Himachal Pradesh High Court
__________________________________________________________ vs Charan Dass on 1 March, 2025
( 2025:HHC:5826 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
LPA No: 68 of 2025
Decided on : 01.03.2025
__________________________________________________________
State of Himachal Pradesh and others
…. Appellants
Versus
Charan Dass
….Respondent
Coram
Hon’ble Mr. Justice G. S. Sandhawalia, Chief Justice.
Hon’ble Mr. Justice Ranjan Sharma, Judge.
1 Whether approved for reporting? Yes.
For the appellants: Mr. Pranay Pratap Singh,
Additional Advocate General.
For the respondents: Nemo.
Per Ranjan Sharma, Judge
CMP(M) No. 107 of 2025
State of Himachal Pradesh, being appellant,
has filed this application seeking condonation of
93 days delay in filing accompanying Letters
Patent Appeal, in assailing the judgement dated
13.08.2024, {referred as Impugned Judgement},
passed by Learned Single Judge in CWP No. 4226
of 2022.
Perusal of the application reveals that
appellant received intimation of passing of judgement
1 Whether reporters of Local Papers may be allowed to see the judgment?
-2- ( 2025:HHC:5826 )
dated 13.08.2024 from office of Advocate General
on 26.09.2024 and thereafter steps were taken by
Land Acquisition Collector and Executive Engineer,
Karsog on 28.09.2024 and then by Engineer-in-
Chief (PW), and the Govt, when, advice from Law
Department was received on 21.10.2024. Thereafter
the Appellant No 1-Secretary (PW) vide letter dated
30.11.2024 directed the official concerned to assail
the impugned judgement in LPA. Pursuant thereto,
steps were taken for drafting LPA by Executive
Engineer, Karsog and upon approval of the higher
authorities, LPA was vetted on 16.12.2024 and
was submitted to the office of learned Advocate
General on 18.12.2024. The draft LPA was vetted
and was finally filed before this Court on 02.01.
2025.
Upon listing of this application, this Court
accepts the reasons indicating sufficient cause, for
condoning delay of 93 days in filing accompanying
LPA, appears to be bonafide and even averments
are supported by an affidavit coupled with the fact
-3- ( 2025:HHC:5826 )
that the delay sought to be condoned is nominal
is accordingly condoned and the instant application
stands disposed of.
LPA No. 68 of 2025
Appellant-State has come up against the
judgement dated 13.08.2024 in CWP No. 4226 of
2022 in Re. Charan Dass versus State of Himachal
Pradesh and others, whereby Learned Single Judge
had allowed the writ petition and directed the
respondent-State Authorities to initiate the process
for acquiring subject land of the petitioner which
was utilized for construction of road inaccordance
with law within eight weeks from the date of passing
of judgement, with directions to appellants herein
to complete entire process within one year thereafter.
FACTUAL MATRIX LEADING TO PASSING OF
IMPUGNED JUDGEMENT
2. Writ petitioner, Charan Dass, invoked the
extraordinary jurisdiction of this Court seeking a
direction to the respondents to acquire his land
comprising in Khata Khatauni No. 61, Khasra Nos.
428 & 429, situated at Mohal Kot, Tehsil Karsog,
-4- ( 2025:HHC:5826 )
District Mandi and to pay him the compensation
in accordance with law. The above prayer was made
on the factual platform that the respondents had
constructed a link road i.e. Mahota-Bagshar Road
over and above the subject land of the petitioner
and neither land has been acquired nor any
compensation has been paid to petitioner whereas
State Authorities have acquired land and disbursed
compensation to other co-owners of adjoining land
parcel, namely, Bhoop Ram and Neem Chand in
pursuant to the judgements dated 24.06.2016
and 5.7.2016, passed in their respective petitions
i.e. CWP No. 2386 of 2009 (Bhoop Ram versus
State of Himachal Pradesh and others) and CWP
No 3090 of 2009 (Neem Chand versus State of
Himachal Pradesh). Incompliance thereto, acquisition
proceedings were initiated by State Authorities and
utilized lands were acquired and compensation was
released in terms of the Award dated 22.02.2022
[Annexure P-2 Colly]. After passing of award in
case of Bhoop Ram and Neem Chand supra,
-5- ( 2025:HHC:5826 )
the writ petitioner submitted representation on
21.4.2022 for similar benefits, on which the Land
Acquisition Collector vide communication dated
27.04.2022 directed the Executing Engineer, HPPWD
Division Karsog, District Mandi to take appropriate
action and even Special Secretary [Public Works]
vide office letter dated 04.05.2022 directed Executive
Engineer concerned to take necessary action in the
matter but in vain.
STAND OF THE STATE AUTHORITIES IN WRIT
PROCEEDINGS:
3. State Authorities filed a reply-affidavit
admitting that Mahota-Bagshar Road was constructed
under Pradhan Mantri Gram Sadak Yojna [in short
PMGSY] and the construction of the road was
completed before February, 2009, which includes
land of petitioner also. However, State Authorities
took a stand that road was constructed on the
verbal consent of petitioner and the writ petitioner
never objected to the construction of road and
therefore, no compensation was to be paid. It is
-6- ( 2025:HHC:5826 )
averred in reply that under Pradhan Mantri Gram
Sadak Yojna [in short PMGSY] there is no provision
for acquisition of land or payment of compensation.
The plea of delay and laches was also raised by
State Authorities.
IMPUGNED JUDGEMENT:
4. Learned Single Judge dealt with the
contentions in Reply Affidavit of State Authorities
in the judgement dated 13.08.2024. In Para 5(i) &
(iii), Learned Single Judge recorded a finding that
benefit of acquisition and compensation has been
accorded by the State Authorities to co-owners of
adjoining lands, namely, Bhoop Ram and Neem
Chand in terms of the Award No 5/2022 dated
22.02.2022 passed by Competent Authority. Based
on these facts, Learned Single Judge had recorded
a categorical finding that once the co-owners of
adjoining land, namely, Bhoop Ram and Neem
Chand, have been released compensation for lands
utilized for construction of road then, the petitioner
deserves same treatment whose land was also
-7- ( 2025:HHC:5826 )
utilized for construction of the same very road.
Learned Single Judge relied upon the judgement
in Para 5(iii) in the case of Labdhu Ram versus
State of Himachal Pradesh and others, CWP
No. 6581 of 2021 that once benefit of acquisition
and resultant compensation for utilizing the land
for construction of road had been accorded to
some land owners then similar benefit is to
be extended to others also. So far as the objection
of State Authorities-Appellant herein that Pradhan
Mantri Gram Sadak Yojna [in short PMGSY] did
not provide for acquisition and compensation in
case of roads are to be constructed under Pradhan
Mantri Gram Sadak Yojna [in short PMGSY] was
dealt with by Learned Single Judge in Para 5
(iv) negating the stand of State in view of the
Full Bench judgement of this Court in State of
Himachal Pradesh and others versus Sita Ram
Sharma, {LPA No. 33 of 2021 decided on 30.3.2022}.
Learned Single Judge categorically held that in
case, the land has been utilized for construction
-8- ( 2025:HHC:5826 )
of road under Pradhan Mantri Gram Sadak
Yojna [in short PMGSY] then also, the landowners
are entitled for compensation unless it is proved
to the satisfaction of the Court that the land
was voluntarily donated or given by private land
owners willingly, which consent/willingness has
to be in writing and same has to be substantiated
by material on record. In this background, since
State Authorities have failed to establish that the
land was voluntarily donated/given by petitioner
for construction of road, the plea of the petitioner
was negated. While dealing with the contention
of State Authorities that claim of writ petitioner
suffers from delay and laches, was repelled by
Learned Single Judge by relying upon various
judgements in Para 5(iii) including the judgement
of Hon’ble Supreme Court in Sukh Dutt Ratra
and another versus State of Himachal Pradesh
and others, (2022) 7 SCC 508, with the findings
that the State cannot evade its legal responsibility
towards those from whom private property has
-9- ( 2025:HHC:5826 )
been expropriated. Even the State cannot shirk
its responsibility of acquiring land for public use
without paying compensation by taking the plea
of limitation for doing justice. Based on aforesaid
reasoning, the Learned Single Judge allowed the
writ petition, in terms of the Impugned judgement
dated 13.08.2024.
5. Upon listing of the matter, Learned State
Counsel has vehemently argued on merits but
by reiterating almost the same contentions, which
stood repelled by Learned Single Judge in the
Impugned judgement. In these circumstances, this
Court, upon hearing the Learned State Counsel
for the appellants herein, proceeds to hear the
appeal, at this stage.
6. Before dealing with the contentions of
Learned State Counsel for the appellants, it is
necessary to have a recap of the mandate of law
on the right to property of a person and its
regime.
6(i). Based on the principle of eminent domain
- 10 - ( 2025:HHC:5826 )
at relevant time, Article 30(1-A) and provisos to
Article 31-A (1) of the Constitution of India
recognised the right to property and the right of
a person to acquire, hold and dispose of property
was conferred the status of a fundamental right.
However, keeping in view the directive principles
of state policy, the right of property which was
a fundamental right, after the enactment of the
44th amendment in 1978, introducing Article 300-A
in the Constitution of India mandating that “no
person shall be deprived of his property save by
authority of law” was recognised as a “constitutional
right”.
6(ii). Consequent upon being recognised as a
constitutional right, a question arose as to whether
a person can be deprived of his property, save
by authority of law under Article 300-A, merely
by an executive fiat but without any specific
legal authority or without sanctity of law made
by a competent legislature was answered by the
Constitutional Bench of the Hon’ble Supreme Court
– 11 – ( 2025:HHC:5826 )
in K. T. Plantation Private Limited and another
versus State of Karnataka, (2011) 9 SCC 01
mandating that the deprivation of property under
Article 300-A must be for a public purpose and
the same cannot be by an executive fiat but
such deprivation can take place only by operation
of law, which has to be lawful, fair and which
does not undermine the rule of law, failing which
any such law shall be subject to judicial review,
in the following terms:
168. Article 300-A proclaims that no person
can be deprived of his property save by
authority of law, meaning thereby that a
person cannot be deprived of his property
merely by an executive fiat, without any
specific legal authority or without the support
of law made by a competent legislature.
The expression ‘Property’ in Art. 300-A confined
not to land alone, it includes intangibles
like copyrights and other intellectual property
and embraces every possible interest recognised
by law.
169. This Court in State of W. B. & Others
v. Vishnunarayan & Associates (P) Ltd &
Another (2002) 4 SCC 134, while examining
the provisions of the West Bengal Great
Eastern Hotel (Acquisition of Undertaking)
Act, 1980, held in the context of Article 300-A
that the State or executive offices cannot
interfere with the right of others unless
they can point out the specific provisions
of law which authorises their rights.
– 12 – ( 2025:HHC:5826 )
170. Article 300-A, therefore, protects private
property against executive action. But
the question that looms large is as to
what extent their rights will be protected
when they are sought to be illegally deprived
of their properties on the strength of a
legislation. Further, it was also argued that
the twin requirements of ‘public purpose’
and ‘compensation’ in case of deprivation of
property are inherent and essential elements
or ingredients, or “inseparable concomitants”
of the power of eminent domain and,
therefore, of entry 42, List III, as well and,
hence, would apply when the validity of a
statute is in question.
171. On the other hand, it was the contention
of the State that since the Constitution
consciously omitted Article 19 (1) (f), Articles
31(1) and 31(2), the intention of the Parliament
was to do away the doctrine of eminent
domain which highlights the principles of
public purpose and compensation.
172. Seervai in his celebrated book
‘Constitutional Law of India’ (Edn. IV), spent
a whole Chapter XIV on the 44th Amendment,
while dealing with Article 300A. In paragraph
15.2 (pages 1157-1158) the author opined
that confiscation of property of innocent people
for the benefit of private persons is a
kind of confiscation unknown to our law
and whatever meaning the word “acquisition”
may have does not cover “confiscation” for,
to confiscate means “to appropriate to the
public treasury (by way of penalty)”.
Consequently, the law taking private property
for a public purpose without compensation
would fall outside Entry 42 List III and cannot
be supported by another Entry in List III.
173. Requirements of a public purpose and
the payment of compensation according to
the learned author be read into Entry 42
List III. Further the learned author has also
opined that the repeal of Article 19(1)(f) and
31(2) could have repercussions on other
– 13 – ( 2025:HHC:5826 )
fundamental rights or other provisions which
are to be regarded as part of the basic
structure and also stated that notwithstanding
the repeal of Article 31(2), the word
“compensation” or the concept thereof is still
retained in Article 30 (1A) and in the second
proviso to Article 31A (1) meaning thereby,
that payment of compensation is a condition
of legislative power in Entry 42 List III.
174. Learned senior counsel Shri T.R.
Andhyarujina, also referred to the opinion
expressed by another learned author Prof.
P.K. Tripathi, in his article “Right to Property
after 44th Amendment – Better Protected
than Ever Before” (reported in AIR 1980 J pg. 49-
52). Learned author expressed the opinion
and the right of the individual to receive
compensation when his property is acquired
or requisitioned by the State, continues
to be available in the form of an implied
condition of the power of the State to
legislate on “acquisition or requisition of
property” while all the exceptions and limitations
set up against and around it in Article
31, 31A and 31B have disappeared.
Learned author opined that Article 300-A
will require obviously, that the law must be
a valid law and no law of acquisition or
requisitioning can be valid unless the acquisition
or requisition is for a public purpose, unless
there is provision in law for paying compensation,
will continue to have a meaning given to
it, by Bela Banerjee’s case (supra).
175. Learned author, Shri S.B. Sathe, in
his article “Right to Property after the 44th
Amendment” (AIR 1980 Journal 97), to some
extent, endorsed the view of Prof. Tripathi
and opined that the 44th amendment has
increased the scope of judicial review in
respect of right to property. Learned author
has stated although Article 300A says that
no one shall be deprived of his property
save by authority of law, there is no
reason to expect that this provision would
– 14 – ( 2025:HHC:5826 )
protect private property only against executive
action. Learned author also expresses the
wish that Article 21 may provide viable
check upon Article 300A.
176. Durga Das Basu in his book “Shorter
Constitution of India”, 13th Edition, dealt
with Article 300A in Chapter IV wherein
the learned author expressed some reservation
about the views expressed by Seervai, as
well as Prof. Tripathi Learned author expressed
the view, that after the 44th amendment Act
there is no express provision in the Constitution
outside the two cases specified under Article
30(1A) and the second proviso to 31(1A)
requiring the State to pay compensation to
an expropriated owner. Learned author also
expressed the opinion that no reliance could
be placed on the legislative Entry 42
of List III so as to claim compensation on
the touchstone of fundamental rights since
the entry in a legislative list does not confer
any legislative power but only enumerates
fields of legislation.
177. Learned counsel on the either side,
apart from other contentions, highlighted the
above views expressed by the learned authors
to urge their respective contentions.
178. Principles of eminent domain, as
such, is not seen incorporated in Article
300A, as we see, in Article 30(1A), as well
as in the 2nd proviso to Article 31A(1)
though we can infer those principles in
Article 300A. Provision for payment of
compensation has been specifically incorporated
in Article 30(1A) as well as in the 2nd
proviso to Article 31A(1) for achieving specific
objectives. Constitution’s 44th Amendment
Act, 1978 while omitting Article 31 brought
in a substantive provision Clause (1A) to
Article 30. Resultantly, though no individual
or even educational institution belonging
to majority community shall have any
fundamental right to compensation in case
of compulsory acquisition of his property
– 15 – ( 2025:HHC:5826 )
by the State, an educational institution
belonging to a minority community shall have
such fundamental right to claim compensation
in case State enacts a law providing for
compulsory acquisition of any property of
an educational institution established and
administered by a minority community. Further,
the second proviso to Article 31 A (1)
prohibits the Legislature from making a
law which does not contain a provision for
payment of compensation at a rate not
less than the market value which follows
that a law which does not contain such
provision shall be invalid and the acquisition
proceedings would be rendered void.
179. Looking at the history of the various
constitutional amendments, judicial
pronouncements and the statement of objects
and reasons contained in the 44th Amendment
Bill which led to the 44th Amendment
Act we have no doubt that the intention
of the Parliament was to do away with the
fundamental right to acquire, hold and
dispose of the property. But the question
is whether the principles of eminent domain
are completely obliterated when a person
is deprived of his property by the authority
of law under Article 300 A of the Constitution.
Public purpose
180. Deprivation of property within the
meaning of Art. 300-A, generally speaking,
must take place for public purpose or public
interest. The concept of eminent domain
which applies when a person is deprived
of his property postulates that the purpose
must be primarily public and not primarily
of private interest and merely incidentally
beneficial to the public. Any law, which
deprives a person of his private property
for private interest, will be unlawful and
unfair and undermines the rule of law
and can be subjected to judicial review.
But the question as to whether the purpose
is primarily public or private, has to be
– 16 – ( 2025:HHC:5826 )
decided by the legislature, which of course
should be made known.
6(iii). Another question arose before the Hon’ble
Supreme Court in the case of K.T. Plantation
(supra) as to whether a person who is deprived
of property for public purpose is entitled to
get compensation has to be justified by the
State on judicially justifiable standards depending
upon the law formulated by a State, which has
to be just, fair and reasonable. In case, State
enactment provides for acquiring a private property
for public purpose for no compensation or nil
compensation then, the Court in exercise of
judicial review will test such a law, as mandated
in the following terms:
183. Payment of compensation amount
is a constitutional requirement under Article
30(1A) and under the 2nd proviso to Article
31A(1), unlike Article 300A. After the 44th
Amendment Act, 1978, the constitutional
obligation to pay compensation to a person
who is deprived of his property primarily
depends upon the terms of the statute
and the legislative policy. Article 300-A,
however, does not prohibit the payment of
just compensation when a person is deprived
of his property, but the question is whether
a person is entitled to get compensation,
as a matter of right, in the absence of
– 17 – ( 2025:HHC:5826 )
any stipulation in the statute, depriving
him of his property.
189. Requirement of public purpose, for
deprivation of a person of his property under
Article 300A, is a pre-condition, but no
compensation or nil compensation or its
illusiveness has to be justified by the state
on judicially justiciable standards. Measures
designed to achieve greater social justice,
may call for lesser compensation and such
a limitation by itself will not make legislation
invalid or unconstitutional or confiscatory.
In other words, the right to claim compensation
or the obligation to pay, though not expressly
included in Article 300A, it can be inferred
in that Article and it is for the State
to justify its stand on justifiable grounds
which may depend upon the legislative policy,
object and purpose of the statute and host
of other factors.
190. Article 300A would be equally violated if
the provisions of law authorizing deprivation of
property have not been complied with. While
enacting Article 300A Parliament has only
borrowed Article 31(1) [the “Rule of law” doctrine]
and not Article 31(2) [which had embodied the
doctrine of Eminent Domain]. Article 300A
enables the State to put restrictions on
the right to property by law. That law
has to be reasonable. It must comply
with other provisions of the Constitution.
The limitation or restriction should not
be arbitrary or excessive or what is beyond
what is required in public interest.
The limitation or restriction must not
be disproportionate to the situation or
excessive.
191. The legislation providing for deprivation
of property under Article 300A must be “just,
fair and reasonable” as understood in
terms of Articles 14, 19(1)(g), 26(b), 301, etc.
Thus in each case, courts will have to
examine the scheme of the impugned Act,
its object, purpose as also the question
– 18 – ( 2025:HHC:5826 )
whether payment of nil compensation or
nominal compensation would make the
impugned law unjust, unfair or unreasonable
in terms of other provisions of the
Constitution as indicated above.
192. At this stage, we may clarify that
there is a difference between “no” compensation
and “nil” compensation. A law seeking to
acquire private property for public purpose
cannot say that “no compensation shall
be paid”. However, there could be a law
awarding “nil” compensation in cases where
the State undertakes to discharge the liabilities
charged on the property under acquisition
and onus is on the government to establish
validity of such law. In the latter case,
the court in exercise of judicial review will
test such a law keeping in mind the
above parameters.
198. Article 300 A, unlike Articles 31A(1)
and 31C, has not made the legislation
depriving a person of his property immune
from challenge on the ground of violation
of Article 14 or Article 21 of the Constitution
of India, but let us first examine whether
Article 21 as such is available to challenge
a statute providing for no or illusory
compensation and, hence, expropriatory.
6(iv). Reference in the case of K. T. Plantation
(supra) was answered by the Supreme Court
mandating that public purpose is a pre-condition
for depriving a person from his property under
Article 300-A and right to claim compensation
is also inbuilt under that Article and when a
person is deprived of his property the State has
– 19 – ( 2025:HHC:5826 )
to justify such deprivation on the basis of the
statute or legislative policy and its object and
purpose and other related factors.
6(v). The judgement in K. T. Plantation‘s case
was followed by the Hon’ble Supreme Court in
Association of Vasanth Apartments’ Owners versus
V. Gopinath and others, 2023 SCC OnLine
SC 137, Civil Appeal No. 1890-91 of 2010, decided
on 13.02.2023 that illegal deprivation is attracted
where a person is deprived of his property, in case
of “no compensation” in the following terms:
118. The Court also reiterated the distinction
between ‘no compensation’ and ‘Nil
compensation’, as laid down in K.T. Plantations
(supra). The Court proceeded to find that
it was a case of ‘no compensation’ at all,
and therefore, it attracted the vice of
illegal deprivation of property and gave
relief on the said basis. This is after finding
that the property in question was a productive
asset.
144. An acquisition is a compulsory vesting
of the property of a person with the state.
It is traceable undoubtedly to the power of
eminent domain assured to every sovereign.
It can undoubtedly be exercised only for
securing public interest as contrasted with
promotion of private interest (See K.T. Plantation
(supra).
145. K.T. Plantations (supra) was a case
which involved the validity of a law which
– 20 – ( 2025:HHC:5826 )
provided for compulsory acquisition under
the State enactment. The understanding of
this Court in K.T. Plantations (supra) was
that a person cannot be deprived of his
property merely by executive fiat without
any specific legal authority or without
support of law made by a competent
Legislature (See paragraph-168). We must
notice here that law for the scope of Article
300A has been explained by this Court
in Bishambhar Dayal Chandra Mohan and
others v. State of Uttar Pradesh and others
as follows:
“41. There still remains the question
whether the seizure of wheat amounts to
deprivation of property without the
authority of law. Article 300-A provides
that no person shall be deprived
of his property save by authority of
law. The State Government cannot while
taking recourse to the executive power
of the State under Article 162, deprive
a person of his property. Such power
can be exercised only by authority
of law and not by a mere executive
fiat or order. Article 162, as is clear
from the opening words, is subject to
other provisions of the Constitution.
It is, therefore, necessarily subject to
Article 300-A. The word “law” in the
context of Article 300-A must mean
an Act of Parliament or of a State
legislature, a rule, or a statutory
order, having the force of law, that
is positive or State made law. The
decisions in Wazir Chand v. State of
H.P. [AIR 1954 SC 415: (1955) 1 SCR
408 : 1954 SCJ 600 : 1954 Cri LJ 1029]
and Bishan Das v. State of Punjab
[AIR 1961 SC 1570 : (1962) 2 SCR
69 : (1963) 1 SCJ 405] are an authority
for the proposition that an illegal seizure
amounts to deprivation of property
without the authority of law…..”.
– 21 – ( 2025:HHC:5826 )
146. What this Court in K. T. Plantations
(supra) meant was to distinguish ‘law’ as
a legislative measure as distinct from mere
Executive fiat.
6(vi). Right for compensation in case property
of a private owner is utilized by the State has
been answered by the Hon’ble Supreme Court in
Ultra-tech Cement Limited versus Mast Ram
and others, (2025) 1 SCC 798, Civil Appeal No.
10662 of 2024 decided on 20.09.2024 in the
following terms:
52. Acquisition of land for public purpose
is undertaken under the power of eminent
domain of the government much against
the wishes of the owners of the land which
gets acquired. When such a power is
exercised, it is coupled with a bounden duty
and obligation on the part of the government
body to ensure that the owners whose
lands get acquired are paid compensation
/awarded amount as declared by the statutory
award at the earliest.
6(vii). The intent and object of Article 300-A
having been outlined by the Hon’ble Supreme Court in
K.T. Plantation, V. Gopinath and in Ultra-tech
Cement Limited (supra), this Court on the basis
of existing material on record is of the considered
view, that the appellant-State Authorities have not
– 22 – ( 2025:HHC:5826 )
pointed out any law enacted by State Legislature
empowers the State to divest a person of his land
without paying compensation. In absence of any
statute having been enacted by State [which has
not placed before this Court], the action of State
Authorities in divesting the Writ petitioner-Charan
Dass of his private property and by utilizing
his land(s) for construction of Mahota-Bagshar Road
under Pradhan Mantri Gram Sadak Yojna package
2003-2004, for which the work commenced in
the year 2005 and was completed in the year
2009 and moreover, when, pursuant to judicial
intervention, once the lands of landowners having
adjoining lands, namely, Bhoop Ram and Neem
Chand stood acquired and compensation stands
released by way of an Award dated 22.2.2022
then, this Court sees no reason as to why the
writ petitioner be not held entitled for similar
compensation. Even the action of the State that
land of writ petitioner and others were utilized
for construction of Road under a Scheme (in short
– 23 – ( 2025:HHC:5826 )
PMGSY} cannot come to the rescue of the State
when, in Para 27 of the Full Bench judgement
of this Court in case of State of Himachal Pradesh
versus Sita Ram {LPA No 33 of 2021 dated 30.3.2022}
the reference stands answered that there is no
provision in PMGSY Guidelines for depriving private
land owners of property without consent and without
giving them compensation. In these circumstances,
the State Authorities cannot by way of an executive
fiat divest the writ petitioner-Charan Dass of his
private land(s), without his consent and without
paying compensation and by utilizing such land
for construction of road in question, and such
expropriation of property, by the State, without
any sanction of law visits a landowner with civil
consequences, depriving him of the right to use
his own property and action confers a continuing
cause to a landowner to claim compensation.
Even the whimsical and anarchical manner of
depriving the landowner-writ petitioner of property
and right of compensation shocks the conscience
– 24 – ( 2025:HHC:5826 )
of this Court. Accordingly, the judgment passed
by Learned Single Judge after noticing the material
on record and the factual and the legal aspects
herein, does not require any interference in instant
appeal.
7. CONTENTION OF STATE AUTHORITIES IN
INSTANT APPEAL:
First contention of Learned State Counsel
for the appellant is that the land of writ petitioner-
Charan Dass herein, was utilized for construction
of road i.e. Mahota-Bagshar Road upon giving a
verbal consent and even the writ petitioner did not
object to cutting of road in the year 2005 till
its completion in February, 2009.
7(i). Above contention of the appellant is
ex facie not tenable, for the reason, that the State
Authorities have not produced any material on
record either before the writ court or even in
these proceedings that the writ petitioner had given
consent for construction of the said road.
7(ii). Plea as set-up in instant appeal by
- 25 - ( 2025:HHC:5826 )
State Authorities denying claim for compensation
by asserting that the land was utilized on the
oral consent of land owner-petitioner stands negated
by the Full Bench of this Court, in Shankar
Dass alias Shankru versus State of Himachal
Pradesh and others in CWP No. 1966 of 2010-C
decided on 2.3.2013 [2013 SCC OnLine HP 681],
mandating that that the oral consent cannot be
presumed until some evidence of consent either
in form of letter, writing or signatures on a
representation for construction of road is placed
on record and in these circumstances, the plea
of oral consent is not tenable, in the following
terms:
51. On the question of consent, I am of
the considered view that after the judgement
in Nokhia’s case, quoted hereinabove, the
State should not have constructed roads
without taking consent in writing from the
land owners. If the State did so, it did at
its own peril. his Court had issued clear
cut directions which have held the field since
1984 that the State should ensure that
roads are constructed only after the land
owners give informed consent.
52. Oral consent cannot be presumed
in the case of poor persons or those living
in rural or remote areas. In cases where parties
– 26 – ( 2025:HHC:5826 )
are rich and educated and they do not
approach this Court within a reasonable period,
then the Writ Court may direct them to
approach the Civil Court. But in cases where
people are poor and uneducated, it would
invariably be better to take a more liberal
view.
53. The State also cannot plead consent
or implied consent only on the basis that
the road had been constructed. There must
be some better evidence in this regard. If
some evidence of consent, either in the
form of letter, writing or signatures on
a representation for construction of road,
is placed before this Court, then this
Court may not exercise its writ jurisdiction
and direct the party to approach the Civil
Court. But if the only sort of consent
pleaded is the implied consent due to
construction of road, then this Court
may entertain the writ petition.
7(iii). Similar plea of divesting a land private
owner of his lands and in utilizing it for the
construction of road without paying compensation,
by taking the “plea of consent of land owner(s)”
was repelled by the Hon’ble Supreme Court in
Raj Kumar versus State of Himachal Pradesh
and others, SLP (C) No. 2373 of 2014 [arising
from LPA No 285 of 2012], decided on 29.10.2015,
in the following terms:
Appearing for the appellant, Mr. Anil
Nag, learned counsel for the appellant argued
that the High Court was in error in declining
– 27 – ( 2025:HHC:5826 )
to intervene and grant relief prayed for by
the appellant. It was submitted that the case
of the appellant was no different from that of
Kanwar Singh in whose case the High Court
had not only issued a Mandamus for
acquisition of the land utilised for the very
same purpose but order so passed had been
complied with by the State by not only
initiating the proceedings but even determining
and paying compensation lawfully due and
payable to them. In the case of the appellant
also the State had on its own initiated
proceedings for acquisition of land but the
said proceedings were allowed to lapse ostensibly
because the road in question had subsequently
been taken over under the Pradhan Mantri
Gram Sadak Yojna which did not provide
for payment of compensation to the land
owners whose lands were utilised for such
projects. It was urged that the utilisation of
the land for construction of the road was
not in dispute before the High Court as was
evident from the counter affidavit filed to the
writ petition. There was therefore no question
of directing the appellant to approach the
Civil Court for adjudication of any disputed
question of fact. It was also submitted that
the transfer of the road to the Pradhan Mantri
Sadak Yojna for maintenance etc. was no
reason why the owners whose land had
been utilised should have been denied the
payment of compensation otherwise due to
them. It was urged that the State had never
claimed that the erstwhile owner of the land
and the predecessor in interest of the
appellant herein had made any formal or
informal donation of the land in favour
of the State to facilitate the construction
of the road. In the absence of even an
assertion that the road was constructed
on the invitation of the erstwhile owner,
the High Court was in error in declining
to grant relief to the appellant who had
lost his valuable land and thereby the
source of livelihood. The remedy in a civil
court was neither speedy nor efficacious. It
– 28 – ( 2025:HHC:5826 )
was urged that the appellant would be satisfied
in case the actual extent of land utilised
by the State out of his ownership is verified
by the Collector and compensation determined
in Kanwar Singh’s case under Award No. 10
of 2008 directed to be paid to the appellant
depending upon the classification of the
land that has been utilised by the State
Government. It is urged that the appellant
would keeping in view the intervening delay
give up his right to claim compensation for
the user of the land without acquisition and
payment of statutory interest recoverable
on the said amount. This would according
to the learned counsel not only serve the
ends of justice but also prevent any further
litigation in the matter. It was submitted that this
Court could in the peculiar facts and
circumstances of this case and with a view
to giving a quietus to the entire controversy
make a suitable order that would meet the
ends of justice.
There is in our opinion considerable
merit in the submission made by Mr. Nag.
It is true that the appellant had approached
the High Court rather belatedly inasmuch
the land had been utilised some time in
the year 1985-86 while the writ petition
was filed by the appellant in the year 2009.
At the same time it is clear from the
pleadings in the case at hand that the user
of the land owned by the appellant is
not denied by the State in the counter affidavit
filed before the High Court or that filed
before us. It is also evident from the
averments made in the counter affidavit
that the State has not sought any donation
in its favour either by the appellant or
his predecessor in interest during whose
life time the road in question was
constructed. All that is stated in the
counter affidavit is that the erstwhile owner
of the land “might have donated” the
land to the State Government. In the absence
of any specific assertion regarding any
– 29 – ( 2025:HHC:5826 )
such donation or documentary evidence
to support the same, we are not inclined
to accept the ipsit dixit suggesting any
such donation. If that be so as it indeed
is, we fail to appreciate why the State should
have given up the land acquisition proceedings
initiated by it in relation to the land of the
appellant herein. The fact that the State
Government had initiated such proceedings
is not in dispute nor is it disputed that the
same were allowed to lapse just because
the road had in the meantime been taken
under the Pradhan Mantri Gram Sadak Yojna.
It is also not in dispute that for the
very same road the land owned by Kanwar
Singh another owner had not only been
notified for acquisition but duly paid
for in terms of Award No. 10 of 2008.
7(iv). Plea of State Authorities that land was
utilized on the basis of the oral consent given by
land-owner(s) was negated by the Hon’ble Supreme
Court, in Vidya Devi versus State of Himachal
Pradesh and others, (2020) 2 SCC 569, which
reads as under:
12.7. In this case, the appellant could not
have been forcibly dispossessed of her property
without any legal sanction and without
following due process of law and depriving
her payment of just compensation, being a
fundamental right on the date of forcible
dispossession in 1967.
12.8. The contention of the State that the
appellant or her predecessors had “orally”
consented to the acquisition is completely
baseless. We find complete lack of authority
and legal sanction in compulsorily divesting
the appellant of her property by the
– 30 – ( 2025:HHC:5826 )
State.
7(v). In Sukh Dutt Ratra and another versus
State of Himachal Pradesh and others, (2022)
7 SCC 508, {i.e. CA No 2773 of 2022}, the Hon’ble
Supreme Court has held that in absence of any
material on record, the plea of verbal consent
or the fact that land owner did not raise any
objection cannot be used to deny compensation, in
the following terms:
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 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
– 31 – ( 2025:HHC:5826 )
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.
7(vi). The judgement in the case of Sukh
Dutt Ratra (supra) was again taken in Review
Petition (Civil) Diary No. 7253 of 2023 titled as
The State of Himachal Pradesh and others
versus Sukh Dutt Ratra, resulting in dismissal of
review petition on 03.08.2023 in the following
terms:
Review Petition (Civil) Diary No 7253 /2023
“Delay condoned.
Instant petition has been filed by the petitioners
for review of order dated 6.4.2022 passed by
this Court in CA No 2773 of 2022.
Having carefully perused the petition for
review and the papers connected therewith,
we do not find any reason for reconsideration
of the above mentioned order.
The Review petition is accordingly dismissed.”
– 32 – ( 2025:HHC:5826 )
Thus, taking into account the material
on record in the writ proceedings and even in
instant Letters Patent Appeal, this Court is of
the considered view, that the State Authorities have
not placed any material on record to substantiate
the plea of verbal consent by writ petitioner(s)-
private land owner and in absence of any proof
of “consent on the basis of cogent and concrete
evidence-material” the action of the State Authorities
in depriving the landowner-writ petitioner of his
land(s) and in divesting a land owner of the right
to get compensation for his lands but in utilizing
such land for the construction of road, being
without sanction of law does not stands the test
of judicial scrutiny. In absence of any material,
the contention of Learned State Counsel is
misconceived on facts and also in view of the
mandate of law in the case of Shankar Dass, Raj
Kumar, Vidya Devi and Sukh Dutt Ratra (supra).
8. Second contention of the Learned State
Counsel that the Mahota-Bagshar Road was
– 33 – ( 2025:HHC:5826 )
constructed under Pradhan Mantri Gram Sadak
Yojna [in short PMGSY] under the package for
the year 2003-2004 and the land of the writ
petitioner and others was utilized but since there
is no provision in Pradhan Mantri Gram Sadak
Yojna [in short PMGSY] guidelines for acquiring
land and for payment of compensation, therefore,
compensation could not be given to the writ
petitioner.
8(i). The above plea of the Learned State
Counsel does not stand the test of judicial scrutiny
for the reason that a reference was formulated
as to whether a person whose land was utilized
for construction of road under Pradhan Mantri
Gram Sadak Yojna [in short PMGSY] is entitled
to compensation has been answered by the Full
Bench of this Court in LPA No. 33 of 2021,
State of Himachal Pradesh and others versus
Sita Ram, decided on 30.03.2022 in the following
terms:
26. In view of the afore discussed law,
– 34 – ( 2025:HHC:5826 )
it must be held that even after the right of
property enshrined under Article 19(I) (f) was
deleted by the 44th amendment to the
Constitution, Article 300A still retains the
right to property as the constitutional right
as well as legal right and mandates that no
person can be deprived of his property
except by authority in law. Action of the
State in dispossessing a citizen of his private
property, without following the due process
of law, would be violative of Article 300A
of the Constitution of India, as also
negate his human right. Right to property
has thus been acknowledged, not only
constitutional as well as statutory, but also
human right, to be construed in the realm
of individual rights, such as right to health,
livelihood, shelter, employment etc. in a
Welfare State. The State Authorities cannot
dispossess any citizen of his property except
in accordance with the procedure established
by law, that too by due process of law
and by acquiring land and paying adequate
compensation.
27. The PMGSY Guidelines issued in April,
2012 clearly envisaged that land has to
be provided by the State Authorities for
construction of roads under that Scheme,
but under PMGSY, no provision has been made
for payment of compensation or acquiring the
land. Either the State Government has to provide
land by acquiring the land out of its own
resources, or by persuading the citizens to
voluntarily donate land or provide the land
in exchange of some other land given to
them by the State or by devising any other
mechanism as may be considered appropriate
to ensure availability of the land. Even the
PMGSY Guidelines also do not envisage
taking possession of the land of the citizen
without his consent and without payment
of due amount of compensation. It is however
another matter if the citizen voluntarily
surrenders his land, but the factum of
voluntariness on his part and free consent
– 35 – ( 2025:HHC:5826 )
to part with possession of such land, has
to be established by cogent and reliable
material/evidence if and when such an
action is called in question. Whether or
not someone has voluntarily donated the
land or has given his land in exchange of
another land provided to him by the State
or parted with possession of the land by
any other mechanism, are all questions
to be decided on facts of each case.
30. The judgments of this Court in Laiq
Ram Dogra and Bhoop Ram, in the facts of
those cases have been decided correctly by
relying on the decision of Supreme Court
in Raj Kumar‘s case. The Supreme Court
in Raj Kumar was also dealing with
the case where initially the process for
acquisition of land was started, but the
proceedings were allowed to lapse, as
subsequently the road, in question, was taken
over under the PMGSY, which did not
provide for compensation for land owners,
if land was utilized for such projects. The
Supreme Court rejected the argument that
such land owners should be directed to
approach the Civil Court for adjudication
of the disputed questions of facts. It held
that there was no reason as to why the
owners whose land had been utilized for
construction of road under PMGSY should
be denied payment of compensation. The
Supreme Court in that case also observed
that the appellant had approached the High
Court rather belatedly inasmuch as the
land had been utilized sometime in the year
1985-1986 and the writ petition was filed
by the appellant in the year, 2009. But
at the same time, the Supreme Court noted
that the user of the land owned by the
appellant was not denied by the State
in the counter-affidavit filed before the High
Court or even before the Supreme Court.
The plea that the erstwhile owner of the
land might have donated the land to the
State Government, was not accepted in the
– 36 – ( 2025:HHC:5826 )
absence of any specific assertion regarding
any such donation or documentary evidence
to support the same. Against the backdrop
of these facts, the Supreme Court directed
the Collector Solan to verify the exact land
utilized for construction of road and determine
the amount of compensation and pay the
same to the land owners.
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.
8(ii). Pursuant to Full Bench judgement in
LPA No. 33 of 2021 decided on 30.03.2022 in
the case of Sita Ram (supra) the Division Bench
of this Court, dismissed the state appeal titled
as State of Himachal Pradesh versus Sita Ram
on 3.11.2022, in the following terms:
4. During the course of hearing of the
appeal, one of the moot questions arose
as to whether a person(s) whose land(s)
has been utilized for construction of road
under ‘PMGSY’ is entitled to compensation
and upon noticing the conflicting opinions,
the issue was referred to Hon’ble Larger Bench
for authoritative pronouncement.
5. Now, the Hon’ble Larger Bench of this
Court vide its order dated 30.03.2022, has
answered the question in the affirmative and
held that the person(s) whose land(s) has
– 37 – ( 2025:HHC:5826 )
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.
8(iii). State Authorities assailed the judgement
in LPA No. 33 of 2021 before the Hon’ble Supreme
Court in SLP (C) Diary No. 31814 of 2023, titled
as The State of Himachal Pradesh & Ors versus
Sita Ram (since deceased) through LRs was also
dismissed on 3.10.2023, in the following terms:
1. Delay condoned.
2. We are not inclined to interfere with the
impugned judgment and order passed by the High
Court. The special leave petition is dismissed
accordingly.
3. Pending application(s), if any, stand
disposed of.
Thus, taking into account the mandate
of Full Bench in the case of Sita Ram (supra)
which has been upheld by the Hon’ble Supreme
Court in SLP referred to above, this Court upholds
the findings recorded by the Learned Single
Judge in the judgement dated 13.08.2024 in
question that even in case of construction or
– 38 – ( 2025:HHC:5826 )
utilization of road under the Pradhan Mantri Gram
Sadak Yojna [in short PMGSY], the land owner(s)
including the writ petitioner herein, is entitled for
acquisition and compensation for the land utilized
for construction of road by the State Authorities.
9. Third contention of Learned State Counsel
is that the process for utilization-construction
of the road relating to package 2003-04 was
started by State Authorities in the year 2005 and
the same was completed in February 2009 and
the writ petitioner approached this Court in June,
2022 and therefore, the claim suffer from delay
and laches and therefore, no relief could have
been granted to the writ petitioner by the Learned
Single Judge.
Above contention of State Authorities
invoking plea of delay and laches is untenable
for the reason, that the State Authorities took
possession and utilized the land belonging to
writ petitioner without any sanction of law as
mandated by the Honble Supreme Court in Tukaram
– 39 – ( 2025:HHC:5826 )
Kana Joshi and others versus Maharashtra
Industrial development Corporation and others,
(2013) 1 SCC 353, in the following terms:
9. There are authorities which state
that delay and laches extinguish the right
to put forth a claim. Most of these authorities
pertain to service jurisprudence, grant of
compensation for a wrong done to them
decades ago, recovery of statutory dues,
claim for educational facilities and other
categories of similar cases, etc. Though,
it is true that there are a few authorities
that lay down that delay and laches debar
a citizen from seeking remedy, even if his
fundamental right has been violated, under
Article 32 or 226 of the Constitution, the
case at hand deals with a different scenario
altogether. 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. There is a distinction, a true and
concrete distinction, between the principle of
“eminent domain” and “police power” of
the State. Under certain circumstances, the
police power of the State may be used
temporarily, to take possession of property
but the present case clearly shows that
neither of the said powers have been exercised.
A question then arises with respect to the
authority or power under which the State
entered upon the land. It is evident that
the act of the State amounts to encroachment,
in exercise of “absolute power” which in
common parlance is also called abuse of
power or use of muscle power. To further
clarify this position, it must be noted that
the authorities have treated the land owner
– 40 – ( 2025:HHC:5826 )
as a ‘subject’ of medieval India, but not
as a ‘citizen’ under our constitution.
9(i). Repelling the contention of delay and
laches or limitation the Honble Supreme Court
mandated that the defence of delay and laches
or limitation will not apply, if the case relates to
a continuing cause of action or if circumstances
shocks the conscious of the Court while exercising
constitutional jurisdiction so as to do substantial
justice in Vidya Devi versus State of Himachal
Pradesh and others, (2020) 2 SCC 569, in the
following terms:
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, of 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.
– 41 – ( 2025:HHC:5826 )
9(ii). Negativating the contention of delay and
laches in case a person was forcibly dispossessed
of private property without following due process
of law and by mandating that there cannot be
a limitation for doing justice the Hon’ble Supreme
Court has held in Sukh Dutt Ratra and another
versus State of Himachal Pradesh and others,
(2022) 7 SCC 508 after following the mandate
in the case of Vidya Devi (supra), in the following
terms:
“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.”
[Emphasis supplied]
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
– 42 – ( 2025:HHC:5826 )
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.
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.
9(iii). A coordinate Division Bench of this Court
based on the mandate of the Hon’ble Supreme
Court in the case of Tukaram Kana Joshi, Vidya
Devi and Sukh Dutt Ratra (supra) had outlined
in LPA No. 54 of 2017, In re: State of Himachal
Pradesh and others versus Upender Kumar and
other connected matters decided on 27.3.2024 that
objection regarding limitation or delay and laches
– 43 – ( 2025:HHC:5826 )
cannot be permitted to come in the way so as
render do substantial justice when, the action of
forcible deprivation of private land owner from his
property was without sanction of law, resulting in
expropriation of property by State, resulting in
a continuing cause of action and/or such act
shocks the judicial conscience in the following
terms:
10. It is now trite law that in dealing
with constitutional rights in the exercise
of writ jurisdiction, one can no longer
apply mutatis mutandis, the time frame
stipulated in limitation law as if they
were attracted. The issue has been dealt
with time and again by the Hon’ble Supreme
Court, particularly in the context of land
acquisition.
11. In Tukaram Kana Joshi and others
through Power-of-Attorney Holder versus
Maharashtra Industrial Development Corporation
and others (2013) 1 SCC 353 (“Tukaram”),
the Hon’ble Supreme Court ruled that the
constitutional right to property could
not be defeated on technical grounds citing
delay. Though, in the case of State of
Maharashtra versus Digambar (1995) 4 SCC
683 (“Digambar”) the Hon’ble Supreme
Court had denied relief to farmers on the
ground of delay, but delay was not simply
declared to be an absolute bar on filing
of a writ petition.
12. It cannot be disputed that while deciding
Tukaram’s case (supra), Digambar‘s case
(supra) had not been noticed, but the same
was later noticed by the Hon’ble Supreme
– 44 – ( 2025:HHC:5826 )
Court in a fairly recent case of Sukh Dutt
Ratra and another versus State of Himachal
Pradesh and others (2022) 7 SCC 508
(“Sukh Dutt Ratra”) wherein the Hon’ble
Supreme Court has dealt with a number
of its judgments to emphasis that there can
be no “limitation” to do justice if it is
clear that the right to property has been
intruded into without due process of law.
The Hon’ble Supreme Court has repelled
the citation of delay and laches in enforcement
of the constitutional right to property in land.
The Hon’ble Supreme Court, as observed
above, has considered the case of
Digambar.
13. Thus, the law as stands today is that
the State cannot, on the ground of delay
and laches, evade its responsibility towards
those from whom private property has
been expropriated. In any case, what principles
a Court must apply while assessing whether
a writ petition is so hopelessly barred by
delays and laches that a remedy is not
worthy of consideration, is well articulated
in Maharashtra SRTC versus Balwant Regular
Motor Service AIR 1969 SC 329 and these
principles stand extracted and endorsed by
the Hon’ble Supreme Court in Sukh Dutt
Ratra‘s case (supra) wherein it was held
as under:
“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
– 45 – ( 2025:HHC:5826 )
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 Anakh Singh v.
State of H.P., 2007 SCC Online HP
220) and 20.12.2013 (in Onkar Singh
vs. State, CWP No. 1356 / 2010)
respectively. In this manner, at every
stage, the State sought to shirk its
responsibility of acquiring land required
for public use in the manner prescribed
by law.
18. There is a welter of precedents
on delay and laches which conclude
either way-as contended by both sides
in the present dispute-however, the
specific factual matrix compels this
court to weigh in favour of the appellant-
land owners. The State cannot shield
itself behind the ground of delay and
laches in such a situation; there
cannot be a ‘limitation’ to doing justice.
This court in a much earlier case-
Maharashtra State Road Transport
Corporation v. Balwant Regular Motor
Service (1969) 1 SCR 808, held:
– 46 – ( 2025:HHC:5826 )
“11……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, 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 the
one course or the other, so far
as relates to the remedy.”
14. By now, it is well settled that right
to property though no longer a fundamental
right and is otherwise a zealous possession
of which one cannot be divested save and except
by the authority of law as is enjoined by
Article 300A of the Constitution of India.
Any callous inaction or apathy of the State
and its instrumentalities, in securing just
compensation would amount to dereliction of
– 47 – ( 2025:HHC:5826 )
a constitutional duty justifying issuance of
writ of mandamus for appropriate remedial
directions.
9(iv). The judgement in Upender Kumar’s case
(supra) was taken by State Authorities in SLP (C)
No. 49057 of 2024, titled as The State of Himachal
Pradesh and others versus Upender Kumar wherein,
after cautioning the State Authorities with exemplary
costs, the SLP was dismissed on 22.11.2024, in
the following terms:
SPECIAL LEAVE PETITION (CIVIL) Diary No(s).
49057/2024
[Arising out of impugned final judgment and
order dated 27-03-2024 in LPA No. 54/
2017 passed by the High Court of Himachal
Pradesh at Shimla]THE STATE OF HIMACHAL PRADESH &
ORS. Petitioner(s) VERSUS UPENDER KUMAR
Respondent(s)
1. Delay condoned.
2. We have come across several matters
wherein the State of Himachal Pradesh has
challenged the orders passed by the Division
Bench of the High Court of Himachal Pradesh,
thereby directing the compensation to be
paid to the respondent(s).
3. The writ petitioner(s) has approached
the High Court with a grievance that though
the possession of their lands were taken for
road construction, they did not receive
compensation.
4. By the impugned judgment and order,
the High Court has held that the State cannot
– 48 – ( 2025:HHC:5826 )
take possession of citizen land without
paying the compensation.
5. Although the right to property is no
longer considered a fundamental right, it is
still a constitutional right. The State cannot
be permitted to acquire citizen land without
paying appropriate compensation.
6. In these circumstances, it would have
been justified in dismissing the special leave
petition(s) with exemplary cost. However,
we refrain from doing so now and simply
dismiss these special leave petitions.
9(v). While dealing with a claim by landlord
for compensation, who was non suited on the
ground of delay and laches, the Hon’ble Supreme
Court allowed the compensation by negating the
plea of delay and laches, so as to rectify injustice
and moreso when, the right of an individual to
vindicate and protect private property could not be
brushed aside by invoking delay and laches in
Urban Improvement Trust versus Vidhya Devi
and others, Civil Appeal No. 14473 of 2024 decided
on 13.12.2024 in the following terms:
45. Having heard the learned counsels
appearing for the parties and having gone
through the materials on record, the following
questions fall for our consideration:
(i) Whether the High Court committed
any error in taking the view that
– 49 – ( 2025:HHC:5826 )
the respondents herein should be
non-suited on the ground of delay
and laches?
46. As regards the appellant’s challenge
to the inordinate delay of 21 years in filing
of the writ petitions by the respondents,
we are of the view that the same needs
to be considered in the facts and circumstances
of the case. While it is true that the
courts have consistently held that undue
delay in approaching the court can be a
ground for refusing relief, the courts have
also recognized that in exceptional cases,
where the impugned action is patently
illegal or affects fundamental rights, the
delay must be condoned.
47. It is pertinent for us to consider the
judgment of this Court in Vidya Devi v.
State of Himachal Pradesh reported in
(2020) 2 SCC 569, wherein it was held, inter
alia, as follows:
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. [P.S. Sadasivaswamy v.
State of T.N., (1975) 1 SCC 152 : 1975
SCC (L&S) 22]” [Emphasis supplied]
48. The aforesaid view has also been
reiterated by this Court in Sukh Dutt
Ratra v. State of Himachal Pradesh reported
in (2022) 7 SCC 508 wherein the court
opined that there cannot be a ‘limitation’
to doing justice….”.
50. This Court in its decision in Ramchandra
Shankar Deodhar v. State of Maharashtra,
reported in (1974) 1 SCC 317 held that:
“10. … There was a delay of more than
ten or twelve years in filing the
petition since the accrual of the cause
of complaint, and this delay, contended
the respondents, was sufficient to
– 50 – ( 2025:HHC:5826 )
disentitle the petitioners to any relief
in a petition under Article 32 of
the Constitution. We do not think
this contention should prevail with
us. In the first place, it must be
remembered that the rule which says
that the Court may not inquire into
belated and stale claims is not a
rule of law, but a rule of practice
based on sound and proper exercise
of discretion, and there is no inviolable
rule that whenever there is delay,
the Court must necessarily refuse
to entertain the petition. Each case
must depend on its own facts. The
question, as pointed out by Hidayatullah,
C.J., in Tilokchand Motichand v. H.B.
Munshi [(1969) 1 SCC 110] “is one of
discretion for this Court to follow
from case to case. There is no lower
limit and there is no upper limit …. It
will all depend on what the breach
of the fundamental right and the
remedy claimed are and how the delay
arose”. …[ SCC para 11] …”
(Emphasis supplied)
51. The decisions of this Court have
consistently held that the right to property
is enshrined in the Constitution and requires
that procedural safeguards be followed to
ensure fairness and non-arbitrariness in
decision-making especially in cases of
acquisition by the State. Therefore, the delay
in approaching the court, while a significant
factor, cannot override the necessity to
address illegalities and protect right to
property enshrined in Article 300A. The
court must balance the need for finality
in legal proceedings with the need to
rectify injustice. The right of an individual
to vindicate and protect private property
cannot be brushed away merely on the
grounds of delay and laches.
{Emphasis Ours}
- 51 - ( 2025:HHC:5826 )
Based on the factual matrix and the
legal mandate as discussed hereinabove, this Court
is of the considered view that once the State
Authorities have curtailed the constitutional right
of the writ petitioner i.e. by forcibly depriving
him of his property without sanction of law and
in depriving such land owner of the compensation
by utilizing the land of writ petitioner, even though
for a public purpose i.e. construction of road.
This action of the State Authorities has certainly
resulted in civil consequences, by depriving the
land owner-writ petitioner of his right to reap the
benefits accruing from his land resulting in
recurring loss and this action has shocked the
conscience of this Court. In these circumstances,
the plea of delay and laches cannot be permitted
to be raised by the State so as to safeguard
the rights of the writ petitioner so as to rectify
injustice and to enable the writ petitioner to get
compensation for his land, from which he was
– 52 – ( 2025:HHC:5826 )
forcibly and illegally dispossessed in the teeth of
Articles 14, 21 and 300-A of the Constitution of
India. Accordingly, in facts of this case, the plea
of delay and laches needs to be brushed aside so
as to rectify injustice and to render substantial
justice to writ petitioner. Accordingly, the contention
of Learned State Counsel based on delay and
laches does not stand the test of judicial scrutiny
and the same is rejected.
10. Fourth contention of Learned State Counsel
is that the judgement in the case of State of
Maharashtra versus Digambar (1995) 4 SCC 683
has not been considered by the Learned Single
Judge is misconceived when, the Learned Single
Judge had referred to the judgment in the case
of Sukh Dutt Ratra (supra), wherein, the judgement
in Digambar‘s case (supra) as discussed in the
case of Vidya Devi (supra) was relied upon and
based on aforesaid judgement(s), the plea of delay
and laches was negated by the Hon’ble Supreme
Court. Thus, in these circumstances, the contention
– 53 – ( 2025:HHC:5826 )
of Learned State Counsel does not stand test of
judicial scrutiny and is accordingly turned down.
11. Fifth contention of Learned State Counsel
is that the judgement in case of Rajiv versus State
of Himachal Pradesh has not been considered
by the Learned Single Judge. The above contention
is contrary to the records, when no such judgement
was made part of reply affidavit before the writ court
and even, in instant appeal, the aforesaid judgement
has neither been referred to. Even on a query
by this Court, Learned State Counsel was able to
point out the aforesaid judgement, as quoted in
grounds of appeal today.
12. Last contention of Learned State Counsel
is that the Full Bench judgement of this Court
[though not quoted as to which Full Bench
judgment] has been ignored. It appears that the
above plea has been set-up, just to delay the
implementation of Impugned judgement and to
prolong the release of actual compensation to the
land owner-writ petitioner. Moreover, the Learned
– 54 – ( 2025:HHC:5826 )
Single Judge has discussed the mandate of Full
Bench of this Court in the case of Sita Ram
Sharma (supra), in Paras 4 and 5 of the judgement
and has relied on the judgment in case of Sukh
Dutt Ratra, wherein another Full Bench judgement
in case of Shankar Dass has been duly relied
upon-approved by the Honble Supreme Court..
13. Notwithstanding the above, the instant
appeal needs to be tested from another angle
also. Admittedly, the State Authorities started the
construction of Mahota Bagshar Road with total
length of 00/00 to 17/00 upto village Telehan
under Pradhan Mantri Gram Sadak Yojna [in
short PMGSY] under package for the year 2003-04.
Land of the writ petitioner and other co-owners,
having adjoining lands namely Bhoop Ram and
Neem Chand were also utilized for the construction
of same subject road without sanction of law
by the State Authorities. Feeling aggrieved Bhoop
Ram filed CWP No. 2386 of 2009 and Neem Chand
filed CWP No. 3090 of 2009 and both these
– 55 – ( 2025:HHC:5826 )
writ petitions were allowed on 24.06.2016 and
5.7.2016 by the Learned Single Judge. These
judgement in the case of Bhoop Ram was taken
in LPA No. 79 of 2017 decided on 8.8.2017 wherein
the State Appeal was dismissed and CWP was
upheld. After decision in LPA, the State Authorities
as per material on record in the writ proceedings
started the acquisition proceedings on 6.12.2018,
by issuing notification under Section 11 of the
Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
Act, 2013 leading to the passing of Award by
Land Acquisition Collector, HPPWD (CZ), Mandi
on 22.02.2022 [Annexure P-2 colly]. After passing
of award in the case of Bhoop Ram and Neem
Chand, the writ petitioner submitted representation
on 21.04.2022 to State Authorities [Annexure P-3]
whereafter the Land Acquisition Collector requested
the Executive Engineer concerned on 27.4.2022
[Annexure P-4] to initiate appropriate action for
acquiring the land. Even Special Secretary (PW)
– 56 – ( 2025:HHC:5826 )
directed the concerned Executive Engineer and
Land Acquisition Collector on 4.5.2022 [Annexure P-5]
to take steps for payment of compensation to the
writ petitioner [Charan Dass]. Since nothing was
done therefore, the writ petitioner approached this
Court in CWP No. 4226 of 2022 on 14.06.2022.
In these circumstances, once the compensation has
been given to Bhoop Ram and Neem Chand
therefore, “Impugned Judgement dated 13.08.2024”,
In re: Charan Dass versus State of Himachal
Pradesh and others needs no inference so as to
ensure parity in treatment and to avoid the charge
of discrimination vis-à-vis other landowners of the
adjoining lands for same subject road. The
act of the State Authorities in compelling the writ
petitioner to face litigation, one after the other,
for his constitutional right to get compensation
from the State Authorities against the illegal and
forcible deprivation of his property without the
sanction of law, and that too by a mere executive
fiat, cannot be permitted to operate any longer.
– 57 – ( 2025:HHC:5826 )
In order to balance the need for finality in legal
proceedings, with the intent and object of need
to rectify injustice and to enable the writ petitioner
to vindicate and to protect his private property
therefore, this Court being a “sentinel of justice” of
constitutional right of property embodied in Article
300-A of the Constitution of India, when, benefit
of compensation stands given to other landowners
having adjoining lands for subject road as detailed
hereinabove establishes unfairness, unreasonableness,
discrimination and arbitrariness in State action,
which also is not in spirit of the litigation policy
of the State-Appellants. Accordingly, the Impugned
judgement passed by the Learned Single Judge
does not suffer from any illegality, infirmity or
perversity and therefore, the instant appeal, is devoid
of any merit.
14. Based on the factual matrix and the
mandate of law as discussed hereinabove, this
Court does not find any merit in the contentions
advanced by the Learned State Counsel, in the
– 58 – ( 2025:HHC:5826 )
instant appeal which are just a reiteration of
the pleas taken by the appellate-State Authorities
before the Writ Court. Accordingly, the contentions
of Learned State Counsel for appellants, are without
merit and the same are accordingly turned down.
CONCLUSION & DIRECTIONS:
15. In view of the above discussion and for
the reasons recorded hereinabove, the instant
Letters Patent Appeal sans merit, and is dismissed
in the following terms:-
(i). Impugned judgement passed by Learned
Single Judge, in CWP No. 4226 of 2022
decided on 13.08.2024 in Charan Dass
versus State of Himachal Pradesh and
others, is upheld;
(ii). Respondents-State Authorities are directed
to initiate the acquisition proceedings
and/or to otherwise award compensation
to the writ petitioner [Charan Dass], on
same analogy it has been released to
land owners having adjoining lands i.e.
Bhoop Ram and Neem Chand [supra]
which was used for same subject road ;
with directions to complete entire process
expeditiously and not later than the
outer limit of one year as mandated
– 59 – ( 2025:HHC:5826 )
by Learned Single Judge in judgement
under reference.
16. Before parting with this case, this Court
observe that State Authorities have been filing appeals
notwithstanding the fact that benefit of acquisition
and/or compensation for utilization of lands of
landowner(s) by the State Authorities in identical
cases stands implemented. Yet, filing of instant appeal
reveals a sorry state of affairs, for which this
Court would have imposed exemplary costs. However,
without observing further and by refraining ourselves,
this Court hopes and trust that State Authorities
shall follow its litigation policy in letter and spirit
hereinafter, failing which we shall be constrained to
levy exemplary costs which shall be liable to be paid by
the officer concerned.
In aforesaid terms, the letters patent appeal
is dismissed in limine and pending miscellaneous
application(s), if any, shall also stand disposed of
accordingly.
( G. S. Sandhawalia ) ( Ranjan Sharma ) Chief Justice. Judge. March 1, 2025 [tm]
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