The petition allowed where the court directed the State to initiate acquisition proceedings for land used for road construction without compensation, rejecting pleas of delay and implied consent.
Direction to initiate acquisition proceedings within four weeks and award just and fair compensation within two months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 8171 of 2023 Decided on: 13.03.2024
____________ ____________________________________________ Shadi Ram Thakur ………..Petitioner Versus State of Himachal Pradesh and others ….Respondents ________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 For the Petitioner : Ms. Shashi Kiran, Advocate. For the Respondents : Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals with Ms. Menka Raj Chauhan, Deputy Advocate General. ________________________________________________________ Sandeep Sharma, Judge (oral):
Since despite utilization of land of the petitioner for the construction of road namely Jamta-Rajban-Road, no steps were taken by the respondents for acquisition of the land of the petitioner and no compensation was paid to the petitioner, he was compelled to approach this Court in the instant proceedings under Art. 226 of the Constitution of India, praying therein for the following main reliefs:
“ That a writ of mandamus may very kindly be issued to the respondents thereby directing them to acquire the land of the petitioner situate in village Dadhog, Tehsil Nahan, District Sirmour, Himachal Pradesh, where land has been utilized for the purpose of construction of Jamta-Rajban road, in a time bound manner, preferably within six months and pay adequate compensation as per latest law on the
1 Whether the reporters of the local papers may be allowed to see the judgment?
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subject and latest rates of compensation as well as solatium etc. to the petitioner with interest.
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min, measuring 02-02-00 Obad Doyam, Kita 2 salam 0 min, 2/1 krisht obad doyam 02-03-00, measuring 02-03-00, 2min measuring 04-0000,00-05-00 Banjar Khadim 03-15-00 16 mesuring 02-15-00, Kita 2 I salam I min, measuring 06-16- 00,akrisht 06-15-00,Banjar Kadim 03-00-00,nakabil 03-15-00,kita 29 salam 23min 6/14, krisht obad doyan 02-03-00,measuring 337-12-00, Akrisht 335-09-00.banjar kadim00-0400 Banjar Kadim, 03-00-00, nakabil 314-12-00,gair mumkin 17-13-00 bigha, owned by the petitioner came to be utilized by the respondents for construction of road namely Jamta-Rajban Road, but the petitioner was not paid any compensation. The details of the land taken for the construction of the road as mentioned above has been given by the revenue officials vide its note. As per the revenue record, the total 0-2 biswas of the land is taken by the respondents for the construction of road and the certificate was issued by the village Revenue Officer.
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Hon'ble Apex Court in State of Maharashtra v. Digambar , (1995) 4 SCC 683 has categorically held that the claim being highly stale, deserves outright rejection.
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road in question. It is also not in dispute that some of land owners were paid compensation after initiation of acquisition proceedings under Land Acquisition Act in vogue at the relevant time. Plea of delay and laches sought to be raised by respondents may not be available on account of judgment rendered in Vidya Devi and Sukh Dutt Ratra (supra), wherein it has been categorically held that plea of delay and laches cannot be raised in case of continuous 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. While holding 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, Hon'ble Apex Court further held that 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 his private property without following due process of law, is violative of both, human right and constitutional right, guaranteed under Art. 300-A of the Constitution of India. It would be apt to take note of following paras of Vidya Devi ,
supra:
“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 property 1, 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,
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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.
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 Chenai , wherein this Court held that:
“ 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)
In N. Padmamma v. S. Ramakrishna Reddy , 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 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)
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:
“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)
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)
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.
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 multifaceted 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
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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.
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)”
12. Reliance is also placed upon judgment passed by the
Hon’ble Apex Court in Sukhdutt Ratra ’s cases (supra).
“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:
“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.”
“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.
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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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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land owner after an inordinate 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 S.4 till the filing of the writ petition. Since, no Notification under S.4 of Land Acquisition Act, 1894 ever came to be issued in the case of petitioners, ruling, if any, given in the aforesaid judgment, is of no relevance.
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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 petition and accordingly same is allowed with direction to the respondents to initiate acquisition proceedings within four weeks under the relevant statute vis-à-vis land of the petitioner and thereafter, just and fair compensation qua the same be awarded to the petitioner. Since petitioners have been fighting for their rightful claim for so long, this Court hopes and trusts that authority concerned would do the needful expeditiously, preferably, within two months. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.
(Sandeep Sharma) Judge
March 13, 2024 (shankar)
2 issues framed by the court
Whether land utilized for road construction without formal acquisition or compensation amounts to forcible dispossession violative of Article 300A?
Whether the plea of delay and laches can be raised against a claim for compensation for land taken without due process of law?
Colour shows how this judgement treated each authority
Shankar Dass v. State of Himachal PradeshReferred¶18
Shankar Dass v. State of Himachal Pradesh in CWP No. 1966 of 2010
State of Maharashtra v. DigambarReferred¶20
State of Maharashtra v. Digambar , (1995) 4 SCC 683 · Who else cites this
Vidya Devi v. State of Himachal Pradesh and othersRelied on¶22
Vidya Devi v. State of Himachal Pradesh and others , (2020) 2 SCC 569 · Who else cites this
Sukh Dutt Ratra v. State of Himachal Pradesh and othersRelied on¶22
Sukh Dutt Ratra v. State of Himachal Pradesh and others , (2022) 7 SCC 508 · Who else cites this
Vir Sain v. State of Himachal Pradesh and OrsReferred¶22
Vir Sain v. State of Himachal Pradesh and Ors
Hindustan Petroleum Corporation Ltd. v. Darius Shapur ChenaiReferred¶32
Hindustan Petroleum Corporation Ltd . v. Darius Shapur Chenai
N. Padmamma v. S. Ramakrishna ReddyReferred¶34
N. Padmamma v. S. Ramakrishna Reddy
Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.& Ors.Referred¶36
Delhi Airtech Services Pvt. Ltd. & Ors . v. State of U.P.& Ors.
Jilubhai Nanbhai Khachar v. State of GujaratReferred¶38
Jilubhai Nanbhai Khachar v. State of Gujarat
Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.Relied on¶50
Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.
State of Himachal Pradesh and Ors v. Rajiv and othersDistinguished¶70
State of Himachal Pradesh and Ors v. Rajiv and others in Civil Appeal No. 1278 of 2023
State of Himachal Pradesh v. Umed Ram SharmaRelied on¶72
State of Himachal Pradesh v. Umed Ram Sharma (1986) 2 SCC 68 · Who else cites this
Hari Krishna Mandir Trust v. State of Maharashtra and othersRelied on¶74
Hari Krishna Mandir Trust v. State of Maharashtra and others , 2020 9 SCC 356 · Who else cites this
3 provisions across 2 enactments
Shadi Ram Thakur
State of Himachal Pradesh and others
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
