Allowed

Suresh Kumar v. State of Hp

Himachal Pradesh HC2 Dec 2024CWP/2540/2021

Case brief

AI extract

What is this about?

The Court issued a writ of mandamus directing the State to initiate acquisition proceedings and pay compensation for petitioner's land used for road construction since 1990, rejecting the State's defense of delay and laches as inapplicable to continuing cause of action.

What did the court decide?

Petitioner is directed to initiate acquisition proceedings within four weeks and award just compensation, including statutory interest and solatium.

Suresh Kumar Vs State of Hp — Land Acquisition | Himachal Pradesh HC (2024)

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2024:HHC:13078-DB

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 2540 of 2021

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Date of Decision: 02.12.2024

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______________________________________________________________ Suresh Kumar ……...Petitioner Versus State of Himachal Pradesh & Ors. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. Munish Datwalia, Advocate. For the respondents: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar, Mr. B.C.Verma, Additional Advocates General & Mr. Ravi Chauhan, Deputy Advocate General.

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Sandeep Sharma, J. (Oral)

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Since despite there being utilization of the land of the petitioner for construction of “Thana Prem Nagar road via Turan, Tehsil Jubbal, District Shimla”, petitioner has not been paid compensation by the department after acquiring the land, he has approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein for following main reliefs:

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“(a) Writ of mandamus may kindly be issued to the respondents to initiate acquisition proceeding qua the land of the petitioner used for the construction of Thana Premnagar road via Turan denoted by Khasra Nos. 34 and 35, situated at Up-Mohal Premnagar, Tehsil Jubbal, District Shimla, HP as reflected in Jamabandi Annexure P-1.”

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2. Precisely, the facts of the case as emerges from the record are that the land of the petitioner comprised in Khasra Nos. 34 & 35, situate at Up Mohal Premnagar, Tehsil Jubbal, District Shimla , Himachal Pradesh, came to be utilized for the construction of “Thana Prem Nagar road via Turan, Tehsil Jubbal, District Shimla” in the year 1990, but since respondents failed to initiate acquisition proceedings and no compensation was paid to the petitioner, he has approached this Court in the instant proceedings, seeking therein direction to the respondents to initiate acquisition proceedings and thereafter pay compensation.

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3. Pursuant to notices issued in the instant proceedings, respondents have filed the reply, wherein facts, as have been noticed herein above, are not in dispute, rather stand duly admitted. Precisely, the claim of the petitioner, as has been raised in the petition, has been refuted by the respondents on the ground that present petition is barred by delay and laches and land was made available by the petitioner of his own volition with clear-cut understanding that he would not seek any compensation. Besides above, it has also been averred in the reply filed by the respondents that road in question was constructed on the persistent demand of the residents of the area, with clear cut understanding that they shall claim no compensation.

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4. Mr. Munish Datwalia, learned representing the petitioner, vehemently argued that once it is not in dispute that land of the petitioner stands utilized for construction of the road in question, respondents cannot escape from its liability to pay the compensation after initiation of the

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proceedings in terms of provisions contained in the Land Acquisition Act. He further submitted that there is nothing on record to demonstrate that consent, if any, was ever given by the petitioner to provide the land free of cost. While placing heavy reliance upon the judgments passed by the Hon’ble Apex Court in Vidya Devi v. State of HP and Ors, 2020 (2) SCC 569 and Sukh Dutt Ratra and Anr v. State of Himachal Pradesh and Ors, 2022 (7) SCC 508 , Mr. Datwalia, argued that plea of delay and laches cannot be raised in the case of continuing cause of action, especially, in land acquisition matters. He also placed reliance upon the judgment dated 18.7.2023, passed by this Court in CWP No. 8647 of 2022, titled Sh. Ramanand and Ors v. State of Himachal Pradesh and Ors , whereby this Court, while placing reliance upon aforesaid judgments passed by the Hon’ble Apex Court, rejected the plea of delay and laches raised by the respondents-State and directed respondents to initiate acquisition proceedings.

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5. Mr. Rajan Kahol, learned Additional Advocate General, while opposing the prayer made on behalf of the petitioner, vehemently argued that though there is no written document suggestive of the fact that land used for construction of the road was made available voluntarily by the petitioner with clear cut understanding that he shall not claim any compensation, but otherwise also, since petitioner remained silent for more than three decades, it can be safely inferred that there was an implied consent on the part of the petitioner for construction of the road.

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6. While making this Court peruse judgment passed by this Court in Shankar Dass v. State of Himachal Pradesh in CWP No. 1966 of 2010, decided on 2.3.2013, learned Additional Advocate General contended that appropriate remedy for redressal of grievance as raised in the instant petition is to approach the civil court by way of civil suit. He also placed reliance upon the judgment passed by the Hon’ble Apex Court in State of Maharashtra v. Digambar, 1995 (4) SCC 683 , to state that claim being highly stale deserves outright rejection.

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7. Having heard learned counsel for the parties and perused material available on record, this Court finds that land of the petitioner was utilized for construction of the road detailed herein above in the year 1990. Though acquisition proceedings were initiated and compensation was duly paid, but that was restricted to some portion of land comprised Khasra Nos. 34/1 and 35/1, as a result of which, no compensation was ever paid for the remaining portion land of the petitioner. It has been claimed by the respondents that there was consent on the part of the petitioner for utilization of the land for construction of the road, however, there is no documentary evidence, if any, available on record.

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8. Though, learned Additional Advocate General, attempted to carve out a case that there was an oral consent, but such plea of him cannot be accepted simply on the ground that petition at hand has been filed after more than three decades of use of the land. Otherwise also, plea of delay and laches raised by the respondents is not available to them in light of judgments

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passed by the Hon’ble Apex Court in Vidya Devi and Sukh Dutt Ratra’s cases supra. In the aforesaid judgments, Hon’ble Apex Court has categorically held that plea of 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, it can always condone the delay to do the substantial justice. Most importantly, in the aforesaid judgment, it has been held that condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case and while doing so, there is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. It has been further held that forcible dispossession of a person of their private property without following due process of law, is violative of both their human right and constitutional right under Article 300-A.

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9. Crux of the aforesaid judgments is that land owners cannot be deprived of the property without due process of law, if it is so, ground raised by the respondents that land of the petitioner was made available with his consent is of no consequence, rather this Court having taken note of the fact that land of the petitioner already stands utilized, is compelled to agree with the submissions of the learned counsel for the petitioner that he is entitled to compensation qua the land used by the respondents for construction of the road.

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10. Though, in the case at hand, learned Additional Advocate General invited attention of this court to judgment dated 24.2.2023, passed by

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the Hon’ble Apex Court in Civil Appeal No. 1278 of 2023, State of Himachal

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Pradesh and Ors V. Rajiv and Anr ., but having perused the same, this Court finds that same is not applicable in the case at hand because in the aforesaid judgment, it has been nowhere stated/ruled that claim raised for acquisition and compensation after delay cannot be considered, rather in the aforesaid case, claimants were not held entitled to the interest under the Land Acquisition Act from the date of notification under Section 4 till the filing of the writ petition. Since in the case at hand, no notification under Section 4 has been issued till date, ruling, if any, given in the aforesaid judgment passed by the Hon’ble Apex Court has no application in the present case. In the instant case, land of the petitioner has been utilized for construction of the road in 1972-73 without paying compensation. Despite there being issuance of legal notice, respondents have failed to initiate acquisition proceedings, as a result of which, great prejudice has been caused to the petitioner. At this stage, it would be apt to take note of the following paras of the judgment passed in Vidya Devi (supra):-

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“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.

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Article 31 guaranteed the right to private property 1, which could not be deprived without due process of law and upon just and fair compensation.

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10.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right 2 in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article.

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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.

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Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai4, wherein this Court held that:

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“ 6. … Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.” (emphasis supplied)

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In N. Padmamma v. S. Ramakrishna Reddy5, this Court held that:

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“21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed.” (emphasis supplied)

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In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.& Ors., this Court recognized the right to property as a basic human right in the following words:

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“30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property."Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.” (emphasis supplied)

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In Jilubhai Nanbhai Khachar v. State of Gujarat,7 this Court held as follows :

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“48. …In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A. In other words, if there is no law, there is no deprivation.” (emphasis supplied)

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10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.

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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

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lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.

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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.

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This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.

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10.6. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.

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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.

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In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it.

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In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., this Court while dealing with

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a similar fact situation, held as follows :

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“There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode.” (emphasis supplied)”

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11. Reliance is also placed upon judgment passed by the Hon’ble

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Apex Court in Sukhdutt Ratra’s cases (supra).

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“23. This Court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of ‘oral’ consent to be baseless and outlined the responsibility of the State:

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“12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.

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12.10. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.”

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24. And with regards to the contention of delay and laches, this court went on to hold:

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“12.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if

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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.

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12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it.

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25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative22 of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case. 26. In view of the above discussion, in view of this court’s extraordinary jurisdiction under Article 136 and 142 of the Constitution, the State is hereby directed to treat the subject lands as a deemed acquisition and appropriately disburse compensation to the appellants in the same terms as the order of the reference court dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of 2004 (and consolidated matters). The Respondent-State is directed, consequently to ensure that the appropriate Land Acquisition Collector computes the compensation, and disburses it to the appellants, within four months from today. The appellants would also be entitled to consequential benefits of solatium, and interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of notification under Section 4 of the Act), till the date of the impugned judgment, i.e. 12.09.2013.”

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12. In the aforesaid judgments, Hon’ble Apex Court has categorically

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held that contention advanced by the State of delay and laches of the appellant in moving the Court is liable to be rejected especially when it is not in dispute that petitioner is suffering continuous loss coupled with the fact that he repeatedly requested the authorities to initiate acquisition proceedings.

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13. In case titled, State of Himachal Pradesh v. Umed Ram

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Sharma (1986) 2 SCC 68 , Hon’ble Apex Court has held that entire State of Himachal Pradesh is a hilly area and without workable roads, no communication is possible; every person is entitled to life as enjoined in Article 21 of the Constitution of India; every person has right under Article 19 (1) (b) of the Constitution of India to move freely, throughout the territory of India; for the residents of hilly areas, access to road is access to life itself. Stand taken by the respondents that there was a policy for providing roads on demand of residents as a favour to them on conditions that they would not claim compensation, cannot be sustained because such stand is violative of Article 300A of the Constitution of India

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14. In case titled Hari Krishna Mandir Trust vs. State of Maharashtra and others , 2020 9 SCC 356, Hon’ble Apex Court has held that though right to property is not a fundamental right, but it is still a constitutional right under Article 300A of the Constitution of India and also a human right; in view of the mandate of Article 300A, no person can be deprived of his property save by the authority of law. No doubt, State possesses the power to take or control the property of the owner of the land for the benefit of public, but at the same time, it is obliged to compensate the injury by making just compensation. 15. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds merit in the present petition and accordingly, same is allowed with direction to the respondents to initiate acquisition proceedings within four weeks under the

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relevant statute vis-à-vis land of the petitioner and thereafter, just and fair compensation qua the same be awarded to the petitioner. Since petitioner has been fighting for his rightful claim for years together, this Court hopes and trusts that authority concerned would do the needful expeditiously, preferably, within four months. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.

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December 02, 2024 (Sandeep Sharma), (sunil) Judge

Suresh Kumar v. State of Hp

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Suresh Kumar v. State of Hp

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