Himachal Pradesh High Court
State Of H.P. And Others vs Jagan Nath Sharma on 10 June, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 71 of 2024 .
Reserved on: 23.5.2024
Date of Decision: 10.06.2024
State of H.P. and others ...Appellants
Versus
Jagan Nath Sharma
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellants : Mr. Lokender Kutlehria, Additional Advocate General.
For the Respondent : Mr. R.K. Sharma, Senior Advocate, with Ms. Anita, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 30.11.2022, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, Camp at Bilaspur, H.P. (learned First Appellate Court), vide which the appeal filed by the respondent (plaintiff before the learned Trial Court) was allowed and the judgment and decree dated 1.1.2022, passed by 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 2learned Civil Judge, Court No. 3, Bilaspur, H.P. (learned Trial Court) was partly reversed. (Parties shall hereinafter be referred .
to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a mandatory injunction, directing the defendants to put the plaintiff in possession of the land comprised in Khata/Khatauni No. 202/945, bearing Khasra No. 1438/1337/910/1, measuring 01-16-00 bighas, Khasra No. 906/2, measuring 00-02-00 bighas, Khasra No. 906/4, measuring 00- 05-00 bighas, Khasra No. 1437/1267/905/2, measuring 00-04- 00 bighas, Khasra No. 1437/1267/905/4, measuring 00-05-00, Khasra No. 1435/904/2, measuring 00-03-00 bighas, situated in Village Amarpur, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred as the 'suit land'), damages and in the alternative for payment of compensation. It was asserted that the plaintiff is the owner of the suit land. The defendants constructed Rahina to Vijaypur via Amarpur road on the suit land without any authority. The plaintiff inquired from the defendants about the construction of the road, on which ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 3 they assured him to pay the compensation as per law. The defendants caused damage to trees, fruit-bearing and non-
.
fruit-bearing and other land by throwing debris on the same.
The plaintiff repeatedly requested the defendants to pay the compensation to him but in vain.
3. The suit was opposed by filing a written statement taking preliminary objections regarding the lack of maintainability, the plaintiff having not come to the Court with clean hands, the suit being barred by limitation, the suit being bad for non-joinder of necessary parties and the plaintiff being estopped from filing the suit by his act and conduct. The contents of the plaint were denied on merits. It was asserted that HPPWD constructed Amarpur to Rahina via Vijaypur road in the year 1996. The plaintiff did not raise any objection in the year 1996. The road was constructed with the oral consent of the landowners. The vehicles are regularly plying on the road. No damage was caused to the other land of the plaintiff. Therefore, it was prayed that the suit be dismissed.
4. Replication denying the contents of the written statement and affirming those of the plaint was filed.
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 45. The learned Trial Court framed the following issues on 26.8.2014: -
.
1. Whether the plaintiff is entitled for the relief of mandatory injunction to the effect that the plaintiff be put in possession of the suit land as prayed? OPP.
2. Whether the plaintiff is entitled for the relief of damages which have been caused by the defendants to the plaintiff, as prayed? OPP.
3. Whether the plaintiff is entitled in alternative if the defendants do not hand over the possession of suit land to its original position then the plaintiff is entitled for the relief of compensation, as prayed?
OPP.
4. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD.
5. Whether the plaintiff has not approached the Court with clean hands, as alleged? OPD.
6. Whether the plaintiff is estopped from filing the present suit by his own acts, conducts, omission and commission, as alleged? OPD.
7. Whether the suit of the plaintiff is bad for non-
joinder and mis-joinder of necessary parties, as alleged? OPD.
8. Whether the suit of the plaintiff is time-barred as alleged? OPD.
9. Relief.
6. The parties were called upon to produce the evidence and the plaintiff examined himself (PW1). Defendants examined ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 5 Praveen Kumar (DW1), Ashwani Kumar (DW2) and Shyam Lal (DW3).
.
7. Learned Trial Court held that the Government constructed a road on the suit land without acquiring the same.
The suit was barred by the principle of laches. The delivery of possession to the plaintiff would be detrimental to the general public as it would be deprived of the use of the road constructed on the suit land. Hence, the learned Trial Court answered issues No. 4 to 6 in affirmative, the rest of the issues in negative and dismissed the suit.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by learned Additional District Judge, Ghumarwin, District Bilaspur, Camp at Bilaspur, H.P. (First Appellate Court). Learned First Appellate Court held that the plea taken by the defendants that the road was constructed with the consent of the plaintiff was not proved. A person has a right to protect his property under Article 300A of the Constitution of India and the State cannot deprive a person of his property without the payment of compensation. No compensation was ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 6 paid to the plaintiff. Hence, the judgment and decree passed by the learned Trial Court were partly set aside and a decree for .
mandatory injunction was passed, directing the defendants to initiate proceedings for the acquisition of the suit land as per law.
9. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the defendants filed the present appeal.
10. The following substantial questions of law were proposed in the memorandum of appeal: -
1. Whether the judgment and decree of the First Appellate Court are based on misappropriation of the evidence?
2. Whether a civil suit barred by period of limitation could have been entertained?
3. Whether a damage report prepared by the appellants on request of the petitioner, being an officer/official of the welfare State and not for the reason that damage has been caused due to negligent construction can be made the basis for determining the title of the property?
11. I have heard Mr Lokender Kutlehria, learned Additional Advocate General for the appellants/defendants and ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 7 Mr. R.K. Sharma, learned Senior Counsel assisted by Ms. Anita, learned counsel for the respondent/plaintiff.
.
12. Mr. Lokender Kutlehria, learned Additional Advocate General for the appellants/defendants submitted that the learned First Appellate Court erred in accepting the appeal. The road was constructed in the year 1996 and the plaintiff filed the suit in the year 2013 after the lapse of 17 years. It was duly proved on record that the plaintiff had consented to the construction of the road as he had not sought any compensation till the filing of the suit. Learned Trial Court had passed a well-
reasoned judgment and learned First Appellate Court erred in reversing the same. Therefore, he prayed that the present appeal be admitted on the proposed substantial questions of law.
13. Mr. R.K. Sharma, learned Senior Counsel for the respondent/plaintiff submitted that the State has not paid any compensation to the plaintiff for the construction of the road.
Learned First Appellate Court had rightly held that a person cannot be deprived of his property except as per law. Since no compensation was paid, learned First Appellate Court rightly decreed the suit. There is no infirmity in the judgment and ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 8 decree passed by the learned First Appellate Court and the proposed substantial questions of law do not arise in the present .
case. Hence, he prayed that the appeal be dismissed.
14. I have given considerable thought to the submissions at the bar and have gone through the record carefully.
15. The defendants have not specifically disputed that the road was constructed on the suit land and that the suit land is owned by the plaintiff. Their case is that the plaintiff had orally consented to the construction of the road. The plea of the plaintiff that he is the owner of the suit land is duly corroborated by the copy of the Jamabandi for the year 2008-09 (Ex. P7), wherein he is recorded to be the owner of the suit land. A copy of the field book shows that the road was constructed on the suit land. Both the learned Courts below have concurrently found the plaintiff to be the owner of the suit land and there is no infirmity in this finding recorded by the Courts below.
16. It is asserted that the plaintiff consented to the construction of the road. Praveen Kumar (DW1) stated in his cross-examination that Sham Lal SDO and JE Ashwani Kumar ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 9 were posted at the time of the construction of the road. No possession was taken in his presence. The Department never .
talked to the plaintiff in his presence. His statement clearly shows that he was not posted at the time of the construction of the road. Possession was also not taken in his presence and nobody talked to the plaintiff in his presence. Hence, his statement does not prove the oral consent of the plaintiff.
17. Ashwani Kumar (DW2) stated that the plaintiff and other person had consented to the construction of the road and had not raised any objection. Had any objection been raised, the work would not have been completed. He stated in his cross-
examination that he did not know the plaintiff and he could not say that the plaintiff was a resident of Kullu. He had not seen any record regarding the consent. He did not know the witness in whose presence the plaintiff had consented.
18. His statement also does not show that the defendants had taken the plaintiff's consent for the construction of the road. He specifically stated in his cross-examination that he did not know the plaintiff and he was not aware that the plaintiff was residing at Kullu. If he did not know the plaintiff or his ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 10 residence, his testimony that the plaintiff had consented in his presence cannot be relied upon.
.
19. Shyam Lal (DW3) stated that he was posted as an SDO. The road was constructed in the year 1996. The plaintiff had consented to the construction of the road. No complaint of non-payment of compensation was made to him. He stated in his cross-examination that he had not known the plaintiff during the service or after that. He was not aware that the plaintiff was a resident of Kullu. No document was placed on record regarding the plaintiff's consent. He could not say about the owners of the land whose land was used for the construction of the road.
20. His statement shows that he did not know the plaintiff. He was also not aware of the fact that the plaintiff was residing at Kullu, hence, his plea that the plaintiff had consented in his presence is not acceptable.
21. No document was produced on record to show the consent of the plaintiff. 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 11 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 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 at- tention of the State Government to the state of affairs which have come to light in this and similar cases and di-
rects that:
(a) instructions be issued to all limbs and subordi-
nates 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 inter-
est 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 per- son(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, in- corporating the conditions, inter alia, that the land ac- quisition 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 12
(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 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 pay-
ment, 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)
22. Therefore, in view of the directions issued by this Court, it is impermissible to use the land of the person without his consent and if consent has to be taken it has to be through an agreement in writing between that person and the competent authority. These directions are binding upon the State and it is ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 13 not permissible for the State to say that it had taken the oral consent of the owner.
.
23. 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 pos-
session 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 who was the authority that obtained the 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."
24. 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 acquisi- tion is completely baseless. We find a complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State."::: Downloaded on - 10/06/2024 20:30:24 :::CIS 14
25. 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 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.::: Downloaded on - 10/06/2024 20:30:24 :::CIS 15
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. "
26. In the present case, the defendants have failed to prove any writing or even the plea of the predecessor of the plaintiffs' oral consent by leading satisfactory evidence.
Therefore, both the Courts had rightly held that the oral consent was not proved.
27. The Hon'ble Supreme Court highlighted the right of a person to possess the property and the international framework ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 16 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 as the right of all people to freely dispose of their natural wealth and resources, and that no person may be deprived of its 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 17 fosters a greater sense of ownership and engagement and 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 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 18 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 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."
(emphasis supplied) ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 19
28. It was laid down by the Hon'ble Supreme Court in Vidya Devi (supra) that a person cannot be deprived of his prop-
.
erty 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, without following due process of law, and de- priving her payment of just compensation, being a fun- damental 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 appel-
lant 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 prop-
erty 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 Ku- mar, (2011) 10 SCC 404 held that the right to property is now considered to be not only a constitutional or statu- tory 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."
29. This question was also considered by the Hon'ble Supreme Court in Hari Krishna Mandir Trust vs. State of Maha-
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 20rashtra 2020(9) SCC 356 and it was held that the Municipal Cor-
poration is under obligation to acquire the land used for con-
.
structing 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 assum- ing that there was any policy decision to have an ap-
proach road to every plot, it was incumbent upon the au-
thorities concerned to acquire the land. On the other hand, the scheme clearly records that the same was based on entries in property records and the award of the arbi- trator."
30. 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 21
(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 prop- erty 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)."
31. This position was reiterated in Dharnidhar Mishra v.
State of Bihar, 2024 SCC OnLine SC 932 wherein it was observed:
18. 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."::: Downloaded on - 10/06/2024 20:30:24 :::CIS 22
(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 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) ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 23
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.
32. 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): -
"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 ob-
served 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. Statu- tory authorities are bound to pay adequate compensation.::: Downloaded on - 10/06/2024 20:30:24 :::CIS 24
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."
33. 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 with- out acquisition is either to file a civil suit for recovery of possession and/or for compensation or approach the 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 di-
rection that the land should be acquired in a manner known to law."
34. Thus, a person deprived of his property unlawfully is entitled to the restoration of the possession or the payment of compensation.
35. 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 17 years which is impermissible. A similar situation arose before this Court in Jai Ram Vs State of H.P. 2011 (3) Shim.
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 25L.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 made in the scheme as the same would have been contrary to the mandate of Article 300-A of the Constitution of India."
36. 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 com- pensation. There is no contemporaneous record placed on record by the respondent-State to show that the peti- tioner had consented to the construction of the road through his land. It is evident from the contents of An-::: Downloaded on - 10/06/2024 20:30:24 :::CIS 26
nexure P-1 that the nature of land in Khasra no. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valu- able piece of land of the petitioner has been utilised in an .
arbitrary manner by the respondent-State, for the pur-
pose 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 tech- nical objections. There ought to be a difference in the ap- proach of a private litigant vis-a-vis the State. The State stands on a higher pedestal. It is the duty of the func-
tionaries of the State to maintain the Rule of Law. There cannot be any estoppel/waiver against the constitutional/ fundamental/ legal rights."
37. Similarly, the Hon'ble Supreme Court of India held in Raj Kumar Versus State of H.P. in Civil Appeal no. 9105 of 2015, de-
cided on 29.10.2015 that where the land was utilized for con-
struction of the road without the payment of the compensation and there was no proof of the consent, State is liable to pay com-
pensation. Since in the present case the consent was not estab-
lished, therefore, the plaintiff is entitled to the relief sought by him and the learned First Appellate Court had rightly granted the relief of mandatory injunction.
38. This position was reiterated in Sukh Dutt Ratra & another vs. State of H.P & others 2022 (7) SCC 508, wherein it was observed:-
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 27"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 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 28 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.
17. 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 29 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 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 30 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 the 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.
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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 31 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 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 Jilubhai Nanbhai Kahchar 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 32 squarely applicable to the nearly identical facts before us in the present case."
39. It was submitted that the State has been in .
possession for more than 17 years and the plaintiff is 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 entire country. It was observed at page 419
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 dan-
gerous 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 grabbing the prop- erty of its own citizens in the manner that has been done in this case.
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 3340. 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 be-
fore the High Court, that since it has been in continuous possession of the land for over 42 years, it would be tan- tamount to "adverse" possession. The State being a wel- fare 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 citi-
zens, as has been done in the present case."
41. It was laid down by this Court in Tilak Raj vs. Bhagat Ram & Another 1997 (1) Sim. LC 281 that 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 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 defen- dant's interest becomes adverse to the plaintiffs
11. It is well settled that adverse possession means a hos- tile 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 34 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 de-
.
fendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be as- certained from the facts and circumstances of each case.
13. It is equally well settled that mere possession for how-
ever 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 dis-
missed as being time-barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession."
42. Similarly, it was held in Indira vs. Arumugam & An-
other (1998) 1 SCC 614 that in a suit based on the title, when the title has been established, the plaintiffs 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 re- spect, cannot be sustained as it proceeds on the assump- tion 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 35 find under the Limitation Act, 1963 Article 65 which reads as under:
Description of the Period of lim- Time from which .
suit:- For pos- itation:- period begins to run:
session of im- Twelve years - When the posses- movable property sion of the defen-
or any interest dant becomes ad-
therein based on
the title verse to the plain-
tiffs.
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 prescrip-
tive period, the plaintiffs cannot be non-suited. Unfortu-
nately, 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."
43. 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 posses- sion which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse pos- session, the possession/ roved must be adequate in conti- nuity, publicity and in extent so as to show that it is ad- verse to the true owner. The classical requirements of ac- quisition of title by adverse possession are that such pos- session 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 inter-::: Downloaded on - 10/06/2024 20:30:24 :::CIS 36
ested in the property, though it is not necessary that there should be evidence of the adverse possession actually in- forming 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 dis- missed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the fil- ing of the suit as held by the Apex Court in Indira v. Arumgam [AIR 1999 SC 1549]."
44. 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.
45. It was submitted that plaintiff has acquiesced and is 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 acquies- cence, but thereby no title can be conferred.
24. It is now well-settled that time creates a title.::: Downloaded on - 10/06/2024 20:30:24 :::CIS 37
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 ac- quire 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 applica-
tion for seeking such permission having been filed, an adverse inference in that behalf must be drawn."
46. Therefore, the principle of acquiescence will not help the defendants in any manner whatsoever.
47. It was submitted that the civil suit was barred by the principle of delay and laches. This is not acceptable. A civil suit is governed by the Limitation Act and when the suit has been held to be within limitation, it cannot be dismissed on the ground of delay and laches.
48. 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:
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 3825. 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, 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 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, 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 ::: Downloaded on - 10/06/2024 20:30:24 :::CIS 39 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 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.
49. Thus, no advantage can be derived by the defendants from the principle of delay and laches.
50. Hence, it cannot be said that the learned First Appellate Court had misappreciated the evidence. The defendants had not taken the plea of adverse possession. Hence, the civil suit cannot be said to be barred by limitation because the suit based on the title can only be defeated by a plea of the adverse possession which was never taken in the present case.
The title of the property was never disputed by the defendants specifically. They even filed a copy of Jamabandi showing the ownership of the plaintiff. The suit was not decreed on the basis of damage report. Hence, the proposed substantial questions of law do not arise in the present case.
51. No other point was urged.
::: Downloaded on - 10/06/2024 20:30:24 :::CIS 4052. In view of the above, the present appeal fails and the same is dismissed. The record of the learned Courts below be .
returned forthwith.
53. Pending application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla)
Judge
10th June, 2024
(Chander) r
::: Downloaded on - 10/06/2024 20:30:24 :::CIS