Gujarat High Court
Vishnubhai Virambhai Desai & 3 vs State Of Gujarat & 2 on 27 June, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/17897/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17897 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
============================================
1 Whether Reporters of Local Papers may be allowed to see YES the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any order made thereunder ?
============================================= VISHNUBHAI VIRAMBHAI DESAI & 3....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ============================================= Appearance:
MS. KRUTI M SHAH, ADVOCATE for the Petitioner(s) No. 1 4 MR. DHAWAN JAISWAL ASST GP for the Respondent(s) No. 1 MR MITUL K SHELAT, ADVOCATE for the Respondent(s) No. 3 NOTICE SERVED BY DS for the Respondent(s) No. 1 2 ============================================= CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE B.N. KARIA Date : 27/06/2017 CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Rule. Shri Dhawan Jaiswal, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent nos. 1 and 2. Shri Mitul Shelat, learned advocate, waives service of notice of Rule on behalf of respondent no.3 Acquiring Body. In the Page 1 of 14 HC-NIC Page 1 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT facts and circumstances of the case and with the consent of the learned advocates for the respective parties, present petition is taken up for final hearing today.
2.0. By way of this petition under Article 226 of the Constitution of India, the petitioners original land owners have prayed for appropriate writ, direction and order to grant the compensation of the lands bearing Block Nos. 114, 511, 551 and 674 situated at village Melaj, Tal: Viramgam, Dist. Ahmedabad acquired under the provisions Land Acquisition Act, 1894, by determining the compensation as per the present market price or alternatively direct the respondents to return the possession of the lands in question.
2.1. By way of amendment, the petitioners have also prayed for an appropriate writ, direction and order to declare that the acquisition proceedings for the lands in question have lapsed under Section 11 of the Land Acquisition Act.
3.0. The facts leading the present petition in nutshell are as under:
3.1. That the lands in question came to be acquired under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as the "Old Land Acquisition Act, 1894) for a public purpose construction of the road. That the Notification under Section 4 of the Act, 1894 came to be issued and published. That thereafter, Notification under Section 6 of the Act came to be published on 31.08.1987. That thereafter, notices under Section 9 of the Act Page 2 of 14 HC-NIC Page 2 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT were issued in the month of of February, 1988. Simultaneously, even the possession of the lands in question was taken for the purpose of construction of road and thereafter the road has been constructed on the lands in question. However, no award was declared under Section 11 of the Act, 1894. The last date for declaring award was 3.2.1990. From the communication on record on 9.2.1990, the Special Land Acquisition Officer communicated the Revenue Department that despite the repeated reminders and the correspondences, due to non releasing of the funds, award has not been declared and therefore, the entire proceedings has lapsed.
Therefore, the fact remains that thereafter neither the award has been declared under Section 11 of the Act, 1894 nor even the petitioners are paid any compensation. That thereafter, when petitioners approached the appropriate authority for necessary information under the Right to Information Act, the petitioners were informed in the year 2013 that at the relevant time due to non availability of funds, the award has not been declared. That thereafter, the petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs. In the further affidavit and in the alternatively, the petitioners have prayed for compensation as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "Act, 2013").
4.0. Ms. Kruti Shah, learned advocate has appeared on behalf of the petitioners. Shri Mitul Shelat, learned advocate has appeared on behalf of the respondent no.3 acquiring body and Shri Jaiswal, Page 3 of 14 HC-NIC Page 3 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT learned Assistant Government Pleader for the respondent State Authority.
5.0. Ms. Shah, learned advocate appearing on behalf of the petitioners has stated at the bar that considering the fact that on the lands in question road has already been constructed in the year 1988 the petitioners do not press the relief to declare the acquisition proceedings lapse in view of Section 11 A of the Act, 1894. She has stated at the bar that therefore, the petition be confined to prayer of the petitioner to award the compensation for the lands acquired as per the new Act, 2013, more particularly, considering Section 24(1)(a) of the Act, 2013.
5.1. Ms. Shah, learned advocate appearing on behalf of the petitioners has vehemently submitted that it is an admitted position that no award under Section 11 of the Act, 1894 has been made for acquired lands in question and therefore, considering provisions of Section 24(1)(a) of the Act, 2013 relating to the compensation shall apply.
5.2. It is submitted that neither the award under Section 11 of the Act, 1894 has been made nor even the petitioners are paid the compensation for the lands acquired and therefore, the petitioners are entitled to compensation determined as per provisions of the Act, 2013. In support of her submission, Ms. Shah, learned advocate for the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Soorajmull Nagarmull vs. State of Bihar and Ors reported in (2015) 10 SCC 270.
Page 4 of 14HC-NIC Page 4 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT 6.0. Present petition is vehemently opposed by Shri Jaiswal, learned Assistant Government Pleader appearing on behalf of the State Authority and Shri Mitul Shelat, learned advocate for acquiring body.
6.1. Shri Jaiswal, learned Assistant Government Pleader appearing on behalf of the State has vehemently submitted that the lands in question came to be acquired in the year 198788 and even the possession of the land in question was taken over in the year 1988 and the road has been constructed on the lands in question as far as back in the year 1988. Therefore, the present petition which is filed in the year 2015, deserves to be dismissed on the ground of delay and laches. It is submitted that the present proceedings have been filed after a period of more than 30 years from the alleged date of dispossession of the lands.
6.2. It is submitted that even the petitioners claimed the compensation in the year 2013/ 2015 and therefore, also considering the Government Resolution dated 15.1.2004, by which, the State Government has taken policy decision not to entertain of any claim in respect of compensation of lands acquired before a period of 10 years, therefore, also the present petition deserves to be dismissed.
Making above submissions and relying upon the Government Resolution dated 15.1.2004, it is requested to dismiss the present petition.
7.0. Present petition is also opposed by Shri Mitul Shelat, learned Page 5 of 14 HC-NIC Page 5 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT advocate for the acquiring body. Shri Shelat, learned advocate for the acquiring body has also requested to dismiss the present petition on the ground of delay and laches.
7.1. It is further submitted by Shri Shelat, learned advocate for the acquiring body that as such the prayer of the petitioners for declaration that considering Section 11 A of the Act, 1894, the land acquisition proceedings be declared to have been lapsed cannot be granted as on the acquired lands in question the road has been constructed as far as back in the year 1988 and at no point of time the petitioners made any grievance either for non payment of compensation or for not declaring the award under Section 11 of the Act, 1894. It is submitted that therefore, even considering the provisions of Section 24 of the Act, 2013, no relief can be granted to the petitioners to declare the acquisition proceedings lapsed under Section 11 A of the Act, 1894 and that too after a period of 30 years from the date of taking over the possession.
7.2. It is further submitted by Shri Shelat, learned advocate for the acquiring body that even on the ground of delay and laches the petitioners are not entitled to any relief of compensation, as for approximately 25 to 30 years no claim was made by the petitioners claiming compensation.
Making above submissions, it is requested to dismiss the present petition.
8.0. In reply, Ms. Shah, learned advocate for the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in Page 6 of 14 HC-NIC Page 6 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT the case of Tukaram Kana Joshi and Ors vs. Maharashtra Industrial Development Corporation and Ors reported in (2013) 1 SCC 353 in support of her submission that on the ground of delay and laches, the valuable and fundamental right of the petitioners to get the compensation, cannot be taken away.
8.1. It is further submitted that even otherwise so far as the prayers of the petitioners to get the compensation as determined under the provisions of Act, 2013 is concerned, the same cannot be said to be barred by delay and laches as right is conferred by the Statute / Act of getting the compensation as determined under the provisions of the Act, 2013. It is submitted that therefore, fresh right has accrued in favour of the petitioners to get the compensation as per Section 24(1)(a) of the Act, 2013.
Making above submission and relying upon above decisions it is requested to allow the present petition.
9.0. Heard the learned advocates for the respective parties at length.
10. Now, so far as relief sought by the petitioners to declare the acquisition proceedings lapsed under Section 11 A of the Act, 1894 is concerned, as observed herein above, the learned advocate for the petitioners does not press the said relief. Even otherwise, the petitioners are not entitled to the said relief on the ground of delay and laches. It is required to be noted that the possession of the acquired lands has been taken over as far as back in the year 1988 and even the road has been constructed on the acquired lands as Page 7 of 14 HC-NIC Page 7 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT far as back in the year 1988 and therefore, the lands in question are being used for the public purpose since 1988. Even, the period to made / declare the award under Section 11 of the Act, 1894 had expired in the year 1990. Nothing is on record that therefore, at any point of time the petitioners made any grievance either with respect to the compensation and / or non declaration of the award under Section 11 of the Act, 1894. Under the circumstances, after approximately 30 years, no relief can be granted to the petitioners to declare that the acquisition proceedings have lapsed under Section 11 A of the Act, 1894.
9.2. However, the petitioners are justified in claiming compensation for the acquired lands to be determined as per the provisions of Act, 2013. It is an admitted position that the award under Section 11 of the Act, 1894 has not been made / declared even as on today. It is also not in dispute that therefore, the petitioners are not paid any compensation for the acquired lands till date. Therefore, Section 24(1)(a) of the Act, 2013 shall be applicable. Section 24(1) of the Act, 2013 reads as under:
24. Land acquisition process under Act No.1 of 1894 shall be deemed to have lapsed in certain cases. - (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894),
(a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been replealed Page 8 of 14 HC-NIC Page 8 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT The right has been accrued in favour of the petitioners to get the compensation determined as per the provisions of Act, 2013, which has come into effect w.e.f. 1.1.2014.
9.3. It is the case on behalf of the respondent that as the possession of the land in question has been taken over in the year 1988 and even date for publication of the award under Section 11 of the Act, 1894 had expired in the year 1990 and thereafter neither any grievance was made either for non payment of compensation of the acquired lands nor any grievance was made for non declaration of the award under Section 11 of the Act, 1894 till the year 2013/ 2015 and therefore, on the ground of delay and laches, the petitioners are not entitled to any relief. The aforesaid cannot be accepted. Firstly on the ground that new right has been accrued in favour of the petitioners as per Section 24(1)(a) of the Act, 2013 which has come into effect w.e.f. 1.1.2014. Therefore, while claiming the compensation as per Section 24(1)(a) of the Act, 2013, the period prior to aforesaid Act came into force is to be ignored and the same shall not be counted and / or taken into consideration for rights accrued in the year 2014. Therefore, when new right has been accrued in the year 2014 under the provisions of Act, 2013 period is to be counted from 1.1.2014 only.
9.4. Even otherwise, considering the decision of the Hon'ble Supreme Court in the case of Tukaram Kana Joshi and Ors (supra), the right of the petitioners to get the just compensation cannot be taken away and / or denied on the ground of delay. The petitioners are deprived of the lands and even the compensation since 1988. In Page 9 of 14 HC-NIC Page 9 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT para 11 to 15 and 17 and 18 while considering the aspect of delay and laches, the Hon'ble Supreme Court has observed and held as under:
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. 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. There is a distinction, a ?true and concrete distinction, between the principle of "eminent domain" and "police power" of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of "absolute power"
which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner as a 'subject' of medieval India, but not as a 'citizen' under our constitution.
12. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise Page 10 of 14 HC-NIC Page 10 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 , nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. & Ors. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768;)
14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors., AIR 1970 SC 769; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., AIR 1987 SC 1353; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Ors., AIR 1993 SC 802; Dayal Singh & Ors. v. Union of India & Ors., AIR 2003 SC 1140; and Shankara Coop Housing Society Ltd. v. M. Prabhakar & Page 11 of 14 HC-NIC Page 11 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT Ors., AIR 2011 SC 2161)
15. In the case of H.D Vora v. State of Maharashtra & Ors., AIR 1984 SC 866, this Court condoned a 30 year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed.
17. Depriving the appellants of their immovable properties, was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non fulfillment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in antinational activities as such sentiments would be born in them on account of such illtreatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.
18. The appellants have been deprived of their legitimate dues for about half a century. In such a factsituation, we fail to understand for which class of citizens, the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country, to whom Constitutional/statutory benefits are accorded, in accordance with the law.
9.5. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, the petitioners cannot be denied the compensation for the acquired lands on the ground of delay and laches. At the cost of repetition, it is observed that as such considering the fact that fresh right has been accrued in favour of the petitioners in light of the provisions of the Act, 2013 which has come into effect w.e.f. 1.1.2014 and the present petition is filed in the year 2015, it cannot be said that there is any delay and laches. If the case fall within any of the provisions of the Act, 2013 in that case, the petitioners land owners are entitled to reliefs as per the new Act, 2013.Page 12 of 14
HC-NIC Page 12 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT 9.6. Now, so far as reliance placed upon the Government Resolution dated 15.01.2004 by the learned Assistant Government Pleader appearing on behalf of the State is concerned, on considering the same, we are of the opinion that the same shall not be applicable to the cases where any right is claimed under the provisions of Act, 2013. If a case is made out within four corners of the provisions of Act, 2013, the said Government Resolution dated 15.01.2004 shall not be applicable and the rights of the parties are required to be determined and / or considered as per the provisions of Act, 2013.
10. In view of the above and for the reasons stated above, more particularly, it is an admitted position that the award has not been declared or made under Section 11 of the Act, 1894 for the acquired lands even at the time when the provisions of Act, 2013 has been enacted and come into force i.e. 1.1.2014. Section 24(1)
(a) of the Act, 2013 shall be applicable and the petitioners shall be entitled to compensation as determined under the provisions of Act, 2013.
11. In view of the above and for the reasons stated above, petition succeeds in part. It is held that the petitioners are entitled to compensation of the acquired lands as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 relating to the determination of compensation. Consequently, the appropriate authority is hereby directed to determine the compensation of the acquired lands as per the provisions of the Right to Fair Page 13 of 14 HC-NIC Page 13 of 14 Created On Sun Aug 13 15:17:35 IST 2017 C/SCA/17897/2015 CAV JUDGMENT Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. As agreed by the learned advocate for the petitioners, market price / price shall be considered as on 1.1.2014 i.e. day on which, the Act, 2013 has come into force. The entire aforesaid exercise shall be completed within the period of three months from today and the respective petitioners be paid the compensation accordingly within the period of one month thereafter. Rule is made absolute to the aforesaid extent. No costs.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 14 of 14 HC-NIC Page 14 of 14 Created On Sun Aug 13 15:17:35 IST 2017