition proceedings will cease to have effect.
33.4.The Duty to acquire only for public purpose
33.4.1. That the acquisition must be for a public purpose is inherent and
an important fetter on the discretion of the authorities to acquire. This
requirement, which conditions the purpose of acquisition must stand to
reason with the larger constitutional goals of a welfare State and
distributive justice.
33.4.2. Sections 4 and 6 of the Land Acquisition Act, 1894, Sections 3(1)
and 7(1) of the Requisitioning and Acquisition of Immovable Property
Act, 1952, Sections 2(1), 11(1), 15(1)( b) and 19(1) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 and Section 3-A(1) of the National Highways
Act, 1956 depict the statutory incorporation of the public purpose
requirement of compulsory acquisition.
33.4.3. The decision of compulsory acquisition of land is subject to
judicial review and the Court will examine and determine whether the
acquisition is related to public purpose. If the Court arrives at a
conclusion that that there is no public purpose involved in the
acquisition, the entire process can be set aside. This Court has time and
again reiterated the importance of the underlying objective of acquisition
of land by the State to be for a public purpose.
33.5.The Right of restitution or fair compensation
33.5.1. A person's right to hold and enjoy property is an integral part to
the constitutional right under Article 300-A. Deprivation or
extinguishment of that right is permissible only upon restitution, be it in
the form of monetary compensation, rehabilitation or other similar
means. Compensation has always been considered to be an integral part of
the process of acquisition.
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33.5.2. Section 11 of the Land Acquisition Act, 1894, Sections 8 and 9 of
the Requisitioning and Acquisition of Immovable Property Act, 1952,
Section 23 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, and Section 3-G,
and Sections 3-H of the National Highways Act, 1956 are the statutory
incorporations of the right to restitute a person whose land has been
compulsorily acquired.
33.5.3. Our courts have not only considered that compensation is
necessary, but have also held that a fair and reasonable compensation is
the sine qua non for any acquisition process.
33.6.The Right to an efficient and expeditious process
33.6.1. The acquisition process is traumatic for more than one reason.
The administrative delays in identifying the land, conducting the enquiry
and evaluating the objections, leading to a final declaration, consume time
and energy. Further, passing of the award, payment of compensation and
taking over the possession are equally time-consuming. It is necessary for
the administration to be efficient in concluding the process and within a
reasonable time. This obligation must necessarily form part of Article
300-A.
33.6.2. Sections 5-A(1), 6, 11-A and 34 of the Land Acquisition Act,
1894, Sections 6(1-A) and 9 of the Requisitioning and Acquisition of
Immovable Property Act, 1952, Sections 4(2), 7(4), 7(5), 11(5), 14,
15(1), 16(1), 19(2), 25, 38(1), 60(4), 64 and 80 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 and Sections 3-C(1), 3-D(3) and 3-E(1) of the
National Highways Act, 1956, prescribe for statutory frameworks for the
completion of individual steps in the process of acquisition of land within
stipulated timelines.
33.6.3. On multiple occasions, upon failure to adhere to the timelines
specified in law, the courts have set aside the acquisition proceedings.
33.7.The Right of conclusion
33.7.1. Upon conclusion of process of acquisition and payment of
compensation, the State takes possession of the property in normal
circumstances. The culmination of an acquisition process is not in the
payment of compensation, but also in taking over the actual physical
possession of the land. If possession is not taken, acquisition is not
complete. With the taking over of actual possession after the normal
procedures of acquisition, the private holding is divested and the right,
title and interest in the property, along with possession is vested in the
State. Without final vesting, the State's, or its beneficiary's right, title and
interest in the property is inconclusive and causes lot of difficulties. The
obligation to conclude and complete the process of acquisition is also part
of Article 300-A.
33.7.2. Section 16 of the Land Acquisition Act, 1894, Sections 4 and 5 of
the Requisitioning and Acquisition of Immovable Property Act, 1952,
Sections 37 and 38 of the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and
Sections 3-D and 3-E of the National Highways Act, 1956, statutorily
recognise this right of the acquirer.
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33.7.3. This step of taking over of possession has been a matter of great
judicial scrutiny and this Court has endeavoured to construe the relevant
provisions in a way which ensures non-arbitrariness in this action of the
acquirer. For that matter, after taking over possession, the process of land
acquisition concludes with the vesting of the land with the authority
concerned. The culmination of an acquisition process by vesting has been
a matter of great importance. On this aspect, the courts have given a large
number of decisions as to the time, method and manner by which vesting
takes place.
34. The seven principles which we have discussed are integral to
the authority of law enabling compulsory acquisition of private property.
Union and State statutes have adopted these principles and incorporated
them in different forms in the statutes provisioning compulsory
acquisition of immovable property. The importance of these principles,
independent of the statutory prescription have been recognised by our
constitutional courts and they have become part of our administrative law
jurisprudence."
28. In the context of the concept of continuing wrong, we may usefully refer to
the decision of the Supreme Court in Samruddhi Cooperative Housing Society
Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd. 9, wherein dealing with an
issue under the Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963, Justice D. Y.
Chandrachud speaking for the Bench held that the cause of action of the appellant
was of a continuing nature, since members of the cooperative society had
continued paying higher charges, as the respondent therein failed to provide the
occupancy certificate. The Court, considering the provisions of Section 24A of
the Consumer Protection Act, 1986, which provides for period of limitation for
lodging a complaint to be filed within two years from the date on which the cause
of action had arisen, observed that the case of the appellant was of a cause of
action, being founded on a continuing wrong. It was hence held that the
complaint of the appellant was within limitation. The Supreme Court in reaching
9 (2022) 4 SCC 103
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to such conclusion considered the provisions of Section 22 of the Limitation Act,
1963 which provided for computation of limitation in the case of a continuing
breach of contract or tort. Referring to the distinct nature of the continuing wrong
as considered in the case of Balakrishna Savalram Pujari Waghmare v. Shree
Dhyaneshwar Maharaj Sansthan10 and the case of CWT v. Suresh Seth11 as also
the decision in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das 12, the
Supreme Court made the following observations:
"13. Section 22 of the Limitation Act 1963 5 provides for the
computation of limitation in the case of a continuing breach of contract
or tort. It provides that in case of a continuing breach of contract, a fresh
period of limitation begins to run at every moment of time during which
the breach continues. This Court in Balakrishna Savalram Pujari
Waghmare v. Shree Dhyaneshwar Maharaj Sansthan (AIR 1959 SC 798)
elaborated on when a continuous cause of action arises.
14. Speaking for the three-judge Bench, Justice PB Gajendragadkar
(as the learned Chief Justice then was) observed that: (BALAKRISHNA
CASE air P.807, PARA 31)
(2020) 1 SCC 1 "31. ............ Does the conduct of the trustees
amount to a continuing wrong under Section 23? That is the
question which this contention raises for our decision. In other
words, did the cause of action arise de die in diem as claimed by the
appellants? In dealing with this argument it is necessary to bear in
mind that Section 23 refers not to a continuing right but to a
continuing wrong. It is the very essence of a continuing wrong that it
is an act which creates a continuing source of injury and renders the
doer of the act responsible and liable for the continuance of the said
injury. If the wrongful act causes an injury which is complete, there is
no continuing wrong even though the damage resulting from the act
may continue. If, however, a wrongful act is of such a character that
the injury caused by it itself continues, then the act constitutes a
continuing wrong. In this connection it is necessary to draw a
distinction between the injury caused by the wrongful act and what
may be described as the effect of the said injury. It is only in regard to
acts which can be properly characterised as continuing wrongs that
Section 23 can be invoked." (emphasis supplied)
The Court held that the act of the trustees to deny the rights of
10 AIR 1959 SC 798
11 (1981) 2 SCC 790
12 (2020) 1 SCC 1
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Guravs as hereditary worshippers and dispossessing them through a
decree of the court was not a continuing wrong. Although the
continued dispossession caused damage to the appellants, the injury
to their rights was complete when they were evicted.
15 In CWT v. Suresh Seth (1981) 2 SCC 790, a two-judge Bench of
this Court dealt with the question of whether a default in filing a return
under the Wealth Tax Act amounted to a continuing wrong. Justice ES
Venkataramiah (as the learned Chief Justice then was) observed that:
"11. ........ The distinctive nature of a continuing wrong is that the
law that is violated makes the wrongdoer continuously liable for
penalty. A wrong or default which is complete but whose effect may
continue to be felt even after its completion is, however, not a
continuing wrong or default. It is reasonable to take the view that the
court should not be eager to hold that an act or omission is a
continuing wrong or default unless there are words in the statute
concerned which make out that such was the intention of the
legislature. In the instant case whenever the question of levying
penalty arises what has to be first considered is whether the assessee
has failed without reasonable cause of file the return as required by
law and if it is held that he has failed to do so then penalty has to be
levied in accordance with the measure provided in the Act. When the
default is the filing of delayed return the penalty may be correlated to
the time-lag between the last day for filing it without penalty and the
day on which it is filed and the quantum of tax or wealth involved in
the case for purposes of determining the quantum of penalty but the
default however is only one which takes place on the expiry of the
last day for filing the return without penalty and not a continuing
one. The default in question does not, however, give rise to a fresh
cause of action every day. Explaining the expression "a continuing
cause of action" Lord Lindley in Hole v. Chard Union [(1894) 1 Ch
D 293 : 63 LJ Ch 469 : 70 LT 52] observed:
"What is a continuing cause of action? Speaking accurately, there is
no such thing; but what is called a continuing cause of action is a
cause of action which arises from the repetition of acts or omissions of
the same kind as that for which the action was brought." (emphasis
supplied)
............
18. A continuing wrong occurs when a party continuously breaches an
obligation imposed by law or agreement. Section 3 of the MOFA imposes
certain general obligations on a promoter. These obligations inter alia
include making disclosures on the nature of title to the land,
encumbrances on the land, fixtures, fittings and amenities to be provided,
and to not grant possession of a flat until a completion certificate is given
by the local authority. The responsibility to obtain the occupancy
certificate from the local authority has also been imposed under the
agreement to sell between the members of the appellant and the
respondent on the latter."
..........
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21. Based on these provisions, it is evident that there was an obligation on the
respondent to provide the occupancy certificate and pay for the relevant
charges till the certificate has been provided. The respondent has time and
again failed to provide the occupancy certificate to the appellant Society. For
this reason, a complaint was instituted in 1998 by the appellant against the
respondent. Ncdrc on 20-8-2014 directed the respondent to obtain the
certificate within a period of four months. Further, Ncdrc also imposed a
penalty for any delay in obtaining the occupancy certificate beyond these 4
months. Since 2014 till date, the respondent has failed to provide the
occupancy certificate. Owing to the failure of the respondent to obtain the
certificate, there has been a direct impact on the members of the appellant in
terms of the payment of higher taxes and water charges to the municipal
authority. This continuous failure to obtain an occupancy certificate is a
breach of the obligations imposed on the respondent under the MOFA and
amounts to a continuing wrong. The appellants, therefore, are entitled to
damages arising out of this continuing wrong and their complaint is not
barred by limitation."
(emphasis supplied)
29. Adverting to the aforesaid principles of law as laid down in the series of
these decisions of the Supreme Court, in their application to the case in hand, this
is clearly a case which not only depicts the breach of the petitioner's constitutional
rights guaranteed under Article 300A of the Constitution, which is the basic
illegality and a wrong done to the petitioner, but also a case of continuing wrong,
as the illegality of an expropriation of petitioner's land is compounded on day to
day basis, by non-payment of compensation. Once, in a process known to law, the
corporeal rights of the petitioner to hold the land were not severed, in such event
indisputedly the petitioner is made to continuously suffer the breach of her
constitutional rights guaranteed under Article 300A. The sequel being that the
petitioner could not be deprived of the right to property, unless the procedure in
law as mandated under the statute and, in the present case the provisions of the
Land Acquisition Act, 1894, was followed.
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30. We also cannot fathom that in a civilized society, and more particularly,
when the rights are governed by the Rule of Law, namely the provisions of the
Constitution and the Statute law, in a situation where continuous wrong is being
caused to a person who is guaranteed such rights, these rights could be permitted
to be defeated or rendered extinct, merely for the reason that there was a delay on
the part of such person to approach the Court. It is difficult to accept the
proposition and more particularly applying the principles of law as laid down in
the decisions as discussed by us that a continuing wrong would cease to exist. In
the present context, if such a proposition is accepted, and more so in a country
like ours where in regard to our brother and sister citizens hailing from the rural
area, neither there is legal literacy nor the means to approach the Court. The law
cannot be applied in such manner to mean that their rights would be regarded as
dead rights.
31. We may observe that the sad reality can never be overlooked that every
person in such situation may not be so fortunate, in the first place to be informed
of the legal rights, then to receive legal advice and thereafter to knock the doors of
the Court. There may not even be the means/resources to do so. It is for such
reason that the State officers posted on such duties are under an onerous
obligation to adhere to the lawful procedure and protect the rights of such
citizens. This is a constitutional duty. Thus, the respondent's contention of such
rights to be dead rights would be a proposition too far-fetched. The Court cannot
be oblivious to the basic constitutional responsibility and obligation on the State,
when it intends to exercise the powers of eminent domain. Even in the
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circumstances of voluntary surrender of land when it is not a decision, it would be
mandatory to pay compensation at all material times, and till the time
compensation is not paid, the infringement of the legal and Constitutional rights
would keep occurring. If such right and authority in the person is not recognized,
in our opinion, it would amount to a complete negation of the rights guaranteed
under Article 300A of the Constitution, as also, rendering the provisions of the
Land Acquisition Act nugatory. There cannot be a contrary intention of either the
Constitutional provisions or the relevant statute.
32. Having considered the aforesaid position in law, we are of the clear opinion
that it cannot be said that the right of the petitioner to receive compensation in
any manner stood extinguished and/or that the petitioner had acquiesced in the
non-receipt of compensation. In any case, to establish acquiescence, there is no
evidence of such intention on the part of the petitioner which could be gathered
so as to attract the principle of estoppel.
33. The petitioner admittedly was the owner of the land in question. The
possession of the land was handed over by the petitioner to the Special Land
Acquisition Officer although voluntarily way back in the year 1990 in regard to
which there is no dispute. Also, it is an indisputed fact that the petitioner has not
been paid compensation, despite which the Collector allotted the petitioner's land
to project affected persons/third parties. However, in a manner quite unknown to
law, it was handed over under a mutual/ consensual/arrangement as seen in the
affidavit as executed by the petitioner which reads thus:-
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"(Translation of a photocopy of an AFFIDAVIT, printed in Marathi,
having the blanks left therein, filled in in writing, in Marathi).
Exhibit R-1
Voluntary Affidavit
On being asked on behalf of the Collector and Deputy Director,
Rehabilitation (Land), Kolhapur, I, the undersigned Occupant, by name
Sumitra Shridhar Khane, residing at Vannur, Taluka - Kagal, District -
Kolhapur, give in writing on solemn affirmation as under:
The land of my ownership, mentioned in Column No.5 from out
of the area of the land bearing Survey Number / Gat Number mentioned
hereinbelow is required by the Government for Public Usage i.e. for
rehabilitation of the dam-affected persons, and for that purpose, I am
ready to voluntarily sell the said land to the Government for an
appropriate lawful price as per the provisions of the law. Moreover, today, I
am voluntarily handing over the advance possession of the said land to the
Collector and Deputy Director, Rehabilitation (Land), Kolhapur.
Sr. Name of Survey / Total Area Area from out Remarks
No. Occupant Gat No. of the same,
taken into
possession by
the
Government
Hect.- Are Hect. --- Are
1) Sumitra Shridhar 156-Part 1 - 54 1 - 12 Voluntarily
Khane
2) Proposed Gat 154-Part 1 - 96 1 - 12 In lieu of
Pot-
Kharaba
I am aware that, till the said land is allotted to the dam-affected
persons, the same shall remain with me only for cultivation thereof on
one-yearly basis and I will duly get executed a 'Kabulayat' (admission)
Statement in respect thereof from the Tahasildar concerned. I am required
to pay the current Government Assessment, Local Fund and other taxes in
respect of the said land. I will pay the same in Village Chavadi Office and
will obtain an official receipt in respect thereof. (I will pay the rent to the
tune of an amount of one-and-half times of the Assessment in
Government Treasury). I am ready to accept the amount of final valuation
in respect of the land whatever that might be determined as per the
prevailing market rate by the Special Land Acquisition Officer.
The actual Panchanama in respect of the trees, crops, structures
etc. whatever that are standing in the said land as of today has been
mentioned in the report enclosed herewith and I agree to the same. I also
agree to the official valuation in respect of the trees and crops standing in
the land as may be determined by the Government Officers. Further, I will
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not fell the said trees, harvest crops and demolish structures etc. without
seeking permission therefor from the Collector.
I agree that the area mentioned in Column No.5 under the
aforesaid Paragraph No. 1 is an approximate area. Date: 19.09.1990.
BEFORE ME, Sd/- Sumitra Shridhar Khane.
(Signature Illegible) Signature/Thumb impression of
Rehabilitation Officer, the Owner of the Land.
Doodhganga Project,
Kolhapur."
(emphasis supplied)
34. From a bare reading of the aforesaid affidavit, it is quite clear that although
the petitioner voluntarily surrendered the possession of the land, she never gave
up her right to receive compensation as clearly seen from her voluntary affidavit
(supra). These facts make it clear that the petitioner became landless, in as much
as, the petitioner's right to enjoy the land of her ownership has been deprived and
that too without following the due process of law. It requires no elaboration that
in depriving the petitioner of her land and taking away the petitioner's ownership
and by allotting the land to third parties, has amounted to a gross violation of
petitioner's constitutional right guaranteed under Article 300A of the
Constitution, applying the aforesaid well settled principles of law. In the event,
the ownership of the petitioner's land was to be taken away, certainly, the
petitioner was required to be compensated in a manner known to law and without
adhering to the doctrine of due process, that is the petitioner being paid
compensation, further steps to allot the land to third parties / project affected
persons could never have been resorted leaving the acquisition incomplete, even
if, the petitioner was to voluntarily surrender the land.
35. On the aforesaid backdrop, we now consider the decisions as cited on
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behalf of the respondents. The learned Additional Government Pleader has
placed reliance on the decision in State of Maharashtra vs Digambar (supra),
wherein the Supreme Court was dealing with a peculiar case where the
respondent, an agriculturist from Vepani village in Maharashtra, sought
compensation for his land allegedly utilized by the State Government in 1971-72
for constructing the Vepana-Gogri road during scarcity relief works at the time
Maharashtra faced severe scarcity in 23 thousand villages, prompting large-scale
relief efforts, including 38,000 km of road construction. Due to financial
constraints, Collectors ensured that lands were donated without compensation. In
1991, the respondent filed a writ petition before the Bombay High Court for a
direction to the State Government to grant him compensation for allegedly
utilising his land without his consent in the course of execution of the scarcity
reliefs work undertaken by the State Government. Rejecting the plea of the
Government to dismiss the writ petition on the ground of laches and delay of 20
years and allowing the writ petition, the High Court held that in a welfare State,
the State Government could not adopt such attitude when citizens come before
the Court and complain that they had been deprived of their property without
following due process of law and without paying compensation. On an appeal by
the State Government before the Supreme Court, the State urged that the
respondent on account of the delay and laches on the part of the respondent
disentitled him to the relief from the High Court. Allowing the appeal, the
Supreme Court held that the power of the High Court to be exercised under
Article 226 of the Constitution, if is discretionary, its exercise must be judicious
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and reasonable. Persons seeking relief against the State under Article 226 of the
Constitution, be they citizens or otherwise, cannot get discretionary relief
obtainable thereunder unless they fully satisfy the High Court that the facts and
circumstances of the case clearly justified the laches or undue delay on their part
in approaching the Court for grant of such discretionary relief. It was held that
where the High Court grants relief to a citizen or any other person under Article
226 of the Constitution against any person including the State without
considering his blameworthy conduct, such as laches or undue delay, acquiescence
or waiver, the relief so granted becomes unsustainable even if the relief was
granted in respect of alleged deprivation of his legal right by the State. In our
opinion, such principles as laid down in this decision are salutary, however, in the
facts of the present case, the same are certainly not applicable. Also, this is not a
case where the petitioner donated her land to the State and thereafter has taken a
reverse position. It is in such context, the Supreme Court has made the
observations in paragraphs 12 to 26 of the report. Hence, this decision would not
assist the respondents.
36. The learned Additional Government Pleader has also placed reliance on
the decision of the Supreme Court in Chairman, State Bank of India vs M J James
(supra). Reliance on this decision is also not well founded. In this decision, the
Supreme Court was dealing with a case where the respondent, a dismissed
employee, challenged his termination following an Inquiry Officer's report. The
dismissal order dated 18 April 1985 remained unchallenged for over four years,
and the absence of a limitation period was argued during the appeal. In such
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context, the Supreme Court in such facts, held that what is a reasonable time
cannot be put in a straight jacket formula or judicially codified. It was also held
that in the facts of the case, a satisfactory explanation justifying the delay was
required to be furnished, without which the Court held that it was difficult to
hold that the appeal was preferred within a reasonable time. We are at a loss to
understand as to how this decision which is on the principles of service law would
apply to the facts of the present case and more particularly, when there are catena
of decisions as noted above, directly on the propositions that the State cannot
shield itself on the ground of delay and laches in not paying compensation in such
cases.
37. Thus, viewed holistically, it becomes evident that the State's actions or
inactions have exacerbated the injustice suffered by the petitioner, ultimately
forcing her to approach this Court, albeit belatedly. This lackadaisical approach is
highlighted by the State's initiation of acquisition proceedings in respect of the
petitioner's land, however, in not including the petitioner's land in the award, that
too after dispossession of the petitioner without payment of compensation to the
petitioner. It is quite astonishing that the State would intend to evade its
obligatory duty of paying compensation to the petitioner whose land has been
utilised for a public purpose to rehabilitate the project affected persons of
Dudhganga Irrigation project. This is certainly not permissible. State cannot deny
payment of compensation having dispossessed the petitioner as also taking away
petitioner's ownership. The obligation to pay compensation is firmly rooted
within the purview of the Constitutional guarantee conferred under Article 300A
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of the Constitution. It is implied that acquisition of private property can be
recognized only on payment of fair compensation as the law would mandate
unless the circumstances are otherwise. Failure to provide compensation is
negation of Article 300A. Hence, any act by the State to acquire land and
property without complying with these principles would be manifestly illegal and
unconstitutional. This apart, such breach of the legal and constitutional rights is
held to give rise to cause of action which a continuing cause of action. It thus
cannot be countenanced that the land of the petitioner when acquired for public
purpose, the petitioner can be deprived of the compensation. This is also not a
case where the respondents are in a position to point out any material that it is the
petitioner who had given up receiving compensation. It is hence a unilateral act
on the part of the respondents not to pay the compensation. In this view of the
matter, in our opinion, the petitioner has certainly become entitled for payment of
the land acquisition compensation.
38. Now coming to the relief as prayed by the petitioner, in our opinion, reliefs
would be required to be moulded, inasmuch as, considering the provisions of
Section 114 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "2013 Act"), it
would be required to be held that the provisions of the 1894 Act would apply to
the case in hand. Section 114 of the 2013 Act reads thus:
"114. Repeal and saving.-
(1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.
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(2) Save as otherwise provided in this Act the repeal under sub-section (1)
shall not be held to prejudice or affect the general application of section 6
of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of
repeals"
39. Insofar as the facts of the present case, it is clear that initially the land of
the petitioner was identified for acquisition under the 1894 Act. The possession
of the land was also handed over on 19 September 1990 before the notifications
were issued under Section 4 and 6 dated 20 December 1990 and 8 March 1991
respectively. In respect of certain lands notified for acquisition, the Special Land
Acquisition Officer declared an award, however, an award was not declared qua
the petitioner's land. It is in these circumstances, applying the provisions of
Section 6 of the General Clauses Act, 1897 read with Section 114 of the 2013 Act,
the provisions of the 1894 Act would continue to apply. Hence, the relief which
would be required to be granted to the petitioner would attract the applicability of
the 1894 Act and the rights of the petitioner recognized thereunder. Accordingly,
the petition would be required to be allowed in terms of the following order:
ORDER
(i) The respondents are directed to treat the land of the petitioner
as a deemed acquisition. It is declared that the petitioner is entitled
for disbursement of the compensation for acquisition of her land i.e.
Gat No.156, admeasuring 1 H. 12 R. situated at village Vhanur, Tal.
Kagal, District-Kolhapur.
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(ii) The Respondents/Collector (Land Acquisition) is directed to
compute the compensation as payable to the petitioner on the date
the possession of the land was taken over i.e. 19 September 1990 and
disburse to the petitioner, the amount of compensation within a
period of four months from today, with all consequential benefits of
solatium, interest and/or all the sums payable under the Land
Acquisition Act, 1894. Interest to be calculated till the date of actual
payment of all the amounts.
40. As held by the Supreme Court in Sukh Dutt Ratra (supra) in paragraph 27
(supra) of the said judgment, as the facts of the present case are almost similar, we
hold that as there was a patent breach of the petitioner's Constitutional rights,
which has caused the petitioner to approach this Court. We, hence, find it
appropriate and imminently in the interest of justice, to direct the State
Government to pay legal cost and expenses of Rs.25,000/- to the petitioner,
within a period of two weeks from today.
41. Rule is made absolute in the aforesaid terms.
THE COMPANION PETITIONS
[Writ Petition no. 4991 Of 2022, Writ Petition No.11372 Of 2022, Writ
Petition No.4988 Of 2022 & Writ Petition No.15996 Of 2022]
42. Learned counsel for the parties agree that except for the details of the land,
the facts in these companion petitions are identical. It is agreed at the Bar that our
aforesaid judgment would cover these writ petitions as well. However, the
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compensation amount be paid to the petitioners considering the relevant date on
which the possession of the petitioners' land in these cases are taken over.
43. We accordingly allow these petitions in terms of our operative orders as as
contained in paragraph 39 & 40 of this judgment.
44. Rule is made absolute in the aforesaid terms.
(SOMASEKHAR SUNDARESAN, J.)
[ (G. S. KULKARNI, J.)
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Signed by: P.V.Rane
2 May 2025
Designation: PS To Honourable Judge
Date: 02/05/2025 17:54:21
