Himachal Pradesh High Court

State Of Himachal Pradesh And ... vs Banka Ram on 20 October, 2023

Bench: Tarlok Singh Chauhan, Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

LPA No. 50 of 2022 Reserved on: October 16, 2023 Decided on: October 20, 2023 ________________________________________________________

    State of Himachal Pradesh and others            ........... Appellants





                                   Versus
    Banka Ram                                             Respondent

________________________________________________________ Coram:

Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 No.

For the appellants : Ms. Sharmila Patial, Additional Advocate General.

For the respondent

Sandeep Sharma, Judge r :

Mr. Nishant Khidtta, Advocate.

________________________________________________________

By way of instant Letters Patent Appeal filed under

Clause 10 of the Letters Patent of Delhi High court Act as applicable to

the High Court of Himachal Pradesh, challenge has been laid to

judgment dated 9.4.2021 passed by learned Single Judge of this court

in CWP No. 1145 of 2017, titled Banka Ram v. State of H.P. & Others,

wherein a direction came to be issued to the appellants to, within four

weeks, issue requisite acquisition notice under the relevant statue,-vis-

à-vis land of the writ-petitioner.

2. Precisely, the facts of the case, as emerge from the record, are

that land of the writ- petitioner came to be utilized for construction of

road namely Badiyara-Manghara road but since no compensation was

determined and paid to the writ petitioner, he approached this court by

way of the Civil Writ Petition, praying therein to issue direction to the

appellant-State to acquire his land denoted by Khasra No. 2137,

Whether the reporters of the local papers may be allowed to see the judgment?

measuring 00-12-48 hectares situate in Revenue Chak Kulgaon, Tehsil

Chirgaon, District Shimla.

3. Relief sought for by the writ petitioner in the writ petition, though

came to be refuted by the appellants on the ground of delay and laches

but at no point of time, appellants refuted the claim of the writ-petitioner

qua utilization of his land for the construction of road in question. They

stated that though there is no written document available on record,

suggestive of the fact that the land was donated by the writ petitioner of

his free will, but there is implied consent on the part of the writ

petitioner, for utilization of his land for the construction of road, which

fact can be gathered /inferred from the fact that the writ petitioner

remained silent for more than two decades.

4. Having taken note of pleadings adduced on record by respective

parties, learned Single Judge, vide judgment impugned in the instant

petition allowed the petition and directed the appellants to issue

acquisition notice under relevant statue within four weeks and

determine just and fair compensation qua the land of the petitioner. In

the instant background, appellants have approached this court in the

instant appeal, praying therein to set aside the judgment passed by

learned Single Judge.

5. Precisely, the grouse of the appellant as has been highlighted in

the present appeal and further canvassed by Ms. Sharmila Patial,

learned Additional Advocate General, is that the learned Single Judge

fell in grave error, while entertaining the petition filed by the writ

petitioner after an inordinate delay of more than two decades. Learned

Additional Advocate General submitted that though the Department

may not be in possession of any document, suggestive of the fact that

the land was made available by the writ petitioner, of his own volition

with the undertaking that he will not claim compensation qua the same,

but since he remained silent for more than 25 years, he is estopped

from claiming compensation at this belated stage. She further

submitted that in terms of mandate contained in Shankar Dass v.

State of Himachal Pradesh, CWP No. 1966 of 2010, otherwise the

appropriate remedy for the writ petitioner is to approach civil court by

filing a civil suit and not by way of Civil Writ Petition. She further

pressed into service judgment rendered by Hon'ble Apex Court in State

of Maharashtra v. Digamber¸(1995) 4 SCC 683 to argue that that the

claim being highly stale, deserves outright rejection. Learned Additional

Advocate General further submitted that no compensation otherwise

could be claimed for tthe road constructed under Pradhan Mantri Gram

Sadak Yojana (PMGSY).

6. To the contrary, Mr. Nishant Khidtta, learned counsel for the

writ-petitioner supported the impugned judgment and argued that at no

point of time, consent, if any, was given by his client for utilization of

his land, detailed above, for the construction of road in question. He

submitted that once factum of passing of award qua same land, in

favour of other land owners, is admitted, the ground raised by the

appellants that there was implied consent on the part of the writ

petitioner for construction of road without payment is not available to

the State. He also invited attention of this court to decisions rendered

by Hon'ble Apex Court in Vidya Devi v. State of Himachal Pradesh

and others, (2020) 2 SCC 569 and Sukh Dutt Ratra v. State of

Himachal Pradesh and others, (2022) 7 SCC 508, to state that the

plea of delay and laches cannot be raised in continuing cause of

action.

7. Having heard learned counsel for the parties and perused the

material available on record vis-à-vis reasoning assigned in impugned

judgment by learned Single Judge, there appears to be no illegality

therein. Learned Single Judge of this court, having taken note of the

fact that the land of the writ petitioner stands utilized for the

construction of road in question rightly proceeded to direct the

appellants to initiate acquisition proceedings. Plea of delay and laches

set up by the appellants came to be rejected by learned Single Judge,

in terms of judgments passed by Hon'ble Apex Court in Vidya Devi

and Sukh Dutt Ratra, supra, as have been taken note in the impugned

judgment.

8. Since it is not in dispute that the land of the writ petitioner stands

utilized for the construction of road, plea of delay and laches may not

be applicable in view of Vidya Devi and Sukh Dutt Ratra, supra,

wherein it has been held that delay and laches cannot be raised in

case of continuing cause of action. It has been further held by Hon'ble

Apex Court in the decisions supra 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 and it will depend

upon the fundamental rights and remedy claimed and how the delay

arose. Hon'ble Apex Court further held that there is no period of

limitation prescribed for the courts to exercise their Constitutional

jurisdiction to do substantial justice.

9. There is no dispute qua the fact that the land of the petitioners

was utilized for construction of road in question and some of land

owners were paid compensation after initiation of acquisition

proceedings under Land Acquisition Act in vogue at the relevant time,

and as such plea of delay and laches sought to be raised by

respondents may not be available on account of judgment rendered in

Vidya Devi and Sukh Dutt Ratra (supra), wherein it has been

categorically held that plea of delay and laches cannot be raised in

case of continuous cause of action and court can always condone the

delay to do the substantial justice. Forcible dispossession of a person

of his private property without following due process of law, has been

held to be violative of both, human right and constitutional right,

guaranteed under Art. 300-A of the Constitution of India. It would be

apt to take note of following paras of Vidya Devi, supra:

"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 Chenai, 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:

"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)

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 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 payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.

.

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. 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. 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., 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 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)"

10. Reliance is also placed upon judgment passed by the Hon'ble

Apex Court in Sukhdutt Ratra's cases (supra).

"23. This Court, in Vidya Devi (supra) 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:

"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., 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 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 multifaceted dimension."

.

24. And with regards to the contention of delay and laches, this

court went on to hold:

"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.

25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was

violative 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 (supra) is

squarely applicable to the nearly identical facts before us in the present case.

26. In view of the above discussion, in view of this court's

extraordinary jurisdiction under Article 136 and 142 of the Constitution, the State is hereby directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants in the same terms as the order of the reference court dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of 2004 (and consolidated matters). The Respondent-State is directed, consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. The appellants would also be entitled to

consequential benefits of solatium, and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013."

11. Bare perusal of aforesaid judgments clearly reveals that plea of

delay and laches is not available to the State, especially when it stands

proved on record that the petitioner is suffering continuous loss

coupled with the fact that he repeatedly requested the authorities of the

State to initiate acquisition proceedings. It has been held in the

aforesaid judgment that the land owners cannot be deprived of their

property, without following due process of law and, if it is so, ground

raised by the appellants that the land was made available with consent

is of no consequence, rather, this court having taken of the fact that the

land of the writ petition stands utilized by the State for the construction

of road, is persuaded to agree with the findings rendered by learned

Single Judge.

12. At this stage, learned Additional Advocate General pressed into

service judgment dated 24.2.2023 passed by Hon'ble Apex Court in

Civil Appeal No. 1278 of 2023, titled State of Himachal Pradesh and

Ors v. Rajiv and others, to argue that the relief as sought in the writ

petition, cannot be allowed on the ground of delay and laches, but

having perused judgment supra, in its entirety, this court finds that it

never came to be held in the aforesaid judgment that the claim of the

land owner after an inordinate delay, cannot be considered, rather, in

the aforesaid case, claimants were not held entitled to the interest

under the Land Acquisition Act from the date of issuance of Notification

under S.4 till the filing of the writ petition. Though in the instant case,

Notification under S.4 of Land Acquisition Act, 1894 was issued but the

same was not taken to its logical end, ruling if any given in aforesaid

judgment, is of no consequence, as far as case of facts of the present

case are concerned. No doubt, State possesses the power to take or

control the property of the owner of the land for the benefit of public,

but at the same time, it is obliged to compensate the injury by making

just compensation.

13.

Admittedly land of the writ petitioner stands utilized for the

construction of road, three decades back but till date he has not been

paid any amount of compensation qua his land, which action on the

part of the State, amounts to forceful dispossession of a land owner of

his land, as such, same being violative of Art. 300A of the Constitution

of India, deserves to be quashed and set aside.

14. In case titled, State of Himachal Pradesh v. Umed Ram

Sharma (1986) 2 SCC 68, Hon'ble Apex Court has held that entire

State of Himachal Pradesh is a hilly area and without workable roads,

no communication is possible; every person is entitled to life as

enjoined in Article 21 of the Constitution of India; every person has

right under Article 19 (1) (b) of the Constitution of India to move freely,

throughout the territory of India; for the residents of hilly areas, access

to road is access to life itself. Stand taken by the respondents that

there was a policy for providing roads on demand of residents as a

favour to them on conditions that they would not claim compensation,

cannot be sustained because such stand is violative of Article 300A of

the Constitution of India

15. In case titled Hari Krishna Mandir Trust v. State of

Maharashtra and others, 2020 9 SCC 356, Hon'ble Apex Court has

held that though right to property is not a fundamental right, but it is still

a constitutional right under Article 300A of the Constitution of India and

also a human right; in view of the mandate of Article 300A, no person

can be deprived of his property save by the authority of law.

16.

So far ground raised by the appellants qua the fact that since

the land of the petitioner was utilized for construction of road under

Pradhan Mantri Gram Sadak Yojana (PMGSY) is concerned, , it would

be apt to take note of judgment passed by Full Bench of this Court in

LPA No. 33 of 2021 alongwith Execution Petition No. 17 of 2019, titled

State of Himachal Pradesh v. Sita Ram, wherein reference made to

Full Bench came to be answered in the affirmative that, "a person,

whose land has been utilized for construction of road under PMGSY is

entitled for compensation, unless it is proved to the satisfaction of the

court, that land was donated or given by the land owner willingly, of his

own free will and consent, for construction of such road". It would be

apt to take note of following paras of the aforesaid judgment:

""31. In Shankar Dass, the Full Bench relied on the Three Judge Bench judgment of Supreme Court in State of Maharashtra Versus Digambar, reported in (1995) 4 SCC 683, where filing of writ petition with enormous delay and latches on the part of a citizen on the

alleged infraction of his legal right against the State, seeking a direction to initiate acquisition proceedings for their land of which possession was taken long time ago, was held to be fatal. It was held that writ petition under Article 226 of the Constitution, being power of

.

discretion, could not be entertained with blameworthy conduct of the

petitioner of such undue delay or laches, acquiescence or waiver in approaching the Court. The Full Bench also relied on the Constitution Bench judgment of the Supreme Court in the State of Madhya

Pradesh Versus Bhailal Bhai, reported in AIR 1964 SC 1006, in which it was held "that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought

may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured." Delay and how far ratio of Shankar Dass would hold field in view of later judgments of

the Supreme Court are not the questions for us to examine and answer. In view of the terms of reference made by the Division Bench,

which does not include the question of delay, we have to confine our examination to the limited scope, whether a person whose land has been utilized for construction of road under PMGSY is entitled to

compensation.

32. In view of above, the question referred to by the Division Bench, is, therefore, answered in the affirmative that a person whose

land has been utilized for construction of road under PMGSY is

entitled to compensation unless it is proved to the satisfaction of the Court that the land was voluntarily donated or given by him willingly with free will and consent for construction of such road."

17. In the aforesaid case, specific reference was made to Full Court,

"Whether a person(s) whose land(s) has been utilized for construction

of road under 'PMGSY' is entitled to compensation?" While answering

aforesaid reference, Full Bench held that a person whose land has

been utilized for construction of road under PMGSY is entitled to

compensation unless it is proved to the satisfaction of the Court that

the land was voluntarily donated or given by him willingly with free will

and consent for construction of such road.

18. Since in the case there is nothing on record to demonstrate that

the land was ever donated or gifted by petitioner of his own free will for

construction of road under PMGSY, plea of learned Additional

Advocate General that a person cannot claim compensation qua the