Narendrasinh Virendrasinh Jadav vs Collector - Panchmahal
2021 Latest Caselaw 17720 Guj

     C/SCA/15122/2015                                 JUDGMENT DATED: 25/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15122 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        NARENDRASINH VIRENDRASINH JADAV
                                      Versus
                        COLLECTOR - PANCHMAHAL & 4 other(s)
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Appearance:
MR MEHUL S SHAH, SENIOR ADVOCATE WITH MR VISHAL C
MEHTA(6152) for the Petitioner(s) No. 1
MR MEET THAKKAR, ASST GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,5
MR HARDIK C RAWAL(719) for the Respondent(s) No. 4
MR UM SHASTRI(830) for the Respondent(s) No. 2,3
MRS MH RAWAL(2851) for the Respondent(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                  Date : 25/11/2021

                                 ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Meet Thakkar, learned AGP appearing for respondent State and Mr. Hardik Rawal, learned advocate

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appearing for respondent no. 4 waive service of notice of rule.

2. By this petition filed under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned order dated 19.03.2015 passed by the Collector rejecting the request of the petitioner for compensation of the lands acquired for the roads under the gram panchayat on the ground that the request for compensation is belated.

3. Mr. Mehul Shah, learned Senior Counsel appearing with Mr. Vishal Mehta, learned advocate for the petitioner submitted that in the year 2005 a measurement was done and the measurement sheet recorded the land which was acquired for the road. He would invite the attention of the court to various communications of the years 2008 to 2010 apropos his representation wherein the Executive Engineer of the Panchayat Division, Godhra responded to his request by saying that the competent authority that can decide on the question of compensation is the gram panchayat and not the concerned authority.

3.1 Mr. Shah further submitted that on 16.11.2011 again the Executive Engineer's office opined that it is the Taluka Development Officer, Taluka Panchayat, Mora who has to take an appropriate decision. Failing to secure an appropriate decision regarding compensation of the acquisition of his land for the purposes of roads of panchayat, the petitioner approached this court by filing SCA No. 11701 of 2012. This court on 06.09.2012 passed the following order:

"1. Leave to add State of Gujarat through the Secretary, Revenue Department as party respondent No.5. Amendment be carried out forthwith.

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2. Heard Mr.Mehul S. Shah, learned counsel for the petitioner and Ms.Asmita Patel, learned A.G.P. appearing on advance copy for respondent Nos.1 to 5.

3. It is contended in the petition that the land belonging to the petitioner has been utilized as road way back in the year 1960. It is alleged in the petition that the same is being done without following due procedure as envisaged under the provisions of the Land Acquisition Act, 1894 and it is further alleged that even no compensation is paid to the petitioner.

4. In view of the above, in the interest of justice, respondent Nos.1,2 and 5 are directed to look into the grievance voiced by the petitioner in this petition by treating this petition as representation and take appropriate decision in accordance with law as expeditiously as possible and pass order after giving an opportunity of being heard to the petitioner.

5. With the above observations, the petition stands disposed of. Direct service is permitted."

3.2 Based on the order which was initially not complied with compelling the petitioner to file contempt, the impugned order has been passed. Reading of the impugned order indicates that the Collector has not entertained the request of the petitioner on two grounds firstly it was in 1960 that his ancestors have objected to the acquisition which was rejected and secondly on the ground of the request for compensation being belated. This opinion of delay was essentially based on the circular dated 15.01.2004 of the revenue department.

3.3 Mr. Shah would submit that once the court had directed the authorities to decide the representation, solely on the ground of delay it could not have been rejected. Reliance was placed on a decision of this

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Court in the case of Tukaram Kana Joshi vs. MIDC [(2013) 1 SCC 353] wherein the court held that right to property is a human right. Reliance was also placed on the decision of the Apex Court in the case of Vidya Devi vs. State of Himachal Pradesh reported in 2020(2) SCC

569.

4. Mr. Meet Thakkar, learned AGP appearing for the respondent State vehemently opposed the petition justifying the order of the Collector dated 19.03.2015. He would submit that the Collector by the impugned order not only decided the issue on merits inasmuch as holding that the ancestors of the petitioner had objected to the acquisition which objection was rejected and they were aware of the acquisition in the year 1960 and the request was therefore grossly belated. As far as the resolution of the government is concerned, he would rely on the relevant paragraphs of the decision of the Apex Court reproduced in the resolution stating that stale claims beyond a period of 20 years, as was the case on hand, should not be entertained. Mr. Thakkar would read out the affidavit of the Deputy Collector and oppose granting of any relief as in the earlier round the court has taken a decision.

5. Mr. Hardik Rawal, learned advocate for the respondent Panchayat would support the order of the Collector and also show for the perusal of the court the agreement entered into that show the consent given by the ancestors of the petitioner.

6. Having considered the relevant arguments for the counsels for the respective parties, it may be a case where the petitioner's ancestors had objected to the acquisition of the land in question. However, the DILR carried out the measurement in the year 2005 pursuant to a request made

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by the petitioner. Representations were made to the authorities and it was allowed up to the year 2011 when the petitioner was told that it was not the District Development Officer or the Executive Engineer of the Road and Building Department who were concerned with the issue but it was the Taluka Development Officer of the Mora gram panchayat.

6.1 It is in the background of these facts that the order dated 06.09.2012 was passed by this court in SCA No. 11701 of 2012. That order was passed only after this court in contempt petition being MCA No. 344 of 2015 directed them to take a decision in accordance with the decision dated 06.09.2012. Considering the decision of the Apex Court in the case of Tukaram Joshi (supra) it will be in the fitness of things to reproduce paragraphs no. 7 to 11 reading of which would indicate that right to property is not only a constitutional right but also a human right. Paragraphs no. 7 to 11 read as under:

"7. This Court has dealt with this case on several occasions in the past and has repeatedly asked the State authorities to be sensitive, sympathetic and requested them to put forward suggestions before the court, to enable it to redress the grievances of the appellants. The respondents herein have placed various affidavits on record and the facts of the case have fairly been admitted.

8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the Right to Property seized to be a Fundamental Right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure

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prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar, etc. etc. v. State of Gujarat & Anr., AIR 1995 SC 142, it has been held as follows: -

"48. In other words, Article 300-A only limits the power of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation."

9. The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension.

10. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the Rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal.

11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over

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possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of "eminent domain" and "police power" of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of "absolute power" which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner as a 'subject' of medieval India, but not as a 'citizen' under our constitution."

7. Considering the issue on hand it is evident that it is not open for the State to deny a claim only on the ground of delay and laches. Understandably it is on the part of the Collector to hold that once the ancestors had objected to the acquisition and agreed to it which may not be open for the petitioner to turn around and raise a claim against the land being acquired. But once in the years 2005-2008, 2009 and 2011 when the petitioner was directed to take recourse by approaching the Taluka Development Officer Mora, this Court by an order dated 06.09.2012 expected the Collector to take a decision in accordance with law albeit though it was open for the Collector to oust the petitioner on the ground of delay, while doing so what the Collector has done is essentially relied on a resolution of 15.01.2004 which in the court's opinion has been read out of context. The decision of the Apex Court in the case of Vidya Devi (supra) which has taken into consideration the decision in Tukaram (supra) was a case where the construction of road was completed in the

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year 1975. The land was taken over in the year 1966-68 and the widow had approached the court for compensation. The High Court had ousted the petitioner on the ground of matter involving disputed question of facts. It was under these circumstances that the Apex Court observed as under:

"10 We have heard learned Counsel for the parties and perused the record.

10.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property 1, which could not be deprived without due process of law and upon just and fair compensation. 10.2. 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 2 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. 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 Corporation Ltd. v. Darius Shapur Chenai4, wherein this Court held that:

" 6. ... Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" 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)

In N. Padmamma v. S. Ramakrishna Reddy, this Court held that:

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"21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed." (emphasis supplied) 4 (2005) 7 SCC 627. In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors., this Court recognized the right to property as a basic human right in the following words:

"30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property.

"Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists." (emphasis supplied) In Jilubhai Nanbhai Khachar v. State of Gujarat,7 this Court held as follows :

"48. ...In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law.

Deprivation by any other mode is not acquisition or taking possession under Article 300A. In other words, if there is no law, there is no deprivation." (emphasis supplied) 10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her 6 (2011) 9 SCC 354.

7 (1995) Supp. 1 SCC 596. payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.

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10.4. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.

10.5. 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 & Ors. v. M.I.D.C. & Ors.8 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. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. 8 (2013) 1 SCC 353. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension. 10.6. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to "adverse" possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

10.7. 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.

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There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.

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.

In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,10 this Court while dealing with a similar fact situation, held as follows :

"There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 9 P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152.32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode." (emphasis supplied)

11. 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

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jurisdiction under Articles 136 and 142 of the Constitution, and direct the State to pay compensation to the Appellant."

8. Considering these issues the order dated 19.03.2015 passed by the Collector is quashed and set aside. The Collector is directed to take a fresh look into the matter and take a decision on merits afresh and render a decision as expeditiously as possible preferably within a period of eight weeks from the date of receipt of the writ of the order of this court. It is clarified that it shall be open for the parties to raise all contentions. Petition is allowed to the aforesaid extent. Rule is made absolute.

(BIREN VAISHNAV, J) DIVYA