Himachal Pradesh High Court
State Of H.P. & Others vs Ram Lok (Since Deceased) Through on 14 September, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 245 of 2022 Reserved on: 22.08.2023 .
Date of Decision: 14th September, 2023 State of H.P. & others ....Appellants of Versus Ram Lok (since deceased) through His LRs & others.
Coram
rt ....Respondents
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes For the Appellants : Mr. R.P. Singh, Mr. Prashant Sen and Ms. Avni Kochhar, Deputy Advocates General for the appellants.
For the Respondents : Mr. Neeraj Gupta, Senior Advocate with Ms. Rinki Kashmiri, Advocate for the respondents.
::: Downloaded on - 15/09/2023 20:34:01 :::CIS 2Rakesh Kainthla, Judge.
The present appeal is directed against the judgment .
and decree dated 26.06.2019, passed by learned Additional District Judge, Ghumarwin, vide which the appeal filed by the appellants (defendants before the learned Trial Court) was partly of dismissed (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit against the defendants before the learned Trial Court seeking a permanent prohibitory injunction for restraining them from constructing a new road or widening the road constructed over part of the suit land described in the plaint till the same is acquired as per the law.
A mandatory injunction directing the defendants to acquire the part of the suit land or in the alternative relief for possession and compensation was also sought. It was pleaded that plaintiffs are co-owners of the suit land. The State of H.P. constructed a road on the suit land without obtaining the consent of the plaintiffs.
When the plaintiffs protested, the defendants assured to acquire ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 3 the land as per the law. Notification under Section 4 of the Land Acquisition Act was issued, but it was allowed to lapse. 200 plants and trees were damaged while constructing the road. The .
defendants intend to use the remaining part of the suit land for widening the road. Hence, the suit was filed to seek the relief mentioned above.
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3. The suit was opposed by filing a written statement, taking preliminary objection regarding lack of maintainability, rt cause of action, locus standi and jurisdiction, the plaintiffs being estopped to file the present suit by their acts and conducts, suit being bad for want of notice under Section 80 CPC and suit being bad for non-joinder and mis-joinder of necessary parties. The contents of the plaint were denied on merits. It was asserted that the road was constructed 40 years ago with the consent of the predecessor-in-interest of the plaintiffs. No assurance was given to the plaintiffs for payment of compensation. The road was covered under the NABARD scheme. The defendants would construct only drains and culverts for the safety of the public and there was no proposal for widening the road. Hence, it was prayed that the suit be dismissed.
::: Downloaded on - 15/09/2023 20:34:01 :::CIS 44. Learned Trial Court framed the following issues on 10.12.2014:-
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1. Whether the plaintiffs are entitled for relief of permanent prohibitory injunction, as prayed? OPP
2. Whether the plaintiffs are entitled for relief of possession, as alleged?OPP
3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD of
4. Whether the plaintiffs have no cause of action and locus standi to file the present suit? OPD
5. Whether the plaintiffs are estopped to file the present rt suit by their own acts, conducts, omissions and commissions? OPD
6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
7. Whether the suit is bad for non-joinder and mis-
joinder of necessary parties? OPD
8. Whether the present suit is time-barred? OPD
9. Whether the suit is bad for non-compliance of Section 80 CPC?OPD.
10. Relief.
5. The parties led their evidence.
6. The Learned Trial Court held that the plea taken by the defendants that the road was constructed with the oral consent of the defendants was not proved. The defendants had taken steps ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 5 for the acquisition of the land by issuing a Notification under Section 4 of the Land Acquisition Act dated 04.10.2000, (Ext.PX1).
However, it was permitted to lapse. The issuance of Notification .
falsifies the plea taken by the defendants regarding the consent of the plaintiffs. The State cannot use the property of a citizen without the payment of compensation. The defendants had not of taken the plea of adverse possession and the suit based on the title is not barred. Hence, the learned Trial Court answered issue nos. 1 and 2 in affirmative,the rest of the issues in the negative and rt decreed the suit of the plaintiffs.
7. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendants preferred an appeal before the learned First Appellate Court. The learned First Appellate Court held that the plea of the consent was not proved.
The State cannot take plea of adverse possession against the citizen and the suit based on the title is not barred by limitation.
Hence, the learned First Appellate Court partly allowed the appeal and directed that in case the defendants do not acquire the land as per the law, the plaintiffs will be entitled to vacant possession by restoring the suit land to its original position. However, the ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 6 decree of the vacant possession shall not be executable for 6 months to enable the State to acquire the land.
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8. Being aggrieved and dissatisfied with the judgments and decrees passed by the learned Courts below, the present appeal has been filed, asserting that the learned Courts below did not properly appreciate the oral and documentary evidence. The of learned Courts below erred in issuing a direction to acquire the land. The road is in existence for more than 40 years and it was rt constructed with the consent of the predecessor-in-interest of the plaintiffs for the benefit of the general public. The defendants are in continuous and peaceful possession of the suit land. The suit is liable to be dismissed on the ground of delay and latches, therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.
9. The following substantial questions of law were proposed with the memorandum of appeal:-
1. Whether the court has jurisdiction to try & determine the suit which was filed after the expiry of limitation period i.e. 40 years?
2. Whether the plaintiffs are estopped to file the suit by their own acts, conducts and deeds etc.?::: Downloaded on - 15/09/2023 20:34:01 :::CIS 7
3. Whether the suit filed for prohibitory injunction and mandatory injunction after a period of 40 years suffers from delay and latches?
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10. I have heard Mr. R.P.Singh, Mr. Parshant Sen and Ms Avni Kochhar, learned Deputy Advocate Generals for the appellants/defendants/State and Mr. Neeraj Gupta, learned Senior of Advocate assisted by Ms Rinki Kashmiri, Advocate, for the respondents/plaintiffs.
11. rt Mr. R.P. Singh,Mr. Parshant Sen and Ms Avni Kochhar, learned Deputy Advocates General for the appellants/defendants/State submitted that the suit is barred by limitation, it was duly proved on record that the road is in existence for more than 40 years. No action was taken by the plaintiffs at the time of constructon of road and the suit filed after 40 years was not within limitation. The learned Courts below erred in giving a direction to the State to acquire the land, therefore, they prayed that the present appeal be admitted on the substantial questions of law so proposed with the memorandum of appeal.
::: Downloaded on - 15/09/2023 20:34:01 :::CIS 812. Mr. Neeraj Gupta, learned Senior Advocate for the respondents/plaintiffs supported the judgments and decrees passed by the learned Courts below and submitted that no .
inference is required with the same. No substantial question of law arises in the present case and he prayed that the present appeal be dismissed.
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13. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
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14. Both the learned Courts below have concurrently found that the plea of oral consent was not proved. These are the concurrent findings of facts duly supported by the evidence.
Uttam Singh (DW-1) stated that he was posted since 2012 and the road was constructed 40-45 years before the date of his deposition. He admitted in the cross-examination that he was not posted at the time of the construction of the road and he could not say about the consent for the construction of the road. Similarly, Krishan Kant Chauhan (DW2) stated that he was posted since 2012 and the road was constructed about 45 years before the date of his deposition. He admitted in his cross-examination that consent ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 9 was not given in his presence and he had not seen any record regarding the consent. Thus, both the witnesses of the defendants admitted that the consent was not given in their presence and .
their testimonies did not establish the consent of the landowners.
15. In Nokhia & Others vs. State of HP ILR 1984 HP 906, the State Government had used the land for the construction of the of link road without acquiring the same. A writ petition was filed before this Court. State Government had taken a defence of the rt consent. This Court held that the State has to bring the material on record to show that free and informed consent was given and a consent, based upon the representation that payment of the compensation would be made, is no consent at all. This Court issued the following instructions:-
"8. On this occasion, once again, the Court draws the attention of the State Government to the state of affairs which have come to light in this and similar cases and directs that:
(a) instructions be issued to all limbs and subordinates that no citizen should be deprived of his property save in accordance with law, that is, the law relating to the acquisitioning and requisitioning of property and that in rare and exceptional cases of emergent public utility projects, the execution whereof cannot brook any delay in the public interest and where the provisions of Section 17 of the Land Acquisition Act cannot be resorted for reasons such ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 10 as the nature and character of land, possession of the land or any specified portion thereof may be taken with the consent, as explained above of the person(s) interested in the land after the execution of an .
agreement, in writing, between the said person(s) and the competent authority, in accordance with law, incorporating the conditions, inter alia, that the land acquisition proceedings shall be initiated and completed and the compensation will be paid within a reasonable time to be specified in the agreement and that interest will be paid from the date of taking over of possession; and of
(b) in order to avoid proliferation of litigation and to alleviate genuine hardship of persons similarly situate, all cases like the present, where there has rt been a deviation from law and persons have been deprived of the possession of their property save in accordance with law, be taken up for regularisation by initiating/ completing acquisition proceedings in accordance with law with the utmost expedition and within a time-limit which may be set up by the State Government bearing in mind the need of striking a just balance between the inevitable lapse of time which is reasonably likely to occur even if urgent action is taken in that direction and the duty of providing quick relief by emergent remedial measures to the aggrieved persons and, in all such cases, equitable compensation, on the basis on which the Court has so far awarded the same in such and similar cases and proposes to award herein, be paid to such persons from the date of taking over of possession till the date of actual payment, in addition to the compensation, solatium and interest at the statutory rate which becomes payable under the law. The Court has so far viewed cases where such unauthorized actions were taken in the past leniently but any future lapse will have to be strictly viewed if it is brought to its notice."
::: Downloaded on - 15/09/2023 20:34:01 :::CIS 1116. Therefore, in view of the binding directions of this Court, it is not permissible to use the land of the person without his consent and the consent has to be taken through an agreement .
in writing between that person and the competent authority.
These directions are binding upon the State and it is not permissible for the State to say that it had taken the oral consent of of the owner.
17. This judgment was followed in Lata vs. State of H.P. rt 2009 (1) Shim. L.C. 107 and it was held that mere bald assertion that the landowners had orally consented to the taking of possession of the land on a verbal assurance is not sufficient. The State has to give the details of when the consent was obtained, who was the authority that obtained the consent and in what manner. It was observed:
"12. The respondent state has only made a bald assertion that the landowners had orally consented to the taking of possession of the land on a verbal assurance. The respondents have not given details when the consent was obtained and who was the authority that obtained the consent and in what manner. The plea set up by the State that the owners have given consent and voluntarily handed over the land cannot be accepted."::: Downloaded on - 15/09/2023 20:34:01 :::CIS 12
18. This question was also considered by the Hon'ble Supreme Court in Vidya Devi Versus State of H.P. 2020(2) SCC 569, wherein it was observed:-
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"12.8. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find a complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State."
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19. Similar is the judgment of the Hon'ble Supreme Court in Sukh Dutt Ratra & another Vs. State of H.P & others 2022 (7) SCC 508 wherein it was observed:
rt "21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.
22. This court is also not moved by the State's contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason - construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 13 dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court's intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their .
land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings has been noted in fact, by the full court decision of the High Court in Shankar Dass {supra) itself, which is relied upon in the impugned judgment.
23. This court, in Vidya Devi {supra) facing an almost of 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 rt 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 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 the right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-
faceted dimension. "
::: Downloaded on - 15/09/2023 20:34:01 :::CIS 1420. Therefore, in view of the binding precedents, the plea of consent has to be established satisfactorily. The defendants had not examined any person, in whose presence the consent was .
given. The defendants examined, Uttam Singh, Assistant Engineer (DW-1) and Krishan Kant Chauhan (DW-2), who were posted in the year 2012 and they were not competent to depose of about the consent having been given 40 years ago. Thus, there is no perversity in the findings recorded by the learned Courts below that the plea of oral consent was not established.
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21. Heavy reliance was placed upon the judgment of the Hon'ble Supreme Court in State of Maharashtra Versus Digamber 1995(4) SCC 683 to contend that a person who does not approach the Court immediately is guilty of delay and laches and no relief can be granted to him. However, this judgment dealt with the writ jurisdiction and does not apply to a civil suit, which is based on the limitation and not on the principle of delay and laches. A similar argument was raised before the Hon'ble Supreme Court in Vidya Devi (supra). Repelling this argument, it was held:-
"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 ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 15 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 of it. (P.S. Sadasivaswamy v. State of T.N., 1975 1 SCC 152.) 12.14 In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., 2013 1 SCC 353 this Court while dealing with a similar fact situation, held as follows :
rt "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, the grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claims 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. 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 a 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)
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 ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 16 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 of to the appellant.
22. Therefore, the claim cannot be defeated on the grounds rt of delay and laches.
23. It was laid down by the Hon'ble Supreme Court in Vidya Devi (supra) that a person cannot be deprived of his property without any legal sanction of law. It was held:-
"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 a 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 & Ors. v.::: Downloaded on - 15/09/2023 20:34:01 :::CIS 17
M.I.D.C. & Ors, 2013 1 SCC 353 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 the right to shelter, livelihood, of health, employment, etc. Human rights have gained a multi-faceted dimension."
24. This question was also considered by the Hon'ble rt Supreme Court in Hari Krishna Mandir Trust vs. State of Maharashtra 2020(9) SCC 356 and it was held that the Municipal Corporation is under obligation to acquire the land used for constructing the road. It was observed:-
"93. On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. never belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were three plots 473 B1, B2, B3 and 473B4 shown as vacant land held by the owners of all the three adjacent plots.
94. The Municipal Corporation was never shown as the owner of the vacant plot or any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based on entries in property records and the award of the arbitrator."::: Downloaded on - 15/09/2023 20:34:01 :::CIS 18
25. It was further observed that the right of property is a statutory right and no person can be deprived of the right to his property. It was observed:-
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"96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and Others, (2008) 4 SCC 649 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to of be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with the law.
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97. Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of the property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar and Others vs. Project Uchcha Vidya, Sikshak Sangh and Others, (2006) 2 SCC 545, 574 (para 69); Jelubhai Nanbhai Khachar and Others vs. State of Gujarat and Anr. (1995) Suppl. 1 SCC 596; Bishambhar Dayal Chandra Mohan and Ors. vs. State of Uttar Pradesh and Others, (1982) 1 SCC 39 the State possesses the power to take or control the property of the owner for the benefit of the public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders vs. State of Maharashtra and Others, (2007) 7 SCC 555 (paras 55 and 56)."
26. Dealing with the remedy available to a person in case of forcible dispossession, it was held that a person can file a writ of mandamus for payment of compensation. It was observed:-
::: Downloaded on - 15/09/2023 20:34:01 :::CIS 19"99. In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by this Court in Wazir Chand vs. State of Himachal Pradesh, .
AIR 1954 SC415. Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. vs. State of Karnataka, (2011) 9 SCC 1 even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire of private property for a public purpose cannot say that no compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a landholder of his land, without compensation. Statutory rt authorities are bound to pay adequate compensation.
100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty-bound to exercise such power, where the Government or public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration."
27. Similarly, it was held in Syed Maqbool Ali vs. State of Utter Pradesh 2011(15) SCC 383 that the remedy of a person whose land is taken without acquisition is to file a civil suit for recovery of possession or payment of compensation. It was observed:-
"9. The remedy of a landholder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation or approach the High Court by filing a writ petition if the action can be ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 20 shown to be arbitrary, irrational, unreasonable, biased, mala fide or without the authority of law, and seek a direction that the land should be acquired in a manner known to law."
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28. Thus, a person deprived of his property unlawfully is entitled to the restoration of the possession or the payment of compensation and there is no infirmity in the judgments and decrees passed by the learned Courts below for payment of of compensation or restoration of possession.
29. A plea was taken that no objection was raised at the rt time of construction of the road and the suit is not maintaiable. A similar situation arose before the Hon'ble High Court in Jai Ram Versus State of H.P. 2011 (3) Shim. L.C. 91 and it was held that non-
raising of objection by a landowner when his land is being encroached upon either by the State or its Agencies or even by a private person does not disentitle him to seek his legal remedy. It was observed:
"5. It is not the case of the respondents that the petitioner had offered his land for being utilized for the construction of a road, under the aforesaid PGSMY Scheme. Their plea is that the petitioner did not object to the construction of the road on the site. Non-raising of objection by a landowner, when his land is being encroached upon, either by the State or its Agencies or even by a private person, does not disentitle him from seeking his legal remedy. Neither the scheme of PGMSY authorizes the State nor its Agencies to ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 21 utilize private lands, without payment of compensation to the landowners nor could have a provision like that been made in the scheme as the same would have been contrary to the mandate of Article 300-A of the Constitution of .
India."
30. Similarly, it was held in Jeet Ram Versus State of H.P. Latest HLJ 2016 HP 615 that there can be no waiver or estoppel regarding constitutional rights. It was observed:
of "4. No person can be deprived of his property without following due process of law. Respondents have utilised the land of the petitioner without paying him any compensation. There is no contemporaneous record placed rt on record by the respondent-State to show that the petitioner had consented to the construction of the road through his land. It is evident from the contents of Annexure P-1 that the nature of land in Khasra no. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valuable piece of land of the petitioner has been utilised in an arbitrary manner by the respondent-State, for the purpose of construction/widening of the Shillaru-Reog road.
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6. The legitimate right of a citizen, that too pertaining to valuable property, can not be defeated merely on the technical objections. There ought to be a difference in the approach of a private litigant vis-a-vis the State. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There can not be any estoppel/waiver against the constitutional/ fundamental/ legal rights."
31 Similarly, the Hon'ble Supreme Court of India held in Raj Kumar Versus State of H.P. in Civil Appeal no. 9105 of 2015, decided on 29.10.2015 that where the land was utilized for ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 22 construction of the road without the payment of the compensation and there was no proof of the consent, State is liable to pay compensation. Since in the present case the consent .
was not established, therefore, the plaintiff is entitled to the relief sought by him and the learned trial Court had rightly granted the relief of possession/compensation.
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32. This position was reiterated in Sukh Dutt Ratra & another vs. State of H.P & others 2022 (7) SCC 508, wherein it was observed that:-
rt "13. While the right to property is no longer a fundamental right[Constitution (Forty Fourth Amendment) Act, 1978.], It is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.
14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington, [1765] EWHC (KB) 198 and by this court in Wazir Chand v. The State of Himachal Pradesh, 1955 (1) SCR 408. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.::: Downloaded on - 15/09/2023 20:34:01 :::CIS 23
15. When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State. In Bishandas v. State .
of Punjab, 1962 (2) SCR 69 this court rejected the contention that the petitioners in the case were trespassers and could be removed by an executive order, and instead concluded that the executive action taken by the State and its officers, was destructive of the basic principle of the rule of law. This court, in another case - State of Uttar Pradesh and Ors. v. Dharmander Prasad Singh and Ors, 1989 (1) SCR 176, held:
of "A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier rt termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the leasedeed does not authorise extra-judicial methods to resume possession. Under the law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree'".
16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains - Can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 24 and warranting intervention on the grounds of equity and fairness.
17. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the .
injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's of lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other rt land owners, pursuant to the orders dated 23.04.2007 (in CWP No. 1192/2004) and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.
18. There is a welter of precedents on delay and laches which conclude either way - as contended by both sides in the present dispute - however, the specific factual matrix compels this court to weigh in favour of the appellant- land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a 'limitation' to doing justice. This court in a much earlier case - Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, 1969 (1) SCR 808 ', held:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 25 party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, the lapse of time and delay are most material.
.
But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts of done during the interval, which might affect either party and cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy. "
rt
19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This court, in Manohar (supra) - a similar case where the name of the aggrieved had been deleted from revenue records leading to his dispossession from the land without payment of compensation - held:
"Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 26 what appears to be a just and reasonable claim of the respondent.
Ours is a constitutional democracy and the rights available to the citizens are declared by the .
Constitution. Although Article 19(l)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:
"300-A. Persons not to be deprived of property save by authority of law.No person shall be deprived of his property save by authority of of law."
This is a case where we find an utter lack of legal authority for the deprivation of the respondent's property by the appellants who are State authorities. rt In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution... "
20. Again, in Tukaram Kana Joshi {supra)While dealing with a similar fact situation, this court 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, grants of compensation for a wrong done to them decades ago, recovery of statutory dues, claims 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 a grant of the benefit of compensation. The State must either comply with the procedure laid down for ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 27 acquisition, requisition, or any other permissible statutory mode. "
xxxx
25. Concluding that the forcible dispossession of a person .
of their private property without following due process of law, was violative[Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517; Delhi Airtech Services Pvt. Ltd. & Ors. v. State of Uttar Pradesh & Ors. 2011 (12) SCR 191; and Jilubhai Nanbhai Kahchar v. State of Gujarat 1994 Supp (1) SCR 807.] of both of their human right and constitutional right under Article 3 00-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 rt in the present case."
33. It was submitted that the State has been in possession for more than 45 years and the plaintiffs are not entitled to possession. This cannot be accepted. The defendants are the State and its instrumentalities. It was laid down by the Hon'ble Supreme Court in State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769: 2011 SCC OnLine SC 1341 that the State cannot take the plea of adverse possession to grab the property of its citizens. If the protectors of the law will become grabbers of the property, then the people will be left with no protection and there will be total anarchy in the entire country. It was observed at page 419 ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 28
45. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. It is indeed a very disturbing and dangerous .
trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No government department, public undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.
of
34. This position was reiterated by the Hon'ble Supreme Court in Vidya Devi Versus State of H.P. 2020(2) SCC 569 wherein it was held:-
rt "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 be 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."
35. It was submitted that the suit was filed after a lapse of 40 years and the same is barred by limitation. This plea cannot be accepted. The learned Trial Court had rightly pointed out that no plea of adverse possession was taken and the suit based on title cannot be said to be barred in the absence of any such plea.
::: Downloaded on - 15/09/2023 20:34:01 :::CIS 2936. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that in a suit based on the title where no plea of adverse possession had been raised could not be .
barred by limitation on the ground that it was filed after more than 12 years from the date of dispossession. It was observed:-
"10. The present suit is for possession on the basis of title. Article 63, Limitation Act, 1963, governs the present case. It of provides that for possession of immovable property or any interest therein based on the title, the limitation of twelve years begins to run from the date of the defendant's interest becomes adverse to the plaintiff rt
11. It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true owner.
12. It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.
13. It is equally well settled that mere possession for however long a period is not enough to claim title inasmuch as the possession has to be adverse.
14. In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.::: Downloaded on - 15/09/2023 20:34:01 :::CIS 30
15. Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time-barred on the ground that the same was filed .
after the expiry of twelve years from the date of dispossession."
37. Similarly, it was held in Indira vs. Arumugam & Another (1998) 1 SCC 614 that in a suit based on the title, when the title has been established, the plaintiff cannot be non-suited on the of ground of limitation unless the plea of adverse possession is established. It was observed:-
rt "4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on the title had to prove not only the title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of the Period of Time from which suit:- For limitation:- period begins to run:
possession of Twelve years - When the
immovable
possession of the
property or any
defendant becomes
interest therein
based on the title adverse to the
plaintiff.
5. It is, therefore, obvious that when the suit is based on the title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiff cannot be non-suited. Unfortunately, ::: Downloaded on - 15/09/2023 20:34:01 :::CIS 31 this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the Second Appeal has got vitiated. Only on that short ground and without expressing any opinion on the merits of the .
question of law framed by the learned Judge for disposing of the Second Appeal, this appeal is allowed."
38. Similar is the judgment of this Court in Shishi Ram Vs. Megh Chand AIR 2013 HP 65, wherein it was held:-
"12. It is settled law that mere possession however long of does not necessarily mean that it is adverse to the true owner. Adverse possession really means hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, rt the possession/ roved must be adequate in continuity, publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former's hostile action.
.......................
14. The learned first Appellate Court thus rightly conclude that when the plaintiff had filed a suit for possession based upon the title and the defendant had taken plea of adverse possession to defend his title, in that eventuality of the defendant's failure to prove his adverse possession, the suit filed by the plaintiff could not have been dismissed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the filing of the suit as held by the Apex Court in Indira v. Arumgam [AIR 1999 SC 1549]."::: Downloaded on - 15/09/2023 20:34:01 :::CIS 32
39. In the present case, the State cannot take the plea of adverse possession and the limitation will not start running against the plaintiffs. Hence, the suit cannot be held to be barred .
by limitation.
40. It was submitted that plaintiffs have acquiesced and were not entitled to the possession. This is not acceptable.It was of laid down by the Hon'ble Supreme Court in Kamakshi Builders vs. Ambedkar Educational Society 2007 (12) SCC 27, that acquiescence rt does not confer any title. It was observed:-
"23. Acquiescence on the part of Respondent No. 1, as has been noticed by the High Court, did not confer any title on Respondent No. 1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be conferred.
24. It is now well-settled that time creates a title.
25. Acquisition of a title is an inference of law arising out of a certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other.
26. It may be true that Respondent No. 1 had constructed some buildings, but it did so at its own risk. If it thought that despite its status as a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document on that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn."::: Downloaded on - 15/09/2023 20:34:01 :::CIS 33
41. Therefore, the principle of acquiescence will not help the defendants in any manner, whatsoever.
.
42. It was submitted that the learned Courts below erred in issuing the direction to acquire the land. It has already been noticed that the Hon'ble Supreme Court of India had granted a remedy of filing a suit for seeking compensation in case of of wrongful deprivation. The learned First Appellate Court had passed a decree for possession and had given an option to the rt State to acquire the land if so desired. Therefore, the direction to acquire the land was optional and there is no error in the judgment and decree passed by the learned First Appellate Court.
43. No other point was urged.
44. Therefore, the present appeal does not involve any substantial question of law; hence the same is dismissed. The record of the case be remitted back to the learned Courts below.
Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 14th September, 2023 (Ravinder) ::: Downloaded on - 15/09/2023 20:34:01 :::CIS