Himachal Pradesh High Court
Date Of Decision: 22.10.2024 vs State Of Himachal Pradesh And Another on 22 October, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:10164
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Writ Petition No.9960 of 2023
Date of Decision: 22.10.2024
Mohinder Singh .........Petitioner
Versus
State of Himachal Pradesh and Another .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Rohan Tomar, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C. Verma, Additional Advocates General,
with Mr. Ravi Chauhan, Deputy Advocate
General, for respondents/State.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied on account of non-
payment of compensation despite use of his land for construction of
road namely Hatkoti-Thana link road, petitioner has approached this
Court in the instant proceedings filed under Article 226 of the
Constitution of India, praying therein to issue directions to
respondents to acquire the land used by them for construction of road
in question after initiation of proceedings and pay adequate
compensation.
2. In nutshell, case of the petitioner, as has been highlighted
in the petition and further canvassed by Mr. Rohan Tomar, learned
counsel representing the petitioner is that land comprised in Khasra
No.790, 791, 803, 336, 365, 388, 373, 457, 458, Mohal Up, Mohal
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Bouty, Tehsil Up Tehsil Saraswati Nagar, Patwar Circle Shilgaon,
District Shimla, Himachal Pradesh, was used for construction of road,
as detailed hereinabove, in the year 2006-07, but till date, he has not
been awarded compensation qua the same. In the year 2006,
respondents got executed in their favour certain gift deeds/consent
letters from few owners of land for the construction of road, but
neither petitioner nor any of his predecessor executed any gift deed or
issued any consent letter in favour of the respondents, as such, they
are entitled to compensation on account of use of their land for the
construction road in question. It is further averred in the petition that
on 14.06.2023, petitioner got his share of land, owned and possessed
by him partitioned by way of family settlement, as is evident from
endorsement made by the Patwari concerned with red ink on the
Jamabandi for the year 2021-22.
3. Material adduced on record reveals that though petitioner
got his share of land partitioned by way of family settlement on
14.06.2023, but it is not in dispute that land used for construction of
road, as detailed hereinabove, was never gifted to the respondents by
the petitioner or other land owners of the land comprised in Khasra
No.790, 791, 803, 336, 365, 388, 373, 457, 458, Mohal Up Mohal
Bouty, Tehsil Up Tehsil Saraswati Nagar, Patwar Circle Shilgaon,
District Shimla, Himachal Pradesh. Since despite repeated requests,
respondents failed to initiate proceedings of acquisition of land and no
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compensation has been paid to the petitioner qua his land used for
construction of road, he is compelled to approach this Court in the
instant proceedings, praying therein for following reliefs:
“i) Issue any other appropriate writ, order or direction to the
respondents to pay the compensation after acquiring the land of the
petitioner in accordance with law along with interest;
ii) Direct the respondents to produce the entire record of the case;
iii) The petitioner may also be awarded the costs; and
iv) Any other or further relief as this Hon’ble Court may deem fit
and proper in the facts and circumstances of the case may also be
granted in favour of the petitioner and against the respondents in the
interest of justice.”
4. Pursuant to notices issued in the instant proceedings,
respondents/State has filed reply under the signatures of
Superintending Engineer, 14th Circle, H.P. PWD, Rohru, wherein
factum with regard to construction of road in question as well as use
of the land of the petitioner, has not been disputed, rather an attempt
has been made to defeat the claim of the petitioner on the ground of
delay and laches. Besides above, it has further been averred in the
reply filed by the respondents that road in question was constructed
on the persistent demand of the residents of the area, with clear cut
understanding that they shall claim no compensation, which fact
stand duly established on record on account of admission made by the
petitioner that some of the land owners executed gift deeds in favour of
the respondent-department for construction of road.
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5. Mr. Rajan Kahol, learned Additional Advocate General,
while opposing the prayer made in the instant petition, vehemently
argued that though there is no written document suggestive of the fact
that the land used for construction of road was made available
voluntarily by the petitioner, but once other land owners executed gift
deeds in favour of respondent-department for construction of road in
question, this Court can easily infer that road in question was made
on the demand of residents of the area with clear cut understanding
that they shall not claim any compensation qua the land used for
construction of road. He further submitted that since petitioner
remained silent for more than 17 years and during this period, never
raised issue with regard to acquisition of his land used for
construction of road, this Court can safely infer that there was an
implied consent on the part of the petitioner for construction of the
road, if it is so, prayer made on behalf of the petitioner for
compensation after initiation of acquisition proceedings deserves
outright dismissal.
6. While making this Court peruse judgment passed by this
Court in Shankar Dass v. State of Himachal Pradesh in CWP No.
1966 of 2010, learned Additional Advocate General submitted that
otherwise also, appropriate remedy for redressal of their grievances is
to approach a Civil Court by way of civil suit. He also submitted that
claim of the petitioner being stale, deserves outright rejection in light
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of the judgment passed by the Hon’ble Apex Court in State of
Maharashtra v. Digambar, (1995) 4 SCC 683.
7. Per contra, Mr. Rohan Tomar, learned counsel
representing the petitioner, contended that in view of the law laid
down by the Hon’ble Apex Court in Vidya Devi v. State of Himachal
Pradesh and others, (2020) 2 SCC 569 and Sukh Dutt Ratra v.
State of Himachal Pradesh and others, (2022) 7 SCC 508, plea of
delay and laches sought to be raised is not available to the
respondents. Above named counsel further argued that once factum
with regard to issuance of notification under Section 4 of the Act, has
been not denied by the respondents, they are otherwise estopped from
raising plea of consent, if any, given by the petitioner. Learned counsel
argued that as per own case of the respondents, notification under
Section 4 was issued on 30.5.2000, which though was not taken to its
logical end, but certainly suggest that petitioner had not donated the
land for construction of road and State had used the land of him
without any lawful authority. While referring to judgment dated
10.8.2023, passed by this Court in CWP No. 1625 of 2023, titled
Nathu v. State of Himachal Pradesh and Ors., learned counsel for
the petitioner argued that plea that the road in question was
constructed under PMGSY, is not available to the respondents,
because there is nothing on record to suggest that the land, qua which
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the petitioner is seeking compensation, was ever donated or gifted by
him.
8. Having heard learned counsel for the parties and perused
material available on record, this Court finds that facts as have been
noticed hereinabove, are not in dispute, rather stand admitted. Only
ground raised is that claim of the petitioner is barred by delay and
laches, however, such plea may not be available to the State in view of
law laid down by the Hon’ble Apex Court and Vidya Devi and Sukh
Dutt Ratra (supra). It would be apt to take note of following paras of
Vidya Devi, supra:
“10.1. The Appellant was forcibly expropriated of her property in 1967,
when the right to property was a fundamental right guaranteed by
Article 31 in Part III of the Constitution.
Article 31 guaranteed the right to private property 1, which could not be
deprived without due process of law and upon just and fair
compensation.
10.2. The right to property ceased to be a fundamental right by the
Constitution (Forty Fourth Amendment) Act, 1978, however, it continued
to be a human right 2 in a welfare State, and a Constitutional right
under Article 300 A of the Constitution. Article 300 A provides that no
person shall be deprived of his property save by authority of law. The
State cannot dispossess a citizen of his property except in accordance
with the procedure established by law. The obligation to pay
compensation, though not expressly included in Article 300 A, can be
inferred in that Article.
To forcibly dispossess a person of his private property, without
following due process of law, would be violative of a human right, as
also the constitutional right under Article 300 A of the Constitution.
Reliance is placed on the judgment in Hindustan Petroleum
Corporation Ltd. v. Darius Shapur Chenai, wherein this Court held
that:
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7” 6. … Having regard to the provisions contained in Article 300A of the
Constitution, the State in exercise of its power of “eminent domain” may
interfere with the right of property of a person by acquiring the same
but the same must be for a public purpose and reasonable
compensation therefor must be paid.” (emphasis supplied)In N. Padmamma v. S. Ramakrishna Reddy, this Court held that:
“21. If the right of property is a human right as also a constitutional
right, the same cannot be taken away except in accordance with law.
Article 300A of the Constitution protects such right. The provisions of the
Act seeking to divest such right, keeping in view of the provisions of
Article 300A of the Constitution of India, must be strictly construed.”
(emphasis supplied)
In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.& Ors.,
this Court recognized the right to property as a basic human right in the
following words:
“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 seed bed which must be conserved if other constitutional
values are to flourish is the consensus among political thinkers and
jurists.” (emphasis supplied)In Jilubhai Nanbhai Khachar v. State of Gujarat this Court held as
follows :
“48. …In other words, Article 300A only limits the powers of the State
that no person shall be deprived of his property save by authority of
law. There has to be no deprivation without any sanction of law.
Deprivation by any other mode is not acquisition or taking possession
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8under Article 300A. In other words, if there is no law, there is no
deprivation.” (emphasis supplied)10.3. In this case, the Appellant could not have been forcibly
dispossessed of her property without any legal sanction, and without
following due process of law, and depriving her payment of just
compensation, being a fundamental right on the date of forcible
dispossession in 1967.
10.4. The contention of the State that the Appellant or her predecessors
had “orally” consented to the acquisition is completely baseless. We
find complete lack of authority and legal sanction in compulsorily
divesting the Appellant of her property by the State.
10.5. In a democratic polity governed by the rule of law, the State could
not have deprived a citizen of their property without the sanction of law.
Reliance is placed on the judgment of this Court in Tukaram Kana Joshi
& Ors. v. M.I.D.C. & Ors.8 wherein it was held that the State must
comply with the procedure for acquisition, requisition, or any other
permissible statutory mode. 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.
This Court in State of Haryana v. Mukesh Kumar held that the right to
property is now considered to be not only a constitutional or statutory
right, but also a human right. Human rights have been considered in
the realm of individual rights such as right to shelter, livelihood, health,
employment, etc. Human rights have gained a multifaceted dimension.
10.6. We are surprised by the plea taken by the State before the High
Court, that since it has been in continuous possession of the land for
over 42 years, it would tantamount to “adverse” possession. The State
being a welfare State, cannot be permitted to take the plea of adverse
possession, which allows a trespasser i.e. a person guilty of a tort, or
even a crime, to gain legal title over such property for over 12 years. The
State cannot be permitted to perfect its title over the land by invoking
the doctrine of adverse possession to grab the property of its own
citizens, as has been done in the present case.
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910.7. The contention advanced by the State of delay and laches of the
Appellant in moving the Court is also liable to be rejected. Delay and
laches cannot be raised in a case of a continuing cause of action, or if
the circumstances shock the judicial conscience of the Court.
Condonation of delay is a matter of judicial discretion, which must be
exercised judiciously and reasonably in the facts and circumstances of
a case. It will depend upon the breach of fundamental rights, and the
remedy claimed, and when and how the delay arose. There is no period
of limitation prescribed for the courts to exercise their constitutional
jurisdiction to do substantial justice.
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.
In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., this Court while
dealing with a similar fact situation, held as follows :
“There are authorities which state that delay and laches extinguish the
right to put forth a claim. Most of these authorities pertain to service
jurisprudence, grant of compensation for a wrong done to them decades
ago, recovery of statutory dues, claim for educational facilities and
other categories of similar cases, etc. Though, it is true that there are a
few authorities that lay down that delay and laches debar a citizen
from seeking remedy, even if his fundamental right has been violated,
under 32 or 226 of the Constitution, the case at hand deals with a
different scenario altogether. Functionaries of the State took over
possession of the land belonging to the Appellants without any sanction
of law. The Appellants had asked repeatedly for grant of the benefit of
compensation. The State must either comply with the procedure laid
down for acquisition, or requisition, or any other permissible statutory
mode.” (emphasis supplied)”
9. Reliance is also placed upon judgment passed by the
Hon’ble Apex Court in Sukhdutt Ratra’s case (supra).
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“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. Maharashtra Industrial Development Corpn., wherein it
was held that the State must comply with the procedure for acquisition,
requisition, or any other permissible statutory mode. The State being a
welfare State governed by the rule of law cannot arrogate to itself a
status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar held that
the right to property is now considered to be not only a constitutional or
statutory right, but also a human right. Human rights have been
considered in the realm of individual rights such as right to shelter,
livelihood, health, employment, etc. Human rights have gained a
multifaceted dimension.”
24. And with regards to the contention of delay and laches, this court
went on to hold:
“12.12. The contention advanced by the State of delay and laches of the
appellant in moving the Court is also liable to be rejected. Delay and
laches cannot be raised in a case of a continuing cause of action, or if
the circumstances shock the judicial conscience of the Court.
Condonation of delay is a matter of judicial discretion, which must be
exercised judiciously and reasonably in the facts and circumstances of
a case. It will depend upon the breach of fundamental rights, and the
remedy claimed, and when and how the delay arose. There is no period
of limitation prescribed for the courts to exercise their constitutional
jurisdiction to do substantial justice.
12.13 In a case where the demand for justice is so compelling, a
constitutional court would exercise its jurisdiction with a view to
promote justice, and not defeat it.
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25. Concluding that the forcible dispossession of a person of their
private property without following due process of law, was violative of
both their human right, and constitutional right under Article 300-A, this
court allowed the appeal. We find that the approach taken by this court
in Vidya Devi (supra) is squarely applicable to the nearly identical facts
before us in the present case.
26. In view of the above discussion, in view of this court’s extraordinary
jurisdiction under Article 136 and 142 of the Constitution, the State is
hereby directed to treat the subject lands as a deemed acquisition and
appropriately disburse compensation to the appellants in the same
terms as the order of the reference court dated 04.10.2005 in Land Ref.
Petition No. 10-LAC/4 of 2004 (and consolidated matters). The
Respondent-State is directed, consequently to ensure that the
appropriate Land Acquisition Collector computes the compensation, and
disburses it to the appellants, within four months from today. The
appellants would also be entitled to consequential benefits of solatium,
and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date
of issuance of notification under Section 4 of the Act), till the date of the
impugned judgment, i.e. 12.09.2013.”
10. Having taken note of the aforesaid exposition of law laid
down by the Hon’ble Apex Court, plea advanced by the State qua delay
and laches in moving, this Court is liable to be rejected. Since in the
case at hand, there is no dispute that land of the petitioner stands
utilized for the construction of the road in question and at one point of
time, notification under Section 4 of the Act was issued, prayer made
by the petitioner through instant petition, deserves to be allowed.
11. At this stage, learned Additional Advocate General, while
placing reliance upon the judgment dated 24.2.2023 passed by
Hon’ble Apex Court in Civil Appeal No. 1278 of 2023, titled State of
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Himachal Pradesh and Ors v. Rajiv and others, attempted to argue
that the petitioner is not entitled to compensation qua the land
utilized for construction of the road in question, but having perused
judgment supra, this Court finds no applicability of the same in the
present case because in aforesaid case, it has been nowhere stated
that prayer made by the petitioner for compensation cannot be
considered on the ground of delay and laches, rather in the aforesaid
case, claimants were not held entitled to the interest under the Land
Acquisition Act from the date of Notification under Section 4 till the
filing of the writ petition.
12. Though Mr. Rajan Kahol, learned Additional Advocate
General, while referring to the judgment argued that compensation, if
any, payable, shall be payable on rates, which were applicable when
the land was put to use, however, this Court is not impressed with the
aforesaid submission of learned Additional Advocate General for the
reason that till date, no notification under Section 4 of the Act has
been issued for acquiring the land of the petitioner. As has been held
by the Hon’ble Apex Court that land owners cannot be dispossessed of
their land without following due process of law. If it is so, ground
raised by the respondents that petitioner has made his land available
with consent is otherwise of no consequence, rather this Court is
persuaded to agree with learned counsel for the petitioner that he is
entitled for compensation qua the land utilized by the respondents for
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construction of the road in question. Since petitioner has not been
paid any compensation qua his land used for construction of the road,
action of the respondent-State certainly amounts to forcible
dispossession of the petitioner from his land, which otherwise being
violative of the provisions contained under Section 300-A of the
Constitution of India, deserves to be quashed and set-aside.
13. Plea sought to be raised by the respondents that no
compensation is payable to the petitioner on account of the fact that
land in question was constructed under PGMSY, also deserves
outright rejection on account of judgment rendered by the Full Bench
of this Court in LPA No.33 of 2021 alongwith Execution Petition No.
17 of 2019, titled State of Himachal Pradesh v. Sita Ram, wherein
reference made to Full Bench came to be answered in the affirmative
that, “a person, whose land has been utilized for construction of road
under PMGSY, is entitled for compensation, unless it is proved to the
satisfaction of the court, that land was donated or given by the land
owner willingly, of his own free will and consent, for construction of
such road”. It would be apt to take note of following paras of the
aforesaid judgment:
“31. In Shankar Dass, the Full Bench relied on the Three Judge
Bench judgment of Supreme Court in State of Maharashtra Versus
Digambar, reported in (1995) 4 SCC 683, where filing of writ petition
with enormous delay and latches on the part of a citizen on the alleged
infraction of his legal right against the State, seeking a direction to
initiate acquisition proceedings for their land of which possession was
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14taken long time ago, was held to be fatal. It was held that writ petition
under Article 226 of the Constitution, being power of discretion, could
not be entertained with blameworthy conduct of the petitioner of such
undue delay or laches, acquiescence or waiver in approaching the
Court. The Full Bench also relied on the Constitution Bench judgment of
the Supreme Court in the State of Madhya Pradesh Versus Bhailal Bhai,
reported in AIR 1964 SC 1006, in which it was held “that the maximum
period fixed by the legislature as the time within which the relief by a
suit in a Civil Court must be brought may ordinarily be taken to be a
reasonable standard by which delay in seeking remedy under Article
226 can be measured.” Delay and how far ratio of Shankar Dass would
hold field in view of later judgments of the Supreme Court are not the
questions for us to examine and answer. In view of the terms of
reference made by the Division Bench, which does not include the
question of delay, we have to confine our examination to the limited
scope, whether a person whose land has been utilized for construction
of road under PMGSY is entitled to compensation.
32. In view of above, the question referred to by the Division Bench, is,
therefore, answered in the affirmative that a person whose land has
been utilized for construction of road under PMGSY is entitled to
compensation unless it is proved to the satisfaction of the Court that the
land was voluntarily donated or given by him willingly with free will
and consent for construction of such road.”
14. In the aforesaid case, specific reference was made to Full
Court, “Whether a person(s) whose land(s) has been utilized for
construction of road under ‘PMGSY’ is entitled to compensation?”.
While answering aforesaid reference, Full Bench though held that a
person whose land has been utilized for construction of road under
PMGSY is entitled to compensation unless it is proved to the
satisfaction of the Court that the land was voluntarily donated or given
by him willingly with free will and consent for construction of such
road.
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15. Since in the case there is nothing on record to
demonstrate that the land was ever donated or gifted by petitioner of
his own free will for construction of road under PMGSY, plea of
learned Additional Advocate General that person cannot claim
compensation qua the land utilized for construction of road under
PMGSY, deserves outright rejection.
16. In case titled, State of Himachal Pradesh v. Umed Ram
Sharma (1986) 2 SCC 68, Hon’ble Apex Court has held that entire
State of Himachal Pradesh is a hilly area and without workable roads,
no communication is possible; every person is entitled to life as
enjoined in Article 21 of the Constitution of India; every person has
right under Article 19 (1) (b) of the Constitution of India to move freely,
throughout the territory of India; for the residents of hilly areas,
access to road is access to life itself. Stand taken by the respondents
that there was a policy for providing roads on demand of residents as
a favour to them on conditions that they would not claim
compensation, cannot be sustained because such stand is violative of
Article 300A of the Constitution of India.
17. In case titled Hari Krishna Mandir Trust v. State of
Maharashtra and others, 2020 9 SCC 356, Hon’ble Apex Court has
held that though right to property is not a fundamental right, but it is
still a constitutional right under Article 300A of the Constitution of
India and also a human right; in view of the mandate of Article 300A,
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no person can be deprived of his property save by the authority of law.
No doubt, State possesses the power to take or control the property of
the owner of the land for the benefit of public, but at the same time, it
is obliged to compensate the injury by making just compensation.
18. Consequently, in view of the detailed discussion made
hereinabove as well as law taken into consideration, this Court finds
merit in the present petition and accordingly same is allowed with
direction to the respondents to initiate acquisition proceedings within
four weeks under the relevant statute vis-à-vis land of the petitioner
and thereafter, just and fair compensation qua the same be awarded
to him. Since petitioner has been fighting for his rightful claim for
more than 17 years, this Court hopes and trusts that authority
concerned would do the needful expeditiously, preferably, within four
months. In the aforesaid terms, present petition is disposed of, along
with pending applications, if any.
October 22, 2024 (Sandeep Sharma), (Rajeev Raturi) Judge Digitally signed by VIKRANT CHANDEL Date: 2024.10.24 09:56:20 IST