Himachal Pradesh High Court
Decided On: 05.11.2024 vs State Of Himachal Pradesh And Others on 5 November, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:11320
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No.3353 of 2024
Decided on: 05.11.2024
_______________________________________________________________
Nand Lal ...........Petitioner
Versus
State of Himachal Pradesh and Others ....Respondents
_______________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Vijay Singh Bhatia, Advocate.
For the Respondents :
Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C. Verma,
Additional Advocates General,
with Mr. Ravi Chauhan, Deputy
Advocate General, for
respondents/State.
_______________________________________________________________
Sandeep Sharma, Judge (oral):
Petitioner herein is compelled to approach this
Court in the instant proceedings on account of the fact that
though respondents used his land comprised in Kh. No.245
measuring land 01-04-00 bigha, situate in mohal Sikroha Sub-
Tehsil Namhol, Tehsil Sadar, District Bilaspur, Himachal
Pradesh, for construction of pump house and water tank for lift
irrigation scheme known as "Ali Khad-Sikroha" in the year
2003, however, fact remains that till date, no compensation has
been paid. Since despite repeated requests, respondents failed
to initiate appropriate proceeding under the Land Acquisition
Act for acquisition of land, petitioner has approached this Court
Whether the reporters of the local papers may be allowed to see the judgment?
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in the instant proceedings filed under Article 226 of the
Constitution of India, praying therein for following main relief:-
"(i) That Writ in the nature of Mandamus may kindly be
issued, directing the respondent to acquire the land of the
petitioner as per law kh. No.245 measuring land 01-04-
00 bigha mohal Sikroha Sub-Tehsil Namhol, Tehsil Sadar,
District Bilaspur, Himachal Pradesh. The land out of
which land measuring 00-07-00 biswa was taken into the
possession for construction of Pump House and Water
Tank for the lift irrigation scheme known as Ali Khad
Sikroha lift irrigation scheme 2003 and pay the
compensation to the petitioner."
2. Pursuant to notices issued in the instant
proceedings, respondents have filed reply under the signatures
of Superintending Engineer, Jal Shakti Circle, Bilaspur,
wherein there is no denial to the fact that land of the petitioner
stands utilized for construction of pump house and water tank,
as detailed herein above, but attempt has been made to defeat
the claim of the petitioner on the ground of delay and laches.
3. It is averred in the reply that pump house and
water tank was constructed in the year 2003 and at that time,
no objection, if any, was ever raised by the petitioner and other
similarly situate persons and as such, at this stage, the
petitioner is estopped from claiming compensation. It has been
submitted in the reply that many private lands were taken in
possession by respondents-department by acquiring the land
for social benefit for public interest at large. It is also averred in
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the reply that petitioner has knowingly concealed the fact that
case of the petitioner has already been decided by the learned
trial Court and as such, present petition is not maintainable as
no appeal/RFA against the judgment passed by learned Civil
Judge has been filed before the appropriate Court.
4. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
precisely the grouse of the petitioners, as has been highlighted
in the petition and further canvassed by Mr. Vijay Singh Bhatia,
learned counsel representing the petitioner is that at no point of
time, consent, if any, was ever given by petitioner for
construction of pump house and water tank on his land without
compensation. Mr. Bhatia, while making this Court peruse
pleadings adduced on record by respective parties vehemently
argued that since the year 2003, petitioner has been
continuously requesting respondents to initiate acquisition
proceedings and pay adequate compensation but in vain.
5. Mr. Vishal Panwar, learned Additional Advocate
General while making this Court peruse pleadings adduced on
record submitted that though there is no written document
suggestive of the fact that land, for the construction of pump
house and water tank, was ever donated, but definitely there is
implied consent of the petitioner for the construction of pump
house and water tank. He submitted that the very fact that
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petitioner remained silent for more than 21 years, is sufficient
to establish the factum with regard to implied consent of the
petitioner for construction of pump house and water tank in
question.
6. Mr. Panwar, learned Additional Advocate General,
further submitted that petition at hand, having been filed by the
petitioner for compensation is otherwise not maintainable for
the reason that earlier for similar relief, he had filed civil suit in
the Court of learned Senior Civil Judge, Bilaspur, Himachal
Pradesh, but the same was dismissed. He submitted that since
afore judgment rendered by learned Senior Civil Judge,
Bilaspur, Himachal Pradesh, has attained finality on account of
non-filing of appeal/RFA, if any, by the petitioner, he is
estopped from raking up same issue issue by filing the petition
at hand.
7. While making this Court peruse judgment passed
by this Court in Shankar Dass Vs. State of Himachal Pradesh
in CWP No.1966 of 2010, Mr. Vishal Panwar, learned Additional
Advocate General submitted that otherwise also, appropriate
remedy for the petitioner for redressal of his grievance is to
approach a Civil Court by way of civil suit. Mr. Panwar also
invited attention of this Court to judgment passed by Hon'ble
Apex Court in State of Maharashtra Vs. Digambar (1995) 4
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SSC (683) to state that claim being highly stale, deserves
outright rejection.
8. While refuting the aforesaid submission of Mr.
Vishal Panwar, learned Additional Advocate General, Mr. Vijay
Singh Bhatia strenuously argued that Hon'ble Apex Court in
Vidya Devi Vs. State of Himachal Pradesh and Others, (2020)
2 SCC 569 and Sukh Dutt Ratra Vs. State of Himachal
Pradesh and Others (2022) 7 SCC 508, has already held that
plea of delay and laches cannot be raised in the case of
continuous cause of action, especially in land acquisition
matter. He also invited attention of this Court to judgment
dated 27.07.2023 passed in CWP No.5928 of 2022 in Vir Sain
Vs. State of Himachal Pradesh and Others, wherein,
admittedly, this Court, having taken note of the judgments
passed in Vidya Dev and Sukh Dutt Ratra, supra, negated the
plea of delay and laches raised by the respondent-State.
9. 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 pump house and water tank in
question. 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
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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 exercised judiciously and reasonably
in the facts and circumstances of a case, Hon'ble Apex Court
has further held that there is no period of limitation prescribed
for the Courts to exercise their constitutional jurisdiction to do
substantial justice. It has been further held that forcible
dispossession of a person from his private property without
following due process of law, is violative of both, human right
and constitutional right, guaranteed under Art. 300-A of the
Constitution of India. It would be apt to take note of following
paras of Vidya Devi, supra:
"10.1. The Appellant was forcibly expropriated of her
property in 1967, when the right to property was a
fundamental right guaranteed by Article 31 in Part III of
the Constitution.
Article 31 guaranteed the right to private property 1,
which could not be deprived without due process of law
and upon just and fair compensation.
10.2. The right to property ceased to be a fundamental
right by the Constitution (Forty Fourth Amendment) Act,
1978, however, it continued to be a human right 2 in a
welfare State, and a Constitutional right under Article
300 A of the Constitution. Article 300 A provides that no
person shall be deprived of his property save by
authority of law. The State cannot dispossess a citizen
of his property except in accordance with the procedure
established by law. The obligation to pay compensation,
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though not expressly included in Article 300 A, can be
inferred in that Article.
To forcibly dispossess a person of his private property,
without following due process of law, would be violative
of a human right, as also the constitutional right under
Article 300 A of the Constitution. Reliance is placed on
the judgment in Hindustan Petroleum Corporation
Ltd. v. Darius Shapur Chenai, wherein this Court held
that:
"6. ... Having regard to the provisions contained
in Article 300A of the Constitution, the State in
exercise of its power of "eminent domain" may
interfere with the right of property of a person by
acquiring the same but the same must be for a
public purpose and reasonable compensation
therefor must be paid." (emphasis supplied)
In N. Padmamma v. S. Ramakrishna Reddy, this
Court held that:
"21. If the right of property is a human right as
also a constitutional right, the same cannot be
taken away except in accordance with law.
Article 300A of the Constitution protects such
right. The provisions of the Act seeking to divest
such right, keeping in view of the provisions of
Article 300A of the Constitution of India, must
be strictly construed." (emphasis supplied)
In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of
U.P.& Ors., this Court recognized the right to property
as a basic human right in the following words:
"30. It is accepted in every jurisprudence and by
different political thinkers that some amount of
property right is an indispensable safeguard
against tyranny and economic oppression of the
Government. Jefferson was of the view that
liberty cannot long subsist without the support
of property."Property must be secured, else
liberty cannot subsist" was the opinion of John
Adams. Indeed the view that property itself is
the seed bed which must be conserved if other
constitutional values are to flourish is the
consensus among political thinkers and jurists."
(emphasis supplied)
In Jilubhai Nanbhai Khachar v. State of Gujarat this
Court held as follows :
"48. ...In other words, Article 300A only limits
the powers of the State that no person shall be
deprived of his property save by authority of
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law. There has to be no deprivation without any
sanction of law. Deprivation by any other mode
is not acquisition or taking possession under
Article 300A. In other words, if there is no law,
there is no deprivation." (emphasis supplied)
10.3. In this case, the Appellant could not have been
forcibly dispossessed of her property without any legal
sanction, and without following due process of law, and
depriving her payment of just compensation, being a
fundamental right on the date of forcible dispossession in
1967.
10.4. The contention of the State that the Appellant or her
predecessors had "orally" consented to the acquisition is
completely baseless. We find complete lack of authority
and legal sanction in compulsorily divesting the
Appellant of her property by the State.
10.5. In a democratic polity governed by the rule of law,
the State could not have deprived a citizen of their
property without the sanction of law. Reliance is placed
on the judgment of this Court in Tukaram Kana Joshi &
Ors. v. M.I.D.C. & Ors.8 wherein it was held that the
State must comply with the procedure for acquisition,
requisition, or any other permissible statutory mode. The
State being a welfare State governed by the rule of law
cannot arrogate to itself a status beyond what is
provided by the Constitution.
This Court in State of Haryana v. Mukesh Kumar held
that the right to property is now considered to be not only
a constitutional or statutory right, but also a human
right. Human rights have been considered in the realm of
individual rights such as right to shelter, livelihood,
health, employment, etc. Human rights have gained a
multifaceted dimension.
10.6. We are surprised by the plea taken by the State
before the High Court, that since it has been in
continuous possession of the land for over 42 years, it
would tantamount to "adverse" possession. The State
being a welfare State, cannot be permitted to take the
plea of adverse possession, which allows a trespasser
i.e. a person guilty of a tort, or even a crime, to gain legal
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title over such property for over 12 years. The State
cannot be permitted to perfect its title over the land by
invoking the doctrine of adverse possession to grab the
property of its own citizens, as has been done in the
present case.
10.7. The contention advanced by the State of delay and
laches of the Appellant in moving the Court is also liable
to be rejected. Delay and laches cannot be raised in a
case of a continuing cause of action, or if the
circumstances shock the judicial conscience of the Court.
Condonation of delay is a matter of judicial discretion,
which must be exercised judiciously and reasonably in
the facts and circumstances of a case. It will depend
upon the breach of fundamental rights, and the remedy
claimed, and when and how the delay arose. There is no
period of limitation prescribed for the courts to exercise
their constitutional jurisdiction to do substantial justice.
In a case where the demand for justice is so compelling,
a constitutional Court would exercise its jurisdiction with
a view to promote justice, and not defeat it.
In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,
this Court while dealing with a similar fact situation,
held as follows :
"There are authorities which state that delay
and laches extinguish the right to put forth a
claim. Most of these authorities pertain to service
jurisprudence, grant of compensation for a
wrong done to them decades ago, recovery of
statutory dues, claim for educational facilities
and other categories of similar cases, etc.
Though, it is true that there are a few authorities
that lay down that delay and laches debar a
citizen from seeking remedy, even if his
fundamental right has been violated, under 32
or 226 of the Constitution, the case at hand
deals with a different scenario altogether.
Functionaries of the State took over possession
of the land belonging to the Appellants without
any sanction of law. The Appellants had asked
repeatedly for grant of the benefit of
compensation. The State must either comply with
the procedure laid down for acquisition, or
requisition, or any other permissible statutory
mode." (emphasis supplied)"
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10. Reliance is also placed upon judgment passed by
the Hon'ble Apex Court in Sukhdutt Ratra's cases (supra).
"23. This Court, in Vidya Devi (supra) facing an almost
identical set of facts and circumstances - rejected the
contention of 'oral' consent to be baseless and outlined
the responsibility of the State:
"12.9. In a democratic polity governed by the
rule of law, the State could not have deprived a
citizen of their property without the sanction of
law. Reliance is placed on the judgment of this
Court in Tukaram Kana Joshi v. Maharashtra
Industrial Development Corpn., wherein it was
held that the State must comply with the
procedure for acquisition, requisition, or any
other permissible statutory mode. The State
being a welfare State governed by the rule of
law cannot arrogate to itself a status beyond
what is provided by the Constitution.
12.10. This Court in State of Haryana v.
Mukesh Kumar held that the right to property is
now considered to be not only a constitutional or
statutory right, but also a human right. Human
rights have been considered in the realm of
individual rights such as right to shelter,
livelihood, health, employment, etc. Human
rights have gained a multifaceted dimension."
24. And with regards to the contention of delay and
laches, this court went on to hold:
"12.12. The contention advanced by the State of
delay and laches of the appellant in moving the
Court is also liable to be rejected. Delay and
laches cannot be raised in a case of a continuing
cause of action, or if the circumstances shock the
judicial conscience of the Court. Condonation of
delay is a matter of judicial discretion, which
must be exercised judiciously and reasonably in
the facts and circumstances of a case. It will
depend upon the breach of fundamental rights,
and the remedy claimed, and when and how the
delay arose. There is no period of limitation
prescribed for the courts to exercise their
constitutional jurisdiction to do substantial
justice.
12.13 In a case where the demand for justice is
so compelling, a constitutional court would
exercise its jurisdiction with a view to promote
justice, and not defeat it.
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25. Concluding that the forcible dispossession of a
person of their private property without following due
process of law, was violative of both their human right,
and constitutional right under Article 300-A, this court
allowed the appeal. We find that the approach taken by
this court in Vidya Devi (supra) is squarely applicable to
the nearly identical facts before us in the present case.
26. In view of the above discussion, in view of this
court's extraordinary jurisdiction under Article 136 and
142 of the Constitution, the State is hereby directed to
treat the subject lands as a deemed acquisition and
appropriately disburse compensation to the appellants
in the same terms as the order of the reference court
dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of
2004 (and consolidated matters). The Respondent-State
is directed, consequently to ensure that the appropriate
Land Acquisition Collector computes the compensation,
and disburses it to the appellants, within four months
from today. The appellants would also be entitled to
consequential benefits of solatium, and interest on all
sums payable under law w.e.f 16.10.2001 (i.e. date of
issuance of notification under Section 4 of the Act), till
the date of the impugned judgment, i.e. 12.09.2013."
11. In the aforesaid judgments, Hon'ble Apex Court has
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 is
suffering continuous loss coupled with the fact that he
repeatedly requested the authorities to initiate acquisition
proceedings.
12. If the aforesaid judgments are read in their entirety,
it clearly emerges that land owners cannot be deprived of their
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land, without following due process of law. If it 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 the petitioner
stands utilized for the construction of pump house and water
tank 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 pump house and water tank in question.
13. Though at this stage, Mr. Vishal Panwar, 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 issued
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in the case of the petitioner, ruling, if any, given in the
aforesaid judgment, is of no relevance.
14. Admittedly, land of the petitioner stands utilized for
construction of pump house and water tank more than two
decades back but till date, petitioner has not been paid any
amount, which action of the respondents-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.
15. In case titled Hari Krishna Mandir Trust v. State
of Maharashtra and others, 2020 9 SCC 356, Hon'ble Apex
Court has held that though right to property is not a
fundamental right, but it is still a constitutional right under
Article 300A of the Constitution of India and also a human
right; in view of the mandate of Article 300A, no person can be
deprived of his property save by the authority of law. 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.
16. Similarly, contention raised at the behest of
respondents/State with regard to maintainability of present
petition on account of petitioner's having filed civil suit earlier,
deserves rejection for the reason that the civil suit filed
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by the petitioner, prior to filing the petition at hand, was
rejected by learned Senior Civil Judge on the ground that till the
time land is not acquired by the respondents/State, there is no
occasion, if any, to claim compensation. Careful perusal of
judgment dated 21.01.2023 passed by learned Senior Civil
Judge, Bilaspur, Himachal Pradesh (available at page No.40 of
the paper-book), reveals that petitioner herein had filed civil suit
for declaration to the effect that the plaintiffs are entitled for
compensation and permanent job in the Irrigation and Public
Health Department on account of acquisition of land in the year
2003, measuring 00-07-00 bighas, comprised in Khasra
No.245/1, however, the civil suit came to be dismissed on the
ground that suit land was never acquired by the defendants.
Learned Court below while dismissing the suit, specifically
observed that till the time land is not acquired, there is no
question, if any, for claiming compensation. Moreover, in afore
suit, plaintiff was unable to prove that pump house and water
tank were forcibly constructed on his land. Since it is quite
apparent from the judgment, detailed hereinabove, passed by
learned Sr. Civil Judge, Bilaspur, District Bilaspur, Himachal
Pradesh, that at the time of filing of suit, land of the petitioner
was not acquired and no specific prayer in that regard was
made in the suit, there was no occasion, if any, for learned Civil
Court to direct respondents to grant compensation, however,
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denial, if any, of prayer of the petitioner for grant of
compensation by learned Civil Court cannot be a bar for
petitioner to file present petition, seeking therein direction to
respondent to acquire the land and pay compensation. Since in
the instant proceedings, as have been discussed hereinabove, it
stands duly established on record that land of the petitioner
stands utilized for construction of pump house and water tank
without his consent and at no point of time, consent or
undertaking, if any, was ever given by the petitioner that he
shall not be claiming any compensation qua the land used for
construction of pump house and water tank, rightful claim of
the petitioner cannot be permitted to be defeated on the ground
of filing of suit.
17. Consequently, in view of the detailed discussion
made hereinabove as well as law taken into consideration, this
Court finds merit in the present petition and accordingly, the
same is allowed with direction to the respondents to initiate
acquisition proceedings within four weeks under the relevant
statute vis-à-vis land of the petitioner and thereafter, just and
fair compensation qua the same be awarded to the petitioner.
Since petitioner has been fighting for his rightful claim for so
long, this Court hopes and trusts that authority concerned
would do the needful expeditiously, preferably, within four
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months. In the aforesaid terms, present petition is disposed of
along with pending applications, if any.
November 05, 2024 (Sandeep Sharma),
(Rajeev Raturi) Judge
