Himachal Pradesh High Court
State Of Himachal Pradesh And Others vs Banka Ram on 20 October, 2023
Bench: Tarlok Singh Chauhan, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
LPA No. 50 of 2022 Reserved on: October 16, 2023 Decided on: October 20, 2023 ________________________________________________________ .
State of Himachal Pradesh and others ........... Appellants
Versus
Banka Ram Respondent
________________________________________________________ Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 No. of For the appellants : Ms. Sharmila Patial, Additional Advocate General.
For the respondent : Mr. Nishant Khidtta, Advocate. ________________________________________________________ rt Sandeep Sharma, Judge By way of instant Letters Patent Appeal filed under Clause 10 of the Letters Patent of Delhi High court Act as applicable to the High Court of Himachal Pradesh, challenge has been laid to judgment dated 9.4.2021 passed by learned Single Judge of this court in CWP No. 1145 of 2017, titled Banka Ram v. State of H.P. & Others, wherein a direction came to be issued to the appellants to, within four weeks, issue requisite acquisition notice under the relevant statue,-vis-
à-vis land of the writ-petitioner.
2. Precisely, the facts of the case, as emerge from the record, are that land of the writ- petitioner came to be utilized for construction of road namely Badiyara-Manghara road but since no compensation was determined and paid to the writ petitioner, he approached this court by way of the Civil Writ Petition, praying therein to issue direction to the appellant-State to acquire his land denoted by Khasra No. 2137, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/10/2023 20:35:04 :::CIS 2measuring 00-12-48 hectares situate in Revenue Chak Kulgaon, Tehsil Chirgaon, District Shimla.
3. Relief sought for by the writ petitioner in the writ petition, though .
came to be refuted by the appellants on the ground of delay and laches but at no point of time, appellants refuted the claim of the writ-petitioner qua utilization of his land for the construction of road in question. They stated that though there is no written document available on record, suggestive of the fact that the land was donated by the writ petitioner of of his free will, but there is implied consent on the part of the writ petitioner, for utilization of his land for the construction of road, which rt fact can be gathered /inferred from the fact that the writ petitioner remained silent for more than two decades.
4. Having taken note of pleadings adduced on record by respective parties, learned Single Judge, vide judgment impugned in the instant petition allowed the petition and directed the appellants to issue acquisition notice under relevant statue within four weeks and determine just and fair compensation qua the land of the petitioner. In the instant background, appellants have approached this court in the instant appeal, praying therein to set aside the judgment passed by learned Single Judge.
5. Precisely, the grouse of the appellant as has been highlighted in the present appeal and further canvassed by Ms. Sharmila Patial, learned Additional Advocate General, is that the learned Single Judge fell in grave error, while entertaining the petition filed by the writ petitioner after an inordinate delay of more than two decades. Learned Additional Advocate General submitted that though the Department ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 3 may not be in possession of any document, suggestive of the fact that the land was made available by the writ petitioner, of his own volition with the undertaking that he will not claim compensation qua the same, .
but since he remained silent for more than 25 years, he is estopped from claiming compensation at this belated stage. She further submitted that in terms of mandate contained in Shankar Dass v.
State of Himachal Pradesh, CWP No. 1966 of 2010, otherwise the appropriate remedy for the writ petitioner is to approach civil court by of filing a civil suit and not by way of Civil Writ Petition. She further pressed into service judgment rendered by Hon'ble Apex Court in State rt of Maharashtra v. Digamber¸(1995) 4 SCC 683 to argue that that the claim being highly stale, deserves outright rejection. Learned Additional Advocate General further submitted that no compensation otherwise could be claimed for tthe road constructed under Pradhan Mantri Gram Sadak Yojana (PMGSY).
6. To the contrary, Mr. Nishant Khidtta, learned counsel for the writ-petitioner supported the impugned judgment and argued that at no point of time, consent, if any, was given by his client for utilization of his land, detailed above, for the construction of road in question. He submitted that once factum of passing of award qua same land, in favour of other land owners, is admitted, the ground raised by the appellants that there was implied consent on the part of the writ petitioner for construction of road without payment is not available to the State. He also invited attention of this court to decisions rendered by Hon'ble Apex Court in Vidya Devi v. State of Himachal Pradesh and others, (2020) 2 SCC 569 and Sukh Dutt Ratra v. State of ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 4 Himachal Pradesh and others, (2022) 7 SCC 508, to state that the plea of delay and laches cannot be raised in continuing cause of action.
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7. Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in impugned judgment by learned Single Judge, there appears to be no illegality therein. Learned Single Judge of this court, having taken note of the fact that the land of the writ petitioner stands utilized for the of construction of road in question rightly proceeded to direct the appellants to initiate acquisition proceedings. Plea of delay and laches rt set up by the appellants came to be rejected by learned Single Judge, in terms of judgments passed by Hon'ble Apex Court in Vidya Devi and Sukh Dutt Ratra, supra, as have been taken note in the impugned judgment.
8. Since it is not in dispute that the land of the writ petitioner stands utilized for the construction of road, plea of delay and laches may not be applicable in view of Vidya Devi and Sukh Dutt Ratra, supra, wherein it has been held that delay and laches cannot be raised in case of continuing cause of action. It has been further held by Hon'ble Apex Court in the decisions supra that condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case and it will depend upon the fundamental rights and remedy claimed and how the delay arose. Hon'ble Apex Court further held that there is no period of limitation prescribed for the courts to exercise their Constitutional jurisdiction to do substantial justice.
::: Downloaded on - 21/10/2023 20:35:04 :::CIS 59. There is no dispute qua the fact that the land of the petitioners was utilized for construction of road in question and some of land owners were paid compensation after initiation of acquisition .
proceedings under Land Acquisition Act in vogue at the relevant time, and as such plea of delay and laches sought to be raised by respondents may not be available on account of judgment rendered in Vidya Devi and Sukh Dutt Ratra (supra), wherein it has been categorically held that plea of delay and laches cannot be raised in of case of continuous cause of action and court can always condone the delay to do the substantial justice. Forcible dispossession of a person rt of his private property without following due process of law, has been held to be violative of both, human right and constitutional right, guaranteed under Art. 300-A of the Constitution of India. It would be apt to take note of following paras of Vidya Devi, supra:
"10.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution.
Article 31 guaranteed the right to private property 1, which could not be deprived without due process of law and upon just and fair compensation.
10.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right 2 in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article.
::: Downloaded on - 21/10/2023 20:35:04 :::CIS 6To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, wherein this Court held .
that:
" 6. ... Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid." (emphasis supplied) In N. Padmamma v. S. Ramakrishna Reddy, this Court held that:
of "21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such rt right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed." (emphasis supplied) In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.& Ors., this Court recognized the right to property as a basic human right in the following words:
"30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property."Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists." (emphasis supplied) In Jilubhai Nanbhai Khachar v. State of Gujarat this Court held as follows :
"48. ...In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A. In other words, if there is no law, there is no deprivation." (emphasis supplied) ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 7 10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
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10.4. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State. 10.5. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.8 wherein it was held that the State must comply with the procedure for acquisition, requisition, or rt any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.
10.6. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to "adverse" possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.
10.7. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court.
::: Downloaded on - 21/10/2023 20:35:04 :::CIS 8Condonation 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.
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.
of In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., this Court while dealing with a similar fact situation, held as follows :
"There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of rt compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode." (emphasis supplied)"
10. Reliance is also placed upon judgment passed by the Hon'ble Apex Court in Sukhdutt Ratra's cases (supra).
"23. This Court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances - rejected the contention of 'oral' consent to be baseless and outlined the responsibility of the State:
"12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.::: Downloaded on - 21/10/2023 20:35:04 :::CIS 9
12.10. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension."
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24. And with regards to the contention of delay and laches, this court went on to hold:
"12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised of 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 rt justice.
12.13 In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it.
25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case.
26. In view of the above discussion, in view of this court's extraordinary jurisdiction under Article 136 and 142 of the Constitution, the State is hereby directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants in the same terms as the order of the reference court dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of 2004 (and consolidated matters). The Respondent-State is directed, consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. The appellants would also be entitled to ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 10 consequential benefits of solatium, and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013."
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11. Bare perusal of aforesaid judgments clearly reveals that plea of delay and laches is not available to the State, especially when it stands proved on record that the petitioner is suffering continuous loss coupled with the fact that he repeatedly requested the authorities of the of State to initiate acquisition proceedings. It has been held in the aforesaid judgment that the land owners cannot be deprived of their property, without following due process of law and, if it is so, ground rt raised by the appellants that the land was made available with consent is of no consequence, rather, this court having taken of the fact that the land of the writ petition stands utilized by the State for the construction of road, is persuaded to agree with the findings rendered by learned Single Judge.
12. At this stage, learned Additional Advocate General pressed into service judgment dated 24.2.2023 passed by Hon'ble Apex Court in Civil Appeal No. 1278 of 2023, titled State of Himachal Pradesh and Ors v. Rajiv and others, to argue that the relief as sought in the writ petition, cannot be allowed on the ground of delay and laches, but having perused judgment supra, in its entirety, this court finds that it never came to be held in the aforesaid judgment that the claim of the land owner after an inordinate delay, cannot be considered, rather, in the aforesaid case, claimants were not held entitled to the interest ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 11 under the Land Acquisition Act from the date of issuance of Notification under S.4 till the filing of the writ petition. Though in the instant case, Notification under S.4 of Land Acquisition Act, 1894 was issued but the .
same was not taken to its logical end, ruling if any given in aforesaid judgment, is of no consequence, as far as case of facts of the present case are concerned. No doubt, State possesses the power to take or control the property of the owner of the land for the benefit of public, but at the same time, it is obliged to compensate the injury by making of just compensation.
13. Admittedly land of the writ petitioner stands utilized for the rt construction of road, three decades back but till date he has not been paid any amount of compensation qua his land, which action on the part of the State, amounts to forceful dispossession of a land owner of his land, as such, same being violative of Art. 300A of the Constitution of India, deserves to be quashed and set aside.
14. In case titled, State of Himachal Pradesh v. Umed Ram Sharma (1986) 2 SCC 68, Hon'ble Apex Court has held that entire State of Himachal Pradesh is a hilly area and without workable roads, no communication is possible; every person is entitled to life as enjoined in Article 21 of the Constitution of India; every person has right under Article 19 (1) (b) of the Constitution of India to move freely, throughout the territory of India; for the residents of hilly areas, access to road is access to life itself. Stand taken by the respondents that there was a policy for providing roads on demand of residents as a favour to them on conditions that they would not claim compensation, ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 12 cannot be sustained because such stand is violative of Article 300A of the Constitution of India
15. In case titled Hari Krishna Mandir Trust v. State of .
Maharashtra and others, 2020 9 SCC 356, Hon'ble Apex Court has held that though right to property is not a fundamental right, but it is still a constitutional right under Article 300A of the Constitution of India and also a human right; in view of the mandate of Article 300A, no person of can be deprived of his property save by the authority of law.
16. So far ground raised by the appellants qua the fact that since rt the land of the petitioner was utilized for construction of road under Pradhan Mantri Gram Sadak Yojana (PMGSY) is concerned, , it would be apt to take note of judgment passed by Full Bench of this Court in LPA No. 33 of 2021 alongwith Execution Petition No. 17 of 2019, titled State of Himachal Pradesh v. Sita Ram, wherein reference made to Full Bench came to be answered in the affirmative that, "a person, whose land has been utilized for construction of road under PMGSY is entitled for compensation, unless it is proved to the satisfaction of the court, that land was donated or given by the land owner willingly, of his own free will and consent, for construction of such road". It would be apt to take note of following paras of the aforesaid judgment:
""31. In Shankar Dass, the Full Bench relied on the Three Judge Bench judgment of Supreme Court in State of Maharashtra Versus Digambar, reported in (1995) 4 SCC 683, where filing of writ petition with enormous delay and latches on the part of a citizen on the ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 13 alleged infraction of his legal right against the State, seeking a direction to initiate acquisition proceedings for their land of which possession was taken long time ago, was held to be fatal. It was held that writ petition under Article 226 of the Constitution, being power of .
discretion, could not be entertained with blameworthy conduct of the petitioner of such undue delay or laches, acquiescence or waiver in approaching the Court. The Full Bench also relied on the Constitution Bench judgment of the Supreme Court in the State of Madhya Pradesh Versus Bhailal Bhai, reported in AIR 1964 SC 1006, in which it was held "that the maximum period fixed by the legislature as the of time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured." Delay and how far ratio of Shankar Dass would hold field in view of later judgments of rt the Supreme Court are not the questions for us to examine and answer. In view of the terms of reference made by the Division Bench, which does not include the question of delay, we have to confine our examination to the limited scope, whether a person whose land has been utilized for construction of road under PMGSY is entitled to compensation.
32. In view of above, the question referred to by the Division Bench, is, therefore, answered in the affirmative that a person whose land has been utilized for construction of road under PMGSY is entitled to compensation unless it is proved to the satisfaction of the Court that the land was voluntarily donated or given by him willingly with free will and consent for construction of such road."
17. In the aforesaid case, specific reference was made to Full Court, "Whether a person(s) whose land(s) has been utilized for construction of road under 'PMGSY' is entitled to compensation?" While answering aforesaid reference, Full Bench held that a person whose land has been utilized for construction of road under PMGSY is entitled to compensation unless it is proved to the satisfaction of the Court that ::: Downloaded on - 21/10/2023 20:35:04 :::CIS 14 the land was voluntarily donated or given by him willingly with free will and consent for construction of such road.
18. Since in the case there is nothing on record to demonstrate that .
the land was ever donated or gifted by petitioner of his own free will for construction of road under PMGSY, plea of learned Additional Advocate General that a person cannot claim compensation qua the land utilized for construction of road under PMGSY, deserves outright rejection.
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19. Consequently in view of the detailed discussion supra and the law taken note herein above, this court finds no illegality and infirmity in rt the judgment passed by learned Single Judge, and the same is upheld.
The appeal fails and is accordingly dismissed. All pending applications stand disposed of.
(Tarlok Singh Chauhan) Judge (Sandeep Sharma) Judge October 20, 2023 Vikrant ::: Downloaded on - 21/10/2023 20:35:04 :::CIS