Decided On: 24.10.2024 vs State Of Himachal Pradesh And Others
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Himachal Pradesh High Court

Decided On: 24.10.2024 vs State Of Himachal Pradesh And Others on 24 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                              2024:HHC:10318




         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                                              CWP No. 10652 of 2023

                                         Decided on: 24.10.2024
________________________________________________________
Harish Chander & others                        ...........Petitioner
                                  Versus
State of Himachal Pradesh and others            ....Respondents
________________________________________________________
Coram: Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1No.

For the Petitioners                    :      Mr. Sanjay Bhardwaj, Advocate.
For the Respondents                    :
                              Mr. Rajan Kahol, Mr. Vishal Panwar
                              and Mr. B.C.Verma, Additional
                              Advocate Generals, with Mr. Ravi
                              Chauhan, Deputy Advocate General.
________________________________________________________
Sandeep Sharma, Judge (oral):

Since despite there being utilization of land of the

petitioners, for construction of road, namely Beulia-Koel-Sanog road,

petitioners have not been paid compensation by respondents after

acquiring their land, they are compelled to approach this court in the

instant proceedings filed under Art. 226 of the Constitution of India,

praying therein for following main relief:

" It is, therefore, respectfully prayed that this petition may kindly be allowed throughout with cost and the respondents may kindly be directed to initiate the acquisition proceedings for acquiring the land of the petitioners utilized for the construction of road from Beulia- Koel-Sanog road, Tehsil Darlaghat (Arki) District Solan, Himachal Pradesh as envisaged under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in a time bound manner and pay the compensation to the petitioners and other benefits and other benefits including payment of damages of the land illegally utilized since 2014 till the compensation is awarded in their favour after summoning the record of the respondents and justice be done."

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

2 2024:HHC:10318

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

record are that the land of the petitioners comprised in Khewat/

Khatauni No.11/11 min, Khasra Nos. 24, 58, 128, 282/135, 284/135,

Khewat/ Khatauni No.12/12, Khasra No.144, Khewat/Khatauni

No.72/76 min, Khasra No.67, Hadbast No.317, situate at Mohal Koil-

Sanog, Patwar Circle Materni, Tehsil Darlaghat (Arki) District Solan,

Himachal Pradesh, came to be utilized for the construction of "Beulia-

Koel-Sanog road in the year 2006, but since respondents failed to

initiate acquisition proceedings and no compensation was paid to the

petitioners, they have approached this Court in the instant proceedings,

seeking therein direction to the respondents to initiate acquisition

proceedings and thereafter pay compensation.

3. Pursuant to notices issued in the instant proceedings,

respondents have filed the reply, wherein facts, as have been noticed

herein above, are not in dispute, rather stand duly admitted. Precisely,

the claim of the petitioners, as has been raised in the petition, has been

refuted by the respondents on the ground that present petition is barred

by delay and laches and land was made available by the petitioners of

their own volition with clear-cut understanding that they would not seek

any compensation. Besides above, it has also been averred in the

reply filed by the respondents that road in question was constructed on

the persistent demand of the residents of the area, with clear cut

understanding that they shall claim no compensation.

4. Mr. Sanjay Bhardwaj, learned counsel representing the

petitioners, vehemently argued that once it is not in dispute that land of 3 2024:HHC:10318

the petitioners stands utilized for construction of the road in question,

respondents cannot escape from their liability to pay the compensation

after initiation of the proceedings in terms of provisions contained in the

Land Acquisition Act. He further submitted that there is nothing on

record to demonstrate that consent, if any, was ever given by the

petitioners to provide the land free of cost. While placing heavy

reliance upon the judgments passed by the Hon'ble Apex Court in

Vidya Devi v. State of HP and Ors, (2020) 2 SCC 569 and Sukh Dutt

Ratra and Anr v. State of Himachal Pradesh and Ors, (2022) 7 SCC

508, Mr. Bhardwaj, argued that plea of delay and laches cannot be

raised in the case of continuing cause of action, especially, in land

acquisition matters. He also placed reliance upon the judgment dated

18.7.2023, passed by this Court in CWP No. 8647 of 2022, titled Sh.

Ramanand and Ors v. State of Himachal Pradesh and Ors, whereby

this Court, while placing reliance upon aforesaid judgments passed by

the Hon'ble Apex Court, rejected the plea of delay and laches raised by

the respondents-State and directed respondents to initiate acquisition

proceedings. He further states that with respect to the same land, this

Court has already passed the order of acquisition of land in CWP

No.360 of 2016, titled Sheela Tegta versus State of Himachal

Pradesh and others, decided on 21.08.2023, which has been further

upheld by the Division Bench of this Court in CMP(M) No.747 of 2024,

titled State of Himachal Pradesh and other versus Sheela Tegta,

decided on 20.08.2024.

4 2024:HHC:10318

5. Mr. Rajan Kahol, learned Additional Advocate General,

while opposing the prayer made on behalf of the petitioners,

vehemently argued that though there is no written document

suggestive of the fact that land used for construction of the road was

made available voluntarily by the petitioners with clear cut

understanding that they shall not claim any compensation, but

otherwise also, since petitioners remained silent for more than one

decade, it can be safely inferred that there was an implied consent on

the part of the petitioners for construction of the road.

6. While making this Court peruse judgment passed by this

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

1966 of 2010, decided on 2.3.2013, learned Additional Advocate

General contended that appropriate remedy for redressal of grievance

as raised in the instant petition is to approach the civil court by way of

civil suit. He also placed reliance upon the judgment passed by the

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

SCC 683, to state that claim being highly stale deserves outright

rejection.

7. Having heard learned counsel for the parties and perused

material available on record, this Court finds that land of the petitioners

was utilized for construction of the road detailed herein above in the

year 2006, but at no point of time, acquisition proceedings were

initiated, as a result of which, no compensation was paid to the

petitioners. Though, it has been claimed by the respondents that there

was consent on the part of the petitioners for utilization of the land for 5 2024:HHC:10318

construction of the road, but there is no documentary evidence, if any,

available on record.

8. Though, learned Additional Advocate General attempted

to carve out a case that there was an oral consent, but such plea of

him cannot be accepted simply on the ground that petition at hand has

been filed after one decade of use of the land. Otherwise also, plea of

delay and laches raised by the respondents is not available to them in

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

and Sukh Dutt Ratra's cases supra. In the aforesaid judgments,

Hon'ble Apex Court has categorically held that plea of 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, it can always

condone the delay to do the substantial justice. Most importantly, in the

aforesaid judgment, it has been held that condonation of delay is a

matter of judicial discretion, which must be exercised judiciously and

reasonably in the facts and circumstances of a case and while doing

so, 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 their

human right and constitutional right under Article 300-A.

9. Crux of the aforesaid judgments is that land owners

cannot be deprived of the property without due process of law, if it is

so, ground raised by the respondents that land of the petitioners was

made available with their consent is of no consequence, rather this 6 2024:HHC:10318

Court having taken note of the fact that land of the petitioners already

stands utilized, is compelled to agree with the submissions of the

learned counsel for the petitioners that they are entitled to

compensation qua the land used by the respondents for construction of

the road.

10. Though, in the case at hand, learned Additional Advocate

General invited attention of this court to judgment dated 24.2.2023,

passed by the Hon'ble Apex Court in Civil Appeal No. 1278 of 2023,

State of Himachal Pradesh and Ors V. Rajiv and Anr., but having

perused the same, this Court finds that same is not applicable in the

case at hand because in the aforesaid judgment, it has been nowhere

stated/ruled that claim raised for acquisition and compensation after

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 Section 4 till the filing of the writ

petition. Since in the case at hand, no notification under Section 4 has

been issued till date, ruling, if any, given in the aforesaid judgment

passed by the Hon'ble Apex Court has no application in the present

case. In the instant case, land of the petitioners has been utilized for

construction of the road in 2006 without paying compensation. Despite

there being issuance of legal notice, respondents have failed to initiate

acquisition proceedings, as a result of which, great prejudice has been

caused to the petitioners. At this stage, it would be apt to take note of

the following paras of the judgment passed in Vidya Devi (supra):-

7 2024:HHC:10318

"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 Chenai4, wherein this Court held that:

" 6. ... Having regard to the provisions contained in Article 300- A 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 Reddy5, 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:

8 2024:HHC:10318

"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,7 this Court held as follows :

"48. ...In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A. In other words, if there is no law, there is no deprivation." (emphasis supplied)

10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.

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

10.5. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.8 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.

This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, 9 2024:HHC:10318

health, employment, etc. Human rights have gained a multifaceted dimension.

10.6. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to "adverse" possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

10.7. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.

In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it.

In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., this Court while dealing with a similar fact situation, held as follows :

"There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode." (emphasis supplied)"

10 2024:HHC:10318

11. Reliance is also placed upon judgment passed by the

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

"23. This Court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances - rejected the contention of 'oral' consent to be baseless and outlined the responsibility of the State:

"12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 12.10. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension."

24. And with regards to the contention of delay and laches, this court went on to hold:

"12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. 12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it.

25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative22 of both their human right, and constitutional right under Article 300-A, 11 2024:HHC:10318

this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case.

26. In view of the above discussion, in view of this court's extraordinary jurisdiction under Article 136 and 142 of the Constitution, the State is hereby directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants in the same terms as the order of the reference court dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of 2004 (and consolidated matters). The Respondent-State is directed, consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. The appellants would also be entitled to consequential benefits of solatium, and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013."

12. 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.

13. In the case at hand, it is not dispute that the petitioners are

suffering continuous loss coupled with the fact that they have

requested the respondents to initiate acquisition qua their land. No

doubt road was constructed under Pradhan Mantri Gram Sadak Yojana

but once there is no material available on record suggestive of the fact

that for construction of road, land was donated or gifted by the

petitioners in favour of the respondents, said plea is not available as

has been held by Full Bench of this court in LPA No. 33 of 2021 alongwith 12 2024:HHC:10318

Execution Petition No. 17 of 2019, titled State of Himachal Pradesh v.

Sita Ram, wherein reference made to Full Bench came to be answered

in the affirmative that, "a person, whose land has been utilized for

construction of road under PMGSY is entitled for compensation, unless

it is proved to the satisfaction of the court, that land was donated or

given by the land owner willingly, of his own free will and consent, for

construction of such road". It would be apt to take note of following

paras of the aforesaid judgment:

""31. In Shankar Dass, the Full Bench relied on the Three Judge Bench judgment of Supreme Court in State of Maharashtra Versus Digambar, reported in (1995) 4 SCC 683, where filing of writ petition with enormous delay and latches on the part of a citizen on the alleged infraction of his legal right against the State, seeking a direction to initiate acquisition proceedings for their land of which possession was taken long time ago, was held to be fatal. It was held that writ petition under Article 226 of the Constitution, being power of discretion, could not be entertained with blameworthy conduct of the petitioner of such undue delay or laches, acquiescence or waiver in approaching the Court. The Full Bench also relied on the Constitution Bench judgment of the Supreme Court in the State of Madhya Pradesh Versus Bhailal Bhai, reported in AIR 1964 SC 1006, in which it was held "that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured." Delay and how far ratio of Shankar Dass would hold field in view of later judgments of the Supreme Court are not the questions for us to examine and answer. In view of the terms of reference made by the Division Bench, which does not include the question of delay, we have to confine our examination to the limited scope, whether a person whose land has been utilized for construction of road under PMGSY is entitled to compensation.

32. In view of above, the question referred to by the Division Bench, is, therefore, answered in the affirmative that a person whose land has been utilized for construction of road under PMGSY is entitled to compensation unless it is proved to the satisfaction of the Court that the land was voluntarily donated or given by him willingly with free will and consent for construction of such road."

13 2024:HHC:10318

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

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

construction of road under 'PMGSY' is entitled to compensation?".

While answering aforesaid reference, Full Bench held that a person

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

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

Court that the land was voluntarily donated or given by him willingly

with free will and consent for construction of such road.

15. Since in the case there is nothing on record to

demonstrate that the land was ever donated or gifted by petitioners of

their 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 rejection.

16. 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, 14 2024:HHC:10318

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

the Constitution of India

17. In case titled Hari Krishna Mandir Trust vs 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.

18. Consequently, in view of the detailed discussion made

herein above as well as law taken into consideration, this Court finds

merit in the present petition and accordingly 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 petitioners

and thereafter, just and fair compensation qua the same be awarded to

the petitioners. Since petitioners have been fighting for his rightful

claim for more than one decade, this Court hopes and trusts that

authority concerned would do the needful expeditiously, preferably,

within two months. In the aforesaid terms, present petition is disposed

of alongwith pending applications, if any.

(Sandeep Sharma) Judge October 24, 2024 (shankar)