Himachal Pradesh High Court
Smt. Kalawati vs State Of Himachal Pradesh & Ors on 5 October, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 7699 of 2014 Judgment Reserved on 29.9.2016 .
Date of decision: October 5, 2016.
Smt. Kalawati ...... Petitioner
Vs.
State of Himachal Pradesh & Ors. ..... Respondents
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
rt 1For the petitioner : Mr. Shashi Shirshoo, Advocate.
For the respondents : Ms. Meenakshi Sharma, Addl. Advocate General, with Mr. J. S. Guleria, Asstt.
Advocate General.
Tarlok Singh Chauhan, Judge This writ petition has been filed for the following substantive reliefs:-
"i) That the respondents may kindly be ordered not to construct the road through any part and parcel of land and property of petitioner comprised in khewat No. 19/15, khatauni No. 38/37, khasra No. 1286, 1287, kita 2 measuring 00-20-22 hectares, situated at Mohal Mangsu, Patwar Circle Kotgarh, Tehsil Kumarsain, District Shimla, H.P. according to the jamabandi for the year 2011-2012. It is further prayed that the respondents may be directed not to interfere or encroach upon or throw malba/debris or make any kind of construction on the said land of the petitioner in any manner in the interest of justice, equity and fairplay.
ii) That the respondent No. 3 and 4 may kindly be directed to protect the life and property of the petitioner Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 21:21:46 :::HCHP ...2...
and also to take appropriate action against the culprits on the complaints and FIR lodged with it at the earliest.
iii) The respondents No. 5 and 6 may be directed to take appropriate action on the complaints lodged with it in the .
interest of justice."
2. The petitioner is one of the co-owner of land comprised in khewat No. 19/15, khatauni No. 38/37, khasra No. 1286, 1287, kita 2, measuring 00-20-22 hectares, situated at mohal Mangsu, Patwar of Circle Kotgarh, Tehsil Kumarsain, District Shimla, Himachal Pradesh.
3. The grievance as portrayed in the petition is that Public rt Works Department has forcibly constructed a road through the land of the petitioner thereby damaging the apple trees standing thereupon.
In addition to this, huge quantity of debris has been illegally and unauthorizedly dumped over her land rendering it completely unfit for further cultivation.
4. The Public Works authority (respondents No. 1 and 2) have filed their reply wherein it is averred that their officials on their own had not constructed this road but had done so only because two sons of the petitioner S/Shri Ashok Kumar and Ashwani Kumar had gifted the land to the authorities through registered gift deeds.
5. The Superintendent of Police and S.H.O., Kumarsain (respondents No. 3 and 4), who in their reply have stated that investigation was under progress and as per investigation carried out so far, it is found that sons of the petitioner had already gifted the land and it was thereafter the road had been constructed.
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6. The Secretary (Forest) and Divisional Forest officer, Kotgarh (respondents No. 5 and 6), in their reply have admitted that 16 Nos. of apple trees had been uprooted while constructing the .
road.
7. It is vehemently argued by Mr. Shashi Shirshoo, Advocate, that the respondents have acted in a high handed manner, thereby, depriving the petitioner of her property, that too, by forcibly of constructing the road. Whereas the respondents have rebutted the said contention by submitting that their action was lawful, particularly, rt when the two sons of the petitioner had already gifted land in favour of the State Government.
8. I have heard learned counsel for the parties and have gone through the record of the case.
9. To hold property is not only a constitutional right in terms of Article 300-A of the Constitution of India, but is also human right and, therefore, cannot be taken away except in accordance with law.
This was so held by the Hon'ble Supreme Court in Chairman, Indore Vikas Pradhikaran versus Pure Industrial Coke & Chemicals Ltd.
and others (2007) 8 SCC 705, in the following terms:-
"53. The right to property is now considered to be not only a constitutional right but also a human right.
54. The Declaration of Human and Civic Rights of 26-8-1789 enunciates under Article 17:
"17. Since the right to property is inviolable and sacred, no-one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".::: Downloaded on - 15/04/2017 21:21:46 :::HCHP
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Further under Article 17 of the Universal Declaration of Human Rights, 1948 dated 10-12-1948, adopted in the United Nations General Assembly Resolution it is stated that (i) Everyone has the right to own property alone as well as in association with .
others. (ii) No -one shall be arbitrarily deprived of his property.
55. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (1797- 1801) put it :
"Property is surely a right of mankind as real as liberty. "
of Adding, "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law rt and public justice to protect it, anarchy and tyranny commence".
56. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law."
10. The legal position was reiterated by the Hon'ble Supreme Court in Lachhman Dass versus Jagat Ram and others (2007) 10 SCC 448 and it was held as under:-
"16. Despite such notice, the appellant was not impleaded as a party. His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a preemptor, must bear it in mind about the character of the right, vis-a- vis, the constitutional and human right of the owner thereof."::: Downloaded on - 15/04/2017 21:21:46 :::HCHP
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11. In K.T. Plantation Private Limited and another versus State of Karnataka (2011) 9 SCC 1, it was held by the Hon'ble Supreme Court that Article 300-A would be violated if the provisions .
of law authorizing deprivation of property have not been complied with. It was further observed that while enacting Article 300-A, Parliament had only borrowed Article 31(1) (the "Rule of law"
doctrine) and not Article 31(2) (which had embodied the doctrine of of eminent domain). Though Article 300-A enables the State to put restrictions on the right to property by law, however, the same must rt be reasonable and must be complied with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive. It is apt to reproduce paras 187 to 192 of the judgment which reads thus:-
"187. The legislative field between the Parliament and the Legislature of any State is divided by Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters enumerated in Schedule VII List I, called the Union List and subject to the said power of the Parliament, the Legislature of any State has power to make laws with respect to any of the matters enumerated in List III, called the Concurrent List. Subject to the above, the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II, called the State List. Under Article 248, the exclusive power of the Parliament to make laws extends to any matter not enumerated either in the Concurrent List or State List.
188. We find no apparent conflict with the words used in Entry 42 List III so as to infer that the payment of compensation is inbuilt or inherent either in the words "acquisition and requisitioning" under ::: Downloaded on - 15/04/2017 21:21:46 :::HCHP ...6...
Entry 42 List III. Right to claim compensation is, therefore, cannot be read into the legislative Entry 42 List III.
189. Requirement of public purpose, for deprivation of a person of his property under Article 300-A, is a pre-condition, but no .
compensation or nil compensation or its illusiveness has to be justified by the state on judicially justiciable standards. Measures designed to achieve greater social justice, may call for lesser compensation and such a limitation by itself will not make legislation invalid or unconstitutional or confiscatory. In other words, the right to claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that Article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.
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190. Article 300-A would be equally violated if the provisions of law authorizing deprivation of property have not been complied with. While enacting Article 300-A Parliament has only borrowed Article 31(1) (the "Rule of law" doctrine ) and not Article 31(2) (which had rt embodied the doctrine of Eminent Domain). Article 300-A enables the State to put restrictions on the right to property by law. That law has to be reasonable. It must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive.
191. The legislation providing for deprivation of property under Article 300-A must be "just, fair and reasonable" as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.
192. At this stage, we may clarify that there is a difference between "no" compensation and "nil" compensation. A law seeking to acquire private property for public purpose cannot say that "no compensation shall be paid". However, there could be a law awarding "nil" compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the government to establish validity of such law. In the latter case, the court in exercise of judicial review will test such a law keeping in mind the above parameters."
12. In Tuka Ram Kana Joshi and others versus Maharastra Industrial Development Corporation and others (2013) 1 SCC 353, the Hon'ble Supreme Court reiterated that right to ::: Downloaded on - 15/04/2017 21:21:46 :::HCHP ...7...
property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though it is not a basic feature of the Constitution or a fundamental right. The right to property is .
considered very much to be part of new dimensions where human rights are considered to be in realm of individual's rights such as the right to health, the right to livelihood, the right to shelter and employment etc. and such rights are gaining an even greater of multifaceted dimension. It is apt to reproduce paras 8 and 9 of the judgment which reads thus:-
rt "8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the Right to Property ceased to be a Fundamental Right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142, it has been held as follows: (SCC p.627, para 48) "48. In other words, Article 300-A only limits the power of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation."
9. The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right.
Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension. (Vide: Lachhman Dass v. Jagat Ram (2007) 10 SCC 448, Amarjit Singh ::: Downloaded on - 15/04/2017 21:21:46 :::HCHP ...8...
v. State of Punjab (2010) 10 SCC 43, State of M.P. v. Narmada Bachao Andolan AIR 2011 SC 1989, State of Haryana v. Mukesh Kumar AIR 2012 SC 559 and Delhi Airtech Services Pvt. Ltd. v. State of U.P AIR 2012 SC 573)."
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13. From the aforesaid exposition of law, it is absolutely clear that a citizen has a legal and constitutional right to hold property in terms of Article 300-A of the Constitution of India. He, therefore, cannot be deprived of his right, save and except, by authority of law.
of The right of an individual to hold a property apart from legal right has also been held to be a human right. Therefore, its deprivation can
14. rt only be by due process of law.
To determine the question as to whether the petitioner has in fact been deprived of the property other than by due process of law, it appears that the petitioner's own house is not in order, as it has come on record that her two sons, who are also co-owners of the property, had gifted some part of the property in favour of the Public Works Department and this fact has not been disclosed by the petitioner anywhere in the petition.
15. In Teja Singh and others versus State of Punjab and Another (1995) 4 SCC 540, it is held by the Hon'ble Supreme Court that in case land under acquisition is belonging to co-owners or occupiers, then service of notice on one must be taken as service on all the co-owners. It is apt to reproduce the relevant para of the judgment, which reads thus:-
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"8. It is true that Section 38(1) provides that every person whom the Trust has reason to believe, after due inquiry, to be the owner of any immovable property which it is proposed to acquire in executing the scheme or the occupier, shall be served with the notice thereof. Section 79(2) of the Act in this behalf lends some .
clue on the due service of notice on co-owner. It states that every notice other than a public notice and every bill issued under this Act shall, unless it is otherwise expressly provided under this Act, be served or presented when a notice is required or permitted under this Act to be served upon an owner or occupier, as the case may be, of a building or land, it shall not be necessary to name the owner or occupier therein, and the service thereof in such cases not otherwise specifically provided for in this Act shall be effected either by giving or tendering the notice, or sending it by post, to the owner or occupier, or if there be "more owners or of occupiers than one, to any one of them". It would thus be clear that the legislature itself being aware of the existence of co-owners or occupier, authorised the Trust to have the notice given, tendered or served on one owner or occupier and such service of notice is legal and valid notice. Even otherwise on principle of law also, it is rt common knowledge that every co-owner may not be in occupation of the land or may not be cultivating the land or be in actual possession. He may be residing elsewhere due to pursuit of education or professional job etc. So, they may not be available for service. Legislature being cognizant to this situation, has taken care to see that if more than one owner or occupier have interest in the land and the land belonging to co-owners or occupiers is sought to be acquired, service on one, is taken as service on all the co-owners."
16. The necessary corollary of the ratio laid down in Teja Singh and others (supra) is that one of the co-owners can also gift a part of his share and for doing so, the consent of other co-sharer is not required.
17. It is evident from the material placed on record that proper ground work had been laid before constructing the road, which was constructed under the Pradhan Mantri Gramin Sadak Yojna (PMGSY). The people of the area liberally gifted their land, so as to avail the benefit of the facility of road, which is considered the life line of the people, especially, for those residing in the remote and hilly ::: Downloaded on - 15/04/2017 21:21:46 :::HCHP ...10...
areas, as held by Hon'ble Supreme Court in State of Himachal Pradesh vs. Umed Singh 1986 (11) SCC 68. The record further reveals that as many as 18 gift deeds were registered by the .
Tehsildar, Kumarsain on March, 2006, which included the gift deeds executed by the two sons of the petitioner.
18. It has also come on record that before starting with the construction work the land was demarcated properly and only of thereafter the construction commenced.
19. It would be further evident from the record that the case rt pertains to Khasra No. 1286 and 1287 wherein each of the co-sharer had 1/6th share, which comes to 273 square metre each and in this way the total share of S/Shri Ashok Kumar and Ashwani Kumar was 674 square metre. However, while constructing the road, only a strip of the land measuring 78 square metre in length with the width of approximately 2 meter has been utilized. In this way, both Shri Ashok Kumar and Shri Ashwani Kumar are still left with 200 square meter each whereas the share of all other co-sharers is lying intact. What would be the value of the share or to what extent a co-share is entitled to is a matter to be determined by the competent authority/Court, as and when the co-owners seek partition but then there is virtually no cause for the petitioner to file this petition, particularly, when her own sons, who admittedly are co-owners had gifted the land, in question, to the Public Works Department.
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20. It would also be noticed that when the case came up for hearing on 29.10.2015, the Superintendent of Police, Shimla was directed to file latest Status Report with respect to FIR No. 79 of 2014 .
registered at Police Station Kumarsain. A perusal of the Status Report so filed would reveal that after thorough investigation, the Investigating Agency has prepared cancellation report as the ingredients of offence punishable under Section 437 IPC were not of found to have been made out. The cancellation report stands submitted in the Court of rt learned Additional Chief Judicial Magistrate, Rampur, which is still pending adjudication and fixed for the service of the complainant, i.e. petitioner for 24.11.2016. It would be apt to reproduce the relevant contents of the Status Report, which reads thus:-
"2.That as per the information received from the concerned Station House Officer the instant FIR was registered on the complaint of Smt. Kalawati w/o late Shri Padam Singh at Police Station Kumarsain for the commission of offence punishable under Section 447, 34 IPC on 02.10.2014. The investigation of the case was carried out by the ASI Dev Raj and Head Constable Govind Singh. During the course of investigation photographs was clicked and spot map was prepared. The relevant revenue record qua Khasra No. 1286, 1287 and no objection certificate was taken into possession. The Investigating Agency has also taken demarcation report of aforesaid land. The statements of witnesses were also recorded. During investigation it has come in the knowledge of the investigating officer that Ashok Kumar and Ashwani Kumar had given their share in the aforesaid Khasra No. vide gift deed to Himachal Pradesh Public Works Department for construction of road and the share of the complainant i.e. Kalawati was intact on spot.
3.That there are total six share holder of Khasra No. 1286 and 1287 and all six share holder will get 9 biswas of land, ::: Downloaded on - 15/04/2017 21:21:46 :::HCHP ...12...
out of 54 biswas i.e. measuring 2.14-0 bighas as petitioner's share. The land on Khasra No. 1286 and 1287 is joint land and it is difficult to find out that which particular land where road is existing falls in whom share.
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4.That after the completion of the investigation the Investigating Agency has prepared cancellation report as the ingredients of offence punishable under section 447 are not made out. The said cancellation report was submitted before the learned Additional Chief Judicial Magistrate, Rampur for appropriate orders which is still pending adjudication before the Ld. Court and is fixed for the service of the complainant for 24.11.2016."
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21. In addition to the aforesaid, I find that the petitioner appears to be residing at village Jaigarh, Tehsil Ani, District kullu rt while the road is being constructed at village Mangsu, near Kotgarh and, thus, the petitioner is not ordinarily residing at the place where the road is being constructed and it is her sons who are residing at village Mangsu and have, therefore, given the gift deed as they desperately require the road.
22. It would be evident from the above discussion that the petitioner has not approached this Court with clean hands. This Court in exercise of its extraordinary jurisdiction, is a Court of equity and any person approaching it is expected to come not only with clean hands, but also with clean mind, clean heart and with clean objective.
He who seeks equity must do equity. The judicial process cannot become an instrument of oppression or abuse or a means in the process of Court to subvert justice for the reasons that the Courts exercise jurisdiction only in furtherance of justice. The interest of ::: Downloaded on - 15/04/2017 21:21:46 :::HCHP ...13...
justice and public interest coalesce and therefore, they are very often one and the same.
23. In view of the aforesaid discussion, I find no merit in this .
petition and the same is accordingly dismissed, so also the pending applications, leaving the parties to bear their own costs.
October 5, 2016 ( Tarlok Singh Chauhan ),
of
(sanjeev) Judge
rt
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