Allowed

Baldev v. State of Hp

Himachal Pradesh HC16 Mar 2024CWP/260/2017

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh held that petitioners cannot be denied compensation for land used in road construction due to delay or lack of written consent. Relying on constitutional mandates for property rights and eminent domain, the court directed the State to initiate acquisition proceedings promptly.

What did the court decide?

The petitions were allowed with a direction to respondents to initiate acquisition proceedings within four weeks and award just and fair compensation to the petitioners.

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

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Civil Writ Petition No.256 of 2016 alongwith CWP Nos.247 and 260 of 2017 Date of Decision: 16.3.2024

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_____________________________________________________________________ 1. CWP No. 256 of 2016 Satya Devi and Ors.

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……...Petitioners

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Versus

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State of Himachal Pradesh and others 2. CWP No.247 of 2017 Ram Chand and Ors.

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…....Respondents

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……...Petitioners Versus

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State of Himachal Pradesh and others

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…....Respondents

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3. CWP No.260 of 2017

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Baldev and Ors.

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……...Petitioners Versus

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State of Himachal Pradesh and others

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…....Respondents

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Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?

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For the Petitioners: Ms. Devyani Sharma, Senior Advocate with Mr. Anirudh Sharma, Advocate, for the petitioners in CWP No. 256 of 2016. Mr. Ashwani Kaundal, Advocate, for the petitioners in CWP Nos. 247 and 260 of 2017. For the respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General.

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Sandeep Sharma, J. (Oral)

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Since common question of facts as well as law are involved in the present cases and relief, prayed for, are also similar, all the cases were heard together and are being disposed of vide common judgment.

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2. Being aggrieved on account of non-payment of compensation, despite use of their land for construction of the road namely Sairi-Daunthi Road, petitioners have approached this Court in the instant proceedings filed under Article 226 of the Constitution of India, praying therein to issue directions to the respondents to pay adequate compensation qua their land used for construction of road in question after initiation of acquisition proceedings.

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3. As per pleadings adduced on record by the petitioners, though their land, which is situate in villages Dharoi, Nataila, Daunthi and Kot, Tehsil Kandaghat, District Solan, Himachal Pradesh, was used for construction of road, as detailed herein above, in the year 1985-86, but till date, they have been not awarded compensation qua the same. Though vide notification dated 30.5.2000, proposal was made for acquisition of land for the purpose of construction of the road, however, aforesaid notification was not taken to its logical end and as such, same elapsed.

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4. Repeatedly, petitioners as well as other persons, whose land came to be used for construction of the road detailed herein

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above, approached the respondents for initiation of acquisition proceedings, but in vain and as such, petitioners are compelled to approach this Court in the instant proceedings.

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5. Pursuant to notices issued in the instant proceedings, respondents-State has filed reply, wherein factum with regard to construction of road in question as well as use of the land of the petitioners, has not been disputed, rather an attempt has been made to defeat the claim of the petitioners on the ground of delay and laches. 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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6. Mr. Rajan Kahol, learned Additional Advocate General, while opposing the prayer made on behalf of the petitioners, vehemently argued that though there is no written document suggestive of the fact that the land used for construction of road was made available voluntarily by the petitioners with clear cut understanding that they shall not claim any compensation, but otherwise also, since petitioners remained silent for more than three decades, it can be safely inferred that there was an implied consent on the part of the petitioners for construction of the road.

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7. While making this Court peruse judgment passed by this Court in Shankar Dass v. State of Himachal Pradesh in CWP No.

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1966 of 2010 , learned Additional Advocate General submitted that otherwise also, appropriate remedy for redressal of their grievances is to approach a civil court by way of civil suit. He also submitted that claim of the petitioners being stale, deserves outright rejection in light of the judgment passed by the Hon'ble Apex Court in State of Maharashtra v. Digambar, (1995) 4 SCC 683.

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8. Per contra, Ms. Devyani Sharma, learned Senior Advocate, duly assisted by Mr. Anirudh Sharma, Advocate, appearing for the petitioners in CWP No. 256 of 2016 and Mr. Ashwani Kaundal, Advocate, appearing for the petitioners in CWP Nos.247 and 260 of 2017, contended that in view of the law laid down by the Hon'ble Apex Court in Vidya Devi v. State of Himachal Pradesh and others, (2020) 2 SCC 569 and Sukh Dutt Ratra v. State of Himachal Pradesh and others, (2022) 7 SCC 508 , plea of delay and laches sought to be raised is not available to the respondents. Above named counsel further argued that once factum with regard to issuance of notification under Section 4 of the Act, has been not denied by the respondents, they are otherwise estopped from raising plea of consent, if any, given by the petitioners. Learned counsel argued that as per own case of the respondents, notification under Section 4 was issued on 30.5.2000, which though was not taken to its logical end, but certainly suggest that petitioners had not donated the land for construction of road and State had used the land of the petitioners

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with a clear cut understanding that they shall be paid compensation. While referring to judgment dated 10.8.2023, passed by this Court in CWP No. 1625 of 2023 , titled Nathu v. State of Himachal Pradesh and Ors., learned counsel for the petitioners argued that plea that the road in question was constructed under PMGSY, is not available to the respondents, because there is nothing on record to suggest that the land, qua which the petitioners are seeking compensation, was ever donated or gifted by them.

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9. Having heard learned counsel for the parties and perused material available on record, this court finds that facts as have been noticed herein above, are not in dispute, rather stand admitted. Only ground raised is that claim of the petitioners is barred by delay and laches, however, such plea may not be available to the State in view of law laid down by the Hon’ble Apex Court and Vidya Devi and Sukh Dutt Ratra (supra). It would be apt to take note of following paras of Vidya Devi , supra:

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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.

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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. Reliance is placed on the judgment in Hindustan

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Petroleum Corporation Ltd . v. Darius Shapur Chenai , 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 Reddy , 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 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 lack of authority and

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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

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

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10. Reliance is also placed upon judgment passed by the Hon’ble Apex Court in Sukhdutt Ratra ’s case (supra).

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

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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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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 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

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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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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.

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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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11. Having taken note of the aforesaid exposition of law laid

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down by the Hon’ble Apex Court, plea advanced by the State qua delay

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and laches in moving, this court is liable to be rejected. Since in the case at hand, there is no dispute that land of the petitioners stands utilized for the construction of the road in question and at one point of time, notification under Section 4 of the Act was issued, prayer made by the petitioners through instant petitions, deserves to be allowed.

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12. At this stage, learned Additional Advocate General, while placing reliance upon the judgment dated 24.2.2023 passed by Hon'ble Apex Court in Civil Appeal No. 1278 of 2023, titled State of Himachal Pradesh and Ors v. Rajiv and others , attempted to argue that the petitioners are not entitled to compensation qua the land utilized for construction of the road in question, but having perused judgment supra, this court finds no applicability of the same in the present case because in aforesaid case, it has been nowhere stated that prayer made by the petitioners for compensation cannot be considered on the ground of delay and laches, rather in the aforesaid case, claimants were not held entitled to the interest under the Land Acquisition Act from the date of Notification under Section 4 till the filing of the writ petition.

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13. Though Mr. Rajan Kahol, learned Additional Advocate General, while referring to the judgment argued that compensation, if any, payable, shall be payable on rates, which were applicable when the land was put to use, however, this Court is not impressed with the aforesaid submissions of learned Additional Advocate General for the

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reason that till date, no notification under Section 4 of the Act, has been issued and earlier notification issued on 30.5.2022 has elapsed. As has been held by the Hon’ble Apex Court that land owners cannot be dispossessed of their land without following due process of law. If it is so, ground raised by the respondents that petitioners have made their land available with consent is otherwise of no consequence, rather this Court is persuaded to agree with learned counsel for the petitioners that they are entitled for compensation qua the land utilized by the respondents for construction of the road in question. Since petitioners have not been paid any compensation qua their land used for construction of the road, action of the respondent-State certainly amounts to forcible dispossession of the petitioners from their land, which otherwise being violative of the provisions contained under Section 300-A of the Constitution of India, deserves to be quashed and set-aside.

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14. Plea sought to be raised by the respondents that no compensation is payable to the petitioners on account of the fact that land in question was constructed under PGMSY, also deserves outright rejection on account of judgment rendered by the Full Bench of this Court in LPA No. 33 of 2021 alongwith Execution Petition No. 17 of 2019, titled State of Himachal Pradesh v. Sita Ram , wherein reference made to Full Bench came to be answered in the affirmative that, “a person, whose land has been utilized for construction of road

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under PMGSY, is entitled for compensation, unless it is proved to the satisfaction of the court, that land was donated or given by the land owner willingly, of his own free will and consent, for construction of such road”. It would be apt to take note of following paras of the aforesaid judgment:

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“31. In Shankar Dass, the Full Bench relied on the Three Judge Bench judgment of Supreme Court in State of Maharashtra Versus Digambar, reported in (1995) 4 SCC 683, where filing of writ petition with enormous delay and latches on the part of a citizen on the alleged infraction of his legal right against the State, seeking a direction to initiate acquisition proceedings for their land of which possession was taken long time ago, was held to be fatal. It was held that writ petition under Article 226 of the Constitution, being power of discretion, could not be entertained with blameworthy conduct of the petitioner of such undue delay or laches, acquiescence or waiver in approaching the Court. The Full Bench also relied on the Constitution Bench judgment of the Supreme Court in the State of Madhya Pradesh Versus Bhailal Bhai, reported in AIR 1964 SC 1006, in which it was held “that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured.” Delay and how far ratio of Shankar Dass would hold field in view of later judgments of the Supreme Court are not the questions for us to examine and answer. In view of the terms of reference made by the Division Bench, which does not include the question of delay, we have to confine our examination to the limited scope, whether a person whose land has been utilized for construction of road under PMGSY is entitled to compensation.

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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.”

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15. In the aforesaid case, specific reference was made to Full Court, “Whether a person(s) whose land(s) has been utilized for construction of road under ‘PMGSY’ is entitled to compensation?”. While answering aforesaid reference, Full Bench though held that a person whose land has been utilized for construction of road under PMGSY is entitled to compensation unless it is proved to the satisfaction of the Court that the land was voluntarily donated or given by him willingly with free will and consent for construction of such road.

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16. Since in the case there is nothing on record to demonstrate that the land was ever donated or gifted by petitioners of their own free will for construction of road under PMGSY, plea of learned Additional Advocate General that person cannot claim compensation qua the land utilized for construction of road under PMGSY, deserves outright rejection.

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17. In case titled, State of Himachal Pradesh v. Umed Ram Sharma (1986) 2 SCC 68 , Hon’ble Apex Court has held that entire State of Himachal Pradesh is a hilly area and without workable roads,

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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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18. In case titled Hari Krishna Mandir Trust v. State of Maharashtra and others, 2020 9 SCC 356 , Hon’ble Apex Court has held that though right to property is not a fundamental right, but it is still a constitutional right under Article 300A of the Constitution of India and also a human right; in view of the mandate of Article 300A, 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.

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19. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this Court finds merit in the present petitions and accordingly same are allowed with direction to the respondents to initiate acquisition proceedings within four weeks under the relevant statute vis-à-vis land of the petitioners

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and thereafter, just and fair compensation qua the same be awarded to them. Since petitioners have been fighting for their rightful claim for more than three decades, this Court hopes and trusts that authority concerned would do the needful expeditiously, preferably, within two months. In the aforesaid terms, present petitions are disposed of alongwith pending applications, if any.

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March 16, 2024

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manjit

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(Sandeep Sharma), Judge

Baldev v. State of Hp

Case brief

What is this about?

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Baldev v. State of Hp

Case brief

What is this about?

What did the court decide?

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