Himachal Pradesh High Court
Prem Lal vs State Of Himachal Pradesh And Others on 9 October, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 10531 of 2011.
Judgment reserved on : 01.10.2015.
Date of decision: October 09, 2015.
of
Prem Lal .....Petitioner.
Versus
State of Himachal Pradesh and others .....Respondents.
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner : Mr.Hamender Chandel, Advocate.
For the Respondents : Mr.Virender Kumar Verma and Ms.Meenakshi Sharma, Additional Advocate Generals with Ms.Parul Negi, Deputy Advocate General, for respondents No.1 and 3.
Mr.Ramesh Chand Sharma, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge .
This petition has been filed claiming therein the following substantive reliefs:-
"i) That the respondents may be directed to acquire the total land comprised in Khata-Khatauni No.126/178, Khasra No.383, 384 and 391 as per the provisions of Land Acquisition Act.
ii) That the petitioner may be held entitled for the compensation from the date the respondent No.2 has taken possession of the above three Khasra No's in the year 2007 by affixing iron pillars."
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 2 The facts, in brief, may be noticed.
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2. The petitioner is owner of Khewat-Khatauni No.126/178, Khasra Nos. 383, 384 and 391, situated in Mohal Shakri, Tehsil Sunni, District Shimla. A notification under Section 4 of the Land Acquisition Act was issued on 24.03.2005 whereby 0-01-89 hectare of of the petitioner's land as comprised in Khasra No.383 was also sought to be acquired. However, while taking over the possession of rt the acquired land, the respondents are alleged to have taken over the possession of the entire land of the petitioner including the land that had not even been legally acquired.
3. According to the petitioner, the acquired land after its acquisition was re-numbered as Khasra No.383/1 and measured about 5 biswas, whereas, his remaining land comprised in Khasra Nos. 383, 384 and 391 had been forcibly taken possession of without there being any lawful acquisition. His repeated representations did not yield any result constraining him to file a civil suit which was partly decreed on 07.06.2010 by holding that though respondent No.2 had encroached upon the entire area of the petitioner as mentioned in the aforesaid khasra numbers, but it had no jurisdiction to issue directions in the nature as prayed for by the petitioner.
4. Respondents No.1 and 3 contested the petition by filing reply wherein a number of preliminary objections regarding maintainability, estoppel etc. have been raised. However, on merits, nothing worth-mentioning can be noticed. It is the respondent No.2, which is the main contesting party and in its reply has claimed that ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 3 the required land has been acquired and due and admissible compensation stands paid to the petitioner.
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5. Learned counsel for respondent No.2 has further raised preliminary submission regarding the very maintainability of this petition as being barred by the principles of resjudicata. It is of contended that Civil Suit seeking same and similar reliefs already stands decided against the petitioner by the judgment and decree rt passed by the learned Civil Judge (Junior Division), Court No.4, Shimla, on 07.06.2010 in Civil Suit No.55/1 of 2008 and, therefore, the instant petition is not maintainable.
I have heard the learned counsel for the parties and have gone through the records of the case.
6. Insofar as the preliminary objection is concerned, it would be evident from a perusal of the judgment and decree that the contention raised by respondent No.2 is absolutely false and frivolous because the learned Civil Court not only found substance in the contentions raised by the plaintiff/petitioner, but also found that the respondent No.2 despite being a public authority had forcibly encroached upon the land of the plaintiff. The only hindrance coming in the way of the Court in decreeing the suit in its entirety was that it felt that it had no jurisdiction to direct the respondents to acquire the land of the petitioner. Nonetheless, it partly decreed the suit of the plaintiff by directing the respondents to remove all iron pillars erected on the land comprised in Khewat Khatauni No.126/178, Khasra Nos.
::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 4383, 384 and 391 and further permanently restrained them from interfering in this land in any manner.
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7. To hold property is not a constitutional right in terms of Article 300-A of the Constitution of India, but is also human right and, therefore, cannot be taken away except in accordance with law. This of was so held by the Hon'ble Supreme Court in Chairman, Indore Vikas Pradhikaran versus Pure Industrial Coke & Chemicals Ltd.
rt and others (2007) 8 SCC 705, in the following terms:-
" 53. The right to property is now considered to be not only a constitutional right but also a human right.
54. The Declaration of Human and Civic Rights of 26-8-1789 enunciates under Article 17:
"17. Since the right to property is inviolable and sacred, no-one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
Further under Article 17 of the Universal Declaration of Human Rights, 1948 dated 10-12-1948, adopted in the United Nations General Assembly Resolution it is stated that : (i) Everyone has the right to own property alone as well as in association with others. (ii) No -one shall be arbitrarily deprived of his property.
55. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (1797-1801) put it :
"Property is surely a right of mankind as real as liberty. "::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 5
Adding, .
"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence".
56. Property, while ceasing to be a fundamental right would, of however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law."
8. rt The legal position was reiterated by the Hon'ble Supreme Court in Lachhman Dass versus Jagat Ram and others (2007) 10 SCC 448 and it was held as under:-
"16. Despite such notice, the appellant was not impleaded as a party. His right, therefore, to own and possess the suit land could not have been taken away without giving him an opportunity of hearing in a matter of this nature. To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a preemptor, must bear it in mind about the character of the right, vis-a- vis, the constitutional and human right of the owner thereof."
9. In K.T. Plantation Private Limited and another versus State of Karnataka (2011) 9 SCC 1, it was held by the Hon'ble Supreme Court that Article 300-A would be violated if the provisions of law authorizing deprivation of property have not been complied with. It was further observed that while enacting Article 300-A, ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 6 Parliament had only borrowed Article 31(1) (the "Rule of law"
doctrine) and not Article 31(2) (which had embodied the doctrine of .
eminent domain). Though Article 300-A enables the State to put restrictions on the right to property by law, however, the same must be reasonable and must be complied with other provisions of the of Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The rt limitation or restriction must not be disproportionate to the situation or excessive. It is apt to reproduce paras 187 to 192 of the judgment which reads thus:-
" 187. The legislative field between the Parliament and the Legislature of any State is divided by Article 246 of the Constitution.
Parliament has exclusive power to make laws with respect to any of the matters enumerated in Schedule VII List I, called the Union List and subject to the said power of the Parliament, the Legislature of any State has power to make laws with respect to any of the matters enumerated in List III, called the Concurrent List. Subject to the above, the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II, called the State List. Under Article 248, the exclusive power of the Parliament to make laws extends to any matter not enumerated either in the Concurrent List or State List.
188. We find no apparent conflict with the words used in Entry 42 List III so as to infer that the payment of compensation is inbuilt or inherent either in the words "acquisition and requisitioning" under Entry 42 List III. Right to claim compensation is, therefore, cannot be read into the legislative Entry 42 List III.
189. Requirement of public purpose, for deprivation of a person of his property under Article 300-A, is a pre-condition, but no compensation or nil compensation or its illusiveness has to be justified by the state on judicially justiciable standards. Measures designed to achieve greater social justice, may call for lesser ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 7 compensation and such a limitation by itself will not make legislation invalid or unconstitutional or confiscatory. In other words, .
the right to claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that Article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.
of
190. Article 300-A would be equally violated if the provisions of law authorizing deprivation of property have not been complied with. While enacting Article 300-A Parliament has only borrowed Article rt 31(1) (the "Rule of law" doctrine ) and not Article 31(2) (which had embodied the doctrine of Eminent Domain). Article 300-A enables the State to put restrictions on the right to property by law. That law has to be reasonable. It must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive.
191. The legislation providing for deprivation of property under Article 300-A must be "just, fair and reasonable" as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.
192. At this stage, we may clarify that there is a difference between "no" compensation and "nil" compensation. A law seeking to acquire private property for public purpose cannot say that "no compensation shall be paid". However, there could be a law awarding "nil" compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the government to establish validity of such law. In the latter case, the court in exercise of judicial review will test such a law keeping in mind the above parameters."
10. In Tuka Ram Kana Joshi and others versus Maharastra Industrial Development Corporation and others ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 8 (2013) 1 SCC 353, the Hon'ble Supreme Court reiterated that right to property is now considered to be, not only a constitutional or a .
statutory right, but also a human right. Though it is not a basic feature of the Constitution or a fundamental right. The right to property is considered very much to be part of new dimensions where of human rights are considered to be in realm of individual's rights such as the right to health, the right to livelihood, the right to shelter and rt employment etc. and such rights are gaining an even greater multifaceted dimension. It is apt to reproduce paras 8 and 9 of the judgment which reads thus:-
" 8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the Right to Property ceased to be a Fundamental Right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142, it has been held as follows: (SCC p.627, para 48) "48. In other words, Article 300-A only limits the power of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation."
9. The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right.
::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 9Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter .
and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension. (Vide:
Lachhman Dass v. Jagat Ram (2007) 10 SCC 448, Amarjit Singh v. State of Punjab (2010) 10 SCC 43, State of M.P. v. Narmada Bachao Andolan AIR 2011 SC 1989, State of Haryana v. Mukesh of Kumar AIR 2012 SC 559 and Delhi Airtech Services Pvt. Ltd. v. State of U.P AIR 2012 SC 573)."
11.
rt From the aforesaid exposition of law, it is absolutely clear that a citizen has a legal and constitutional right to hold property in terms of Article 300-A of the Constitution of India. He, therefore, cannot be deprived of his right, save and except, by authority of law.
The right of an individual to hold a property apart from legal right has also been held to be a human right. Therefore, its deprivation can only be by due process of law.
12. Now adverting to the merits of the case, it would be noticed that during the pendency of the petition, the petitioner filed applications bearing CMP No.7275 of 2015 for issuance of interim directions and early hearing of the case and CMP No.10018 of 2015 for placing on record additional information to the effect that the land of the petitioner was likely to be submerged and was, therefore, required to be demarcated. Both these applications came up for consideration on 10.07.2015 when this Court directed the respondents to demarcate the land and the following order came to be passed:-
" CMP No. 7275 of 2015 & CMP No.10018 of 2015.::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 10
The petitioner in support of CMP No. 7275 of 2015 has filed in the Court an application for placing on record additional .
information. The petitioner has clarified that it was due to inadvertence that specific khasra numbers could not be mentioned in this application for demarcation.
Taking into consideration the averments contained in both these applications and also taking into consideration the of fact that the land belonging to the petitioner is now being submerged in the water, the applications are allowed and the respondents are directed to immediately demarcate the land rt of the petitioner. Demarcation be carried out within a period of ten days and report thereof be submitted to this Court within fortnight.
List this case on 6.8.2015. Copy dasti. "
13. In compliance to the aforesaid directions, respondent No.3 i.e. Land Acquisition Officer, Bilaspur, has filed his report wherein it has been specifically stated that on demarcation it was found on the spot that Khasra No.1464/383 was not acquired by NTPC but 50% of this khasra number has already got submerged while remaining 50% is also in the danger zone. It is also pointed out that though NTPC had put their points upto the end point of Khasra No. 1464/383, but it was not acquired by it. It is further mentioned that some portion of Khasra No.384 i.e. Khasra No.384/1 measuring 0-01-20 hectare has though not been acquired, but some portion thereof has submerged in the water due to land sliding and the remaining portion of this khasra number is also in the danger zone and can be submerged in water due to land slides. Insofar as Khasra No.391 is concerned, it is stated that the same is six metres above the water level.
::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 1114. It is apt to reproduce para-2 of the report which reads thus:-
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"2. That the demarcation was done according to demarcation procedure and demarcation report of Naib Tehsildar is attached herewith as Annexure-"R3/A", statement of Prem Lal petitioner is attached herewith as annexure-"R3/B" and of statement of villagers namely Sheesh Ram S/o Tulsu, Madan Lal S/o Balak Ram & Sewa Nand S/o Madan Lal is attached herewith as annexure-"R3/C". On demarcation it was found rt on the spot that Khasra No.1463/383 was acquired by NTPC and stands submerged in water. Khasra No.1464/383 was not acquired by NTPC but 50% portion of this Khasra No. has already got submerged, remaining 50% is also in danger zone. Here it is also submitted that though NTPC had put their points up to the end point of this Khasra No.1464/383, but it was not acquired by NTPC. Some portion of Khasra No.384 i.e. new Khasra No.384/1 measuring area 0-01-20 Hect. has not been acquired and some part of Khasra No.384/1 is merged in water due to land sliding and remaining portion of this Khasra No. is also in danger zone and can get submerged in water due to land sliding. As far as Khasra No.391 is concerned it is 6 metres above the water level."
15. As per the spot inspection and demarcation report, the respondent No.3 has suggested for acquiring Khasra No.1464/383 measuring 0-11-23 hectare and Khasra No.384/1 measuring 0-01-20 hectare.
16. Needless to say that the report submitted by respondent No.3 has attained finality inasmuch as none of the parties has filed objections thereto.
17. In view of the aforesaid discussion, more particularly, in light of the report submitted by the Local Commissioner, who is none ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 12 other than the respondent No.3 in this petition, it is evidently clear that only Khasra No.1463/383 was acquired by the NTPC and stands .
submerged in water, but Khasra No.1464/383 has not been acquired and 50% of this Khasra Number is already submerged in water, whereas, remaining 50% is in danger zone. Even new Khasra of No.384/1 measuring 0-01-20 hectare has though not been acquired, but some part thereof is already submerged in water due to land rt slides, whereas, even remaining portion of this Khasra Number is also in the danger zone. Insofar as Khasra No.391 is concerned, the same as of date is six metres above the water level.
18. This being the factual position, the respondents cannot shirk and escape from their responsibility of making good the loss suffered by the petitioner as a result of depriving him of his right to enjoy the property for all times to come. This action on the face of it is violative of Articles 14, 19, 21 and 300-A of the Constitution of India.
19. In view of the aforesaid discussion, this petition succeeds partly and accordingly the respondents are directed to acquire the land of the petitioner comprised in Khasra No.1464/383, measuring 0- 11-23 hectare and Khasra No.384/1, measuring 0-01-20 hectare.
Insofar as Khasra No.391 is concerned, the same as on date is stated to be six metres above the water level. However, in case even this land gets submerged in water because of the increase in water level or because of land slides or for any other reason or has been ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP 13 rendered useless, uncultivable etc., then the respondents shall be bound to acquire even this land.
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20. The petition is allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
of October 09, 2015. (Tarlok Singh Chauhan), (krt) Judge.
rt ::: Downloaded on - 15/04/2017 19:10:40 :::HCHP