Himachal Pradesh High Court
State Of Himachal Pradesh vs Sita Ram And The Connected Matter on 30 March, 2022
Bench: Ajay Mohan Goel, Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 30th DAY OF MARCH, 2022
BEFORE
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
LETTERS PATENT APPEAL No.33 of 2021 ALONGWITH
EXECUTION PETITION No.17 of 2019
(1) LETTERS PATENT APPEAL No.33 of 2021
Between:-
1. STATE OF HIMACHAL PRADESH,
THROUGH SECRETARY, H.P.P.W.D.,
STATE OF H.P. GOVERNMENT, SHIMLA.
2. THE DEPUTY COMMISSIONER, SHIMLA,
DISTRICT SHIMLA, H.P.
3. THE SUB-DIVISIONAL MAGISTRATE,
THEOG, DISTRICT SHIMLA (HP).
......APPELLANTS
(BY MR. ASHOK SHARMA,
ADVOCATE GENERAL WITH
MR. ADARSH K. SHARMA,
MS. RITTA GOSWAMI AND
MR. NAND LAL THAKUR,
ADDITIONAL ADVOCATES GENERAL)
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State of Himachal Pradesh and others Versus Sita Ram and the connected matter
LPA No.33 of 2021 a/w Ex. Petition No.17 of 2019
.
AND
SITA RAM SHARMA,
S/O SH. PARMA NAND SHARMA,
R/O VILLAGE BASMOL, P.O. KYAR,
TEHSIL THEOG, DISTT. SHIMLA.
......RESPONDENT
(BY MR. C.N. SINGH, ADVOCATE)
AND
(2) EXECUTION PETITION No.17 of 2019
Between:-
SH. SITA RAM,
S/O SH. PARMANAND SHARMA,
R/O VILLAGE BASMOL, POST OFFICE,
KYAR, TEHSIL THEOG, DISTRICT SHIMLA,
HIMACHAL PRADESH.
......PETITIONER
(BY MR. C.N. SINGH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH,
THROUGH SECRETARY (HP, PWD) TO THE
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA.
2. DEPUTY COMMISSIONER, SHIMLA,
DISTRICT SHIMLA, HIMACHAL PRADESH.
3. SUB-DIVISIONAL MAGISTRATE, THEOG,
DISTRICT SHIMLA, HIMACHAL PRADESH.
......RESPONDENTS
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State of Himachal Pradesh and others Versus Sita Ram and the connected matter
LPA No.33 of 2021 a/w Ex. Petition No.17 of 2019
.
(BY MR. ASHOK SHARMA,
ADVOCATE GENERAL WITH
MR. ADARSH K. SHARMA,
MS. RITTA GOSWAMI AND
MR. NAND LAL THAKUR,
ADDITIONAL ADVOCATES GENERAL)
RESERVED ON: 11th MARCH, 2022
PRONOUNCED ON: 30th DAY OF MARCH, 2022
These matters coming on for hearing this day,
Hon'ble Mr. Justice Mohammad Rafiq, passed the following:
JUDGMENT
LPA No.33 of 2021
This matter has been referred to the Larger Bench by order dated 5th April, 2021, in view of the conflict of opinion between judgment dated 8th August, 2017, passed by the Division Bench of this Court in LPA No.79 of 2017, titled as State of H.P. & others Versus Bhoop Ram and another set of two judgments passed in LPA No.93 of 2017, titled as State of H.P. & ors. Versus Dalip Singh, decided on 28.11.2019 and LPA No.12 of 2019, titled as State of H.P. & others Versus Laiq Ram Dogra, ::: Downloaded on - 30/03/2022 20:17:50 :::CIS -4- State of Himachal Pradesh and others Versus Sita Ram and the connected matter LPA No.33 of 2021 a/w Ex. Petition No.17 of 2019 .
decided on 23.03.2021. The learned Division Bench has formulated the following question for being answered by the Larger Bench:-
"Whether a person(s) whose land(s) has been utilized for construction of road under 'PMGSY' is entitled to compensation?"
2. We have heard Mr. Ashok Sharma, learned Advocate General for the appellant-State and Mr. C.N. Singh, learned counsel for the respondent-petitioner.
3. Mr. Ashok Sharma, learned Advocate General has argued that the land of the petitioner was utilized for construction of jeapable road in the year 2000-2001 at Muhal Basmol, Development Block Theog. The suit land falls at RD 3/270 to 3/370 and 3/465 to 3/550. The cutting work through said portion was carried out with implied oral consent of all land owners including the respondent-writ petitioner and was completed well before 17.01.2005. The respondent-writ petitioner never objected to survey as well as construction of road at that time. He never claimed payment of ::: Downloaded on - 30/03/2022 20:17:50 :::CIS -5- State of Himachal Pradesh and others Versus Sita Ram and the connected matter LPA No.33 of 2021 a/w Ex. Petition No.17 of 2019 .
compensation till filing of the writ petition in the present case in the year, 2009. As per mandate of the Limitation Act, claim for payment of compensation has to be made within three years, but in the present case, the writ petition has been filed four years after utilization of the land. Relying on the judgment of Supreme Court in Union of India Versus N. Murugesan, decided on 7th October, 2021 in Civil Appeal Nos.2491-2492 of 2021, the learned Advocate General argued that the learned Single Bench has erred in law in not dismissing the writ petition on the ground of delay and latches. The learned Advocate General, in support of arguments, has also relied upon judgment of the Supreme Court in Eastern Coalfields Ltd.
Versus Dugal Kumar, decided on 28th July, 2008, reported in 2008(14) SCC 295.
4. The learned Advocate General has cited the Full Bench decision of this Court in case Shankar Dass Versus State of Himachal Pradesh and others, reported in 2013(2) Him LR 698 and argued that substance of question referred to the Full Bench in that case was whether a person, who had willingly ::: Downloaded on - 30/03/2022 20:17:50 :::CIS -6- State of Himachal Pradesh and others Versus Sita Ram and the connected matter LPA No.33 of 2021 a/w Ex. Petition No.17 of 2019 .
surrendered his land to State by giving consent, can seek a direction to the State from the High Court under Article 226 of the Constitution of India, after a long time, to initiate the land acquisition proceedings in respect of such land. The reference was answered by the Full Bench in the terms that "in such cases, the land owner has to invoke the jurisdiction of the Court refuting such express or implied consent or the stand of the State on voluntary surrender within such reasonable time, in which such relief can be claimed in a Civil Suit."
5. The learned Advocate General relied upon the judgment of this Court in Laiq Ram (supra) and argued that there was no provision for land acquisition under PMGSY. As regards the judgment of Vidya Devi Versus State of H.P. and others reported in 2020 (2) SCC 569, the learned Advocate General argued that judgment is distinguishable on facts as the State had in that case issued Notification under Section 4 of the Land Acquisition Act issued in 2008 with respect to the land of Anakh Singh, a neighbouring land owner, whose land was taken over for the same purpose. Appellant Vidya Devi ::: Downloaded on - 30/03/2022 20:17:50 :::CIS -7- State of Himachal Pradesh and others Versus Sita Ram and the connected matter LPA No.33 of 2021 a/w Ex. Petition No.17 of 2019 .
continuously represented her case before different Authorities for payment of compensation, but remained unsuccessful. The learned Advocate General further submitted that the judgment in the case of Raj Kumar (supra) was also passed in different facts situation and is, therefore, distinguishable. It is argued that the directions in Raj Kumar (supra) were issued by the Supreme Court by invoking the powers under Article 142 of the Constitution of India not vested with this Court. It was submitted that in the present case, the road was constructed in the larger public demand as the inhabitants of the area made number of representations for that purpose. Road was constructed by spending huge amount of Rs.1.54 Crores, out of public exchequer, under PMGSY/World Bank Scheme for connecting the villages with road. The petitioner at the time of construction of road agreed and extended full cooperation to the Department. The Department rather constructed breast wall of 50 Metres length costing about Rs.4.00 lakhs, to protect the house of the writ petitioner and agriculture from damage.
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6. The learned Advocate General argued that instructions dated 12.06.2001, Annexure P/1, clearly show that no provision has to be made for acquisition of the land under the said programme. It is argued that the Court cannot strike down the policy made by the Government merely because another decision would be fairer or wiser or more scientific or logical. Reliance in this behalf is placed on decision of the Supreme Court in State of M.P. Versus Narmada Andolan & anr. reported in (2011) 7 SCC 639 and K.T. Plantation (P) Ltd.
Versus State of Karnataka reported in (2011) 9 SCC 1. The learned Advocate General argued that judgments in Raj Kumar, Vidya Devi's, D.B. Basnet Versus Collector East District Gangtok, (2020) 4 SCC 572 and State of Haryana Versus Mukesh Kumar & anr., (2011) 10 SCC 404 were not only rendered on different facts, but are per-incuriem having been decided by ignoring binding decision of the Constitution Bench of the Supreme Court in State of Maharashtra Versus Digambar, reported in (1995) 4 SCC 683. It is argued that the State is not claiming any right over public property. It has ::: Downloaded on - 30/03/2022 20:17:50 :::CIS -9- State of Himachal Pradesh and others Versus Sita Ram and the connected matter LPA No.33 of 2021 a/w Ex. Petition No.17 of 2019 .
rather constructed the road on popular demand for the benefit of the people at large.
7. Per contra, Mr. C.N. Singh, learned counsel for the respondent-petitioner argued that Bhoop Ram as well as Laiq Ram have correctly been decided and there is no apparent conflict in these two judgments. The judgment passed in Dalip Kumar turned out on its own peculiar facts. Therein the petitioner had earlier filed a Civil Suit on the same cause of action, but withdrew it without any liberty to file the writ petition. Therefore, the Division Bench held that the writ petition was barred by principles of Order 2 Rule 2 and Order 23 Rule 1 of the CPC. Moreover, on facts, the Division Bench found that out of ten co-sharers in the land comprised in Khasra No.635, the petitioner had only 1/10 share in that land, which was approximately 38 Square Metres. Therefore, it was held that had there been no consent on the part of the land owners, other nine co-sharers would have also objected and not only that they did not object, but allowed the construction of the road to come up.
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8. The learned counsel for the respondent-writ petitioner relying on the judgment of Supreme Court in State of U.P. and others Versus Manohar, reported in (2005) 2 Supreme Court Cases 126 argued that by 44th amendment, Article 300- A was placed in the Constitution of India. Right of property has thus been acknowledged as constitutional right and no citizen can be deprived of his property without known due process. Relying on the judgment of Supreme Court in Sayyed Ratanbhai Sayeed (Dead) through Legal Representatives and others Versus Shirdi Nagar Panchayat and another and the connected matters, reported in (2016) 4 Supreme Court Cases 631, the learned counsel argued that Supreme Court in that case has held that the right to property is not only a constitutional or statutory right, but also a human right, to be construed in the realm of individual rights in the Welfare State.
The respondents-Authorities are, therefore, under obligation to pay adequate compensation and rehabilitate the persons displaced.
9. The learned counsel for the respondent-writ ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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petitioner cited the Programme Guidelines issued under PMGSY in April, 2012 and invited attention of this Court towards Clause 6.12 thereof to contend that every proposal submitted for construction of road under PMGSY has to be accompanied with certificate that land is available for construction of road. The said Clause stipulates that PMGSY does not provide funds for land acquisition, this does not, however, mean that acquisition cannot be done by the State Government at its own cost and the State Government may also lay down guidelines for voluntary donation, exchange or other mechanisms to ensure availability of land.
Compensation has to be paid, unless the State Authorities are able to show that the land was voluntarily given with free consent for construction of road.
10. We have given our anxious consideration to rival submissions and perused the material on record.
11. The earliest of the decision mentioned in the reference order is that of Bhoop Ram, in which judgment of the learned Single Bench was challenged, whereby, the State ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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Authorities were directed to assess the total area of land belonging to the respondent-petitioner-Bhoop Ram, utilized for construction of road and thereafter acquire the same as well as make payment of compensation to him. Further direction was issued that in case the land of the petitioner was not acquired for construction of road, change the alignment thereof and handover the possession of the land back to the petitioner. The Division Bench in Bhoop Ram's case, apart from relying on judgment of the Single Bench of this Court in CWP No.3090 of 2009, titled as Neem Chand Versus State of H.P. & others, decided on 05.07.2016, heavily relied on the judgment of Supreme Court dated 29th October, 2015, passed in Civil Appeal No.9105 of 2015 {SLP (C) No.2373 of 2014}, titled as Raj Kumar Versus State of H.P. and others, wherein, the following directions were issued to the State Authorities: -
"1. The Deputy Commissioner Collector, Solan shall undertake a verification and determine the exact extent of land utilized for construction of road in question out of Survey No. in which the appellant holds a share and thereby determine the exact ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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extent of land which the appellant has been deprived of on account of such construction/ utilization.
2. Upon determination of the extent of land of which the appellant has been deprived of by reason of construction of the road in question, the Deputy Commissioner shall determine the amount of compensation payable to him based on the amount determined towards compensation in Award No.10 of 2008 relating to the land acquired for the very same road in favour of other owners including Kanwar Singh having regard to the classification of the land.
3. Upon determination of the amount so payable the Deputy Commissioner Collector shall disburse the said amount within a period of three months from the date the determination is completed. The payment of the amount so determined shall represent the amount due and payable to the appellant in full and final settlement of all his claims towards the value of the land utilized for the construction of the road. In case however the payment is not made within the time so stipulated even after determination, the amount so determined shall start earning interest @12% p.a. ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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from the date the period of three months expires."
12. In Dalip Singh (supra), the State of Himachal Pradesh challenged judgment of the learned Single Bench of this Court. The case of the petitioner therein was that he was owner of the land comprising in Khewat No.23/22, Khatauni No.61, Khasra No.634, measuring 00-13-92, Khasra No.636, measuring 00-33-84 and Khasra No.635, measuring 00-30-36 Hectares situated in Mohal Baandar, Tehsil Chopal, District Shimla. The State Authorities while constructing Antrawli-
Baandaur-Paban road under Pradhan Mantri Gram Sadak Yojana (in short 'PMGSY') had used land of the petitioner comprised in Khasra No.635, without his consent, for construction of the road. The petitioner initially filed a Civil Suit, but later-on withdrew the same unconditionally on 15.01.2009 and filed the writ petition before the High Court on 06.03.2009.
The learned Single Judge allowed the writ petition on the ground that there was no undertaking by way of affidavit or gift deed available on record, which show that the petitioner ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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had undertaken not to claim any compensation and voluntarily donated the land and the State Authorities were directed to acquire his land and award him compensation in respect thereof. Reversing judgment of the Single Bench, the Division Bench held that the writ petition was not maintainable, being clearly hit by the principles of Order 2 Rule 2 and Order 23 Rule 1 of the CPC, as the petitioner before filing the writ petition, had filed the Civil Suit and withdrew the same unconditionally, without liberty to file the writ petition. It was also held that rural roads is a State subject and that it is the responsibility of the State Government to ensure the availability of land for construction of the road under PMGSY in view of the common benefit to the general public.
Normally the land for construction of road is voluntarily made by the villagers/Panchayats free of costs through donations.
There is no provision of acquiring the land for payment of compensation in the policy under PMGSY.
13. In Dalip Singh (supra), total area of disputed land of Khasra No.635 was 00-03-80 Hectares, which worked out ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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approximately 380 Square Metres. The share of the petitioner was 1/10, which worked out to be only 38 Square Metres. On facts, the Division Bench came to the conclusion that there was implied consent on the part of the petitioner because had there been no consent on the part of the petitioner, as claimed by him, other nine co-sharers, who had 9/10th share in the land, would have certainly objected. The Division Bench, therefore, held that a person, who only has a minuscule share, i.e., 1/10th share, i.e. 38 Square Metres in the entire property, could not be allowed to deprive other co-sharers and residents of the village and adjoining villages of the road. The Division Bench relied on the judgment of Supreme Court in State of H.P. Versus Umed Ram Sharma (1986) 2 SCC 68, wherein, it was held that denial of usable road, especially to poor residents of hilly areas, is violative of the provisions of Article 19(1) (d), 21 and 38 of the Constitution of India. The appeal was, therefore, allowed with that note.
14. The last one of the judgments mentioned in the order of reference is Laiq Ram Dogra. In that case also, the ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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learned Single Bench of this Court allowed the writ petition directing the State Authorities to take steps for acquiring land of the petitioner for construction of Reoni to Khagna road, or in the alternative, re-align/re-grade the road, bye-passing land of the petitioner and in case it was decided to vacate the land, the State Authorities were further directed to assess and pay damage caused to the land and orchard of the petitioner. The stand of the State Authorities before the learned Single Bench was that the land of the petitioner was utilized for construction of road under PMGSY with his consent.
However, it was argued on behalf of the State before the Division Bench that since the writ petitioner had objected for utilization of his land for construction of the road, road alignment was changed, as a result of which the land was not utilized for construction of the road. This was disputed by the petitioner, who relied upon judgment of the Supreme Court in Raj Kumar and that of this Court in Bhoop Ram's case (supra).
15. The Division Bench in Laiq Ram Dogra (supra) took note of Clause 3.6 of PMGSY Guidelines, according to which, it ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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was the responsibility of the Standing Committee to oversee availability of the land for construction of road and all proposals for construction of road under PMGSY should be accompanied by such certificates. The Division Bench despite taking note of the affidavit filed by the Additional Chief Secretary (PWD) to the Government of Himachal Pradesh, contending that the alignment of the road was changed and the land of the petitioner was not utilized for construction of the road, concluded that the respondent-State was not denying the fact that some portion of the land of petitioner was actually used for construction of the road. To meet the argument of delay, reliance on behalf of the respondent-writ petitioner in appeal was placed on the judgment of Supreme Court in case titled as Vidya Devi (supra). The Division Bench held that right to property is not a fundamental right, yet the same has to be acknowledged as human right in a Welfare State, much less a constitutional right under Article 300-A of the Constitution of India and that no person can be deprived of his property, except in accordance with the procedure ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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established by law.
16. Adverting now to rival submissions, we must at the outset observe that we have to confine ourselves to the limited question that has been referred for elucidating our answer, whether "a person whose land has been utilized for construction of road under PMGSY was entitled for compensation". The reference order has taken note of the judgment passed in Laiq Ram Dogra in para-7 of which Clause 3.6 of the earlier Guidelines of PMGSY was reproduced, which reads as under:-
"3.6 It will be the responsibility of the Standing Committee to oversee that lands are available for taking up the proposed road works. A Certificate to this effect will accompany all the proposals. No provision is to be made for the Land Acquisition under this Programme."
17. The aforementioned Clause 3.6 of PMGSY Guidelines categorically provided that it will be the responsibility of the Standing Committee to oversee that lands are available for taking up the proposed road construction ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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works and all the proposals will accompany certificate to this effect. The Clause also made it clear that no provision is to be made for land acquisition under this Programme. The aforementioned Guidelines, in its revised form, further elaborately clarified this position in Clause 6.12, as under:-
"6.12 "It will be the responsibility of the State Government/District Panchayat to ensure that lands are available for taking up the proposed road works. A certificate that Land is available must accompany the proposal for each road work. It must be noted that the PMGSY does not provide funds for Land Acquisition. This does not however mean that acquisition cannot be done by the State Government at its own cost. The State Government may also lay down guidelines for voluntary donation, exchange or other mechanisms to ensure availability of land. The process of making land available for the road works should sub-serve the common good and also be just and equitable. The details of land made available should be reflected in the local land records to avoid dispute."::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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18. A perusal of the afore-extracted Clause 3.6 clearly shows that earlier Guidelines stipulated that all the proposals that are mooted for construction of road under PMGSY Scheme, have to be accompanied by a certificate to the effect that land is available, but the said Clause simultaneously made it clear that PMGSY does not provide any funds for land acquisition. It is thus clear that no funds were to be made available for the component of acquisition of land. Later-on, the afore-extracted Clause 6.12 in revised Guidelines further clarified this portion in the terms that even though the PMGSY does not provide funds, but if the State Government wants to utilize the funds under PMGSY for construction of rural roads, it has to acquire the land and make provision of land at its own cost. That means that the State Government has to acquire the land and pay compensation to the land owners from its own resources.
In addition, the said Clause also clarified that the State Government may also lay down guidelines for voluntary donation, exchange or other mechanisms to ensure ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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availability of land. Clearly, in addition to the mode of acquisition being left open to the State Government, it has also been required to lay proper guidelines for voluntary donation or exchange or other mechanism, to provide the land for construction of road under PMGSY.
19. The Supreme Court, in Manohar Lal's case relied upon by the learned counsel for the respondent-writ petitioner, was dealing with a case where the petitioner approached the High Court of Judicature of Allahabd seeking a writ of mandamus to the State of Uttar Pradesh and its officers to determine the compensation in respect of his land, which according to the petitioner was forcibly taken away without following any process of law. The case of the petitioner was that he had been dispossessed of his land and that the State Authorities had put up a building and structures on the land sometime in 1955 and that despite repeated appeals, nobody was prepared to pay compensation to him.
His name was high-handedly deleted from the revenue record and he was not paid any compensation nor any steps ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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were taken in law for acquiring the land. The stand of the State Authorities before the High Court was that the petitioner had already been paid the compensation, but the records evidencing such payment were not available as they had been weeded out due to delay on the part of the petitioner approaching the Court. While dismissing the appeal, the Supreme Court in paras-6 to 10 held as under:-
6. Having heard the learned counsel for the appellants, we are satisfied that the case projected before the Court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.
7. Ours is a constitutional democracy and the rights available to the citizens are declared by the ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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Constitution. Although Article 19(I) (f) was deleted by the 44th Amendment to the Constitution, Article 300A has been placed in the Constitution, which reads as follows:
"300A. Persons not to be deprived of property save by authority of law No person shall be deprived of his property save by authority of law."
8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities.
In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us.
9. In the result, we dismiss the appeal with exemplary costs of Rs.25,000/-. The compensation payable as directed by the High Court, together with the costs directed by us, shall be paid within a period of 3 months from today.
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10. The respondent shall also be paid interest on the compensation amount from 22.2.1999 till date of payment @ 9% per annum."
20. In Sayyed Ratanbhai Sayeed (supra), the appellants had small shops in the land belonging to Gram Panchayat near the famous Shirdi Shrine. They were regularly paying rent to Village Panchayat. Subsequently, when the land was taken over by the State Government and dispute started, a suit was instituted and compromise decree was entered into between the State Government on one side and the appellant on the other. In terms of the compromise decree, the Management of the Shrine was to provide to the appellants with alternative shops on the road leading to the Shrine. The compromise decree was not implemented for about a decade and then both the appellants and the Management approached for execution of compromise decree. In the meantime, development plan of Shirdi Town came into effect, as per which half of the plot concerned was reserved for garden and other half for shopping ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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complex. At this stage, the Nagar Panchayat issued public notice to the appellants indicating that their shops were illegally constructed and that they had to be removed for widening of the road leading to the Shrine. In those facts, the Supreme Court in para 62 held as under:-
62. Apropos the scenario, where the petitioners therein had been denied compensation for their land, taken over by the respondents and that too without initiating any process for acquiring the same in accordance with law, this Court in Tukaram Kana Joshi and Others vs. Maharashtra Industrial Development Corporation and Others (2013)1 SCC 353, proclaimed in the context of Article 300A of the Constitution of India, that right to property was not only a constitutional or statutory right but also a human right to be construed in the realm of individual rights, such as right to health, livelihood, shelter, employment etc. It was reminisced that in a welfare state, statutory authorities are bound not only to pay adequate compensation but are also under a legal obligation to rehabilitate the persons displaced. The spectre of the uprooted persons becoming vagabonds with anti-national ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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propensities in case of non-fulfillment of such obligations by the State, was portended with concern. The observation in K. Krishna Reddy vs. Special Deputy Collector (1988) 4 SCC 163 qua the relevance and significance of monetary compensation, was quoted with approval:
"12. ... After all money is what money buys.
What the claimants could have bought with the compensation in 1977 cannot do r in 1988. Perhaps, not even one-half of it. It is a common experience that the purchasing power of rupee is dwindling. With rising inflation, the delayed payment may lose all charms and utility of the compensation. In some cases, the delay may be detrimental to the interests of claimants. The Indian agriculturists generally have no avocation.
They totally depend upon land. If
uprooted, they will find themselves
nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall back upon. They know no other work. They may even face starvation unless rehabilitated. In all such cases, it is of utmost importance that the award should ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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be made without delay. The enhanced compensation must be determined without loss of time."
(emphasis supplied)
21. The Supreme Court in N. Padmamma Versus S. Ramakrishna Reddy, reported in (2008) 15 SCC 517 in para 21 of the report held as under:-
"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."
22. In Delhi Airtech Services (P) Ltd. Versus State of U.P., reported in (2011) 9 SCC 354, the Supreme Court recognized the right of property as a basic human right. In para 30 of the report, it has been held as under:-
"30. It is accepted in every jurisprudence and by ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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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."
23. The Supreme Court in Jilubhai Nanbhai Khachar Versus State of Gujarat, reported in (1995) Supp. (1) SCC 596 in para 48 of the report has observed as under:-
"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 ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In order words, if there is no law, there is no deprivation."
24. The Supreme Court in Hindustan Petroleum Corpn.
Ltd. Versus Darius Shapur Chenai, reported in (2005) 7 SCC 627 in para 6 of the report held as under:-
"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."
25. Similar view, as expressed in the above referred two judgments, has been taken by the Supreme Court in several other judgments, such as; (i) Hari Krishna Mandir Trust Versus State of Maharashtra and others, (2020) 9 Supreme ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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Court Cases 356; (ii) Lachhman Dass Versus Jagat Ram & Ors., (2007) 10 SCC 448; (iii) Amarjit Singh & Ors. Versus State of Punjab & Ors., (2010) 10 SCC 43; (iv) Narmada Bachao Andolan Versus State of Madhya Pradesh & Anr., AIR 2011 SC 1989; and (v) State of Haryana Versus Mukesh Kumar & Ors, AIR 2012 SC 559.
26. In view of the afore discussed law, it must be held that even after the right of property enshrined under Article 19(I) (f) was deleted by the 44th amendment to the Constitution, Article 300A still retains the right to property as the constitutional right as well as legal right and mandates that no person can be deprived of his property except by authority in law. Action of the State in dispossessing a citizen of his private property, without following the due process of law, would be violative of Article 300A of the Constitution of India, as also negate his human right. Right to property has thus been acknowledged, not only constitutional as well as statutory, but also human right, to be construed in the realm of individual rights, such as right to health, livelihood, shelter, ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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employment etc. in a Welfare State. The State Authorities cannot dispossess any citizen of his property except in accordance with the procedure established by law, that too by due process of law and by acquiring land and paying adequate compensation.
27. The PMGSY Guidelines issued in April, 2012 clearly envisaged that land has to be provided by the State Authorities for construction of roads under that Scheme, but under PMGSY, no provision has been made for payment of compensation or acquiring the land. Either the State Government has to provide land by acquiring the land out of its own resources, or by persuading the citizens to voluntarily donate land or provide the land in exchange of some other land given to them by the State or by devising any other mechanism as may be considered appropriate to ensure availability of the land. Even the PMGSY Guidelines also do not envisage taking possession of the land of the citizen without his consent and without payment of due amount of compensation. It is however another matter if the citizen ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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voluntarily surrenders his land, but the factum of voluntariness on his part and free consent to part with possession of such land, has to be established by cogent and reliable material/evidence if and when such an action is called in question. Whether or not someone has voluntarily donated the land or has given his land in exchange of another land provided to him by the State or parted with possession of the land by any other mechanism, are all questions to be decided on facts of each case.
28. We are, therefore, inclined to hold that judgment in the case of Dalip Singh (supra) turned out on its own facts, where out of ten shareholders, nine co-sharers had not objected to the possession of the land being taken for construction of road under PMGSY and the petitioner as one of the co-sharers had only 38 Square Metres of the land in his share. In those facts, the Court declined to interference when it was told that not only all of them consented for construction of the road, but also did not object to it at that time immediately after construction of road.
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29. It is trite that a judgment can be taken as a precedent for being relied on in a later case only if the ratio thereof fits in the fact situation of the case in which it is sought to be relied. A minor difference in factual context would make a lot of difference in precedential value of the cited judgment. We may in this connection usefully refer to in celebrated decision of the House of Lords, reported in [1901] A.C. 495, titled as Quinn Versus Leathem observing as under:-
"Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides.
I entirely deny that it can be quoted for a proposition that may seem to follow logically from it."
30. The judgments of this Court in Laiq Ram Dogra and Bhoop Ram, in the facts of those cases have been decided ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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correctly by relying on the decision of Supreme Court in Raj Kumar's case. The Supreme Court in Raj Kumar was also dealing with the case where initially the process for acquisition of land was started, but the proceedings were allowed to lapse, as subsequently the road, in question, was taken over under the PMGSY, which did not provide for compensation for land owners, if land was utilized for such projects. The Supreme Court rejected the argument that such land owners should be directed to approach the Civil Court for adjudication of the disputed questions of facts. It held that there was no reason as to why the owners whose land had been utilized for construction of road under PMGSY should be denied payment of compensation. The Supreme Court in that case also observed that the appellant had approached the High Court rather belatedly inasmuch as the land had been utilized sometime in the year 1985-1986 and the writ petition was filed by the appellant in the year, 2009.
But at the same time, the Supreme Court noted that the user of the land owned by the appellant was not denied by the ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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State in the counter-affidavit filed before the High Court or even before the Supreme Court. The plea that the erstwhile owner of the land might have donated the land to the State Government, was not accepted in the absence of any specific assertion regarding any such donation or documentary evidence to support the same. Against the backdrop of these facts, the Supreme Court directed the Collector Solan to verify the exact land utilized for construction of road and determine the amount of compensation and pay the same to the land owners.
31. In Shankar Dass, the Full Bench relied on the Three Judge Bench judgment of Supreme Court in State of Maharashtra Versus Digambar, reported in (1995) 4 SCC 683, where filing of writ petition with enormous delay and latches on the part of a citizen on the alleged infraction of his legal right against the State, seeking a direction to initiate acquisition proceedings for their land of which possession was taken long time ago, was held to be fatal. It was held that writ petition under Article 226 of the Constitution, being power ::: Downloaded on - 30/03/2022 20:17:50 :::CIS
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of discretion, could not be entertained with blameworthy conduct of the petitioner of such undue delay or laches, acquiescence or waiver in approaching the Court. The Full Bench also relied on the Constitution Bench judgment of the Supreme Court in the State of Madhya Pradesh Versus Bhailal Bhai, reported in AIR 1964 SC 1006, in which it was held "that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured." Delay and how far ratio of Shankar Dass would hold field in view of later judgments of the Supreme Court are not the questions for us to examine and answer. In view of the terms of reference made by the Division Bench, which does not include the question of delay, we have to confine our examination to the limited scope, whether a person whose land has been utilized for construction of road under PMGSY is entitled to compensation.
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32. In view of above, the question referred to by the Division Bench, is, therefore, answered in the affirmative that a person whose land has been utilized for construction of road under PMGSY is entitled to compensation unless it is proved to the satisfaction of the Court that the land was voluntarily donated or given by him willingly with free will and consent for construction of such road.
33. Let these matters be now listed before the Regular Bench for appropriate proceedings.
( Mohammad Rafiq ) Chief Justice ( Ajay Mohan Goel ) Judge ( Sandeep Sharma ) March 30, 2022 Judge (Bhardwaj) ::: Downloaded on - 30/03/2022 20:17:50 :::CIS