Delay condoned. Leave granted.
1The Appellant now almost 80 years old, was undisputedly the
owner of land admeasuring about 3.34 Hectares comprised in
Khata/Khatuni No. 105 min/127, Khasra No. 70 in Tika Jalari
Bhaddirain, Mauja Jalari, Tehsil Nadaun, Dist. Hamipur,
Himachal Pradesh.
Signature Digitally2ThesignedNotbyVerified Respondent–State took over the land of the Appellant in SATISH KUMAR YADAV 1967–68 for the construction of a major District Road being
the Nadaun – Sujanpur Road, a major District Road without
taking recourse to acquisition proceedings, or following due
process of law.
The construction of the road was completed by 1975.
3The Appellant, being an illiterate widow, coming from a rural
background, was wholly unaware of her rights and entitlement
in law, and did not file any proceedings for compensation of
the land compulsorily taken over by the State.
4In 2004, some similarly situated persons whose lands had also
been taken over by the Respondent–State for the same public
purpose, filed CWP No.1192 of 2004 titled Anakh Singh & Ors.
v. State of Himachal Pradesh & Ors. claiming compensation
before the High Court of Himachal Pradesh.
The High Court vide Order dated 23.04.2007, allowed
CWP No.1192 of 2004, and directed the Respondent–State to
acquire the lands of the Writ Petitioners under the Land
Acquisition Act, 1894.
5Pursuant to the Order of the High Court in 2008, the
Respondent–State initiated acquisition proceedings under the
Land Acquisition Act, 1894 only with respect to the lands of
the Writ Petitioners, and not the other land-owners whose
lands had also been taken over.
6The Appellant submits that she learnt of these proceedings in
2010, when she alongwith her two daughters filed C.W.P. No.
1736 of 2010 before the Himachal Pradesh High Court,
praying that the State be directed to pay compensation for the
land acquired in 1967–68; or, in the alternative, direct the
State to initiate acquisition proceedings under the Land
Acquisition Act, 1894.
The Respondent–State filed its reply before the High
Court, wherein it was admitted that the Department had used
land in the ownership of the Appellant for the construction of
the Nadaun – Sujanpur road, a major district road in 1967–68.
The State had been in continuous possession of the property
since 1967–68, i.e., for the last 42 years, and the title of the
Respondent–State got converted into “adverse possession”. It
was submitted that the statutory remedy available to the
Appellant was by filing a Civil Suit.
The State has further admitted that a Notification under
Section 4 of the Land Acquisition Act had been issued in 2008
with respect to the land of Anakh Singh a neighbouring land
owner, whose land was similarly taken over for the same
purpose. Furthermore, the Writ Petition was barred by laches,
since the road was constructed in 1967–68, and metalled since
1975. The land was utilized by the Respondent–State after the
Appellant and her predecessors-in-interest had verbally
consented to the land being taken over without any objection.
7The High Court vide the impugned Judgment and Order dated
11.09.2013 held that the matter involved disputed questions of
law and fact for determination on the starting point of
limitation, which could not be adjudicated in Writ proceedings.
The Appellant was granted liberty to file a Civil Suit.
8Aggrieved, the Appellant filed a Review Petition against the
Judgment and Order dated 11.09.2013 which was dismissed
vide Order dated 13.05.2014.
9The Appellant has filed the present Appeals before this Court, to
challenge the Judgment dated 11.09.2013 passed in the Writ
Petition and Order dated 13.05.2014 passed in the Review
Petition.
10 We have heard learned Counsel for the parties and perused
the record.
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 property1,
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 right2 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.3
1 The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92. 2 Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353. 3 K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1.
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 Chenai4,
wherein this Court held that:
“ 6. … Having regard to the provisions contained in
Article 300-A of the Constitution, the State in
exercise of its power of "eminent domain" may
interfere with the right of property of a person by
acquiring the same but the same must be for a
public purpose and reasonable compensation
therefor must be paid.”
In N. Padmamma v. S. Ramakrishna Reddy5, this Court
held that:
“21. If the right of property is a human right as also
a constitutional right, the same cannot be taken
away except in accordance with law. Article 300-A
of the Constitution protects such right. The
provisions of the Act seeking to divest such right,
keeping in view of the provisions of Article 300-A of
the Constitution of India, must be strictly construed.”
In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.
& Ors.6, 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.”
In Jilubhai Nanbhai Khachar v. State of Gujarat,7 this
Court held as follows :
“48. …In other words, Article 300-A only limits the
powers of the State that no person shall be deprived
of his property save by authority of law. There has
to be no deprivation without any sanction of law.
Deprivation by any other mode is not acquisition or
taking possession under Article 300-A. In other
words, if there is no law, there is no deprivation.”
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
7 (1995) Supp. 1 SCC 596.
payment of just compensation, being a fundamental right
on the date of forcible dispossession in 1967.
10.4. The contention of the State that the Appellant or her
predecessors had “orally” consented to the acquisition is
completely baseless. We find complete lack of authority and
legal sanction in compulsorily divesting the Appellant of her
property by the State.
10.5. In a democratic polity governed by the rule of law, the State
could not have deprived a citizen of their property without
the sanction of law. Reliance is placed on the judgment of
this Court in Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.8
wherein it was held that the State must comply with the
procedure for acquisition, requisition, or any other
permissible statutory mode. The State being a welfare State
governed by the rule of law cannot arrogate to itself a status
beyond what is provided by the Constitution.
This Court in State of Haryana v. Mukesh Kumar held
that the right to property is now considered to be not only a
constitutional or statutory right, but also a human right.
Human rights have been considered in the realm of
individual rights such as right to shelter, livelihood, health,
employment, etc. Human rights have gained a multi-faceted
dimension.
10.6. We are surprised by the plea taken by the State before the
High Court, that since it has been in continuous possession
of the land for over 42 years, it would tantamount to
“adverse” possession. The State being a welfare State,
cannot be permitted to take the plea of adverse possession,
which allows a trespasser i.e. a person guilty of a tort, or
even a crime, to gain legal title over such property for over
12 years. The State cannot be permitted to perfect its title
over the land by invoking the doctrine of adverse possession
to grab the property of its own citizens, as has been done in
the present case.
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.9
In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,10 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 Article
9 P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152.
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.”
11 In the present case, the Appellant being an illiterate person,
who is a widow coming from a rural area has been deprived of
her private property by the State without resorting to the
procedure prescribed by law. The Appellant has been divested
of her right to property without being paid any compensation
whatsoever for over half a century. The cause of action in the
present case is a continuing one, since the Appellant was
compulsorily expropriated of her property in 1967 without
legal sanction or following due process of law. The present
case is one where the demand for justice is so compelling since
the State has admitted that the land was taken over without
initiating acquisition proceedings, or any procedure known to
law. We exercise our extraordinary jurisdiction under Articles
136 and 142 of the Constitution, and direct the State to pay
compensation to the Appellant.
12 The State has submitted that in 2008 it had initiated
acquisition proceedings in the case of an adjoining land owner
viz. Shri Anakh Singh pursuant to a direction given by the
High Court in C.W.P.No.1192 of 2004. The State initiated
acquisition only in the case where directions were issued by
the High Court, and not in the case of other land owners
whose lands were compulsorily taken over, for the same
purpose, and at the same time. As a consequence, the present
land owner has been driven to move the Court in their
individual cases for redressal.
13 In view of the aforesaid facts and circumstances of the present
case, the Respondent–State is directed to pay the
compensation on the same terms as awarded by the Reference
Court vide Order dated 07.07.2015 in Anakh Singh’s case
(i.e. Land Reference No.1 of 2011 RBT No.01/13) alongwith all
statutory benefits including solatium, interest, etc. within a
period of 8 weeks, treating it as a case of deemed acquisition.
An Affidavit of compliance is directed to be filed by the State
before this Court within 10 weeks.
It is informed that an appeal has been preferred by
Ravinder Singh s/o Anakh Singh & Ors. being RFA No.35 of
2016 which is pending before the High Court of Himachal
Pradesh at Shimla.
Taking note thereof, if an appeal is filed by the present
appellant within 8 weeks from the date of compensation being
paid to her by the State, the appeal will be treated to be within
limitation, and would be decided on its own merits in
accordance with law.
The Respondent-State is directed to pay legal costs and
expenses of Rs.1,00,0000/- to the present appellant.
14 The Appeals are accordingly allowed. The Orders dated
11.09.2013 and 13.05.2014 passed by the High Court are set
aside.
Ordered accordingly.
(AJAY RASTOGI) New Delhi January 08, 2020.