Himachal Pradesh High Court
Decided On: 23.12.2024 vs State Of Himachal Pradesh And Others on 23 December, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:15729
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No.206 of 2024
Decided on: 23.12.2024
_______________________________________________________________
Harbhajan Singh and Others ...........Petitioners
Versus
State of Himachal Pradesh and Others ....Respondents
_______________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioners : Mr. Ishan Sharma, Advocate.
For the Respondents :
Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C. Verma,
Additional Advocates General.
_______________________________________________________________
Sandeep Sharma, Judge (oral):
Petitioners herein are compelled to approach this
Court in the instant proceedings on account of the fact that
though respondents used their land comprised in Khewat
No.221 min/205 Khatouni No.222 min/206 Khasra No.597
measuring 03-09-00 bighas situate at Hadbast No.221, Patwar
Circle Bhatauli Kalan, Tehsil Baddi, District Solan, Himachal
Pradesh, for construction of road namely “Barotiwala Baddi Sai
Ramshehar”, however, fact remains that till date, no
compensation has been paid. Since despite repeated requests,
respondents failed to initiate appropriate proceeding under the
Land Acquisition Act, petitioners have approached this Court in
the instant proceedings filed under Article 226 of the
Constitution of India, praying therein for following main relief:-
1
Whether the reporters of the local papers may be allowed to see the judgment?
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-2-“I That the respondents may be directed to acquire the land of
petitioners measuring 00-18 biswas underneath the road leading
from Baddi to Barotiwala in Hadbast No. 221, Tehsi Baddi, District
Solan (HP) which is part of the land owned and possessed by
petitioners comprised in Khewat No. 221 min/205 Khatouni
No.222 min/206 Khasra No. 597 measuring 03-09/00 bighas
situate in Patwar Circle Bhatauli Kalan, Tehsil Baddi, District
Solan (HP) as per Jamabandi for the year 2017-18 (Annexure P-1)
within a time bound period by issuing appropriate notification as
per law and suitable compensation for such compulsory acquisition
as per the shares of the petitioners alongwith other admissible
benefits including solatium and interest etc. may be ordered to be
paid to them forthwith.”
2. Pursuant to notices issued in the instant
proceedings, respondents have filed reply under the signatures
of Superintending Engineer, 3rd Circle, Himachal Pradesh Public
Works Department, Solan, wherein there is no denial to the fact
that land of the petitioners stands utilized for construction of
road, as detailed herein above, but attempt has been made to
defeat the claim of the petitioners on the ground of delay and
laches.
3. It is averred in the reply that the road namely
“Barotiwala Baddi Sai Ramshehar” was constructed between
1971-82 with verbal consent of the petitioners and continuous
demand of habitants residing near the alignment of road. It is
further averred in the reply that administrative approval was
given by the Government of Himachal Pradesh on 24.07.1971
and the road was constructed between 1972-82 and at that
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time, no objection, if any, was ever raised by the petitioners and
other similarly situate persons and as such, at this stage, the
petitioners are estopped from claiming compensation. It has
been submitted in the reply that road in question was
constructed on the persistent demand of the residents of the
area with clear cut understanding that no compensation shall
be claimed.
4. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
precisely the grouse of the petitioners, as has been highlighted
in the petition and further canvassed by learned counsel
representing the petitioners is that at no point of time, consent,
if any, was ever given by petitioners for construction of road on
their land without compensation. Mr. Ishan Sharma, learned
counsel representing the petitioners, while making this Court
peruse pleadings adduced on record by respective parties
vehemently argued that petitioners have been continuously
requesting respondents to initiate acquisition proceedings and
pay adequate compensation, but in vain.
5. Mr. Vishal Panwar, learned Additional Advocate
General while making this Court peruse pleadings adduced on
record submitted that though there is no written document
suggestive of the fact that land was ever donated, but definitely
there is implied consent of the petitioners for the construction of
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road. He submitted that the very fact that petitioners remained
silent for more than 52 years, is sufficient to establish the
factum with regard to implied consent of the petitioners for
construction of road in question.
6. While making this Court peruse judgment passed
by this Court in Shankar Dass Vs. State of Himachal Pradesh
in CWP No.1966 of 2010, Mr. Vishal Panwar, learned Additional
Advocate General submitted that otherwise also, appropriate
remedy for the petitioners for redressal of their grievance is to
approach a Civil Court by way of civil suit. Mr. Panwar also
invited attention of this Court to judgment passed by Hon’ble
Apex Court in State of Maharashtra Vs. Digambar (1995) 4
SSC (683) to state that claim being highly stale, deserves
outright rejection.
7. While refuting the aforesaid submission of Mr.
Vishal Panwar, learned Additional Advocate General, Mr. Ishan
Sharma strenuously argued that Hon’ble Apex Court in Vidya
Devi Vs. State of Himachal Pradesh and Others, (2020) 2
SCC 569 and Sukh Dutt Ratra Vs. State of Himachal Pradesh
and Others (2022) 7 SCC 508, has already held that plea of
delay and laches cannot be raised in the case of continuous
cause of action, especially in land acquisition matter. He also
invited attention of this Court to judgment dated 27.07.2023
passed in CWP No.5928 of 2022 in Vir Sain Vs. State of
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Himachal Pradesh and Others, wherein, admittedly, this
Court, having taken note of the judgments passed in Vidya Dev
and Sukh Dutt Ratra, supra, negated the plea of delay and
laches raised by the respondent-State.
8. Having heard learned counsel for the parties and
perused material available on record this Court finds that there
is no dispute qua the fact that the land of the petitioners was
utilized for construction of road in question. It is also not in
dispute that some of land owners were paid compensation after
initiation of acquisition proceedings under Land Acquisition Act
in vogue at the relevant time. Plea of delay and laches sought to
be raised by respondents may not be available on account of
judgment rendered in Vidya Devi and Sukh Dutt Ratra
(supra), wherein it has been categorically held that plea of delay
and laches cannot be raised in case of continuous cause of
action or if the circumstances shock the judicial conscience of
the Court, it can always condone the delay to do the substantial
justice. While holding that condonation of delay is a matter of
judicial discretion, which must be exercised judiciously and
reasonably in the facts and circumstances of a case, Hon’ble
Apex Court has further held that there is no period of limitation
prescribed for the Courts to exercise their constitutional
jurisdiction to do substantial justice. It has been further held
that forcible dispossession of a person from his private property
2024:HHC:15729
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without following due process of law, is violative of both, human
right and constitutional right, guaranteed under Art. 300-A of
the Constitution of India. 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:
“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
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-7-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 under
Article 300A. In other words, if there is no law,
there is no deprivation.” (emphasis supplied)10.3. In this case, the Appellant could not have been
forcibly dispossessed of her property without any legal
sanction, and without following due process of law, and
depriving her payment of just compensation, being a
2024:HHC:15729
-8-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
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-9-property of its own citizens, as has been done in the
present case.
10.7. The contention advanced by the State of delay and
laches of the Appellant in moving the Court is also liable
to be rejected. Delay and laches cannot be raised in a
case of a continuing 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)”
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9. Reliance is also placed upon judgment passed by
the Hon’ble Apex Court in Sukhdutt Ratra’s cases (supra).
“23. This Court, in Vidya Devi (supra) facing an almost
identical set of facts and circumstances – rejected the
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. In the aforesaid judgments, Hon’ble Apex Court has
categorically held that contention advanced by the State of delay
and laches of the appellant in moving the Court is liable to be
rejected, especially when it is not in dispute that petitioners are
suffering continuous loss coupled with the fact that they
repeatedly requested the authorities to initiate acquisition
proceedings.
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11. If the aforesaid judgments are read in their entirety,
it clearly emerges that land owners cannot be deprived of their
land, without following due process of law. If it so, ground
raised by the respondents that petitioners have made their land
available with consent, is of no consequence rather, this Court,
having taken note of the fact that the land of the petitioners
stands utilized for the construction of road in question, is
compelled to agree with the submission of learned counsel for
the petitioners that his clients are entitled for compensation qua
the land utilized by respondents for construction of road in
question.
12. Though at this stage, Mr.Vishal Panwar, learned
Additional Advocate General, while making this court peruse
judgment dated 24.2.2023 passed by Hon’ble Apex Court in
Civil Appeal No. 1278 of 2023, titled State of Himachal
Pradesh and Ors v. Rajiv and others, attempted to argue that
the relief as sought in the instant petition, cannot be allowed on
the ground of delay and laches, but having perused judgment
supra, in its entirety, this Court finds that it never came to be
held in the aforesaid judgment that the claim of the land owner
after an inordinate delay, cannot be considered, rather, in the
aforesaid case, claimants were not held entitled to the interest
under the Land Acquisition Act from the date of Notification
under S.4 till the filing of the writ petition. Since, no Notification
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under S.4 of Land Acquisition Act, 1894 ever came to be issued
in the case of the petitioners, ruling, if any, given in the
aforesaid judgment, is of no relevance.
13. Admittedly, land of the petitioners stands utilized
for construction of road five decades back but till date,
petitioners have not been paid any amount, which action of the
respondent-State certainly amounts to forcible dispossession of
the petitioners from their land, which is violative of provision
contained under Article 300-A of the Constitution of India.
14. 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.
15. In case titled Hari Krishna Mandir Trust v. State
of Maharashtra and others, 2020 9 SCC 356, Hon’ble Apex
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Court has held that though right to property is not a
fundamental right, but it is still a constitutional right under
Article 300A of the Constitution of India and also a human
right; in view of the mandate of Article 300A, no person can be
deprived of his property save by the authority of law. No doubt,
State possesses the power to take or control the property of the
owner of the land for the benefit of public, but at the same time,
it is obliged to compensate the injury by making just
compensation.
16. Consequently, in view of the detailed discussion
made herein above as well as law taken into consideration, this
Court finds merit in the present petition and accordingly, the
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 petitioners and thereafter, just and
fair compensation qua the same be awarded to the petitioners.
Since petitioners have been fighting for their rightful claim for
so long, 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
alongwith pending applications, if any.
December 23, 2024 (Sandeep Sharma),
(Rajeev Raturi) Judge
