Phunchog and Others Vs State of Hp and Others

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP Nos. 4560, 4561, 4955, 4956, 4957, 4959 and 5328 of 2023

Date of Decision: 14.03.2024

1. CWP No. 4560 of 2023 Ram Chand	……...Petitioner
State of HP & Ors.	Versus …....Respondents
2. CWP No. 4561 of 2023
Radha Krishan	……...Petitioner Versus
State of HP & Ors.	…....Respondents
3. CWP No. 4955 of 2023
Phunchog & Ors.	……...Petitioner Versus
State of HP & Ors.	…....Respondents
4. CWP No. 4956 of 2023
Sarup Lal Upadhyay	……...Petitioner Versus
State of HP & Ors.	…....Respondents
5. CWP No. 4957 of 2023
Ambrish Upadhyay	……...Petitioner Versus
State of HP & Ors.	…....Respondents
6. CWP No. 4559 of 2023
Luder Chand	……...Petitioner Versus
State of HP & Ors.	…....Respondents
7. CWP No. 5328 of 2023
Sher Singh & Anr.	……...Petitioner Versus
State of HP & Ors.	…....Respondents
Coram
Hon’ble Mr. Justice Sandeep Whether approved for reporti	Sharma, Judge. ng?

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For the Petitioner(s): Mr. Maan Singh, Advocate, for the petitioner(s).

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For the respondent(s): Mr. Anup Rattan, Advocate General, with Mr. Rajan Kahol, Mr. B.C Verma, & Mr. Vishal Panwar, Additional Advocate Generals and Ms. Menka Raj Chauhan, Advocate, for respondents/ State.

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Sandeep Sharma, J. (Oral)

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Since common questions of facts and law are involved in these cases, the same were heard together and are now being disposed of vide this common judgment.

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Briefly stated, facts, which are common in all the cases, are that in the year 1990-92, Public Works Department, Himachal Pradesh constructed road namely “Jong-Jaindi” using some portion of the land of the petitioners. In some of cases respondents issued notification under Section 4 of Land Acquisition Act (herein after to be referred as “ Act ”) for acquiring the land for construction of road as detailed herein above, but in certain cases, no steps were ever taken for initiation of acquisition proceedings. Pleadings further reveal that the acquisition proceedings though were initiated in year 1996, but award could not be pronounced on account of non-completion of codal formalities and as such, again in the year 2008, on the request made by the petitioner as well as other similarly situate persons, respondents initiated process of acquisition of the land, but the fact

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remains that the proceedings though initiated could not be completed, as a result thereof entire acquisition proceedings lapsed. Some of the land owners, whose land parcels are covered under the road, filed Civil Writ Petition No. 6811 of 2014 titled Mukund Lal Vs. State of Himachal Pradesh in this Court, which ultimately came to be disposed of on 29.12.2014 directions to respondents to initiate acquisition proceedings qua the land used for construction of road. Pursuant to aforesaid order, respondent- Department issued requisite notification under Section 4 of the Act, and Land Acquisition Officer HPPWD (CZ), Mandi, prepared acquisition papers of private land measuring 00-2322 Hectares in Mohal Bari. Papers were forwarded for issuance of notification under Section 11 of the Act, but since land acquisition papers were prepared only for those Khasra numbers, which were mentioned in the writ petition, as detailed herein above, petitioner's request was again not considered for acquisition of their land used for construction of road. However, petitioners, who had filed Writ Petition bearing No. 6811 of 2014, got some benefit pursuant to constitution of Negotiation Committee for determination of rates. The Committee determined the negotiable rates on 18.03.2019 and thereafter, notification under Section 11 of the Act was issued on 28.09.2017. The negotiated rates were approved on 05.02.2019, on the basis of which, Land Acquisition Collector passed award on 11.06.2019, but

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not to the benefit of petitioners herein, though they have been repeatedly requesting the respondents to initiate acquisition proceedings, but as has been discussed herein above proceedings were not taken to their logical end, on one pretext or the other.

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In the aforesaid background, petitioners have approached this Court in the instant proceedings, praying therein to issue direction to respondents to initiate acquisition proceedings qua their land used for construction of road, so that adequate compensation which has been paid to similarly situate person, is also paid to them.

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Pursuant to notices issued in the instant proceedings, respondents No. 1 to 5 have filed reply, wherein though, factum with regard to use of land belonging to the petitioners for construction of road in question, has been not denied, but attempt has been made to defeat the claim of the petitioners on the ground of delay and laches. Apart from above, it has also been claimed on behalf of the respondents that the road in question was constructed on the persistent demand of the residents of the area and as such, they are otherwise estopped from claiming compensation.

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Having heard learned counsel for the parties and perused material available on record, this Court is of the view that few petitions at hand deserve to be allowed not only on facts but also on law. It is not in dispute that the respondents constructed Jong-Jaindi road over

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several parcels of the land including the land owned by the petitioners. It is also not in dispute that in some cases respondents themselves initiated the proceedings in the year 1996 for acquiring land utilized for construction of the road including the land belonging to the petitioners, but on account of non-completion of codal formalities, same could not be taken to its logical end. It is also not in dispute that in the year 2008 respondents again initiated proceedings for acquisition of land and some of the land owners, whose land parcels were covered under the road, approached this Court in CWP NO. 6811 of 2014 titled Mukund Lal Vs. State of HP , which ultimately came to be disposed of with the direction to respondents to complete the acquisition proceedings. Now, interestingly respondents pursuant to directions contained in aforesaid judgment, completed the acquisition proceedings qua the land of those persons, who had approached this Court by way of Civil Writ Petition detailed herein above. Some of the similarly situate persons namely Kusum & Ors. also approached this Court by way of CWP No. 5048 of 2022 and Coordinate Bench of this Court, having taken note of pleadings adduced on record in that case allowed the petition vide judgment dated 04.07.2023 with the direction to respondents to pay the compensation to petitioners in terms of Negotiated Award No. 1 of 2019 passed on 11.06.2019 under the Act within eight weeks. While inviting attention of this Court to the

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aforesaid judgment passed by Coordinate Bench, Sh. Maan Singh, learned counsel representing petitioners herein, argued that since factum with regard to use of the land of the petitioners for construction of road in question is not in dispute, rather stands admitted, coupled with the fact that similarly situate persons pursuant to directions contained in judgment dated 29.12.2014 passed by Coordinate Bench in CWP No. 6811 of 2014 have been given compensation on the basis of Negotiated Award passed by Land Acquisition Officer, HPPWD (Central Zone), Mandi on 11.06.2019, petitioners herein being similarly situate persons may also be given similar treatment.

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Mr. Vishal Panwar, learned Additional Advocate General, while fairly admitting factum with regard to land of the petitioners having been used for construction of road in question attempted to refute the claim of the petitioners on the ground of delay and laches. He further argued that the road in question was constructed in the year 1996 on the persistent demand of residents of the area and thereafter, at no point of time, request ever came to be made on behalf of the petitioners for initiation of acquisition proceedings. He submitted that though no document showing consent, if any, on the part of petitioners for use of land without there being compensation, is available on record, but certainly aforesaid conduct of petitioners

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clearly suggests that there was implied consent, if it is so, petitioners

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are estopped from claiming compensation. However, Mr. Vishal Panwar, learned Additional Advocate General, was unable to refute the factum of the award passed in case of similarly situate persons by Land Acquisition Officer, HPPWD (Central Zone), Mandi on 11.06.2019.

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Having heard submissions made by learned Additional Advocate General vis-a-vis pleadings as well as other material available on record, this Court is unable to accept the plea of delay and laches attempted to be set up by learned Additional Advocate General. It is quite apparent from the pleadings adduced on record that immediately after use of land, respondents themselves, on two occasions, initiated process of acquisition of land, but same was not taken to its original end and some land owners approached this Court by way of Civil Writ Petition, as detailed herein above and thereafter on the basis of approved/ negotiated rates, Land Acquisition Officer Mandi, proceeded to pass award in case some of the land owners. Since respondents have already awarded compensation in the case of some of the land owners, whose land was used for construction of road, in question respondents are estopped from refuting the claim of the petitioners herein on account of delay and laches. Similarly, this Court finds no force in the claim of respondents that there was implied

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consent on the part of petitioners. Though, this Court is of definite view that at no point of time, petitioners had actually agreed to give their land for the road without there being compensation, but even if it is presumed, that there was implied consent same may be not of any consequence in the cases at hand, especially when other similarly situate person already stand paid compensation in terms of award passed by Land Acquisition Officer, Mandi on 11.06.2019. Plea of delay and laches otherwise sought to be raised by respondent is not available on account of definite law laid down by Hon'ble Apex Court in Vidya Devi Vs. State of HP and Ors. 2020 (2) SCC 569 and Sukh Dutt Ratra and Anr. Vs. State of Himachal Pradesh and Ors. 2022

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(7) SCC 508 , wherein it has been held that delay and laches cannot be raised in a case of continuing cause of action. In the aforesaid judgments, it has been held that there is no period of limitation prescribed for the Courts to exercise their constitutional jurisdiction to do substantial justice. While concluding that forcible dispossession of a person from his private property without following due process of law, is violative of both, human right and constitutional right envisaged under Article 300-A. Hon'ble Apex Court has held that land owners cannot be deprived of the property without due process of law.

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Since in the case at hand, there is no dispute that the land of the petitioners also stands utilized for construction of road in

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question and in that regard two separate awards stand passed by Land Acquisition Officer, Mandi on 11.06.2019, prayer of the petitioners for acquisition of land and as a consequent thereof, compensation, can be rejected merely on account of delay and laches. Record reveals that petitioners repeatedly approached the authorities and thereafter, this Court directed the respondents to redress the grievances of the petitioners, but yet despite there being intervention by the court, as such otherwise it can not be concluded that delay, if any, is on the part of petitioners in approaching the competent Court of law for redresssal of their grievance. At this stage, it would be apt to take note of following paras of the judgment passed in Vidya Devi

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(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

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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

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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 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

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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 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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Reliance is also placed upon judgment passed by the

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Hon’ble 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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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 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 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.

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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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In view of aforesaid law laid down by Hon'ble Apex Court, contention advanced by the State qua delay and latches in moving the Court is also liable to be rejected.

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Now, next question, which arises for adjudication is that, “whether in given facts and circumstances of the case, where admittedly there is no dispute with regard to the land of the petitioners utilized for construction of road as well as some of the land owners, whose land was also used alongwith land of the petitioners, stand granted compensation, this Court can issue direction to respondents to initiate acquisition proceedings qua the land of the

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petitioners used for construction of road? or the same is deemed to have been acquired for construction of road. If it is so, in case this Court at this stage directs respondents to initiate acquisition proceedings, it may further delay the grant of relief to the petitioners, but in case second option is adopted, no prejudice, if any, shall be caused to either of the parties, especially when, it is not in dispute that similarly situate persons, whose land was also used for construction of some road have already been awarded compensation on the basis negotiated rates approved on 05.02.2019 vide award dated 11.06.2019 passed by Land Acquisition Officer, Mandi.

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A Coordinate Bench of this Court, in similar facts and circumstances, while deciding CWP No. 5048 of 2022 titled Kusum &

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Ors. Vs. State of Himachal Pradesh & Ors., instead of issuing direction for initiation of acquisition proceedings, directed the respondents to demarcate the land of the petitioners utilized for the construction of road in question within four weeks, and thereafter, pay the compensation to the persons, whose land was utilized for the construction of road in question, within four weeks with the further observation that their land shall be deemed to have been acquired for construction of road.

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Consequently, in view of detailed discussion herein above

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as well as law taken into consideration, this Court finds merit in the

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petition and the same is allowed. Respondents are directed to demarcate the land of the petitioners utilized for the road in question, within four weeks from today. Such land shall be deemed to have been acquired for the construction of road and adequate compensation shall be paid to the petitioners in terms of Negotiated Award No. 1/2019 passed on 11.06.2019, with all statutory benefits under the Land Acquisition Act, within eight weeks from today.

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Petition is disposed of in aforesaid terms. All pending miscellaneous applications, if any, also stand disposed of.

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March 14, 2024

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Sunil

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(Sandeep Sharma), Judge

Phunchog and Others v. State of Hp and Others

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Phunchog and Others v. State of Hp and Others

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