Date Of Decision: 28.10.2024 vs State Of Himachal Pradesh And Ors
2024 Latest Caselaw 15780 HP

Himachal Pradesh High Court

Date Of Decision: 28.10.2024 vs State Of Himachal Pradesh And Ors on 28 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                              2024:HHC:10700




    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                   CWP No. 3827 of 2024
                                 Date of Decision: 28.10.2024
_________________________________________________________
Amar Singh Himalvi                                    .........Petitioner

                                        Versus

State of Himachal Pradesh and Ors.
                                                    .......Respondents

Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?

For the Petitioner:         Mr. Amit Himalvi, Advocate.

For the respondents:        Mr. Anup Rattan, Advocate General with Mr.
                            Rajan Kahol, Mr. Vishal Panwar and Mr.
                            B.C.Verma, Additional Advocate Generals and
                            Mr. Ravi Chauhan, Deputy Advocate General
Sandeep Sharma, J. (Oral)

Since despite there being utilization of the land of the

petitioner for construction of " Bhekhalti- Dharech- Gawech-Sidhpur

road", petitioner has not been paid compensation by the department

after acquiring the land, he has approached this Court in the instant

proceedings filed under Article 226 of the Constitution of India, praying

therein for following main reliefs:

2024:HHC:10700

"(i) That the writ of mandamus may kindly be issued directing the respondents for initiating acquisition proceedings with respect to the land belonging to the petitioner comprised in Khasra No.334/1, measuring 00-02-19 hectares, Khasra No.335/1, measuring 00-00-70 hectares and Khasra No.336, measuring 00-03-67 hectares had been utilized by the respondent Nos. 1 and 2 for the construction of Bhekhalti-Dharech-Gawech-Sidhpur road from Bhekhalti to Sidhpur in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013;

(ii) That a writ of mandamus may kindly be issued against the respondents directing the respondents them to pay adequate compensation to the petitioner in accordance with the law for initiating acquisition proceedings under the provisions of Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013."

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

are that the land of the petitioner comprised in Khasra No.336,

measuring 00-03-67 hectares, Khasra No.334, measuring 00-02-79

hectares, Khasra No.335, measuring 00-02-40 hectares and Khasra

No.336, measuring 00-03-67 hectares, situate at Mohal Dharech

Gawech, post office Majhar, Tehsil Theog, District Shimla, Himachal

Pradesh, came to be utilized for the construction of the road in question

in the year,1991, but since respondents failed to initiate acquisition

proceedings and no compensation was paid to the petitioner, he has

approached this Court in the instant proceedings, seeking therein 2024:HHC:10700

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 petitioner, 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 petitioner of his

own volition with clear-cut understanding that he would not seek any

compensation.

4. Learned counsel appearing for the petitioner, vehemently

argued that once it is not in dispute that land of the petitioner 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 petitioner 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. Amit Himalvi, argued that

plea of delay and laches cannot be raised in the case of continuing 2024:HHC:10700

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.

5. Mr. Vishal Panwar, learned Additional Advocate General,

while fairly admitting the use of the land belonging to the petitioner for

construction of the road stated that though there is no written document

suggestive of the fact that land was utilized with the consent of the

petitioner, but having taken note of the fact that petitioner remained

silent for more than 3 decades, this Court can infer and presume that

there was an implied consent on the part of the petitioner for

construction of the road without there being compensation. While

making this court peruse judgment passed by the Hon'ble Apex Court in

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

2010, decided on 2.3.2013, Mr. Panwar, contended that 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 2024:HHC:10700

Maharashtra v. Digambar, 1995 (4) SCC 683, to state that claim being

highly stale deserves outright rejection.

6. Having heard learned counsel for the parties and perused

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

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

year 1991 and then again for the purpose of constructing link road in the

year 2006-07, but at no point of time, acquisition proceedings were

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

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

was consent on the part of the petitioner for utilization of the land for

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

available on record.

7. Though Mr. Panwar, 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 3 decades 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 2024:HHC:10700

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 human right and

constitutional right under Article 300-A.

8. 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 petitioner was made available

with his consent is of no consequence, rather this Court having taken

note of the fact that land of the petitioner already stands utilized, is

compelled to agree with the submissions of the learned counsel for the

petitioner that he is entitled to compensation qua the land used by the

respondents for construction of the road.

9. 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 2024:HHC:10700

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 petitioner has been utilized for construction of

the road in 2006-07 without paying compensation. Despite there being

repeated requests, 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):-

"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 2024:HHC:10700

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 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 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:

"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 2024:HHC:10700

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 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 2024:HHC:10700

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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. 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, 2024:HHC:10700

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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, 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 2024:HHC:10700

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laches 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. Plea sought to be raised by the respondents that no

compensation is payable to the petitioner on account of the fact that

land in question was constructed under PMGSY, also deserves outright

rejection on account of judgment rendered by the Full Bench of this

Court in LPA No. 33 of 2021 alongwith Execution Petition No. 17 of

2019, titled State of Himachal Pradesh v. Sita Ram, wherein reference

made to Full Bench came to be answered in the affirmative that, "a

person, whose land has been utilized for construction of road under

PMGSY, is entitled for compensation, unless it is proved to the

satisfaction of the court, that land was donated or given by the land

owner willingly, of his own free will and consent, for construction of such

road". It would be apt to take note of following paras of the aforesaid

judgment:

"31. In Shankar Dass, the Full Bench relied on the Three Judge Bench judgment of Supreme Court in State of Maharashtra Versus Digambar, reported in (1995) 4 SCC 683, where filing of writ petition with enormous delay and latches on the part of a citizen on the alleged infraction of his legal right against the State, seeking a direction to initiate acquisition proceedings for their land of which possession was taken long time ago, was held to be fatal. It was held that writ petition 2024:HHC:10700

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

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

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

answering aforesaid reference, Full Bench though held that a person

whose land has been utilized for construction of road, which lateron was

upgraded under PMGSY package, is entitled to compensation unless it

is proved to the satisfaction of the Court that the land was voluntarily 2024:HHC:10700

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donated or given by him willingly with free will and consent for

construction of such road.

14. Since in the case there is nothing on record to demonstrate

that the land was ever donated by petitioner of his own free will for

construction of road under PMGSY, plea of learned Additional Advocate

General that person cannot claim compensation qua the land utilized for

construction of road under PMGSY, deserves outright rejection.

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

Sharma (1986) 2 SCC 68, Hon'ble Apex Court has held that entire State

of Himachal Pradesh is a hilly area and without workable roads, no

communication is possible; every person is entitled to life as enjoined in

Article 21 of the Constitution of India; every person has right under

Article 19 (1) (b) of the Constitution of India to move freely, throughout

the territory of India; for the residents of hilly areas, access to road is

access to life itself. Stand taken by the respondents that there was a

policy for providing roads on demand of residents as a favour to them on

conditions that they would not claim compensation, cannot be sustained

because such stand is violative of Article 300A of the Constitution of

India

16. 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 2024:HHC:10700

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a constitutional right under Article 300A of the Constitution of India and

also a human right; in view of the mandate of Article 300A, no person

can be deprived of his property save by the authority of law. No doubt,

State possesses the power to take or control the property of the owner

of the land for the benefit of public, but at the same time, it is obliged to

compensate the injury by making just compensation.

17. Consequently, in view of the detailed discussion 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 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

years together, this Court hopes and trusts that authority concerned

would do the needful expeditiously, preferably, within four months. In the

aforesaid terms, present petition is disposed of alongwith pending

applications, if any.

October 28, 2024                                (Sandeep Sharma),
      (shankar)                                       Judge