Jharkhand High Court
Dhan Kumar Swansi vs The State Of Jharkhand & Others on 30 June, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P.(C) No. 142 of 2019
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Dhan Kumar Swansi ..... Petitioner
Versus
The State of Jharkhand & Others ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Petitioner : Mr. Asit Baran Mahto, Advocate
For the Respondents/State : Mr. Jayant Franklin Toppo, S.C.-VII
: Mr. Amrit Raj Kisku, A.C. to S.C.-VII
For the Respondent- JSRRDA : Dr. Ashok Kumar Singh, Advocate : Mr. Shivam Singh, Advocate.
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07/30.06.2022.
Heard, learned counsel for the parties.
Learned counsel, Mr. Asit Baran Mahto on the instruction of learned counsel for the petitioner, Mr. Sardhu Mahto has submitted, that this Court has taken note of the fact in the order dated 15.06.2022.
Learned counsel for the petitioner has submitted, that the road has been constructed from T-20 (Litimdih) to Barutola in Bundu Block, District- Ranchi, under 'Pradhan Mantri Gramin Sadak Yojana' over the land of Mouza -Adalhatu, Thana No.54, Khata No.101, Plot No.742, Total area 9.18 acres, out of which 1.20 acre has been utilized by the REO Department for construction of road.
Learned counsel for the petitioner has further submitted, that the land has been purchased by the grand-father of the petitioner, Ram Jeevan Swansi on 29.10.1952 and his name has been recorded in Register-II and he is paying rent to the State, as such, his possession is admitted by the respondents authorities.
Learned counsel for the petitioner has further submitted, that without acquisition, the respondents have constructed road over the land in question, as such, necessary compensation may be paid to the petitioner.
Learned counsel for the petitioner has placed reliance upon the judgment passed by the Apex Court in the case of Vidya Devi Vs. State of Himachal Pradesh and Others reported in (2020) 2 SCC 569. Para-12 of which may profitably be quoted hereunder:-
"12. We have heard learned Counsel for the parties and perused the record. 12.1. 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 -2- 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.
12.2. 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 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.
12.3. 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 Ltd. v. Darius Shapur Chenai, wherein this Court held that:
" 6. ... Having regard to the provisions contained in Article 300-A 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) 12.4. In N. Padmamma v. S. Ramakrishna Reddy, this Court held that: [SCC p. 526 para 21].
"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 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed."
(emphasis supplied) 12.5. In Delhi Airtech Services Pvt. Ltd. v. State of U.P. , this Court recognized the right to property as a basic human right in the following words: (SCC p. 379 para
30) "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) -3- 12.6. In Jilubhai Nanbhai Khachar v. State of Gujarat, this Court held as follows : (SCC p. 627, para 48) "48. ...In other words, Article 300-A 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 300-A. In other words, if there is no law, there is no deprivation."
(emphasis supplied) 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 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. M.I.D.C. 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 right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.
12.11. 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.
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 -4- 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.
12. 14. In Tukaram Kana Joshi v. M.I.D.C., this Court while dealing with a similar fact situation, held as follows : (SCC p. 359, para 11) "11. 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 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 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) Learned counsel for the petitioner has thus submitted, that without initiation of any proceeding, the land of the petitioner has been taken by the State, but no compensation has been paid by the State till date.
Learned counsel for the respondents /State, Mr. Jayant Franklin Toppo, S.C.-VII has submitted, that pursuant to the order dated 15.06.2022, the Deputy Commissioner, Ranchi has filed an affidavit before this Court, stating therein that petitioner is trying to derive title through sale deed, which is void abinitio, in view of Section 240 of the Chotanagpur Tenancy Act as permission of the Deputy Commissioner, Ranchi is necessary for transfer of such land, but the sale deed has been executed without permission of the Deputy Commissioner and this issue has already been decided in the case of Kali Babu Munda Vs. Commissioner, Ranchi.
Learned counsel for the respondents/State has further submitted, that the land, which has been utilized by the REO Department initially used as pagdandi from the year 2006-2007, the same has been used as -5- murram mitti road and thus the judgment, relied by the petitioner in the case of Vidya Devi Vs. State of Himachal Pradesh and Others (supra), is not coming to help of petitioner because it is not the case of the petitioner that he has been recently dispossessed from the land, rather admittedly the petitioner was dispossessed not less than 15 years ago from that land, when the land was atleast used by villagers as pagdandi and from the year 2006 to 2007, when it was used as kachha road of murram mitti and recently in 2016, the said road, which was used by the villagers as a kaccha road, has been converted into black road, as such, petitioner cannot claim compensation, in view of the judgment passed by the Apex Court in the case of the case of Syed Maqbool Ali v. State of U.P & Another reported in (2011) 15 SCC 383. Para-12 of which may profitably be quoted hereunder:-
"12. The High Courts should also be cautious in entertaining writ petitions filed decades after the dispossession, seeking directions for acquisition and payment of compensation. It is not uncommon for villagers to offer/donate some part of their lands voluntarily for a public purpose which would benefit them or the community as for example, construction of an access road to the village or their property, or construction of a village tank or a bund to prevent flooding/erosion. When they offer their land for such public purpose, the land would be of little or negligible value. But decades later, when land values increase, either on account of passage of time or on account of developments or improvements carried out by the State, the landholders come up with belated claims alleging that their lands were taken without acquisition and without their consent. When such claims are made after several decades, the State would be at a disadvantage to contest the claim, as it may not have the records to show in what circumstances the lands were given/donated and whether the land was given voluntarily. Therefore, belated writ petitions, without proper explanation for the delay, are liable to be dismissed. Be that as it may."
Learned counsel for the respondents /State has further submitted, that Co-ordinate Bench of this Court has also considered the same issue in W.P.(C) No.1902/2021 (Akhileshwar Prasad Vs. the State of Jharkhand & Ors.) and this Court has also considered the issue in W.P.(C) No.1211/2019 (Raunak Ansari Vs. the State of Jharkhand & Ors.).
Learned counsel for the respondents- JSRRDA, Dr. Ashok Kumar Singh assisted by learned counsel, Mr. Shivam Singh has submitted, that black road has been constructed because the land has been used as kachha road for the villagers, as such, no writ can be granted.
Considering the rival submissions of the parties, looking into the facts and circumstances of the case, writ cannot be issued in favour of the -6- petitioner, as title of the petitioner is under cloud. Petitioner has legal avenue to pursue the matter before the competent court having jurisdiction for declaration of right, title and recovery of possession or for payment of compensation.
Since the title of the petitioner is under cloud, as such, the argument advanced by the petitioner based upon judgment passed by the Apex Court in the case of Vidya Devi (Supra) is not applicable in the present case. So far right of property to a citizen, granted under Article 300-A of the Constitution of India is concerned, the same is not applicable in the present case as the petitioner has to establish his title over the land before the competent court and secondly petitioner has not been dispossessed recently, rather the land is being used by the villagers as pagdandi prior to year 2006 to 2007, when same has been converted into murram mitti road and recently the black road has been constructed, accordingly, no writ can be granted.
Accordingly, the instant writ petition is hereby dismissed. Petitioner may avail legal remedy available under the law before appropriate forum.
(Kailash Prasad Deo, J.) Jay/