Gian Singh vs State Of Himachal Pradesh And ...
2023 Latest Caselaw 16940 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP No. 1177 of 2019 Reserved on: October 16, 2023 Decided on: October 20, 2023 ________________________________________________________

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    Gian Singh                                        ........... Petitioner





                                   Versus
    State of Himachal Pradesh and others                  Respondents

________________________________________________________ Coram:

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

Whether approved for reporting? 1 No.

For the petitioner : Mr. C.N. Singh, Advocate.

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

________________________________________________________ Sandeep Sharma, Judge

Since despite damage/utilization of land of the petitioner

for the construction of Gumma-Baghi road, no steps ever came to be

taken by the respondents for acquisition of the land of the petitioner

and no compensation was paid to him, he is compelled to approach

this Court, in the instant proceedings filed under Art. 226 of the

Constitution of India, praying therein for the following main reliefs:

"i) Issue a writ of Mandamus or other appropriate writ or direction by directing the respondents to acquire the land of the petitioner on Khasra No. 751, 781 at Mohal

Gumma, Tehsil Kotkhai, District Shimla, H.P., (utilized for construction of Gumma-Baghi road) and pay compensation in accordance with law i.e. The Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013, in a time bound manner.

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

ii) Accordingly Issue a writ of Mandamus or other appropriate writ or direction by directing the respondents to remove the muck, debris throw by them over the land/orchard f the Petitioner on Khasra no. 754/1 land

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measuring 0-74-97 bighas at Mohal Gumma, Tehsil

Kotkhai, District Shimla, H.P. and direct the Land acquisition Commissioner to assess the loss and award the damages."

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

that in the year 1975, respondent-State constructed the road in

question through land of the petitioner denoted by Khasra Nos. 751

and 781, claimed /shown to be belonging to the State of Himachal

Pradesh. On 26.9.2018 due to heavy rains/landslide in Kotkhai, huge

muck /debris fell on the road. On account of reckless and negligent

working by the workers of the respondent-State, muck and debris was

further thrown below the road in Khasra No. 754, measuring 0-06-37,

as a result of which, entire land comprised in Khasra No. 754 was

destroyed. Matter was brought to the notice of the Tehsildar, Kotkhi,

District Shimla and Sub Divisional Officer, Theog called upon Village

Revenue Officer, Kotkhai and Junior Engineer of the Public Works

Department to visit the spot and assess the situation on the spot.

Junior Engineer with Village Revenue Officer concerned visited the

spot and prepared report dated 26.9.2018, stating therein that Khasra

Nos. 751 and 781, on which the State had constructed the road in

question, belongs to the petitioner and not to the State of Himachal

Pradesh. In the aforesaid background, petitioner approached the

respondents, praying therein for compensation qua the land as well as

for removal of muck/debris. Since no action whatsoever, came to be

taken at the behest of the respondents for acquisition of land, as well

as for removal of muck and debris, petitioner approached this court in

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the instant proceedings, seeking reliefs, as have been reproduced

herein above.

3. Pursuant to notices issued in the instant proceedings,

respondents Nos.1 and 3 filed reply through Superintending Engineer,

14th Circle, Himachal Pradesh Public Works Department Rohru,

wherein facts, as have been noted herein above, have not been

disputed rather, stand admitted.

4. If the reply filed by the respondents is perused in its entirety,

claim of the petitioner has been sought to be refuted on the ground of

delay and laches, Ms. Sharmila Patial, learned Additional Advocate

General, while making this court peruse the pleadings adduced on

record, vehemently argued that the road in question was constructed

in the year 1968-69 and at no point of time, petitioner or his

predecessor-in-interest raised objection, if any, with regard to utilization

of his land, as such, claim being raised after a lapse of fifty years,

being an afterthought, deserves outright rejection.

2. While making this Court peruse judgment passed by this Court

in Shankar Dass v. State of Himachal Pradesh in CWP No. 1966 of

2010, Mr. Sharmila Patial, learned Additional Advocate General,

submitted that otherwise also appropriate remedy for the petitioner is to

approach a civil court by way of civil suit. He further submitted that

Hon'ble Apex Court in State of Maharashtra v. Digambar, (1995) 4

SCC 683 has categorically held that the claim being highly stale,

deserves outright rejection. Lastly, Ms. Patial, learned Additional

Advocate General submitted that no compensation can be claimed qua

the roads constructed under Pradhan Mantri Gram Sadak Yojana.

3. To the contrary, learned counsel for the petitioner strenuously

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argued that at no point of time, consent if any was given by petitioner

for the construction of road, without compensation. He submitted that

once the respondents themselves have admitted factum of passing of

award in case of some of land owners, such plea raised by the

respondents, that there was oral consent on behalf of the petitioner, for

construction of road through his land, without payment of

compensation, falls to the ground.

4. He submitted that otherwise also 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, has categorically held that plea of delay and

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

especially in land acquisition matters.

5. Having heard learned counsel for the parties and perused

material available on record this court finds that there is no dispute qua

the fact that the land of the petitioner was utilized for construction of

road in question. 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. 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 or if the

circumstances shock the judicial conscience of the court, it can always

condone the delay to do the substantial justice. While holding that

condonation of delay is a matter of judicial discretion, which must be

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exercised judiciously and reasonably in the facts and circumstances of

a case, 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. Forcible dispossession of a person

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

been held to be violative of both, human right as well as 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

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"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

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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

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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)"

6. 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:

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"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."

7. In the aforesaid judgments, Hon'ble Apex Court has

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categorically held that contention advanced by the State of delay and

laches of the appellant in moving the Court is liable to be rejected

especially when it is not in dispute that petitioner are suffering

continuous loss coupled with the fact that they repeatedly requested

the authorities to initiate acquisition proceedings.

8. If the aforesaid judgments are read in their entirety, it clearly

emerges that land owners cannot be deprived of their land, without

following due process of law. If it is so, ground raised by the

respondents that petitioner has made his land available with consent, is

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

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

question, is compelled to agree with the submission of learned counsel

for the petitioner that his client is entitled for compensation qua the land

utilized by respondents for construction of road in question.

9. Though at this stage, learned Additional Advocate General,

while making this court peruse 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, attempted to argue

that the relief as sought in the instant 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 Notification under S.4 till the filing of the writ petition. Since, no

Notification under S.4 of Land Acquisition Act, 1894 ever came to be

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issued in the case of petitioner, ruling, if any, given in the aforesaid

judgment, is of no relevance.

10. Admittedly, land of the petitioner stands utilized for construction

of road but till date, he has not been paid any amount, which action of

the respondent-State certainly amounts to forcible dispossession of the

petitioner from his land, which is violative of provision contained under

Art. 300-A of the Constitution of India.

11. At this stage, 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

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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."

5. 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 though 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.

12. 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 person cannot claim compensation qua the land

utilized for construction of road under PMGSY, deserves outright

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rejection.

13. 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

14. 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.

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

law taken note herein above, we find sufficient merit in the present

petition and the same is allowed. Respondents are directed to initiate

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the acquisition proceedings qua the land of the petitioner, detailed

herein above, within a period of four weeks from today, and take them

to their logical end within six months and further pay appropriate

compensation to the petitioner, in accordance with the provisions of the

Right to Fair Compensation and Transparency in Land Acquisition

(Resettlement and Rehabilitation) Act, 2013, alongwith all statutory

benefits. However, the petitioner shall not be entitled to interest on the

amount of compensation from the date of 'utilization' of the road till the

date of filing of the writ petition.

16. The petition stands disposed of in the afore terms, alongwith all

pending applications.

(Tarlok Singh Chauhan) Judge

(Sandeep Sharma) Judge

October 20, 2023 Vikrant