Himachal Pradesh High Court
Sohan Lal vs State Of Himachal Pradesh And Others on 3 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 3679 of 2022
Decided on: August 3, 2023
________________________________________________________
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Sohan Lal ...........Petitioner
Versus
State of Himachal Pradesh and others ....Respondents
________________________________________________________
Coram: Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1No.
For the Petitioner : Ms. Shashikiran Negi, Advocate.
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For the Respondents : Mr. Anoop Rattan, Advocate General
with Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C. Verma,
Additional Advocates General & Mr.
Ravi Chauhan, Deputy Advocate
rt General.
________________________________________________________
Sandeep Sharma, Judge (oral):
By way of instant petition filed under Art. 226 of the Constitution of India, petitioner has prayed for the following reliefs:
"That a writ of mandamus may very kindly be issued to the respondents thereby directing them to acquire the land of the petitioner in village Lajoon, Tehsil Shimla (Rural), District Shimla, Himachal Pradesh as per the Jamabandi for the years 2011-12 (Annexure P-1), where land has been utilized for the purpose of construction of "lift Irrigation Scheme Cnanog Sujana (Jal Uthau Yojna Sujana)" in a time bound manner, preferably within six months, and pay adequate compensation as per latest law on the subject and latest rates of compensation as well as solatium etc. to the petitioners, with interest."1
Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/08/2023 20:33:11 :::CIS 22. Precisely, the facts of the case, as emerge from the record, are that land comprised in Khata No. 14/14 Khatauni No. 61/61, 62/62, .
63/63/20, Khasra Nos. 254, 291, 365, 367, 366, 292 total plots 6 meauring 01-09-16 Bigha situate in Mauja Lajhoon, Tehsil Shimla (Rural) District Shimla, Himachal Pradesh as per Jamabandis for the years 2011-12 (Annexure P-1), owned by the petitioner came to e of utilized for construction of lift irrigation scheme namely Chanog Sujana (Jal Uthau Yojana Sujana" in the year 1996.
3. Though the respondents utilized the aforesaid land of the rt petitioner for construction of irrigation scheme detailed herein above, but since despite repeated representations, no steps were taken by the department to initiate acquisition proceedings of the land in question, petitioner was compelled to approach this Court, in the instant proceedings, praying therein for the relief as has been reproduced herein above.
4. Pursuant to notices issued in the instant proceedings, respondents 1,2 and 4 have filed reply under the signatures of Superintending Engineer Jal Shakti Circle, Jal Shakti Vibhag, Himachal Pradesh, Shimla-9, wherein facts recorded herein above are not dispute rather stand admitted. Claim as put forth by petitioner has been sought to be refuted on the ground of delay and laches. It is stated in the reply, that the irrigation scheme, was constructed by the Department in the year 1999-2000 on the request of local people through Gram Panchayat and at that time no objection was raised by ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 3 petitioner for construction of irrigation scheme on his land. It has been further stated in the reply that no pump house, rising main and storage .
tank of the scheme were constructed over the land of the petitioner and the department constructed field channel (Kuhal) having size of 0.45 metre width only that too after having obtained his consent. It has been further stated in the reply that vide resolution dated 23.2.1999, Gram Panchayat issued No objection qua the land utilized for construction of of scheme and as such, petitioner is estopped from claiming compensation that too at this belated stage. Besides above, it has rt been categorically stated in the reply that conduct of the petitioner itself suggests that he had consented for use of his land without payment of compensation because, admittedly, for more than 20 years, he remained silent. In support of averments of reply, respondents have placed on record resolution dated 18.3.1996 passed by Gram Panchayat (Annexure R-2) wherein it has been stated that none of the villager shall have objection qua construction of Kuhal.
5. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Ms. Shashikiran Negi, learned counsel for the petitioner Advocate is that once it is not in dispute that the land of petitioner stands utilized for construction of Kuhal, respondent Department is under obligation to acquire the land and pay compensation thereafter.
6. Ms. Shashikiran Negi, Advocate, while making this court peruse resolution of Gram Panchayat placed on record by respondent dated 18.3.1996, Annexures R-2 and R-3, vehemently argued that vide ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 4 resolutions detailed herein above, only No objection was given for construction of irrigation scheme but at no point of time it was .
undertaken by Gram Panchayat or villagers that they shall not claim any compensation qua the land utilized for construction of irrigation scheme. She further stated that that as per own case of the respondents, Kuhal stands constructed on the land of the petitioner as such, petitioner is entitled for compensation. She stated that there is no of document available on record suggestive of the fact that the petitioner ever consented to make available his land free of cost. While inviting rt attention of this court to judgment passed by Hon'ble Apex Court in Vidya Devi v. State of Himachal Pradesh an dothers, (2020) 2 SCC 569 and Sukh Dutt Ratra and anr v. State of Himachal Pradesh and others, (2022) 7 SCC 508, Ms. Shashikiran Negi, Advocate argued that plea of delay and laches cannot be raised in continuous cause of action rather, same can be condoned by the court, with a view to do the substantial justice. She also invited attention of this Court to decision dated 18.7.2023 in CWP No. 8647 of 2022 titled Ramanand and Ors v. State of Himachal Pradesh and others, CWP No. 5928 of 2022 titled Vir Sen v. State of Himachal Pradesh decided on 27.7.2023, wherein this court having taken note of mandate given in judgment passed by Hon'ble Apex Court in Vidya Devi and Sukh Dutt Ratra supra, negated the plea of delay and laches raised by the respondents, while refuting the claim raised on behalf of the petitioners in those cases for acquisition of their land already used for construction of road.
::: Downloaded on - 04/08/2023 20:33:11 :::CIS 57. Mr. Rajan Kahol, learned Additional Advocate General, while refuting aforesaid submissions made by Ms. Shashikiran Negi, learned .
counsel for the petitioner vehemently argued that bare perusal of resolutions of Gram Panchayat placed on record itself suggests that the irrigation scheme was constructed on the demand raised by Gram Panchayat and villagers. He submitted that careful perusal of No objection placed on record, itself suggests that it was agreed inter se of Department and the villagers that the villagers shall not claim any compensation qua the land utilized for construction of irrigation scheme.
8. rt While making this court peruse judgment rendered in Shankar Dass v. State of Himachal Pradesh, CWP No. 1966 off 2010 decided on 2.3.2013, Mr. Kahol submitted that otherwise appropriate remedy for redressal of grievance of the petitioner is to approach civil court by way of civil suit. He also pressed into service judgment rendered by Hon'ble Apex Court In State of Maharashtra v. Digambar, (1995) 4 SCC 683 to state that claim being highly stale, deserves outright rejection.
9. Having heard learned counsel for the parties and perused material available on record, especially reply filed by the respondents, this court finds that there is no dispute that the land of the petitioner stands utilized for construction of irrigation scheme. Though, resolutions of Gram Panchayat placed on record by the respondents suggest that Gram Panchayat gave No objection for construction of irrigation scheme but there is no undertaking that villagers shall not ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 6 claim compensation qua the land, if any, utilized for construction of irrigation scheme. No objection Certificate, if any, given by Gram .
Panchayat cannot be considered to be an undertaking or No objection by petitioner, who at no point of time, consented for use of his land by the Department for construction of irrigation scheme, that too without paying compensation.
10. Though, Shri Rajan Kahol, learned Additional Advocate General of vehemently argued that very conduct of the petitioner, whereby he remained silent for two decadres itself is sufficient to infer implied rt consent but Hon'ble Apex Court in Vidya Devi and Sukh Dutt Ratra supra, as taken note herein above, has clearly held that plea of delay and laches cannot apply in case of continuous cause of action or if the circumstances shock the judicial consicencce of the court, it can always condone the delay to do the substantial justice. Most importantly, Hon'ble Apex Court has held that there is no period of limitation for courts to exercise their constitutional jurisdiction to do substantial justice. It has been further held that forcible dispossession of a person from their private property without following due process of law, is violative of both, human right and constitutional right of the land owner under Art. 300A of the Constitution of India. While concluding, Hon'ble Apex Court held that forcible dispossession of a person of his private property without following due process of law is violative of both his human right and constitutional right under Art. 300-A. It would be apt to take note of following paras of Vidya Devi, supra:
::: Downloaded on - 04/08/2023 20:33:11 :::CIS 7"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.
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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, of 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 rt 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 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:::: Downloaded on - 04/08/2023 20:33:11 :::CIS 8
"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:
of "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 rt 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) 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 ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 9 completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.
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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 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.
of 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.
rt 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 ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 10 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.
of 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.
rt 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)"
11. 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 ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 11 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 of itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh rt 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."
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.::: Downloaded on - 04/08/2023 20:33:11 :::CIS 12
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.
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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 rt 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 issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013."
12. In the aforesaid judgments, Hon'ble Apex Court has categorically held that contention advanced by the State of delay and laches of the appellant in moving the Court is liable to be rejected ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 13 especially when it is not in dispute that petitioner is suffering continuous loss coupled with the fact that he repeatedly requested the .
authorities to initiate acquisition proceedings.
13. If the aforesaid judgment is read in entirety, crux of the same is that a land owner cannot be deprived of his property without due process of law. If it is so, ground taken by the respondent that the land was made available with the consent, is of no consequence This court, of having taken note of the fact that the land of petitioner stands utilized for the construction of irrigation scheme, is compelled to agree with the rt submission of learned counsel for the petitioner that the petitioner is entitled for compensation qua his land.
14. Reliance placed by respondents upon judgment dated 24.2.2023 rendered by Hon'ble Apex Court in State of Himachal Pradesh and Ors v. Rajiv and Anr, Civil Appeal No. 1278 of 2023 is also misplaced, because, bare perusal of same nowhere reveals that the claim raised by petitioner cannot be considered on the ground of delay and laches. In that case, the claimants were not held entitled to the interest under the Act from the date of Notification under S.4 of the Act till the filing of the writ petition. Since, in the case at hand, Notification under S.4 of the Act never came to be issued till date, ruling given in the aforesaid judgment by Hon'ble Apex Court has no application in the present case. In the instant case, land of the petitioner was utilized by respondents for construction of irrigation scheme in 1999-2000, without paying any compensation to the petitioner, as such, his prayer deserves to be allowed.
::: Downloaded on - 04/08/2023 20:33:11 :::CIS 1415. 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 of 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 rt 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
16. 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 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.
17. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds merit in the present petition and accordingly same is allowed with direction to the respondents to initiate acquisition proceedings within four weeks ::: Downloaded on - 04/08/2023 20:33:11 :::CIS 15 under the relevant statute vis-à-vis land of the petitioner and thereafter, just and fair compensation qua the same be awarded to the petitioner.
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Since petitioner has been fighting for his rightful claim for so long, 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.
of (Sandeep Sharma) Judge August 3, 2023 (vikrant) rt ::: Downloaded on - 04/08/2023 20:33:11 :::CIS