Himachal Pradesh High Court
State Of H.P. & Ors vs Kartar Chand & Ors on 25 June, 2024
Neutral Citation No.(2024:HHC:3922) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
RSA No. 213 of 2023
Reserved on: 29.05.2024
Date of Decision: 25.06.2024
State of H.P. & Ors. ....Appellants
Versus
Kartar Chand & Ors. ....Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellants : Mr. Lokender Kutlehria, Additional Advocate General.
For the Respondents : Mr. Mohit Dogra, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 29.12.2022 passed by learned District Judge, Hamirpur, (learned First Appellate Court), vide which the appeal filed by the respondents (plaintiffs before the learned Trial Court) was allowed and the suit of the plaintiff was decreed.
(Parties shall hereinafter be referred to in the same manner as 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 2they were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a permanent prohibitory injunction for restraining the defendants from raising new construction/widening of the road, interfering in any manner with the suit land mentioned in para 1 of the plaint, and a mandatory injunction directing the defendants to acquire the land already encroached by constructing a road. It was pleaded that the plaintiffs are owners of the suit land. The defendants are strangers and have no concern with the suit land. The defendants constructed a road from Dhaneta to Hamirpur via Nalti on the part of the suit land. The State initiated land acquisition proceedings but they were allowed to lapse. The defendants are threatening to widen the road and cover more portion of the suit land. The plaintiffs requested the defendants not to do so but in vain. The plaintiffs even served a notice upon the defendants but no action was taken. Hence, the suit was filed to seek the relief mentioned above.
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 33. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, .
jurisdiction, locus standi, and cause of action, the plaintiffs being estopped to file the present suit by their own acts, conducts, omissions and commissions, the suit being barred by limitation, the suit having not been properly valued for the purpose of Court fees and the jurisdiction. The contents of the plaint were denied on merits. It was asserted that the defendants constructed a road on the suit land before 1979. The road was reflected in the jamabandis for the year 1979, 2004-2005 and 2009-2010. The vehicles are plying on the road. The road was constructed with the verbal consent of the landowners. It was specifically denied that the process for acquisition of the land was initiated by the State, which was permitted to be lapsed.
The suit is not maintainable after 37 years; hence it was prayed that the suit be dismissed.
4. No replication was filed.
5. The learned Trial Court framed the following issues on 28.08.2018:-
1. Whether the plaintiffs are entitled for relief of permanent prohibitory injunction, as prayed for? OPP....::: Downloaded on - 25/06/2024 20:31:13 :::CIS 4
2. Whether the plaintiffs are entitled for relief of mandatory injunction, as prayed for? OPP....
3. Whether the present suit is not maintainable, as .
alleged? OPD....
4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct, as alleged? OPD....
5. Whether the plaintiff has no cause of action, as alleged? OPD....
6. Whether the suit is barred by law of limitation, as alleged? OPD....
7. Whether this Court has no jurisdiction to decide the present suit, as alleged? OPD....
8. Whether the plaintiffs have no locus standi to file the present suit? OPD....
9. Whether the suit has not been property valued for the purpose of court fee and jurisdiction? OPD....
6. The parties were called upon to produce the evidence and plaintiffs examined plaintiff No. 1 Kartar Chand (PW-1), Hardyal Singh (PW-2), and Manoj Kumar (PW-3). The defendants examined Dev Raj (DW-1), Meena Devi (DW-2), and Raj Kumar (DW-3).
7. The learned trial Court held that the road existed on the suit land, the plaintiffs version that the defendants were widening the road was not proved and the plaintiffs had failed to establish their cause of action. No evidence was produced to show that proceedings for acquiring the land under the Land ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 5 Acquisition Act were initiated. The road was for the benefit of people and the personal interest had to be sacrificed for the .
larger public interest. Hence, the learned Trial Court answered issue No. 5 in the affirmative, rest of the issues in the negative and dismissed the suit.
8. Being aggrieved from the judgment and decree passed by the learned trial Court, the plaintiffs filed an appeal which was decided by learned Distt. Judge, Hamirpur (learned First Appellate Court). Learned First Appellate Court held that a person has a constitutional right to property under Article 300- A of the Constitution of India which is part of Human Rights.
The State cannot deprive a person of his property except as per the law. The mere fact that the suit was filed after 37 years is not sufficient to deny the compensation to the plaintiff, especially when the defendants have not taken any plea of adverse possession. The other villagers filed the suit and compensation was ordered to be paid to them. The plaintiffs cannot be deprived of the compensation when compensation had been paid to the other villagers. Hence, the learned First Appellate Court partly allowed and partly decreed the suit of the plaintiffs ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 6 by directing to initiate acquisition proceedings for the suit land within three months as per the law.
.
9. Being aggrieved from the judgment and decree passed by the learned Trial Court, the appellants/defendants have filed the present appeal. The following substantial questions of law are proposed:-
1. Whether a land owner can be permitted to file a suit for possession when there is evidence of forceful dispossession and evidence indicate the consent of the land owner?
2. Whether the Appellate Court can direct the State to initiate the land acquisition proceedings after a period of 37 years from the date of construction of the road?
3. Whether a party seeking relief against the act of State upon his right to property is deemed to have acquiesced to such act of the State by lapse of time?
4. Whether a suit by a co-owner without arraying the other co-owners as a party to suit for possession is maintainable?
10. I have heard Mr. Lokender Kutlehria, learned Additional Advocate General for the appellants/defendants and Mr. Mohit Dogra, learned counsel for the respondent/plaintiffs.
11. Mr. Lokender Kutlehria, learned Additional Advocate General for the appellants/defendants submitted that the learned First Appellate Court erred in decreeing the suit. The plaintiffs filed the civil suit after a lapse of 37 years and the suit ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 7 was barred by limitation. The plaintiffs were not entitled to compensation because of delay and laches. He relied upon the .
judgments of the Hon'ble Supreme Court in Syed Maqbool Ali Vs. State of Uttar Pradesh and another (2011 4 RCR 238), State of Maharashtra Vs. Digambar AIR 1995 SCC 1191 and the judgment of this Court in Shankar Das Vs. State of H.P. and another CWP No.1966 of 2010 decided on 12.09.2013. He further submitted that no direction could have been issued to the defendants to acquire the land and the learned First Appellate Court erred in issuing such direction. Therefore, he prayed that the appeal be admitted on the proposed substantial questions of law.
12. Mr. Mohit Dogra, learned counsel for the respondents/plaintiffs supported the judgment and decree passed by the learned First Appellate Court and submitted that no interference is required with the same. He submitted that the learned Trial Court had ignored the constitutional rights of the plaintiffs and learned First Appellate Court had rightly directed the defendants to pay the compensation to the plaintiffs. The State cannot utilise the land of the citizens without paying compensation; therefore, he prayed that the appeal be dismissed.
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 813. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
.
14. Both the learned Courts below have concurrently held that the plaintiffs are owners of the suit land. The defendants have not disputed this fact. They examined Meena Devi (DW2) to prove the copy of jamabandi for the year 1979-1980 (Ex.
DW2/A) in which the plaintiffs are recorded to be the owners of the suit land. The defendants did not plead that the plaintiffs were not the owners of the suit land. Their case is that the defendants were in possession of the suit land as they had constructed the road much before 1979. Thus, no fault can be found with the conclusions of the learned Courts below that plaintiffs are the owners of the suit land.
15. The defendants have also not disputed that the road has been constructed on the suit land. It was suggested to the plaintiff in his cross-examination that the road has been in existence over the suit land since 1979. A similar suggestion was made to Hardyal Singh (PW-2) and Manoj Kumar (PW-3). Dev Raj (DW-1) stated in his examination-in-chief that the suit land has a road since 1979. Meena Devi (DW-2) also stated that a road ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 9 has been shown on Khasra Nos. 42 & 46 since 1979. Therefore, it was duly proved that the road was constructed on the suit land .
by the defendants.
16. The defendants asserted that the road was constructed with the consent of the plaintiffs. Kartar Chand (PW-1), Hardyal Singh (PW-2) and Manoj Kumar (PW-3) denied in their cross-examination that the road was constructed with the consent of the public. Devraj (DW-1) stated in his cross-
examination that no written consent is available on the record and he did not know who were the owners who had consented.
Thus, as per the testimony of Devraj, no written record was available and since he was also not aware of the name of the owners, therefore, his testimony that the owners had consented to the construction of the road is not acceptable.
17. In Nokhia & Others vs. State of HP ILR 1984 HP 906, the State Government had used the land for the construction of the link road without acquiring the same. A writ petition was filed before this Court. State Government had taken a defence of the consent. This Court held that the State has to bring the material on record to show that free and informed consent was given and ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 10 consent, based upon the representation that payment of the compensation would be made, is no consent at all. This Court .
issued the following directions: -
"8. On this occasion, once again, the Court draws the attention of the State Government to the state of affairs which have come to light in this and similar cases and directs that:
(a) instructions be issued to all limbs and subordinates that no citizen should be deprived of his property save in accordance with law, that is, the law relating to the acquisition and requisitioning of property and that in rare and exceptional cases of emergent public utility projects, the execution whereof cannot brook any delay in the public interest and where the provisions of Section 17 of the Land Acquisition Act cannot be resorted for reasons such as the nature and character of land, possession of the land or any specified portion thereof may be taken with the consent, as explained above of the person(s) interested in the land after the execution of an agreement, in writing, between the said person(s) and the competent authority, in accordance with law, incorporating the conditions, inter alia, that the land acquisition proceedings shall be initiated and completed and the compensation will be paid within a reasonable time to be specified in the agreement and that interest will be paid from the date of taking over of possession; and
(b) in order to avoid proliferation of litigation and to alleviate genuine hardship of persons similarly situate, all cases like the present, where there has been a deviation from law and persons have been deprived of the possession of their property save in accordance with law, be taken up for regularisation by initiating/ completing acquisition proceedings ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 11 in accordance with law with the utmost expedition and within a time-limit which may be set up by the State Government bearing in mind the need of .
striking a just balance between the inevitable lapse of time which is reasonably likely to occur even if urgent action is taken in that direction and the duty of providing quick relief by emergent remedial measures to the aggrieved persons and, in all such cases, equitable compensation, on the basis on which the Court has so far awarded the same in such and similar cases and proposes to award herein, be paid to such persons from the date of taking over of possession till the date of actual payment, in addition to the compensation, solatium and interest at the statutory rate which becomes payable under the law. The Court has so far viewed cases where such unauthorized actions were taken in the past leniently but any future lapse will have to be strictly viewed if it is brought to its notice." (Emphasis supplied)
18. This judgment was followed in Lata vs. State of H.P. 2009 (1) Shim. L.C. 107 and it was held that mere bald assertion that the landowners had orally consented to the taking of possession of the land on a verbal assurance is not sufficient.
The State has to give the details of when the consent was obtained, who was the authority that obtained the consent and in what manner. It was observed:
"12. The respondent state has only made a bald assertion that the landowners had orally consented to the taking of possession of the land on a verbal assurance. The respondents have not given details when the consent was obtained and who was the authority that obtained the ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 12 consent and in what manner. The plea set up by the State that the owners have given consent and voluntarily handed over the land cannot be accepted."
.
19. This question was also considered by the Hon'ble Supreme Court in Vidya Devi Versus State of H.P. 2020(2) SCC 569 and it was observed: -
"12.8. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find a complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State."
20. Similar is the judgment of the Hon'ble Supreme Court in Sukh Dutt Ratra & another Vs. State of H.P & others 2022 (7) SCC 508 wherein it was observed:
"21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to the law, or that they had ever paid any compensation. It is pertinent to note that this was the State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.
22. This court is also not moved by the State's contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 13 for the same reason - construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally .
dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court's intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings has been noted in fact, by the full court decision of the High Court in Shankar Dass {supra) itself, which is relied upon in the impugned judgment.
23. This court, in Vidya Devi {supra) facing an almost identical set of facts and circumstances - rejected the 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. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] 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 the right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension. "
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 1421. In the present case, the defendants have failed to prove any writing or even the plea of the plaintiffs' oral consent .
by providing satisfactory evidence. Therefore, the learned First Appellate Court had rightly held that the oral consent was not proved.
22. The learned Trial Court held that the public was using the road, the vehicles were plying on the road and the individual interest had to be sacrificed for the larger public interest. This was not the correct approach. A person has a statutory right to possess the property. The Hon'ble Supreme Court recognised the right of a person to possess the property and the international framework for compulsory acquisition in Urban Improvement Trust v. Gordhan Dass, (2024) 3 SCC 250: 2023 SCC OnLine SC 1368 and observed:
(ii) International legal framework on compulsory land acquisition
18. Before proceeding to deal with the issue of the legitimacy of the land acquisition proceeding, it would be appropriate to set out the international legal framework on compulsory land acquisition. The right to self-
determination is enshrined within the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights ("ICESCR") and the International Covenant on Civil and Political Rights ("ICCPR"), amongst other instruments which is defined ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 15 as the right of all people to freely dispose of their natural wealth and resources, and that no person may be deprived of its own means of subsistence. Article 17 of the .
Universal Declaration of Human Rights provides that, "Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property." Self-
determination also includes an obligation for States to refrain from any forcible actions that deprive people of enjoying such rights.
19. The concept of Free, Prior and Informed Consent ("FPIC") within international development law is most clearly stated in the United Nations Declaration on the Rights of Indigenous Peoples in Articles 10, 11, 19, 28 and 29 which prescribe situations in which FPIC must be obtained before granting compensation, taking of indigenous property, etc. Development experts have recognised that FPIC is not only important for Indigenous people but can also be used as a positive approach to involve local communities in decision-making about any proposed development. Engaging them in such processes fosters a greater sense of ownership and engagement and, moreover, helps safeguard their right to development as a basic human rights principle [ Sambhav Shrivastava et al., "Subversion of Due Process for Seeking the Consent of Communities in Land Acquisition and Resultant Land Conflicts" (Oxfam 2020) <https://policy-
practice.oxfam.org/resources/subversion-of-due- process-for-seeking-the-consent-of-communities-in- land-acquis-621109/> accessed on 19-9-2023.]. These principles are not to be found under the Land Acquisition Act, 1984 but the concept of acquiring land through consent and Social Impact Assessment (SIA) on whether a project serves a "public purpose" has been added in the 2013 avatar of the Land Acquisition Act. Therefore, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 16 found to be more attuned to the notion of fairness and is progressive to this extent.
20. While there are many instances of the authorities .
failing to adhere to the acquisition regime, this Court has the benefit of a study conducted by the Lands Rights Initiative of the Centre for Policy Research [ Namita Wahi, Ankit Bhatia et al., "Land Acquisition in India: A Review of Supreme Court Cases 1950-2016" (Centre for Policy Research 2017).]. The outcome of the extensive study of around 1269 judgments of the Supreme Court of India between 1950 to 2016 on the legal trajectory of land acquisition cases in India leads to the following comments:
"The process of land acquisition in India has been the source of increasing political and legal contestation for almost two hundred years. This stems from the inherently coercive nature of the process, which creates a severe imbalance in power between the State and land losers. Our review of the Supreme Court litigation since the time India became a constitutional republic in 1950 shows that while much of this imbalance was created within the very text of the Land Acquisition Act, a considerable part of it could also be attributed to executive non-compliance with the rule of law. The result was a situation of great inequity for the land losers."
(emphasis supplied)
21. The Supreme Court in a recent judgment had the occasion to look at the process of compulsory land acquisition where the landowners had practically no means to oppose the proposed acquisition. A two-judge Bench in Vidya Devi v. State of H.P. [Vidya Devi v. State of H.P., (2020) 2 SCC 569: (2020) 1 SCC (Civ) 799] speaking through Indu Malhotra, J. made the following significant observation : (SCC pp. 572-73, para 12) "12. ... 12.2. The right to property ceased to be a fundamental right by the Constitution (Forty- Fourth Amendment) Act, 1978, however, it ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 17 continued to be a human right [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] in a welfare State, and a constitutional right .
under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by the 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. [K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414] 12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300-A of the Constitution."
23. It was laid down by the Hon'ble Supreme Court in Vidya Devi (supra) that a person cannot be deprived of his property without any legal sanction of law. It was held: -
"12.7. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
12.8. The contention of the State that the appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find a complete lack of authority and legal sanction in compulsorily divesting the appellant of her property by the State.
12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 18 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, 2013 1 SCC 353 wherein it was held .
that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare state governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 12.10. This Court in State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 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 the right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-
faceted dimension."
24. This question was also considered by the Hon'ble Supreme Court in Hari Krishna Mandir Trust vs. State of Maharashtra 2020(9) SCC 356 and it was held that the Municipal Corporation is under obligation to acquire the land used for constructing the road. It was observed: -
"93. On perusal of the documents, there can be no doubt at all that the road in question measuring 444.14 sqm. never belonged to the Pune Municipal Corporation. In the property records, there was no private road. There were three plots 473 B1, B2, B3 and 473B4 shown as vacant land held by the owners of all the three adjacent plots.
94. The Municipal Corporation was never shown as the owner of the vacant plot or any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 19 on entries in property records and the award of the arbitrator."
25. It was further observed that the right of property is a .
statutory right and no person can be deprived of the right to his property. It was observed: -
"96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and Others, (2008) 4 SCC 649 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law.
The appellant trust cannot be deprived of its property save in accordance with the law.
97. Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts,
(i) possession of the property in the public interest; and
(ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar and Others vs. Project Uchcha Vidya, Sikshak Sangh and Others, (2006) 2 SCC 545, 574 (para 69); JelubhaiNanbhai Khachar and Others vs. State of Gujarat and Anr. (1995) Suppl. 1 SCC 596; Bishambhar Dayal Chandra Mohan and Ors. vs. State of Uttar Pradesh and Others, (1982) 1 SCC 39 the State possesses the power to take or control the property of the owner for the benefit of the public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders vs. State of Maharashtra and Others, (2007) 7 SCC 555 (paras 55 and 56)."
26. This position was reiterated in Dharnidhar Mishra v.
State of Bihar, 2024 SCC OnLine SC 932 wherein it was observed:
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 2018. The right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a .
welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article. [See: K.T. Plantation (P) Ltd. v.
State of Karnataka, (2011) 9 SCC 1]
19. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627, this Court held that:
"6.... Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid."
(Emphasis supplied)
20. In N. Padmamma v. S. Ramakrishna Reddy, (2008) 15 SCC 517, this Court held that:
"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 rights. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed." (Emphasis supplied)
21. In Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354, this Court recognised the right to property as a basic human right in the following words:
"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 ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 21 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 seedbed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists." (Emphasis supplied)
22. In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596, this Court held as follows:
"48. ... In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation." (Emphasis supplied)
23. In Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353, this Court held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
24. This Court in State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 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 the right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.
27. Dealing with the remedy available to a person in case of forcible dispossession, it was held that a person can file a writ of mandamus for payment of compensation. It was observed in Vidya Devi (supra): -
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 22"99. In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government .
as held by this Court in Wazir Chand vs. State of Himachal Pradesh, AIR 1954 SC415. Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. vs. State of Karnataka, (2011) 9 SCC 1 even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for a public purpose cannot say that no compensation shall be paid. The Regional and Town Planning Act also does not contemplate deprivation of a landholder of his land, without compensation. Statutory authorities are bound to pay adequate compensation.
100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty-bound to exercise such power, where the Government or public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration."
28. Similarly, it was held in Syed Maqbool Ali vs. State of Utter Pradesh 2011(15) SCC 383 that the remedy of a person whose land is taken without acquisition is to file a civil suit for recovery of possession or payment of compensation. It was observed:-
"9. The remedy of a landholder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation or approach the ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 23 High Court by filing a writ petition if the action can be shown to be arbitrary, irrational, unreasonable, biased, mala fide or without the authority of law, and seek a .
direction that the land should be acquired in a manner known to law."
29. Thus, a person deprived of his property unlawfully is entitled to the restoration of the possession or the payment of compensation.
30. It was submitted that no objection was raised at the time of construction of the road and the suit was filed after the lapse of 37 years which is impermissible. A similar situation arose before this Court in Jai Ram Vs State of H.P. 2011 (3) Shim.
L.C. 91 and it was held that non-raising of objection by a landowner when his land is being encroached upon either by the State or its Agencies or even by a private person does not disentitle him to seek his legal remedy. It was observed:-
"5. It is not the case of the respondents that the petitioner had offered his land for being utilized for the construction of a road, under the aforesaid PGSMY Scheme. Their plea is that the petitioner did not object to the construction of the road on the site. Non-raising of objection by a landowner, when his land is being encroached upon, either by the State or its Agencies or even by a private person, does not disentitle him from seeking his legal remedy. Neither the scheme of PGMSY authorizes the State nor its Agencies to utilize private lands, without payment of compensation to the landowners nor could have a provision like that been ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 24 made in the scheme as the same would have been contrary to the mandate of Article 300-A of the Constitution of India."
.
31. Similarly, it was held in Jeet Ram Versus State of H.P. Latest HLJ 2016 HP 615 that there can be no waiver or estoppel regarding constitutional rights. It was observed:
"4. No person can be deprived of his property without following due process of law. Respondents have utilised the land of the petitioner without paying him any compensation. There is no contemporaneous record placed on record by the respondent-State to show that the petitioner had consented to the construction of the road through his land. It is evident from the contents of Annexure P-1 that the nature of land in Khasra no. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valuable piece of land of the petitioner has been utilised in an arbitrary manner by the respondent-State, for the purpose of construction/widening of the Shillaru-Reog road.
xxxxxxxxxxxxxx
6. The legitimate right of a citizen, that too pertaining to valuable property, cannot be defeated merely on the technical objections. There ought to be a difference in the approach of a private litigant vis-a-vis the State. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There cannot be any estoppel/waiver against the constitutional/ fundamental/ legal rights."
32. Similarly, the Hon'ble Supreme Court of India held in Raj Kumar Versus State of H.P. in Civil Appeal no. 9105 of 2015, decided on 29.10.2015 that where the land was utilized for construction of the road without the payment of the ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 25 compensation and there was no proof of the consent, State is liable to pay compensation. Since in the present case the .
consent was not established, therefore, the plaintiffs are entitled to the relief sought by them and the learned First Appellate Court had rightly granted the relief of mandatory injunction.
33. This position was reiterated in Sukh Dutt Ratra & another vs. State of H.P & others 2022 (7) SCC 508, wherein it was observed:-
"13. While the right to property is no longer a fundamental right[Constitution (Forty-Fourth Amendment) Act, 1978.], It is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.
14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington, [1765] EWHC (KB) 198 and by this court in Wazir Chand v. The State of Himachal Pradesh, 1955 (1) SCR 408. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.
15. When it comes to the subject of private property, this court has upheld the high threshold of legality that must ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 26 be met, to dispossess an individual of their property, and even more so when done by the State. In Bishandas v. State of Punjab, 1962 (2) SCR 69 this court rejected the .
contention that the petitioners in the case were trespassers and could be removed by an executive order, and instead concluded that the executive action taken by the State and its officers, was destructive of the basic principle of the rule of law. This court, in another case - State of Uttar Pradesh and Ors. v. Dharmander Prasad Singh and Ors, 1989 (1) SCR 176, held:
"A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease deed does not authorise extra-judicial methods to resume possession. Under the law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree'".
16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains - Can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 2717. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them .
to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in CWP No. 1192/2004) and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.
18. There is a welter of precedents on delay and laches which conclude either way - as contended by both sides in the present dispute - however, the specific factual matrix compels this court to weigh in favour of the appellant-
land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a 'limitation' to doing justice. This court in a much earlier case - Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, 1969 (1) SCR 808 ', held:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 28 afterwards to be asserted in either of these cases, the lapse of time and delay are most material. But in every case, if an argument against relief, .
which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy. "
19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This court, in Manohar (supra) - a similar case where the name of the aggrieved had been deleted from revenue records leading to his dispossession from the land without payment of compensation - held:
"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.::: Downloaded on - 25/06/2024 20:31:13 :::CIS 29
Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(l)(f) was deleted .
by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:
"300-A. 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."
This is a case where we find an utter lack of legal authority for the 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... "
20. Again, in Tukaram Kana Joshi {supra)While dealing with a similar fact situation, this court 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, grants of compensation for a wrong done to them decades ago, recovery of statutory dues, claims for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for a grant of the benefit of compensation. The State must either comply with the procedure laid down for ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 30 acquisition, requisition, or any other permissible statutory mode. "
xxxx .
25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative[Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517; Delhi Airtech Services Pvt. Ltd. &Ors. v. State of Uttar Pradesh &Ors. 2011 (12) SCR 191; and JilubhaiNanbhaiKahchar v. State of Gujarat 1994 Supp (1) SCR 807.] of both their human right and constitutional right under Article 3 00-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."
34. It was submitted that the State has been in possession for more than 37 years and the plaintiffs are not entitled to possession. This cannot be accepted. The defendants are the State and its instrumentalities. It was laid down by the Hon'ble Supreme Court in State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404: (2012) 3 SCC (Civ) 769: 2011 SCC OnLine SC 1341 that the State cannot take the plea of adverse possession to grab the property of its citizens. If the protectors of the law will become grabbers of the property, then the people will be left with no protection and there will be total anarchy in the country.
It was observed at page 419 ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 31
45. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in .
the entire country. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No government department, public undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.
35. This position was reiterated by the Hon'ble Supreme Court in Vidya Devi Versus State of H.P. 2020(2) SCC 569 wherein it was held: -
"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 be 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."
36. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that in a suit based on the title where no plea of adverse possession had been raised could not be barred by limitation on the ground that it was filed after more than 12 years from the date of dispossession. It was ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 32 observed:-
"10. The present suit is for possession on the basis of title.
.
Article 63, Limitation Act, 1963, governs the present case.
It provides that for possession of immovable property or any interest therein based on the title, the limitation of twelve years begins to run from the date of the defendant's interest becomes adverse to the plaintiffs
11. It is well settled that adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true owner.
12. It is also well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.
13. It is equally well settled that mere possession for however long a period is not enough to claim title inasmuch as the possession has to be adverse.
14. In Liaq Mohammad v D. D. A. and others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.
15. Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time-barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession."::: Downloaded on - 25/06/2024 20:31:13 :::CIS 33
37. Similarly, it was held in Indira vs. Arumugam & Another (1998) 1 SCC 614 that in a suit based on the title, when .
the title has been established, the plaintiff cannot be dispossessed on the ground of limitation unless the plea of adverse possession is established. It was observed: -
"4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiffs who based his case on the title had to prove not only the title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of the Period of Time from which suit:- For limitation:- period begins to run:
possession of Twelve years - When the
immovable
possession of the
property or any
defendant becomes
interest therein
based on the title adverse to the
plaintiffs.
5. It is, therefore, obvious that when the suit is based on the title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the plaintiffs cannot be non-suited.
Unfortunately, this aspect of the matter was missed by the learned Judge and, therefore, the entire reasoning for disposing of the Second Appeal has been vitiated. Only on that short ground and without expressing any opinion on the merits of the question of law framed by the learned Judge for disposing of the Second Appeal, this appeal is allowed."
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 3438. Similar is the judgment of this Court in Shishi Ram Vs. Megh Chand AIR 2013 HP 65, wherein it was held: -
.
"12. It is settled law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, the possession/ roved must be adequate in continuity, publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possession actually informing the real owner of the former's hostile action.
.......................
14. The learned first Appellate Court thus rightly conclude that when the plaintiffs had filed a suit for possession based upon the title and the defendant had taken plea of adverse possession to defend his title, in that eventuality of the defendant's failure to prove his adverse possession, the suit filed by the plaintiffs could not have been dismissed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the filing of the suit as held by the Apex Court in Indira v. Arumgam [AIR 1999 SC 1549]."
39. In the present case, the State cannot take the plea of adverse possession and the limitation will not start running against the State. Hence, the suit cannot be held to be barred by limitation.
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 3540. It was submitted that the plaintiffs had acquiesced and were not entitled to the possession. This is not acceptable. It .
was laid down by the Hon'ble Supreme Court in Kamakshi Builders vs. Ambedkar Educational Society 2007 (12) SCC 27, that acquiescence does not confer any title. It was observed: -
"23. Acquiescence on the part of Respondent No. 1, as has been noticed by the High Court, did not confer any title on Respondent No. 1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be conferred.
24. It is now well-settled that time creates a title.
25. Acquisition of a title is an inference of law arising out of a certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other.
26. It may be true that Respondent No. 1 had constructed some buildings, but it did so at its own risk. If it thought that despite its status as a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document on that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn."
41. Therefore, the principle of acquiescence will not help the defendants in any manner whatsoever.
42. Reliance was placed upon the judgment of the Hon'ble Supreme Court in State of Maharashtra Vs. Digambar (supra) and Shankar Dass (supra), however, both these ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 36 judgments were delivered in the exercise of the writ jurisdiction, which is based upon the principle of delay and laches. A civil suit .
is governed by the Limitation Act and a suit filed within limitation cannot be dismissed on the ground of delay and laches.
43. In Dharnidhar Mishra (supra) the writ petition filed by the landowner seeking compensation for the land was dismissed on the ground of delay and laches. The Hon'ble Supreme Court set aside the judgment of the High Court and observed:
25. We regret to state that the learned Single Judge of the High Court did not deem fit even to enquire with the State whether just and fair compensation was paid to the appellant or not. The learned Single Judge rejected the writ petition only on the ground of delay. As held by this court in Vidya Devi v. The State of Himachal Pradesh, (2020) 2 SCC 569, 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.
The condition of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of the case. As held by this Court, it would 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.
26. 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 ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 37 it. [See: P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152]
27. In Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353, this .
Court while dealing with a similar fact situation, held as follows:
"11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode." (Emphasis supplied)
28. In such circumstances referred to above, we are of the view that we should set aside the impugned order passed by the High Court and remit the matter for fresh consideration.
44. It was submitted that the land is co-owned by various persons and the suit is bad for non-joinder of the co-owners.
This submission is not acceptable. It was laid down by this Court in Dharam Singh Versus Jagdish AIR 2005 (HP) 10 that a co-sharer can maintain a suit against the trespasser for possession ::: Downloaded on - 25/06/2024 20:31:13 :::CIS 38 without impleading the other co-owners, such a suit is not bad for non-joinder of necessary parties. It was observed:-
.
4. In the present appeal, the only question agitated was that a suit filed by a co-sharer without impleading the other co-sharers for possession against the trespasser was bad in law and the learned Additional District Judge has erred In granting the decree in favour of the plaintiff.
5. The question whether a co-sharer can Institute and maintain a suit for possession against a trespasser In respect of the entire property Irrespective of his share therein without impleading the other co-sharers, is maintainable or not, came up before a Full Bench of the Patna High Court In Ram Niranjan Das v. Loknath Mandal.
AIR 1070 Patna 1 and It was held that such a suit by a co-
sharer without impleading the other sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein.
6. A similar question also arose before the Full Bench of the Punjab and Haryana High Court in Ajmer Singh (deceased by L.U.'s) v. Shamsher Singh, AIR 1984 Punj and Har 58. Following the ratio laid down by the Full Bench of the Patna High Court, it was held that a suit by a co- sharer for possession against a trespasser without impleading the other co-sharers is maintainable and a decree for possession can be passed. I am in full agreement with the ratio laid down by the Full Bench of the Patna High Court as well as the Full Bench of Punjab and Haryana High Court. I. In view of the said ratio, the learned Additional District Judge rightly held the suit to be maintainable and granted a decree for possession in favour of the plaintiff.
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 3945. Therefore, a co-sharer can always file a civil suit for recovery of the possession and the suit cannot be said to be .
maintainable without impleading the other co-owners.
46. It was also submitted that no direction can be issued to the State to acquire the land and the constitutional rights can only be enforced by the Constitutional Court. This submission is not acceptable. The right to property is not a fundamental right that can be enforced under Article 32 or 226 of the Constitution of India but a constitutional right that can be enforced by ordinary Courts. Otherwise, also the Courts are bound to give effect to the Constitution, which is a supreme law of the land and it cannot be said that only the Constitutional Courts are bound by the Constitution and not any other Court.
47. If the State feels aggrieved with the direction issued to it to acquire the property, the State can return the land in its original condition to the land-owners, in case it does not want to acquire the same. Therefore, the learned First Appellate Court had rightly held that the consent of the land owners was not proved. The suit filed after 37 years was not barred by limitation and acquiescence will not confer any right upon the defendants.
::: Downloaded on - 25/06/2024 20:31:13 :::CIS 40The suit was maintainable without the presence of other co-
owners. Hence, no substantial question of law arises in the .
present case.
48. In view of the above, the present appeal fails and the same is dismissed. However, it is expressly made clear that the State is free to return land within three months in its original conditions to the land-owners; in case it does not want to acquire the land. Pending application(s), if any, also stand(s) disposed of.
25th June 2024 (Rakesh Kainthla)
(Manish) Judge
::: Downloaded on - 25/06/2024 20:31:13 :::CIS