Himachal Pradesh High Court

State Of H.P. & Others vs Ram Lok (Since Deceased) Through on 14 September, 2023

Bench: Rakesh Kainthla

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 245 of 2022 Reserved on: 22.08.2023

Date of Decision: 14th September, 2023

State of H.P. & others ....Appellants Versus

Ram Lok (since deceased) through His LRs & others.

....Respondents Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting? Yes

For the Appellants : Mr. R.P. Singh, Mr. Prashant Sen and Ms. Avni Kochhar,

Deputy Advocates General for the appellants.

For the Respondents : Mr. Neeraj Gupta, Senior Advocate with Ms. Rinki

Kashmiri, Advocate for the respondents.

Rakesh Kainthla, Judge.

The present appeal is directed against the judgment

and decree dated 26.06.2019, passed by learned Additional

District Judge, Ghumarwin, vide which the appeal filed by the

appellants (defendants before the learned Trial Court) was partly

dismissed (Parties shall hereinafter be referred to in the same

manner as they were arrayed before the learned Trial Court for

convenience).

2. Briefly stated, the facts giving rise to the present

appeal are that the plaintiffs filed a civil suit against the

defendants before the learned Trial Court seeking a permanent

prohibitory injunction for restraining them from constructing a

new road or widening the road constructed over part of the suit

land described in the plaint till the same is acquired as per the law.

A mandatory injunction directing the defendants to acquire the

part of the suit land or in the alternative relief for possession and

compensation was also sought. It was pleaded that plaintiffs are

co-owners of the suit land. The State of H.P. constructed a road

on the suit land without obtaining the consent of the plaintiffs.

When the plaintiffs protested, the defendants assured to acquire

the land as per the law. Notification under Section 4 of the Land

Acquisition Act was issued, but it was allowed to lapse. 200 plants

and trees were damaged while constructing the road. The

defendants intend to use the remaining part of the suit land for

widening the road. Hence, the suit was filed to seek the relief

mentioned above.

3. The suit was opposed by filing a written statement,

taking preliminary objection regarding lack of maintainability,

cause of action, locus standi and jurisdiction, the plaintiffs being

estopped to file the present suit by their acts and conducts, suit

being bad for want of notice under Section 80 CPC and suit being

bad for non-joinder and mis-joinder of necessary parties. The

contents of the plaint were denied on merits. It was asserted that

the road was constructed 40 years ago with the consent of the

predecessor-in-interest of the plaintiffs. No assurance was given

to the plaintiffs for payment of compensation. The road was

covered under the NABARD scheme. The defendants would

construct only drains and culverts for the safety of the public and

there was no proposal for widening the road. Hence, it was prayed

that the suit be dismissed.

4. Learned Trial Court framed the following issues on

10.12.2014:-

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1. Whether the plaintiffs are entitled for relief of

permanent prohibitory injunction, as prayed? OPP

2. Whether the plaintiffs are entitled for relief of

possession, as alleged?OPP

3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD

4. Whether the plaintiffs have no cause of action and

locus standi to file the present suit? OPD

5. Whether the plaintiffs are estopped to file the present suit by their own acts, conducts, omissions and

commissions? OPD

6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD

7. Whether the suit is bad for non-joinder and mis-

joinder of necessary parties? OPD

8. Whether the present suit is time-barred? OPD

9. Whether the suit is bad for non-compliance of Section

80 CPC?OPD.

10. Relief.

5. The parties led their evidence.

6. The Learned Trial Court held that the plea taken by the

defendants that the road was constructed with the oral consent of

the defendants was not proved. The defendants had taken steps

for the acquisition of the land by issuing a Notification under

Section 4 of the Land Acquisition Act dated 04.10.2000, (Ext.PX1).

However, it was permitted to lapse. The issuance of Notification

falsifies the plea taken by the defendants regarding the consent of

the plaintiffs. The State cannot use the property of a citizen

without the payment of compensation. The defendants had not

taken the plea of adverse possession and the suit based on the title

is not barred. Hence, the learned Trial Court answered issue nos. 1

and 2 in affirmative,the rest of the issues in the negative and

decreed the suit of the plaintiffs.

7. Being aggrieved from the judgment and decree passed

by the learned Trial Court, the defendants preferred an appeal

before the learned First Appellate Court. The learned First

Appellate Court held that the plea of the consent was not proved.

The State cannot take plea of adverse possession against the

citizen and the suit based on the title is not barred by limitation.

Hence, the learned First Appellate Court partly allowed the appeal

and directed that in case the defendants do not acquire the land as

per the law, the plaintiffs will be entitled to vacant possession by

restoring the suit land to its original position. However, the

decree of the vacant possession shall not be executable for 6

months to enable the State to acquire the land.

8. Being aggrieved and dissatisfied with the judgments

and decrees passed by the learned Courts below, the present

appeal has been filed, asserting that the learned Courts below did

not properly appreciate the oral and documentary evidence. The

learned Courts below erred in issuing a direction to acquire the

land. The road is in existence for more than 40 years and it was

constructed with the consent of the predecessor-in-interest of

the plaintiffs for the benefit of the general public. The defendants

are in continuous and peaceful possession of the suit land. The

suit is liable to be dismissed on the ground of delay and latches,

therefore, it was prayed that the present appeal be allowed and the

judgments and decrees passed by the learned Courts below be set

aside.

9. The following substantial questions of law were

proposed with the memorandum of appeal:-

1. Whether the court has jurisdiction to try & determine the suit which was filed after the expiry of limitation period i.e. 40 years?

2. Whether the plaintiffs are estopped to file the suit by their own acts, conducts and deeds etc.?

3. Whether the suit filed for prohibitory injunction and mandatory injunction after a period of 40 years suffers from delay and latches?

10. I have heard Mr. R.P.Singh, Mr. Parshant Sen and

Ms Avni Kochhar, learned Deputy Advocate Generals for the

appellants/defendants/State and Mr. Neeraj Gupta, learned Senior

Advocate assisted by Ms Rinki Kashmiri, Advocate, for the

respondents/plaintiffs.

11. Mr. R.P. Singh,Mr. Parshant Sen and Ms Avni Kochhar,

learned Deputy Advocates General for the

appellants/defendants/State submitted that the suit is barred by

limitation, it was duly proved on record that the road is in

existence for more than 40 years. No action was taken by the

plaintiffs at the time of constructon of road and the suit filed after

40 years was not within limitation. The learned Courts below

erred in giving a direction to the State to acquire the land,

therefore, they prayed that the present appeal be admitted on the

substantial questions of law so proposed with the memorandum

of appeal.

12. Mr. Neeraj Gupta, learned Senior Advocate for the

respondents/plaintiffs supported the judgments and decrees

passed by the learned Courts below and submitted that no

inference is required with the same. No substantial question of

law arises in the present case and he prayed that the present

appeal be dismissed.

13. I have given considerable thought to the rival

carefully.

r to submissions at the bar and have gone through the records

14. Both the learned Courts below have concurrently found

that the plea of oral consent was not proved. These are the

concurrent findings of facts duly supported by the evidence.

Uttam Singh (DW-1) stated that he was posted since 2012 and the

road was constructed 40-45 years before the date of his

deposition. He admitted in the cross-examination that he was not

posted at the time of the construction of the road and he could not

say about the consent for the construction of the road. Similarly,

Krishan Kant Chauhan (DW2) stated that he was posted since 2012

and the road was constructed about 45 years before the date of his

deposition. He admitted in his cross-examination that consent

was not given in his presence and he had not seen any record

regarding the consent. Thus, both the witnesses of the defendants

admitted that the consent was not given in their presence and

their testimonies did not establish the consent of the landowners.

15. In Nokhia & Others vs. State of HP ILR 1984 HP 906, the

State Government had used the land for the construction of the

link road without acquiring the same. A writ petition was filed

before this Court. State Government had taken a defence of the

consent. This Court held that the State has to bring the material

on record to show that free and informed consent was given and a

consent, based upon the representation that payment of the

compensation would be made, is no consent at all. This Court

issued the following instructions:-

"8. On this occasion, once again, the Court draws the

attention of the State Government to the state of affairs

which have come to light in this and similar cases and directs that:

(a) instructions be issued to all limbs and subordinates that no citizen should be deprived of his property save in accordance with law, that is, the law relating to the acquisitioning and requisitioning of property and that in rare and exceptional cases of emergent public utility projects, the execution whereof cannot brook any delay in the public interest and where the provisions of Section 17 of the Land Acquisition Act cannot be resorted for reasons such

as the nature and character of land, possession of the land or any specified portion thereof may be taken with the consent, as explained above of the person(s) interested in the land after the execution of an

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agreement, in writing, between the said person(s)

and the competent authority, in accordance with law, incorporating the conditions, inter alia, that the land acquisition proceedings shall be initiated and

completed and the compensation will be paid within a reasonable time to be specified in the agreement and that interest will be paid from the date of taking over of possession; and

(b) in order to avoid proliferation of litigation and to alleviate genuine hardship of persons similarly situate, all cases like the present, where there has been a deviation from law and persons have been

deprived of the possession of their property save in accordance with law, be taken up for regularisation

by initiating/ completing acquisition proceedings in accordance with law with the utmost expedition and within a time-limit which may be set up by the State Government bearing in mind the need of striking a

just balance between the inevitable lapse of time which is reasonably likely to occur even if urgent action is taken in that direction and the duty of

providing quick relief by emergent remedial measures to the aggrieved persons and, in all such

cases, equitable compensation, on the basis on which the Court has so far awarded the same in such and similar cases and proposes to award herein, be paid

to such persons from the date of taking over of possession till the date of actual payment, in addition to the compensation, solatium and interest at the statutory rate which becomes payable under the law. The Court has so far viewed cases where such unauthorized actions were taken in the past leniently but any future lapse will have to be strictly viewed if it is brought to its notice."

16. Therefore, in view of the binding directions of this

Court, it is not permissible to use the land of the person without

his consent and the consent has to be taken through an agreement

in writing between that person and the competent authority.

These directions are binding upon the State and it is not

permissible for the State to say that it had taken the oral consent

of the owner.

17.

This judgment was followed in Lata vs. State of H.P.

2009 (1) Shim. L.C. 107 and it was held that mere bald assertion

that the landowners had orally consented to the taking of

possession of the land on a verbal assurance is not sufficient. The

State has to give the details of when the consent was obtained,

who was the authority that obtained the consent and in what

manner. It was observed:

"12. The respondent state has only made a bald assertion that the landowners had orally consented to the taking of possession of the land on a verbal assurance. The

respondents have not given details when the consent was obtained and who was the authority that obtained the consent and in what manner. The plea set up by the State that the owners have given consent and voluntarily handed over the land cannot be accepted."

18. This question was also considered by the Hon'ble

Supreme Court in Vidya Devi Versus State of H.P. 2020(2) SCC 569,

wherein it was observed:-

.

"12.8. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is

completely baseless. We find a complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State."

19. Similar is the judgment of the Hon'ble Supreme Court

in Sukh Dutt Ratra & another Vs. State of H.P & others 2022 (7) SCC

508 wherein it was observed:

"21. Having considered the pleadings filed, this court finds

that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection but has not placed any material on

record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the

manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the

State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.

22. This court is also not moved by the State's contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason - construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally

dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court's intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their

land, the appellants were entitled to compensation in

terms of law. The need for written consent in matters of land acquisition proceedings has been noted in fact, by the full court decision of the High Court in Shankar Dass

{supra) itself, which is relied upon in the impugned judgment.

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. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply with the

procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to

itself a status beyond what is provided by the Constitution.

12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] held that the right to property

is now considered to be not only a constitutional or statutory right but also a human right. Human rights have been considered in the realm of individual rights such as the right to shelter, livelihood, health, employment, etc. Human rights have gained a multi- faceted dimension. "

20. Therefore, in view of the binding precedents, the plea

of consent has to be established satisfactorily. The defendants had

not examined any person, in whose presence the consent was

given. The defendants examined, Uttam Singh, Assistant

Engineer (DW-1) and Krishan Kant Chauhan (DW-2), who were

posted in the year 2012 and they were not competent to depose

about the consent having been given 40 years ago. Thus, there is

no perversity in the findings recorded by the learned Courts below

that the plea of oral consent was not established.

21. Heavy reliance was placed upon the judgment of the

Hon'ble Supreme Court in State of Maharashtra Versus Digamber

1995(4) SCC 683 to contend that a person who does not approach

the Court immediately is guilty of delay and laches and no relief

can be granted to him. However, this judgment dealt with the writ

jurisdiction and does not apply to a civil suit, which is based on

the limitation and not on the principle of delay and laches. A

similar argument was raised before the Hon'ble Supreme Court in

Vidya Devi (supra). Repelling this argument, it was held:-

"12.12. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock

the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental

.

rights, and the remedy claimed, and when and how the

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

12.13 In a case where the demand for justice is so compelling, a Constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it. (P.S. Sadasivaswamy v. State of T.N., 1975 1 SCC 152.)

12.14 In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., 2013 1 SCC 353 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, the grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claims 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 possession of the land belonging to the Appellants without any sanction of law. The

Appellants had asked repeatedly for a 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)

13. In the present case, the appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without

resorting to the procedure prescribed by law. The appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one

since the appellant was compulsorily expropriated of her

property in 1967 without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted

that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction under Articles 136 and 142 of the Constitution and direct the State to pay compensation to the appellant.

22. Therefore, the claim cannot be defeated on the grounds

of delay and laches.

23. It was laid down by the Hon'ble Supreme Court in Vidya

Devi (supra) that a person cannot be deprived of his property

without any legal sanction of law. It was held:-

"12.7. 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.

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

M.I.D.C. & Ors, 2013 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare state governed by the rule of law

.

cannot arrogate to itself a status beyond what is provided

by the Constitution.

12.10. This Court in State of Haryana v. Mukesh Kumar 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 the right to shelter, livelihood, health, employment, etc. Human rights have gained a

multi-faceted dimension."

24. This question was also considered by the Hon'ble

Supreme Court in Hari Krishna Mandir Trust vs. State of

Maharashtra 2020(9) SCC 356 and it was held that the Municipal

Corporation is under obligation to acquire the land used for

constructing the road. It was observed:-

"93. On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. never

belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were

three plots 473 B1, B2, B3 and 473B4 shown as vacant land held by the owners of all the three adjacent plots.

94. The Municipal Corporation was never shown as the owner of the vacant plot or any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based on entries in property records and the award of the arbitrator."

25. It was further observed that the right of property is a

statutory right and no person can be deprived of the right to his

property. It was observed:-

.

"96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article

300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and Others, (2008) 4 SCC 649 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law.

The appellant trust cannot be deprived of its property save in accordance with the law.

97. Article 300A of the Constitution of India embodies the

doctrine of eminent domain which comprises two parts, (i) possession of the property in the public interest; and (ii)

payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar and Others vs. Project Uchcha Vidya, Sikshak Sangh and Others, (2006) 2 SCC 545, 574 (para 69); Jelubhai Nanbhai Khachar

and Others vs. State of Gujarat and Anr. (1995) Suppl. 1 SCC 596; Bishambhar Dayal Chandra Mohan and Ors. vs. State of Uttar Pradesh and Others, (1982) 1 SCC 39 the State possesses

the power to take or control the property of the owner for the benefit of the public. When, however, a State so acts it

is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders vs. State of Maharashtra and Others, (2007) 7 SCC 555 (paras 55

and 56)."

26. Dealing with the remedy available to a person in case

of forcible dispossession, it was held that a person can file a writ

of mandamus for payment of compensation. It was observed:-

"99. In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by this Court in Wazir Chand vs. State of Himachal Pradesh,

.

AIR 1954 SC415. Admittedly, no compensation has been

offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. vs. State of Karnataka, (2011) 9 SCC 1 even though the right to claim

compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for a public purpose cannot say that no

compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a landholder of his land, without compensation. Statutory authorities are bound to pay adequate compensation.

100. The High Courts exercising their jurisdiction under

Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty-bound to exercise such power, where the Government or public authority has failed to

exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or

on irrelevant consideration."

27. Similarly, it was held in Syed Maqbool Ali vs. State of

Utter Pradesh 2011(15) SCC 383 that the remedy of a person whose

land is taken without acquisition is to file a civil suit for recovery

of possession or payment of compensation. It was observed:-

"9. The remedy of a landholder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation or approach the High Court by filing a writ petition if the action can be

shown to be arbitrary, irrational, unreasonable, biased, mala fide or without the authority of law, and seek a direction that the land should be acquired in a manner known to law."

28. Thus, a person deprived of his property unlawfully is

entitled to the restoration of the possession or the payment of

compensation and there is no infirmity in the judgments and

decrees passed by the learned Courts below for payment of

compensation or restoration of possession.

29.

A plea was taken that no objection was raised at the

time of construction of the road and the suit is not maintaiable. A

similar situation arose before the Hon'ble High Court in Jai Ram

Versus State of H.P. 2011 (3) Shim. L.C. 91 and it was held that non-

raising of objection by a landowner when his land is being

encroached upon either by the State or its Agencies or even by a

private person does not disentitle him to seek his legal remedy. It

was observed:

"5. It is not the case of the respondents that the petitioner

had offered his land for being utilized for the construction of a road, under the aforesaid PGSMY Scheme. Their plea is that the petitioner did not object to the construction of the road on the site. Non-raising of objection by a landowner, when his land is being encroached upon, either by the State or its Agencies or even by a private person, does not disentitle him from seeking his legal remedy. Neither the scheme of PGMSY authorizes the State nor its Agencies to

utilize private lands, without payment of compensation to the landowners nor could have a provision like that been made in the scheme as the same would have been contrary to the mandate of Article 300-A of the Constitution of

.

India."

30. Similarly, it was held in Jeet Ram Versus State of H.P.

Latest HLJ 2016 HP 615 that there can be no waiver or estoppel

regarding constitutional rights. It was observed:

"4. No person can be deprived of his property without

following due process of law. Respondents have utilised the land of the petitioner without paying him any compensation. There is no contemporaneous record placed on record by the respondent-State to show that the

petitioner had consented to the construction of the road through his land. It is evident from the contents of

Annexure P-1 that the nature of land in Khasra no. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valuable piece of land of the petitioner has been utilised in an arbitrary manner by the respondent-State, for the purpose

of construction/widening of the Shillaru-Reog road. xxxxxxxxxxxxxx

6. The legitimate right of a citizen, that too pertaining to valuable property, can not be defeated merely on the

technical objections. There ought to be a difference in the approach of a private litigant vis-a-vis the State. The State stands on a higher pedestal. It is the duty of the

functionaries of the State to maintain the Rule of Law. There can not be any estoppel/waiver against the constitutional/ fundamental/ legal rights."

31 Similarly, the Hon'ble Supreme Court of India held in

Raj Kumar Versus State of H.P. in Civil Appeal no. 9105 of 2015,

decided on 29.10.2015 that where the land was utilized for

construction of the road without the payment of the

compensation and there was no proof of the consent, State is

liable to pay compensation. Since in the present case the consent

was not established, therefore, the plaintiff is entitled to the relief

sought by him and the learned trial Court had rightly granted the

relief of possession/compensation.

32. This position was reiterated in Sukh Dutt Ratra &

observed that:-

r to another vs. State of H.P & others 2022 (7) SCC 508, wherein it was

"13. While the right to property is no longer a fundamental right[Constitution (Forty Fourth Amendment) Act, 1978.], It is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the

Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due

process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington, [1765] EWHC (KB) 198 and by this

court in Wazir Chand v. The State of Himachal Pradesh, 1955 (1) SCR 408. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.

15. When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State. In Bishandas v. State

of Punjab, 1962 (2) SCR 69 this court rejected the

contention that the petitioners in the case were trespassers and could be removed by an executive order, and instead concluded that the executive action taken by

the State and its officers, was destructive of the basic principle of the rule of law. This court, in another case - State of Uttar Pradesh and Ors. v. Dharmander Prasad Singh and Ors, 1989 (1) SCR 176, held:

"A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise.

The use of the expression 're-entry' in the leasedeed does not authorise extra-judicial methods to resume

possession. Under the law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise

than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under

an additional inhibition stemming from the requirement that all actions of Government and

Governmental authorities should have a 'legal pedigree'".

16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains - Can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable,

and warranting intervention on the grounds of equity and fairness.

17. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the

injustice meted out to the appellants and compelled them

to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such

judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's lackadaisical conduct is discernible from this action of

initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in

CWP No. 1192/2004) and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage,

the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.

18. There is a welter of precedents on delay and laches which conclude either way - as contended by both sides in the present dispute - however, the specific factual matrix

compels this court to weigh in favour of the appellant- land owners. The State cannot shield itself behind the

ground of delay and laches in such a situation; there cannot be a 'limitation' to doing justice. This court in a much earlier case - Maharashtra State Road Transport

Corporation v. Balwant Regular Motor Service, 1969 (1) SCR 808 ', held:

"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other

party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, the lapse of time and delay are most material.

.

But in every case, if an argument against relief, which

otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence

must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either

party and cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy. "

19. The facts of the present case reveal that the State has,

in a clandestine and arbitrary manner, actively tried to

limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing

Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This

court, in Manohar (supra) - a similar case where the name of the aggrieved had been deleted from revenue records

leading to his dispossession from the land without payment of compensation - held:

"Having heard the learned counsel for the appellants,

we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing

what appears to be a just and reasonable claim of the respondent.

Ours is a constitutional democracy and the rights available to the citizens are declared by the

.

Constitution. Although Article 19(l)(f) was deleted by

the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:

"300-A. Persons not to be deprived of property save by authority of law.No person shall be deprived of his property save by authority of law."

This is a case where we find an utter lack of legal authority for the deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for

exercising the writ jurisdiction of the High Court

under Article 226 of the Constitution... "

20. Again, in Tukaram Kana Joshi {supra)While dealing with a similar fact situation, this court 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,

grants of compensation for a wrong done to them decades ago, recovery of statutory dues, claims 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. The 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 a grant of the benefit of compensation. The State must either comply with the procedure laid down for

acquisition, requisition, or any other permissible statutory mode. "

xxxx

25. Concluding that the forcible dispossession of a person

.

of their private property without following due process of

law, was violative[Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC

517; Delhi Airtech Services Pvt. Ltd. & Ors. v. State of Uttar Pradesh & Ors. 2011 (12) SCR 191; and Jilubhai Nanbhai Kahchar v. State of Gujarat 1994 Supp (1) SCR 807.] of both their human right and constitutional right under Article 3

00-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."

33. It was submitted that the State has been in possession

for more than 45 years and the plaintiffs are not entitled to

possession. This cannot be accepted. The defendants are the State

and its instrumentalities. It was laid down by the Hon'ble

Supreme Court in State of Haryana v. Mukesh Kumar, (2011) 10 SCC

404 : (2012) 3 SCC (Civ) 769: 2011 SCC OnLine SC 1341 that the State

cannot take the plea of adverse possession to grab the property of

its citizens. If the protectors of the law will become grabbers of

the property, then the people will be left with no protection and

there will be total anarchy in the entire country. It was observed at

page 419

45. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. It is indeed a very disturbing and dangerous

trend. In our considered view, it must be arrested without

further loss of time in the larger public interest. No government department, public undertaking, and much less the Police Department should be permitted to perfect

the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.

34. This position was reiterated by the Hon'ble Supreme

Court in Vidya Devi Versus State of H.P. 2020(2) SCC 569 wherein it

was held:-

"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 be 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."

35. It was submitted that the suit was filed after a lapse of

40 years and the same is barred by limitation. This plea cannot be

accepted. The learned Trial Court had rightly pointed out that no

plea of adverse possession was taken and the suit based on title

cannot be said to be barred in the absence of any such plea.

36. It was laid down by this Court in Tilak Raj vs. Bhagat

Ram & Another 1997 (1) Sim. LC 281 that in a suit based on the title

where no plea of adverse possession had been raised could not be

barred by limitation on the ground that it was filed after more

than 12 years from the date of dispossession. It was observed:-

"10. The present suit is for possession on the basis of title. Article 63, Limitation Act, 1963, governs the present case. It provides that for possession of immovable property or any

interest therein based on the title, the limitation of twelve years begins to run from the date of the defendant's interest becomes adverse to the plaintiff

11. It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or

impliedly in denial of the title of the true owner.

12. It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and

unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be

had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.

13. It is equally well settled that mere possession for however long a period is not enough to claim title inasmuch

as the possession has to be adverse.

14. In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.

15. Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time-barred on the ground that the same was filed

.

after the expiry of twelve years from the date of

dispossession."

37. Similarly, it was held in Indira vs. Arumugam & Another

(1998) 1 SCC 614 that in a suit based on the title, when the title has

been established, the plaintiff cannot be non-suited on the

ground of limitation unless the plea of adverse possession is

established. It was observed:-

r to "4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the

assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on the title had to prove not only the title but also possession within 12 years of the date of the suit. The said provision of

law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:

Description of the Period of Time from which

suit:- For limitation:- period begins to run:

               possession of        Twelve years      - When the
               immovable
                                                      possession of the
               property or any





                                                      defendant becomes
               interest therein
               based on the title                     adverse to the
                                                      plaintiff.

5. It is, therefore, obvious that when the suit is based on the title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately,

this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the Second Appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the

question of law framed by the learned Judge for disposing

of the Second Appeal, this appeal is allowed."

38. Similar is the judgment of this Court in Shishi Ram Vs.

Megh Chand AIR 2013 HP 65, wherein it was held:-

"12. It is settled law that mere possession however long does not necessarily mean that it is adverse to the true

owner. Adverse possession really means hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, the possession/ roved must be adequate in continuity,

publicity and in extent so as to show that it is adverse to the

true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's must be peaceful, open and continuous. The possession must be open and hostile

enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former's hostile action.

.......................

14. The learned first Appellate Court thus rightly conclude that when the plaintiff had filed a suit for possession based upon the title and the defendant had taken plea of adverse

possession to defend his title, in that eventuality of the defendant's failure to prove his adverse possession, the suit filed by the plaintiff could not have been dismissed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the filing of the suit as held by the Apex Court in Indira v. Arumgam [AIR 1999 SC 1549]."

39. In the present case, the State cannot take the plea of

adverse possession and the limitation will not start running

against the plaintiffs. Hence, the suit cannot be held to be barred

by limitation.

40. It was submitted that plaintiffs have acquiesced and

were not entitled to the possession. This is not acceptable.It was

laid down by the Hon'ble Supreme Court in Kamakshi Builders vs.

Ambedkar Educational Society 2007 (12) SCC 27, that acquiescence

does not confer any title. It was observed:-

"23. Acquiescence on the part of Respondent No. 1, as has been noticed by the High Court, did not confer any title on Respondent No. 1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or

acquiescence, but thereby no title can be conferred.

24. It is now well-settled that time creates a title.

25. Acquisition of a title is an inference of law arising out of

a certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of

acquiescence or estoppel on the part of other.

26. It may be true that Respondent No. 1 had constructed

some buildings, but it did so at its own risk. If it thought that despite its status as a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document on that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn."

41. Therefore, the principle of acquiescence will not help

the defendants in any manner, whatsoever.

42. It was submitted that the learned Courts below erred in

issuing the direction to acquire the land. It has already been

noticed that the Hon'ble Supreme Court of India had granted a

remedy of filing a suit for seeking compensation in case of

wrongful deprivation. The learned First Appellate Court had

r to passed a decree for possession and had given an option to the

State to acquire the land if so desired. Therefore, the direction to

acquire the land was optional and there is no error in the

judgment and decree passed by the learned First Appellate Court.

43. No other point was urged.