Karnataka High Court
Vidhya W/O. Panduranga Rao Huligolkar vs The State Of Karnataka on 5 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 103703 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 103703 OF 2021 (LA-RES)
BETWEEN:
1. VIDHYA W/O PANDURANGA RAO HULIGOLKAR,
AGE: 55 YEARS, OCC: HOUSEWIFE,
2. ABHIJEET S/O PANDURANGA RAO HULIGOLKAR,
AGE. 30 YEARS, OCC. STUDENT,
BOTH ARE R/O.NARIBHAVI STREET,
H.NO.2559/B, GADAG
DISTRICT. GADAG
...PETITIONERS
(BY SRI LINGRAJ MARADI, ADVOCATE.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
VIDHAN SOUDHA BUILDING,
SUJATA
SUBHASH BENGALURU-560001.
PAMMAR
2. MINISTRY OF PUBLIC WORKS DEPARTMENT,
Digitally signed by
SUJATA SUBHASH
PAMMAR
PWD SECTOR, VIDHAN SOUDHA BUILDING,
Date: 2024.02.09 BENGALURU-560001.
06:11:17 +0530
3. DEPUTY COMMISSIONER
DC OFFICE,
KOPPAL-583231.
4. THE EXECUTIVE ENGINEER,
KARNATAKA PUBLIC WORKS, PORTS
AND INLAND WATER TRANSPORT DEPARTMENT
KOPPAL-583231.
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WP No. 103703 of 2021
5. THE ASSISTANT COMMISSIONER,
AC OFFICE,
KOPPAL-583231.
6. THE ASSISTANT EXECUTIVE ENGINEER,
KARNATAKA PUBLIC WORKS, PORTS
AND INLAND WATER TRANSPORT DEPARTMENT
SUB DIVISION, KOPPAL-583231.
7. THE THASILDAR,
KOPPAL-583231.
8. THE ASSISTANT DIRECTOR,
LAND RECORDS, KOPPAL-583231.
...RESPONDENTS
(BY SRI HANAMANTHARAY LAGALI, ADDL. GOVERNMENT ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
A. ISSUE A WRIT IN THE NATURE OF CERTIORARI THE
IMPUGNED ORDER PASSED VIDE ANNEXURE-F IN BEARING NO.
¸ÀA:PÀA: ¨sÉÆ ¸Áé:D¦Ã®Ä: 2017-18 DATED. 14-02-2019 PASSED BY
RESPONDENT NO.3. IN VIEW OF THE JUDGMENT PASSED IN AIR
ONLINE 2020 SC 19 (VIDYA DEVI VS STATE OF HIMACHAL
PRADESH) BY HON BLE SUPREME COURT.
B. ISSUE WRIT IN THE NATURE OF MANDAMUS TO DIRECT
THE RESPONDENTS TO INITIATE THE ACQUISITION PROCEEDINGS
AND PAY THE COMPENSATION REGARDING SY.NO.733/2
MEASURING 1 ACRE 27 GUNTA SITUATED NEAR BHAGYA NAGAR OF
KOPPAL.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 103703 of 2021
ORDER
Petitioners complaining that their land bearing Sy.
No.733/2 measuring 1 acre 27 guntas, situated at Bhagya
Nagar, Taluk and District Koppal, was utilized for the purpose of
formation of public road without following due process of law,
submitted a representation with the respondents to initiate
proceedings and pay suitable compensation.
2. The representation having not been considered,
prompted the petitioners to approach this Court in W.P.
No.101240/2016. This Court vide order dated 24.04.2018
directed the respondents herein to consider the petitioners'
claim after holding reasonable enquiry/ investigation as to the
status of the petitioners' land within a period of three months.
In pursuance of the direction issued by this Court, the
respondent No.3 based on the report submitted by Executive
Engineer, PWD and SLAO, passed the impugned order rejecting
the claim of the petition stating that the subject property was
utilized for formation of public road about 50 to 60 years back
and the belated claim of the petitioners cannot be considered.
Taking exception to the same, this petition is filed.
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3. Learned counsel for the petitioners submits that the
forcible dispossession of the land is in violation of the
constitutional and human right, and the State Government
cannot invoke doctrine of adverse possession to protect its title
over the subject land so as to deprive the petitioners of their
right to claim compensation, as stated under Article 300A of
the Constitution of India. Therefore, the impugned order passed
by the respondent No.2 is arbitrary and discriminatory.
4. In support, he places reliance on the decision of the
Hon'ble Supreme Court in the case of Vidya Devi vs. The
State of Himachal Pradesh reported in Air Online 2020
SC 19.
5. Per contra learned Addl. Government Advocate for
the State would submit that the subject land was utilized for
the purpose of formation of road about 50-60 years back, and
the public have been using the said road without any
intervention, the belated claim of the petitioners for grant of
compensation cannot be granted. Therefore, the impugned
order passed by the 2nd respondent is in conformity with the
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provisions of law and the same does not warrant any
interference.
6. Considered the submissions made by the learned
counsels for the parties.
7. In pursuance of the direction issued by this Court,
the petitioners' claim for compensation was considered by the
2nd respondent.
8. This Court on an earlier occasion had observed that
since the entries in the record of rights and RTC have got a
presumptive value as stated under section 133 of the
Karnataka Land Revenue Act, 1964, prima facie the ownership
of the petitioners over the subject land is established. The
entries in the record of rights also indicated that name of the
petitioners is shown in the owners column and the same is not
disputed by the respondent State. The 2nd respondent in the
impugned order has also not denied the right of the petitioners
over the subject land, however, denied the claim of the
petitioners for compensation solely on the ground that the
subject land was utilized for formation of road about 50-60
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years back and the belated claim of the petitioners cannot be
considered.
9. The Hon'ble Supreme Court in the case of Vidya
Devi (supra), has held as follows.
"2. The respondent State took over the
land of the appellant in 1967-68 for the
construction of a major district road being the
Nadaun -- Sujanpur Road, a major district
road without taking recourse to acquisition
proceedings, or following due process of law.
The construction of the road was completed
by 1975.
3. The appellant, being an illiterate widow,
coming from a rural background, was wholly
unaware of her rights and entitlement in law,
and did not file any proceedings for
compensation of the land compulsorily taken
over by the State.
4. In 2004, some similarly situated
persons whose lands had also been taken
over by the respondent State for the same
public purpose, filed CWP No. 1192 of 2004
titled Anakh Singh v. State of H.P., claiming
compensation before the High Court of
Himachal Pradesh. The High Court vide order
dated 23-4-2007 [Anakh Singh v. State of
H.P., 2007 SCC OnLine HP 220] , allowed
CWP No. 1192 of 2004, and directed the
respondent State to acquire the lands of the
writ petitioners under the Land Acquisition
Act, 1894.
5. Pursuant to the order of the High Court
in 2008, the respondent State initiated
acquisition proceedings under the Land
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Acquisition Act, 1894 only with respect to the
lands of the writ petitioners, and not the
other landowners whose lands had also been
taken over.
6. The appellant submits that she learnt of
these proceedings in 2010, when she along
with her two daughters filed CWP No. 1736 of
2010 before the Himachal Pradesh High
Court, praying that the State be directed to
pay compensation for the land acquired in
1967-1968; or, in the alternative, direct the
State to initiate acquisition proceedings under
the Land Acquisition Act, 1894.
8. The State has further admitted that a
notification under Section 4 of the Land
Acquisition Act had been issued in 2008 with
respect to the land of Anakh Singh a
neighbouring landowner, whose land was
similarly taken over for the same purpose.
Furthermore, the writ petition was barred by
laches, since the road was constructed in
1967-1968, and metalled since 1975. The
land was utilised by the respondent State
after the appellant and her predecessors-in-
interest had verbally consented to the land
being taken over without any objection.
10. Aggrieved, the appellant filed a review
petition against the judgment and order
dated 11-9-2013 [Vidya Devi v. State of H.P.,
2013 SCC OnLine HP 5384] which was
dismissed vide order dated 13-5-2014 [Vidya
Devi v. State of H.P., 2014 SCC OnLine HP
5941] .
11. The appellant has filed the present
appeals before this Court, to challenge the
judgment dated 11-9-2013 [Vidya
Devi v. State of H.P., 2013 SCC OnLine HP
5384] passed in the writ petition and order
dated 13-5-2014 [Vidya Devi v. State of H.P.,
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2014 SCC OnLine HP 5941] passed in the
review petition.
12.1. 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 [State of W.B. v. Subodh
Gopal Bose, AIR 1954 SC 92] , which could
not be deprived without due process of law
and upon just and fair compensation.
12.2. 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 [Tukaram
Kana Joshi v. MIDC, (2013) 1 SCC 353 :
(2013) 1 SCC (Civ) 491] 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. [K.T. Plantation (P) Ltd. v. State of
Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC
(Civ) 414]
12.3. 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 Corpn. Ltd. v. Darius
ShapurChenai [Hindustan Petroleum Corpn.
Ltd. v. Darius ShapurChenai, (2005) 7 SCC
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627] , wherein this Court held that: (SCC p.
634, para 6)
"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)
12.4. In N. Padmamma V. S. Ramakrishna
Reddy [N. Padmamma v. S. Ramakrishna
Reddy, (2008) 15 SCC 517] , this Court held
that: (SCC p. 526, para 21)
"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 300-A of the Constitution
protects such right. The provisions of
the Act seeking to divest such right,
keeping in view of the provisions of
Article 300-A of the Constitution of
India, must be strictly construed."
(emphasis supplied)
12.5. In Delhi Airtech Services (P)
Ltd. v. State of U.P. [Delhi Airtech Services
(P) Ltd. v. State of U.P., (2011) 9 SCC 354 :
(2011) 4 SCC (Civ) 673] , this Court
recognised the right to property as a basic
human right in the following words: (SCC p.
379, para 30)
"30. It is accepted in every
jurisprudence and by different
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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)
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 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 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
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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 right to shelter, livelihood, health,
employment, etc. Human rights have gained
a multi-faceted dimension.
12.11. 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.
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
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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 : 1975 SCC (L&S) 22]
12.14. In Tukaram Kana Joshi v. MIDC
[Tukaram Kana Joshi v. MIDC, (2013) 1 SCC
353 : (2013) 1 SCC (Civ) 491] , this Court
while dealing with a similar fact situation,
held as follows: (SCC p. 359, para 11)
"11. 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 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
grant of the benefit of compensation. The
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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.
14. The State has submitted that in 2008
it had initiated acquisition proceedings in the
case of an adjoining landowner viz. Shri
Anakh Singh pursuant to a direction given by
the High Court in Anakh Singh v. State of
H.P. [Anakh Singh v. State of H.P., 2007 SCC
OnLine HP 220] The State initiated acquisition
only in the case where directions were issued
by the High Court, and not in the case of
other landowners whose lands were
compulsorily taken over, for the same
purpose, and at the same time. As a
consequence, the present landowner has
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been driven to move the Court in their
individual cases for redressal.
15. In view of the aforesaid facts and
circumstances of the present case, the
respondent State is directed to pay the
compensation on the same terms as awarded
by the Reference Court vide order dated 7-7-
2015 in AnakhSinghcase [Anakh Singh v.
State of H.P., 2007 SCC OnLine HP 220] (i.e.
Land Reference No. 1 of 2011 RBT No. 01/13)
along with all statutory benefits including
solatium, interest, etc. within a period of 8
weeks, treating it as a case of deemed
acquisition. An affidavit of compliance is
directed to be filed by the State before this
Court within 10 weeks.
16. It is informed that an appeal has been
preferred by Ravinder Singh s/o Anakh Singh
&Ors. being RFA No. 35 of 2016 which is
pending before the High Court of Himachal
Pradesh at Shimla.
17. Taking note thereof, if an appeal is
filed by the present appellant within 8 weeks
from the date of compensation being paid to
her by the State, the appeal will be treated to
be within limitation, and would be decided on
its own merits in accordance with law."
10. What emerges from the ratio laid down by the
Hon'ble Supreme Court in the aforesaid case is as follows.
11. Article 300A of the Constitution of India only limits
the powers of the State that no person shall be deprived of his
property subjected by authority of law. The owner could not
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have been forcibly dispossessed of his property without any
legal sanction and without any due process of law and depriving
payment of just compensation being a fundamental right on the
date of forcible disposition. 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 of India. The right
to property is not only a constitutional or statutory right, but
also a human right. The State being a welfare State, cannot be
permitted to take the place of adverse possession, and cannot
be permitted to perfect its title over the land by invoking
doctrine of adverse possession to grab the property of its own
citizens. There is no period of limitation prescribed for the
Courts to exercise their constitutional jurisdiction to do
substantial justice.
12. In view of the ratio enunciated by the Hon'ble
Supreme Court in the aforesaid case, the reasons assigned by
the 2nd respondent in rejecting the claim of the petitioners is
arbitrary and discriminatory and violates Article 300A of the
Constitution of India. Therefore, the claim of the petitioners
requires to be reconsidered. Accordingly, I pass the following:
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ORDER
i) The writ petition is allowed.
ii) The impugned order dated 14.02.2019
passed by respondent No.3, vide Annexure-F is
hereby quashed.
iii) The respondents are hereby directed to
reconsider the claim of the petitioners for initiating
acquisition proceedings and pay suitable
compensation in accordance with law.
iv) The said exercise shall be concluded
within a period of four months from the date of
receipt of certified copy of this order.
Sd/-
JUDGE
RSH, MRK
CT:GSM
