Himachal Pradesh High Court
Gian Chand And Ors vs State Of Himachal Pradesh And Ors on 3 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWP No.3442 of 2021
Date of Decision: 3.8.2023
_____________________________________________________________________
Gian Chand and Ors.
.........Petitioners.
Versus
State of Himachal Pradesh and Ors.
of
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting?
For the Petitioners: Mr. Maan Singh, Advocate.
For the respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General
with Mr. Rahul Thakur and Mr. Ravi
Chauhan, Deputy Advocates General, for the
State.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition filed under Article 226 of the Constitution of India, petitioners have prayed for following main relief:
"(i) That a writ in nature of mandamus may very kindly be issued to the respondents thereby directing them to initiate acquisition proceedings qua the land of the petitioners mentioned in the body of the writ petition and mentioned in Annexure P-1 under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and conclude the same in time bound manner and thereafter pay due and admissible compensation to them."::: Downloaded on - 05/08/2023 20:33:12 :::CIS -2-
2. Precisely, the facts of the case as emerge from the record .
are that on 15.1.1999, notification under Section 4 of the Land Acquisition Act, came to be issued for construction of Bhunter- Diya-
Shondha-Diyar road. Vide award No. 9 of 2000 passed by the Land Acquisition Collector on 27.9.2000, some of the land owners, whose land was utilized for the construction of the road were paid of compensation, but unfortunately, petitioners till date have not been paid any compensation and as such, they are compelled to approach rt this Court in the instant proceedings.
3. It is pertinent to take note of the fact that some of the land owners had also filed reference petitions in the court of learned District Judge, Kullu, for enhancement of amount awarded vide award No. 9 of 2000 and learned District Judge vide common award dated 1.9.2003 ordered enhancement. Being aggrieved and dissatisfied with the enhancement order, respondents filed number of regular first appeals but same were dismissed vide common judgment dated 15.12.2008, passed by this court (Annexure P-2). Since despite there being repeated requests made by the petitioners, no steps ever came to be taken by the respondents to initiate the process for acquisition of the land of the petitioners used for the construction of the road in question, they have approached this Court in the instant proceedings.
4. Pursuant to notices issued in the instant proceedings, respondents have filed the reply, wherein facts as have been noticed ::: Downloaded on - 05/08/2023 20:33:12 :::CIS -3- herein above, are not in dispute, rather stand duly admitted.
.
Precisely, the ground sought to be raised for the opposing the claim of the petitioners is that petitioners have approached this Court after an inordinate delay of 21 years. It has been categorically admitted in the reply that road in question was constructed by the Public Works Department in the year, 2000, on the persistent demand of the people of of the area and at that time, petitioners had themselves offered their land without compensation. It has been also stated in the reply that rt while road was being constructed, no objection was ever raised by the petitioners and as such, there was implied consent to use their land without compensation to the petitioners.
5. Mr. Maan Singh learned counsel appearing for the petitioner vehemently argued that once it is not in dispute that land of the petitioners stands utilized for construction of the road in question, respondents cannot escape from its liability to pay the compensation after initiation of the proceedings in terms of the provisions contained un there Land Acquisition Act. He further submitted that at no point of time, consent, if any, was ever given by the petitioners to use their land for construction of the road, rather, respondents while adopting pick and choose policy, paid compensation to some of the land owners, but not to the petitioners, and as such, they being similarly situate, are also entitled to compensation. While making peruse judgments passed by the Hon'ble Apex Court in Vidya Devi v. State of HP and ::: Downloaded on - 05/08/2023 20:33:12 :::CIS -4- Ors, 2020 (2) SCC 569 and Sukh Dutt Ratra and Anr v. State of .
Himachal Pradesh and Ors, 2022 (7) SCC 508, Mr. Maan Singh argued that delay and laches cannot be raised in the case of continuing cause of action, especially in land acquisition matters. He also invited attention of this Court to the judgment dated 18.7.2023, passed by this Court in CWP No. 8647 of 2022, titled Sh. Ramanand of and Ors v. State of Himachal Pradesh and Ors, judgment dated 18.7.2023, passed in CWP No.8004 of 2022, Bhupesh Gupta v.
rt State of Himachal Pradesh and Ors, and judgment dated 27.7.2023, Vir Sain v. State of HP and Ors, passed in CWP No. 5923 of 2022, to demonstrate that plea of delay and laches raised by the respondents in similarly cases has been already negated by this Court in the aforesaid judgments while placing reliance placed upon Vidya Devi and Sukh Dutt Ratra cases.
6. Mr. Vishal Panwar, learned Additional Advocate General while fairly refuting the aforesaid submission made by the learned counsel for the petitioners, vehemently argued that though there is no written document suggestive of the fact that land was utilized with the consent of the petitioners, but having taken note of the fact that petitioners remained silent for more than four decades, this Court has reason to presume that there was an implied consent on the part of the petitioners for construction of the road through their land without there being compensation. Mr. Panwar, further stated that road in ::: Downloaded on - 05/08/2023 20:33:12 :::CIS -5- question was constructed in the year 1999-2000, but till the filing of .
the petition at hand, no objection was raised and as such, petition deserves to be dismissed on account of delay and laches. While making this court peruse judgment passed by the Hon'ble Apex Court in Shankar Dass v. State of Himachal Pradesh in CWP No. 1966 of 2010, decided on 2.3.2013, learned Additional Advocate General of contended that that appropriate remedy for redressal of grievance as raised in the instant petition is to approach the civil court by way of rt civil suit. He also placed reliance upon the judgment passed by the Hon'ble Apex Court in State of Maharashtra v. Digambar, 1995 (4) SCC 683, to state that claim being highly stale deserves outright rejection.
7. Having heard learned counsel for the parties and perused material available on record, this Court finds that it is not in dispute that land of the petitioners was utilized for construction of the road detailed herein above in 1999-2000. It is also not in dispute that some of the land owners, whose land was also used for construction of the land were paid compensation vide award No. 9 of 2000, passed by the Land Acquisition Collector. It is also not in dispute that some of the land owners had approached the reference court for enhancement, which prayer of them was allowed. Though it has been strenuously argued on behalf of the respondent-department that petition deserves to be rejected on the ground of delay and laches, but once it is not in ::: Downloaded on - 05/08/2023 20:33:12 :::CIS -6- dispute that land of the petitioners already stands utilized for the .
construction of the road, plea of delay and laches, as sought to be raised, is not available to the petitioners as has been held by the Hon'ble Apex Court in Vidya Devi and Sukh Dutt Ratra's cases supra. In the aforesaid judgments, Hon'ble Apex Court has categorically held that plea of delay and laches cannot be raised in a of case of a continuing cause of action or if the circumstances shock the judicial conscience of the Court, it can always condone the delay to do rt the substantial justice. Most importantly, in the aforesaid judgment, it has been held 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 while doing so, there is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. In Sukh Dutt Ratra's case (supra), it has been further held that forcible dispossession of a person of their private property without following due process of law, is violative of both their human right and constitutional right under Article 300-A.
8. At this stage, it would be apt to take note of the following paras of the judgment passed in 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.::: Downloaded on - 05/08/2023 20:33:12 :::CIS -7-
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.
To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation of Ltd. v. Darius Shapur Chenai4, 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 rtacquiring 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 Reddy5, this Court held that:
"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 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,7 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 ::: Downloaded on - 05/08/2023 20:33:12 :::CIS -8- or taking possession under Article 300A. In other words, if there is no law, there is no deprivation." (emphasis supplied) .
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.
10.4. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find of 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 rt 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. M.I.D.C. & Ors.8 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.
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.::: Downloaded on - 05/08/2023 20:33:12 :::CIS -9-
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. 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 of 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 rt not defeat it.
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 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)"
9. 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 ::: Downloaded on - 05/08/2023 20:33:12 :::CIS
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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.
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 of 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 rt rights have gained a multifaceted dimension."
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 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 it.
25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative22 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 ::: Downloaded on - 05/08/2023 20:33:12 :::CIS
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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 consequential benefits of solatium, and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013."
10. If the mandate contained in the aforesaid judgment is read rt in entirety, it can be safely concluded that land owners cannot be deprived of the property without due process of law, if it is so, ground raised by the respondents that land of the petitioners was made available with their consent is of no consequence, rather this Court having taken note of the fact that land of the petitioners already stands utilized for construction of road, is compelled to agree with the submissions of the learned counsel for the petitioners that they are entitled to compensation qua the land used by the respondents for construction of the road.
11. Though at this stage, Mr. Vishal Panwar, learned Additional Advocate General, invited attention of this Court to judgment dated 24.2.2023, passed by the Hon'ble Apex Court in Civil Appeal No. 1278 of 2023, State of Himachal Pradesh and Ors V. Rajiv and Anr., but careful perusal of the same clearly reveals that it has no application in the case at hand because in the aforesaid ::: Downloaded on - 05/08/2023 20:33:12 :::CIS
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judgment, it never came to be ruled that claim raised for acquisition .
and compensation after delay cannot be considered, rather in the aforesaid case, claimants were not held entitled to the interest under the Land Acquisition Act from the date of notification under Section 4 till the filing of the writ petition. Since in the case at hand, no notification under Section 4 has been issued till date, ruling, if any, of given in the aforesaid judgment passed by the Hon'ble Apex Court has no application in the present case.
12. rt 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, cannot be sustained because such stand is violative of Article 300A of the Constitution of India.
13. In case titled Hari Krishna Mandir Trust vs 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 ::: Downloaded on - 05/08/2023 20:33:12 :::CIS
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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 can be deprived of his property save by the authority of law.
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 just compensation.
of
14. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds rt merit in the present petition and accordingly same is allowed with direction to the respondents to initiate acquisition proceedings within four weeks under the relevant statute vis-à-vis land of the petitioners and thereafter, just and fair compensation qua the same be awarded to the petitioners. Since petitioners have been fighting for their rightful claim for more than four decades, this Court hopes and trusts that authority concerned would do the needful expeditiously, preferably, within two months. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.
August 3, 2023 (Sandeep Sharma),
manjit Judge
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