Madhya Pradesh High Court
The State Of Madhya Pradesh vs Kuldeep Singh on 1 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 1st OF FEBRUARY 2024
SECOND APPEAL No. 2012 of 2023
BETWEEN:-
THE STATE OF MADHYA PRADESH THROUGH COLLECTOR, DEWAS,
DISTRICT DEWAS (MADHYA PRADESH)
.....APPELLANT
(BY SHRI TARUN KUSHWAH, GOVERNMENT ADVOCATE.)
AND
KULDEEP SINGH S/O LATE DIWAN SINGH CHHABRA, AGED ABOUT
1.
63 YEARS, R/O 25 STATION ROAD DEWAS (MADHYA PRADESH)
IQBAL SINGH S/O MALKHA SINGH CHHABRA, AGED ABOUT 53
2.
YEARS, 169, MOTI BUNGLOW DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI H.Y. MEHTA, ADVOCATE.)
--------------------------------------------------------------------------------------------------------
This appeal coming on for orders this day, the court passed the
following:
ORDER
The State of Madhya Pradesh through the Collector has filed
this second appeal against the judgment dated 05.08.2022 passed in
RCA/04/2022 by Second Additional District Judge, Sonkachh whereby
the order dated 16.07.2018 in execution case No.33-A/1979 has been set
aside and restored the execution proceedings.
02. This appeal is barred by 291 days, therefore, the application for
condonation of delay is filed under Section 5 of the Limitation Act. The
application is opposed by the respondents/plaintiff but looking at the
peculiar facts and circumstances of the case, the interference by this
Court is necessary in this matter hence, the delay is liable to be
condoned and is hereby condoned.
The facts of the case in short are as under:
03. Admittedly, the respondents/plaintiffs are the owners of land
bearing survey No.1036/2 & 1036/3 situated at Bus Stand Sonkachh
(hereinafter referred to as "the suit land"). The State of M.P. took the
above land without acquisition and established a Bus stand for the
public. The plaintiffs filed a suit before the Civil Judge Class-II,
Sonkachh seeking a declaration of title against the State of M.P. Vide
judgment and decree dated 16.03.1984, the suit was dismissed
thereafter, they preferred a Regular Civil Appeal No.40-A/1989 and vide
judgment dated 26.07.1990, the decree was passed in their favour by
giving 3 options to the State of M.P. which are as under:
1 प्रत्मथी वादग्रस्त बूमभ का अमधऩत्म अऩीरभाांट को सौऩ दे
2. मदद अमधऩत्म सौंऩना रोकदित भें न िो तो उसके फदरे
सभान उऩमुक्त क्षेत्रपर की अन्म बूमभ अऩीराांफ को दे वे अथवा,
3. वादग्रस्त ऩूमति का उऩमुक्त भुआवजा वादीऩण अऩीरफांट को
मनमभानुसाय कामिवािी कय, अदा कये ।
04. When none of the options were complied with by the State of
M.P., the respondents / plaintiffs initiated execution proceedings before
the Civil Judge Class-II on 08.02.1991 seeking possession or
compensation for the suit land. In the execution proceedings, initially,
the State Government deposited Rs.4,087/- on 18.09.1993 as
compensation payable to the plaintiffs for the suit land. The plaintiffs /
decree holder objected that the amount of Rs.4,087/- is not an adequate
amount of compensation for valuable suit land. Vide order dated
04.03.1998, the Civil Judge Class-II issued a direction for a fresh
assessment of compensation on the basis of judgment and decree dated
26.07.1990. The State Government deposited Rs.1,00,000/- on
18.07.2000. Thereafter, Rs.50,000/- on 23.04.2002. The plaintiffs /
decree holders submitted a statement of claim of Rs.25,46,094/- as
compensation for the acquisition of their suit land. The State filed an
application on 26.04.2007 that the amount of Rs.3,05,968/- has been
deposited out of which Rs.1,50,000/- has been withdrawn by Deewan
Singh therefore the execution proceedings be closed.
05. According to the State, the amount of Rs.3,05,968/- was
calculated by taking into consideration the market guidelines of the year
1991 @ Rs.15/- per sq.ft. for 9,000 sq.ft. land to assess the
compensation. The interest is liable to be paid from 26.07.1990 to
31.07.1999 for 9 years 6 days i.e. Rs.1,70,055/-. The decree holder
objected by submitting a reply and claimed the compensation @
Rs.120/- per sq. ft. Rs,22,500/-. The execution proceedings remained
pending and finally vide order dated 16.07.2018, the same has been
closed under Order 21 Rule 98 and 101 of CPC that the amount of
compensation deposited by the State of Rs.3,05,968/- is an appropriate
amount of compensation and out of which Rs.1,50,000/- has been
withdrawn by the decree-holder and the proceedings. Hence, the
proceedings are liable to be closed and the decree holders are free to
withdraw the remaining amount.
06. Being aggrieved by the aforesaid order, the decree holders /
plaintiffs preferred a civil appeal before the District Judge. Vide order
dated 05.08.2022, the District Judge has held that the land was taken by
the State in the year 1972 and after the lapse of 48 years, the just and
proper compensation has not been paid to the decree holders / plaintiffs.
During this period, Deewan Singh original owner expired and his legal
heirs have also reached the age of 80 years and accordingly set aside the
order dated 16.08.2018 and remanded the matter back to the executing
Court to direct the State Government to assess the compensation under
the provisions of Land Acquisition Act, 1894 (for brevity "Act of 1894")
and deposit in the Court. Hence, this second appeal before this Court.
07. At the very outset, Shri Mehta, learned counsel for the
respondents submits that on this suit land, the Nagar Palika had
constructed a Bus Stand, therefore, the plaintiffs are not interested in
taking possession of the suit land because it would not be in a public
interest. They are only interested in the amount of compensation payable
under the provisions of the Act of 1894 (The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013) which has not been paid to them for the last
48 years. This Court directed Collector Dewas to make an effort for an
amicable settlement with the decree however, the meeting was held but
failed without any final outcome.
08. In this case, admittedly, the judgment and decree passed by the
Additional District Judge in favour of the decree holders had become
final. Under the said decree, the plaintiffs had been declared owners of
the suit land and they have been held entitled to get possession of the
suit land. In alternate they have been held entitled to get compensation
or alternate land, the alternate land offered to them has been refused,
therefore, now, the only option which is available to the State is to pay
the amount of compensation. The State Government has only two modes
to take the land of a private person, firstly, by way of sale-deed /
agreement and, secondly, by acquisition under the provisions of the
Land Acquisition Act, 1894 (now the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013).
09. In compliance of the judgment and decree passed in the year
1990, till date no steps have been taken to acquire the suit land under the
provisions of the Act of 1894. During the execution proceedings, the
State Government decided the compensation and initially deposited Rs.
4087/- and thereafter Rs.3,05,968/- which cannot be treated as just and
proper compensation under the provisions of the Act of 1894 as same
has been calculated unilaterally without drawing proceeding under the
Act of 1894. Now, at this stage, the land is treated to be acquired by the
State Government and the compensation is liable to be assessed by the
Collector through the Land Acquisition Officer. Since there has been no
notification issued in the last 48 years by the Government of M.P. it
would be better to give this task of calculation of just and proper
compensation payable to the decree holders/plaintiffs to, the learned
Executing Court under provisions of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013. In similar facts and circumstances, the Apex Court in the case
of Vidya Devi V/s The State of Himachal Pradesh reported in (2020) 2
SCC 569 the Apex court directed to pay the compensation under the
prosecution of the Land Acquisition Act. The relevant paragraphs for
guidance to the appellants are as under :-
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 Shapur Chenai [Hindustan
Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 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)
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.
10. There is no question of law as suggested by the appellants
which are liable to be framed for admission of this Second Appeal. The
Learned Additional District Judge has rightly passed an order that in the
last 48 years, the State Government has not taken any step to acquire the
land and pay the compensation under the provisions of the Act of 1894
and rightly directed the State Government to acquire the land but in
view of the law laid down by the Apex Court, the land is treated to be
acquired and only the compensation is liable to be assessed. Hence, the
learned Executing Court is directed to calculate the compensation under
the provisions of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 and direct
the State Government to deposit the said amount. Looking at the period
of 48 years lapsed and the age of the plaintiffs, I hereby direct the
learned Executing Court to complete the calculation part within 30 days
and thereafter the appellants / Government of M.P. to deposit the amount
of compensation in 60 days. The compliance report be submitted to this
Court.
11. In view of the above, the Seconed Appeal is partly allowed.
The order passed by the Additional District Judge is partially modified.
(VIVEK RUSIA)
JUDGE
Divyansh
