The State Of Himachal Pradesh And ... vs Laiq Ram
2023 Latest Caselaw 16939 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

LPA No. 51 of 2019 Reserved on: October 16, 2023 Decided on: October 20, 2023 ________________________________________________________

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





                                   Versus
    Laiq 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

:

Mr. G.D. Verma, Senior Advocate with Mr. Hitesh Thakur, Advocate.

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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 5.9.2019 passed by learned Single Judge of this court

in CWP No. 94 of 2018, titled Laiq Ram v. State of Himachal Pradesh

and others, wherein a direction came to be issued to the appellants to

initiate process for acquisition of land of petitioner and complete the

entire proceedings on or before 30.4.2019.

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

that the land of the respondent/ writ-petitioner comprised in Khasra

Nos. 27, 32, 159 situated in Mauja Chakyana, Tehsil Sunni, Shimla

came to be utilized for the construction of Baldeyan-Dharampur-

Khatnol road, but since despite utilization of the land of the petitioner,

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

no steps were being taken by appellants for acquisition of land, writ

petitioner approached this court in the instant writ petition, seeking

therein direction to the appellants to complete the acquisition

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proceedings and pay compensation to the writ-petitioner in accordance

with law.

3. Pursuant to notices issued in the aforesaid proceedings,

appellants filed reply, wherein, it nowhere came to be disputed that

land of the writ petitioner stands utilized for construction of road in

question, rather, the appellants resisted the claim of the writ petition on

the ground of delay and laches. Besides above, appellants also

claimed that, while the road was under construction, petitioner and

other land owners never raised any objection with regard to utilization

of the road, rather voluntarily donated the land for the construction of

road.

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

pleadings adduced on record by respective parties, especially with

regard to utilization of land of the writ petitioner for construction of road

in question, allowed the writ petition with a direction to the appellants to

initiate process for acquisition of land in accordance with law. Being

aggrieved by the aforesaid order, appellants have approached this

court in the instant appeal, praying therein to set aside the aforesaid

order passed by learned Single Judge.

5. Precisely, the grouse of the appellants as has been highlighted

in the appeal and further canvassed by learned Additional Advocate

General is that the learned Single Judge fell in grave error while

entertaining the writ petition filed by petitioner after an inordinate delay

of thirty three years. He submitted that long and unexplained delay of

thirty three years disentitles the land owner from claiming

compensation with respect to the land, which was put to use for

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construction of road.

6. In support of his aforesaid contentions, learned Additional

Advocate General placed heavy reliance upon State of Maharashtra

v. Digamber¸(1995) 4 SCC 683, wherein Hon'ble Apex Court held that

the claim being highly stale, deserves outright rejection. Learned

Additional Advocate General also invited attention of this court to the

decision rendered by this Court in Shankar Dass v. State of Himachal

Pradesh, CWP No. 1966 of 2010, to argue that 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.

7. To the contrary, learned counsel for the writ petitioner supported

the impugned judgment. While making this court peruse decision

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, , learned

counsel for the writ petitioner argued that plea of delay and laches

cannot be raised in the case of continuing cause of action, especially in

the matters of land acquisition.

8. 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 correctly, proceeded to direct the appellants to initiate

acquisition proceedings and the plea of delay and laches set up by the

appellants rightly came to be rejected by learned Single Judge, in

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

Sukh Dutt Ratra, supra.

9. 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 or when the circumstances shock

the judicial conscience of the court, it can condone the delay to do

substantial justice. Hon'ble Apex Court in the decisions supra 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 and it will depend upon the fundamental rights and remedy

claimed and how the delay arose. There is no period of limitation

prescribed for the courts to exercise their Constitutional jurisdiction to

do substantial justice. Most importantly, it has been held in the

aforesaid judgments that forcible dispossession of a person, without

following due process of law, is violative of both, human right and

fundamental rights as enshrined under Article 300A of the Constitution

of India.

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

stands utilized for the construction of road in question and it is also not

in dispute that 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 to the

appellants. It would be apt to take note of following paras of Vidya

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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.,

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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

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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

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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. 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

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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."

12. 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, if it is so, the ground

round 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

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construction of road, is persuaded to agree with the findings rendered

by learned Single Judge.

13. 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 and as such, ruling if any given is

of no consequence, as far as present case is concerned.

14. 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.

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

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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

16. 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. 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.

17. Consequently in view of the detailed discussion supra and the

law taken note herein above, this court finds no illegality and infirmity in

the judgment passed by learned Single Judge, and the same is upheld.

The appeal fails and is accordingly dismissed. All pending applications

stand disposed of.

(Tarlok Singh Chauhan)

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Judge

(Sandeep Sharma)

Judge October 20, 2023 Vikrant

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