Dismissed

State of Hp and Others v. Charan Dass

Himachal Pradesh HC1 Mar 2025LPA/68/2025

Case brief

AI extract

What is this about?

The State appealed against a Single Judge order directing acquisition and compensation for the respondent's land used for a PMGSY road. The Division Bench upheld the writ judgment, holding that oral consent cannot defeat compensation, PMGSY does not permit taking land without compensation, and delay and laches cannot bar claims based on illegal expropriation under Article 300-A.

What did the court decide?

Delay in filing LPA condoned; appeal dismissed and Single Judge judgment upheld with directions to initiate acquisition/compensation on parity within one year.

State of Hp and Others Vs Charan Dass — Land Acquisition | Himachal Pradesh HC (2025)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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LPA No: 68 of 2025 Decided on : 01.03.2025

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__________________________________________________________ State of Himachal Pradesh and others .... Appellants Versus Charan Dass ….Respondent Coram Hon’ble Mr. Justice G. S. Sandhawalia, Chief Justice. Hon’ble Mr. Justice Ranjan Sharma, Judge. 1 Whether approved for reporting? Yes. For the appellants: Mr. Pranay Pratap Singh, Additional Advocate General.

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For the respondents: Nemo.

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Per Ranjan Sharma, Judge

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CMP(M) No. 107 of 2025

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State of Himachal Pradesh, being appellant, has filed this application seeking condonation of 93 days delay in filing accompanying Letters Patent Appeal, in assailing the judgement dated 13.08.2024, { referred as Impugned Judgement }, passed by Learned Single Judge in CWP No. 4226 of 2022.

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Perusal of the application reveals that appellant received intimation of passing of judgement

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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dated 13.08.2024 from office of Advocate General on 26.09.2024 and thereafter steps were taken by Land Acquisition Collector and Executive Engineer,

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Karsog on 28.09.2024 and then by Engineer-inChief (PW), and the Govt, when, advice from Law Department was received on 21.10.2024. Thereafter the Appellant No 1-Secretary (PW) vide letter dated 30.11.2024 directed the official concerned to assail the impugned judgement in LPA. Pursuant thereto, steps were taken for drafting LPA by Executive Engineer, Karsog and upon approval of the higher authorities, LPA was vetted on 16.12.2024 and was submitted to the office of learned Advocate General on 18.12.2024. The draft LPA was vetted and was finally filed before this Court on 02.01. 2025.

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Upon listing of this application, this Court

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accepts the reasons indicating sufficient cause, for condoning delay of 93 days in filing accompanying LPA, appears to be bonafide and even averments are supported by an affidavit coupled with the fact

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that the delay sought to be condoned is nominal is accordingly condoned and the instant application stands disposed of.

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LPA No. 68 of 2025

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Appellant-State has come up against the

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judgement dated 13.08.2024 in CWP No. 4226 of 2022 in Re. Charan Dass versus State of Himachal Pradesh and others, whereby Learned Single Judge had allowed the writ petition and directed the respondent-State Authorities to initiate the process for acquiring subject land of the petitioner which was utilized for construction of road inaccordance with law within eight weeks from the date of passing of judgement, with directions to appellants herein to complete entire process within one year thereafter.

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FACTUAL MATRIX LEADING TO PASSING OF IMPUGNED JUDGEMENT

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2. Writ petitioner, Charan Dass, invoked the extraordinary jurisdiction of this Court seeking a direction to the respondents to acquire his land comprising in Khata Khatauni No. 61, Khasra Nos. 428 & 429, situated at Mohal Kot, Tehsil Karsog,

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District Mandi and to pay him the compensation in accordance with law. The above prayer was made on the factual platform that the respondents had constructed a link road i.e. Mahota-Bagshar Road over and above the subject land of the petitioner and neither land has been acquired nor any compensation has been paid to petitioner whereas State Authorities have acquired land and disbursed compensation to other co-owners of adjoining land parcel, namely, Bhoop Ram and Neem Chand in pursuant to the judgements dated 24.06.2016 and 5.7.2016, passed in their respective petitions i.e. CWP No. 2386 of 2009 (Bhoop Ram versus State of Himachal Pradesh and others) and CWP No 3090 of 2009 (Neem Chand versus State of Himachal Pradesh). Incompliance thereto, acquisition proceedings were initiated by State Authorities and utilized lands were acquired and compensation was released in terms of the Award dated 22.02.2022 [Annexure P-2 Colly]. After passing of award in case of Bhoop Ram and Neem Chand supra,

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the writ petitioner submitted representation on 21.4.2022 for similar benefits, on which the Land Acquisition Collector vide communication dated 27.04.2022 directed the Executing Engineer, HPPWD Division Karsog, District Mandi to take appropriate

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action and even Special Secretary [Public Works] vide office letter dated 04.05.2022 directed Executive

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Engineer concerned to take necessary action in the matter but in vain.

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STAND OF THE STATE AUTHORITIES IN WRIT PROCEEDINGS:

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3. State Authorities filed a reply-affidavit

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admitting that Mahota-Bagshar Road was constructed

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under Pradhan Mantri Gram Sadak Yojna [in short PMGSY] and the construction of the road was completed before February, 2009, which includes land of petitioner also. However, State Authorities

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took a stand that road was constructed on the verbal consent of petitioner and the writ petitioner never objected to the construction of road and therefore, no compensation was to be paid. It is

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averred in reply that under Pradhan Mantri Gram Sadak Yojna [in short PMGSY] there is no provision for acquisition of land or payment of compensation.

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The plea of delay and laches was also raised by State Authorities.

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IMPUGNED JUDGEMENT:

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4. Learned Single Judge dealt with the

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contentions in Reply Affidavit of State Authorities in the judgement dated 13.08.2024. In Para 5(i) & (iii), Learned Single Judge recorded a finding that benefit of acquisition and compensation has been accorded by the State Authorities to co-owners of adjoining lands, namely, Bhoop Ram and Neem Chand in terms of the Award No 5/2022 dated 22.02.2022 passed by Competent Authority. Based on these facts, Learned Single Judge had recorded

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a categorical finding that once the co-owners of adjoining land, namely, Bhoop Ram and Neem Chand, have been released compensation for lands utilized for construction of road then, the petitioner deserves same treatment whose land was also

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utilized for construction of the same very road. Learned Single Judge relied upon the judgement in Para 5(iii) in the case of Labdhu Ram versus

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State of Himachal Pradesh and others, CWP No. 6581 of 2021 that once benefit of acquisition and resultant compensation for utilizing the land for construction of road had been accorded to some land owners then similar benefit is to be extended to others also. So far as the objection of State Authorities-Appellant herein that Pradhan

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Mantri Gram Sadak Yojna [in short PMGSY] did not provide for acquisition and compensation in case of roads are to be constructed under Pradhan

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Mantri Gram Sadak Yojna [in short PMGSY] was

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dealt with by Learned Single Judge in Para 5 (iv) negating the stand of State in view of the Full Bench judgement of this Court in State of

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Himachal Pradesh and others versus Sita Ram

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Sharma , {LPA No. 33 of 2021 decided on 30.3.2022}.

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Learned Single Judge categorically held that in case, the land has been utilized for construction

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of road under Pradhan Mantri Gram Sadak Yojna [in short PMGSY] then also, the landowners are entitled for compensation unless it is proved to the satisfaction of the Court that the land was voluntarily donated or given by private land owners willingly, which consent/willingness has to be in writing and same has to be substantiated by material on record. In this background, since State Authorities have failed to establish that the land was voluntarily donated/given by petitioner for construction of road, the plea of the petitioner was negated. While dealing with the contention of State Authorities that claim of writ petitioner suffers from delay and laches, was repelled by Learned Single Judge by relying upon various judgements in Para 5(iii) including the judgement of Hon’ble Supreme Court in Sukh Dutt Ratra

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and another versus State of Himachal Pradesh

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and others, (2022) 7 SCC 508, with the findings that the State cannot evade its legal responsibility towards those from whom private property has

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been expropriated. Even the State cannot shirk its responsibility of acquiring land for public use without paying compensation by taking the plea of limitation for doing justice. Based on aforesaid reasoning, the Learned Single Judge allowed the writ petition, in terms of the Impugned judgement dated 13.08.2024.

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5. Upon listing of the matter, Learned State Counsel has vehemently argued on merits but by reiterating almost the same contentions, which stood repelled by Learned Single Judge in the Impugned judgement. In these circumstances, this Court, upon hearing the Learned State Counsel for the appellants herein, proceeds to hear the appeal, at this stage.

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6. Before dealing with the contentions of Learned State Counsel for the appellants, it is necessary to have a recap of the mandate of law on the right to property of a person and its regime.

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6(i). Based on the principle of eminent domain

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at relevant time, Article 30(1-A) and provisos to Article 31-A (1) of the Constitution of India recognised the right to property and the right of a person to acquire, hold and dispose of property was conferred the status of a fundamental right. However, keeping in view the directive principles of state policy, the right of property which was a fundamental right, after the enactment of the 44^th amendment in 1978, introducing Article 300-A in the Constitution of India mandating that “no person shall be deprived of his property save by authority of law” was recognised as a “constitutional right”.

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6(ii). Consequent upon being recognised as a constitutional right, a question arose as to whether a person can be deprived of his property, save by authority of law under Article 300-A, merely by an executive fiat but without any specific legal authority or without sanctity of law made by a competent legislature was answered by the Constitutional Bench of the Hon’ble Supreme Court

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in K. T. Plantation Private Limited and another

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versus State of Karnataka, (2011) 9 SCC 01

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mandating that the deprivation of property under Article 300-A must be for a public purpose and the same cannot be by an executive fiat but such deprivation can take place only by operation of law, which has to be lawful, fair and which does not undermine the rule of law, failing which any such law shall be subject to judicial review, in the following terms:

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Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression ‘Property’ in Art. 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.

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This Court in State of W. B. & Others v. Vishnunarayan & Associates (P) Ltd & Another (2002) 4 SCC 134, while examining the provisions of the West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in the context of Article 300-A that the State or executive offices cannot interfere with the right of others unless they can point out the specific provisions of law which authorises their rights.

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Article 300-A, therefore, protects private property against executive action. But the question that looms large is as to what extent their rights will be protected when they are sought to be illegally deprived of their properties on the strength of a legislation. Further, it was also argued that the twin requirements of ‘public purpose’ and ‘compensation’ in case of deprivation of property are inherent and essential elements or ingredients, or “inseparable concomitants” of the power of eminent domain and, therefore, of entry 42, List III, as well and, hence, would apply when the validity of a statute is in question.

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On the other hand, it was the contention of the State that since the Constitution consciously omitted Article 19 (1) (f), Articles 31(1) and 31(2), the intention of the Parliament was to do away the doctrine of eminent domain which highlights the principles of public purpose and compensation.

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172. Seervai in his celebrated book

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‘Constitutional Law of India’ (Edn. IV), spent a whole Chapter XIV on the 44th Amendment, while dealing with Article 300A. In paragraph 15.2 (pages 1157-1158) the author opined that confiscation of property of innocent people for the benefit of private persons is a kind of confiscation unknown to our law and whatever meaning the word "acquisition" may have does not cover "confiscation" for, to confiscate means "to appropriate to the public treasury (by way of penalty)". Consequently, the law taking private property for a public purpose without compensation would fall outside Entry 42 List III and cannot be supported by another Entry in List III. 173. Requirements of a public purpose and the payment of compensation according to the learned author be read into Entry 42 List III. Further the learned author has also opined that the repeal of Article 19(1)(f) and 31(2) could have repercussions on other

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fundamental rights or other provisions which are to be regarded as part of the basic structure and also stated that notwithstanding the repeal of Article 31(2), the word "compensation" or the concept thereof is still retained in Article 30 (1A) and in the second proviso to Article 31A (1) meaning thereby, that payment of compensation is a condition of legislative power in Entry 42 List III.

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Learned senior counsel Shri T.R. Andhyarujina, also referred to the opinion expressed by another learned author Prof. P.K. Tripathi, in his article "Right to Property after 44th Amendment – Better Protected than Ever Before" (reported in AIR 1980 J pg. 4952). Learned author expressed the opinion and the right of the individual to receive compensation when his property is acquired or requisitioned by the State, to be available in the form of an implied condition of the power of the State legislate on "acquisition or requisition property" while all the exceptions and limitations set up against and around it in 31, 31A and 31B have disappeared. Learned author opined that Article will require obviously, that the law must be a valid law and no law of acquisition or requisitioning can be valid unless the acquisition or requisition is for a public purpose, unless there is provision in law for paying compensation, will continue to have a meaning given to it, by Bela Banerjee’s case (supra). 175. Learned author, Shri S.B. Sathe , his article "Right to Property after the 44th Amendment" (AIR 1980 Journal 97), to some extent, endorsed the view of Prof. Tripathi and opined that the 44th amendment has increased the scope of judicial review respect of right to property. Learned author has stated although Article 300A says that no one shall be deprived of his property save by authority of law, there is reason to expect that this provision would

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protect private property only against executive action . Learned author also expresses the wish that Article 21 may provide viable check upon Article 300A.

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Durga Das Basu in his book "Shorter Constitution of India", 13th Edition, dealt with Article 300A in Chapter IV wherein the learned author expressed some reservation about the views expressed by Seervai, as well as Prof. Tripathi Learned author expressed the view, that after the 44th amendment Act there is no express provision in the Constitution outside the two cases specified under Article 30(1A) and the second proviso to 31(1A) requiring the State to pay compensation to an expropriated owner. Learned author also expressed the opinion that no reliance could be placed on the legislative Entry 42 of List III so as to claim compensation on the touchstone of fundamental rights since the entry in a legislative list does not confer any legislative power but only enumerates fields of legislation.

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Learned counsel on the either side, apart from other contentions, highlighted the above views expressed by the learned authors to urge their respective contentions.

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Principles of eminent domain, as such, is not seen incorporated in Article 300A, as we see, in Article 30(1A), as well as in the 2nd proviso to Article 31A(1) though we can infer those principles in Article 300A . Provision for payment of compensation has been specifically incorporated in Article 30(1A) as well as in the 2nd proviso to Article 31A(1) for achieving specific objectives. Constitution's 44th Amendment Act, 1978 while omitting Article 31 brought in a substantive provision Clause (1A) to Article 30. Resultantly, though no individual or even educational institution belonging to majority community shall have any fundamental right to compensation in case of compulsory acquisition of his property

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by the State, an educational institution belonging to a minority community shall have such fundamental right to claim compensation in case State enacts a law providing for compulsory acquisition of any property of an educational institution established and administered by a minority community. Further, the second proviso to Article 31 A (1) prohibits the Legislature from making a law which does not contain a provision for payment of compensation at a rate not less than the market value which follows that a law which does not contain such provision shall be invalid and the acquisition proceedings would be rendered void.

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Looking at the history of the various constitutional amendments, judicial pronouncements and the statement of objects and reasons contained in the 44th Amendment Bill which led to the 44th Amendment Act we have no doubt that the intention of the Parliament was to do away with the fundamental right to acquire, hold and dispose of the property. But the question is whether the principles of eminent domain are completely obliterated when a person is deprived of his property by the authority of law under Article 300 A of the Constitution.

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Public purpose

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Deprivation of property within the meaning of Art. 300-A, generally speaking, must take place for public purpose or public interest. The concept of eminent domain which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public. Any law, which deprives a person of his private property for private interest, will be unlawful and unfair and undermines the rule of law and can be subjected to judicial review. But the question as to whether the purpose is primarily public or private, has to be

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decided by the legislature, which of course should be made known.

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6(iii). Another question arose before the Hon’ble

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Supreme Court in the case of K.T. Plantation (supra) as to whether a person who is deprived of property for public purpose is entitled to get compensation has to be justified by the State on judicially justifiable standards depending upon the law formulated by a State, which has to be just, fair and reasonable. In case, State enactment provides for acquiring a private property for public purpose for no compensation or nil compensation then, the Court in exercise of judicial review will test such a law, as mandated in the following terms:

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Payment of compensation amount is a constitutional requirement under Article 30(1A) and under the 2nd proviso to Article 31A(1), unlike Article 300A. After the 44th Amendment Act, 1978, the constitutional obligation to pay compensation to a person who is deprived of his property primarily depends upon the terms of the statute and the legislative policy. Article 300-A, however, does not prohibit the payment of just compensation when a person is deprived of his property, but the question is whether a person is entitled to get compensation, as a matter of right, in the absence of

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any stipulation in the statute, depriving him of his property.

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Requirement of public purpose, for deprivation of a person of his property under Article 300A, is a pre-condition, but no compensation or nil compensation or its illusiveness has to be justified by the state on judicially justiciable standards. Measures designed to achieve greater social may call for lesser compensation and such a limitation by itself will not make legislation invalid or unconstitutional or confiscatory. In other words, the right to claim compensation or the obligation to pay, though not expressly included in Article 300A, it can be inferred in that Article and it is for to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.

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Article 300A would be equally violated if the provisions of law authorizing deprivation of property have not been complied with. While enacting Article 300A Parliament has only borrowed Article 31(1) [the “Rule of law” doctrine] and not Article 31(2) [which had embodied the doctrine of Eminent Domain]. Article 300A enables the State to put restrictions on the right to property by law. That law has to be reasonable. It must with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public The limitation or restriction must be disproportionate to the situation or excessive.

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The legislation providing for deprivation of property under Article 300A must be “just, fair and reasonable” as understood terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have examine the scheme of the impugned Act, its object, purpose as also the question

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whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.

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At this stage, we may clarify that there is a difference between “no” compensation and “nil” compensation. A law seeking to acquire private property for public purpose cannot say that “no compensation shall be paid” . However, there could be a law awarding “nil” compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the government to establish validity of such law. In the latter case, the court in exercise of judicial review will test such a law keeping in mind the above parameters.

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Article 300 A, unlike Articles 31A(1) and 31C, has not made the legislation depriving a person of his property immune from challenge on the ground of violation of Article 14 or Article 21 of the Constitution of India , but let us first examine whether Article 21 as such is available to challenge a statute providing for no or illusory compensation and, hence, expropriatory.

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6(iv). Reference in the case of K. T. Plantation

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(supra) was answered by the Supreme Court mandating that public purpose is a pre-condition for depriving a person from his property under Article 300-A and right to claim compensation

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is also inbuilt under that Article and when a person is deprived of his property the State has

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to justify such deprivation on the basis of the statute or legislative policy and its object and purpose and other related factors.

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6(v). The judgement in K. T. Plantation’s case was followed by the Hon’ble Supreme Court in Association of Vasanth Apartments’ Owners versus V. Gopinath and others, 2023 SCC

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SC 137, Civil Appeal No. 1890-91 of 2010, decided on 13.02.2023 that illegal deprivation is attracted where a person is deprived of his property, in case of “no compensation” in the following terms:

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The Court also reiterated the distinction between ‘no compensation’ and ‘Nil compensation’, as laid down in K.T. Plantations (supra). The Court proceeded to find that it was a case of ‘no compensation’ at all, and therefore, it attracted the vice illegal deprivation of property and relief on the said basis. This is after finding that the property in question was a productive asset.

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An acquisition is a compulsory vesting of the property of a person with the state. It is traceable undoubtedly to the power of eminent domain assured to every sovereign. It can undoubtedly be exercised only securing public interest as contrasted with promotion of private interest (See K.T. Plantation (supra).

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K.T. Plantations (supra) was a which involved the validity of a law which

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provided for compulsory acquisition under the State enactment. The understanding of this Court in K.T. Plantations (supra) was that a person cannot be deprived of his property merely by executive fiat without any specific legal authority or without support of law made by a competent Legislature (See paragraph-168). We must notice here that law for the scope of Article 300A has been explained by this Court in Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others as follows:

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“41. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word “law” in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order, having the force of law, that is positive or State made law. The decisions in Wazir Chand v. State of H.P. [AIR 1954 SC 415: (1955) 1 SCR 408 : 1954 SCJ 600 : 1954 Cri LJ 1029] and Bishan Das v. State of Punjab [AIR 1961 SC 1570 : (1962) 2 SCR 69 : (1963) 1 SCJ 405] are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law…..”.

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What this Court in K. T. Plantations (supra) meant was to distinguish ‘law’ as a legislative measure as distinct from mere Executive fiat.

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6(vi). Right for compensation in case property

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of a private owner is utilized by the State has been answered by the Hon’ble Supreme Court in

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Ultra-tech Cement Limited versus Mast Ram and others, (2025) 1 SCC 798, Civil Appeal No. 10662 of 2024 decided on 20.09.2024 in the following terms:

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Acquisition of land for public purpose is undertaken under the power of eminent domain of the government much against the wishes of the owners of the land which gets acquired. When such a power is exercised, it is coupled with a bounden duty and obligation on the part of the government body to ensure that the owners whose lands get acquired are paid compensation /awarded amount as declared by the statutory award at the earliest .

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6(vii). The intent and object of Article 300-A

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having been outlined by the Hon’ble Supreme Court in

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K.T. Plantation, V. Gopinath and in Ultra-tech

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Cement Limited ( supra ), this Court on the basis of existing material on record is of the considered view, that the appellant- State Authorities have not

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pointed out any law enacted by State Legislature empowers the State to divest a person of his land without paying compensation . In absence of any statute having been enacted by State [which has not placed before this Court], the action of State Authorities in divesting the Writ petitioner-Charan Dass of his private property and by utilizing his land(s) for construction of Mahota-Bagshar Road under Pradhan Mantri Gram Sadak Yojna package 2003-2004, for which the work commenced in the year 2005 and was completed in the year 2009 and moreover, when, pursuant to judicial intervention, once the lands of landowners having adjoining lands, namely, Bhoop Ram and Neem Chand stood acquired and compensation stands released by way of an Award dated 22.2.2022 then, this Court sees no reason as to why the writ petitioner be not held entitled for similar compensation. Even the action of the State that land of writ petitioner and others were utilized for construction of Road under a Scheme (in short

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PMGSY} cannot come to the rescue of the State

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when, in Para 27 of the Full Bench judgement of this Court in case of State of Himachal Pradesh versus Sita Ram {LPA No 33 of 2021 dated 30.3.2022}

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the reference stands answered that there is no provision in PMGSY Guidelines for depriving private land owners of property without consent and without

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giving them compensation. In these circumstances, the State Authorities cannot by way of an executive fiat divest the writ petitioner-Charan Dass of his private land(s), without his consent and without paying compensation and by utilizing such land for construction of road in question, and such expropriation of property, by the State, without any sanction of law visits a landowner with civil consequences, depriving him of the right to use his own property and action confers a continuing cause to a landowner to claim compensation.

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Even the whimsical and anarchical manner of

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depriving the landowner-writ petitioner of property and right of compensation shocks the conscience

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of this Court. Accordingly, the judgment passed by Learned Single Judge after noticing the material on record and the factual and the legal aspects herein, does not require any interference in instant appeal.

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7. CONTENTION OF STATE AUTHORITIES IN INSTANT APPEAL:

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First contention of Learned State Counsel

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for the appellant is that the land of writ petitionerCharan Dass herein, was utilized for construction of road i.e. Mahota-Bagshar Road upon giving a verbal consent and even the writ petitioner did not object to cutting of road in the year 2005 till its completion in February, 2009. 7(i). Above contention of the appellant is

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ex facie not tenable, for the reason , that the State Authorities have not produced any material on record either before the writ court or even in

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these proceedings that the writ petitioner had given consent for construction of the said road.

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7(ii). Plea as set-up in instant appeal by

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State Authorities denying claim for compensation by asserting that the land was utilized on the oral consent of land owner-petitioner stands negated by the Full Bench of this Court , in Shankar Dass alias Shankru versus State of Himachal Pradesh and others in CWP No. 1966 of 2010-C decided on 2.3.2013 [2013 SCC OnLine HP 681], mandating that that the oral consent cannot be presumed until some evidence of consent either in form of letter, writing or signatures on a representation for construction of road is placed on record and in these circumstances, the plea of oral consent is not tenable, in the following terms:

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On the question of consent, I am of the considered view that after the judgement in Nokhia’s case, quoted hereinabove, State should not have constructed roads without taking consent in writing from the land owners. If the State did so, it did at its own peril. his Court had issued clear cut directions which have held the field since 1984 that the State should ensure roads are constructed only after the land owners give informed consent.

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Oral consent cannot be in the case of poor persons or those living in rural or remote areas. In cases where parties

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are rich and educated and they do approach this Court within a reasonable period, then the Writ Court may direct them to approach the Civil Court. But in cases where people are poor and uneducated, it would invariably be better to take a more liberal view.

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The State also cannot plead consent or implied consent only on the basis that the road had been constructed. There must be some better evidence in this regard. If some evidence of consent, either in the form of letter, writing or signatures on a representation for construction of road, is placed before this Court, then Court may not exercise its writ jurisdiction and direct the party to approach the Civil Court. But if the only sort of consent pleaded is the implied consent due to construction of road, then this may entertain the writ petition.

¶162

7(iii). Similar plea of divesting a land private

¶163

owner of his lands and in utilizing it for the construction of road without paying compensation, by taking the “plea of consent of land owner(s)” was repelled by the Hon’ble Supreme Court in Raj Kumar versus State of Himachal Pradesh and others, SLP (C) No. 2373 of 2014 [arising from LPA No 285 of 2012], decided on 29.10.2015, in the following terms:

¶164

Appearing for the appellant, Mr. Anil Nag, learned counsel for the appellant argued that the High Court was in error in declining

¶165

( 2025:HHC:5826 )

¶166

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¶167

to intervene and grant relief prayed for by the appellant. It was submitted that the case of the appellant was no different from that of Kanwar Singh in whose case the High Court had not only issued a Mandamus acquisition of the land utilised for the very same purpose but order so passed had been complied with by the State by not initiating the proceedings but even determining and paying compensation lawfully due and payable to them. In the case of the appellant also the State had on its own initiated proceedings for acquisition of land but the said proceedings were allowed to lapse ostensibly because the road in question had subsequently been taken over under the Pradhan Mantri Gram Sadak Yojna which did not provide for payment of compensation to the land owners whose lands were utilised for such projects. It was urged that the utilisation of the land for construction of the road was not in dispute before the High Court as was evident from the counter affidavit filed to the writ petition. There was therefore no question of directing the appellant to approach the Civil Court for adjudication of any disputed question of fact. It was also submitted that

¶168

the transfer of the road to the Pradhan Mantri Sadak Yojna for maintenance etc. was no reason why the owners whose land had been utilised should have been denied the payment of compensation otherwise due to them . It was urged that the State had never claimed that the erstwhile owner of the land and the predecessor in interest of the appellant herein had made any formal or informal donation of the land in favour of the State to facilitate the construction of the road. In the absence of even an assertion that the road was constructed on the invitation of the erstwhile owner, the High Court was in error in declining to grant relief to the appellant who had lost his valuable land and thereby the source of livelihood. The remedy in a civil court was neither speedy nor efficacious. It

¶169

( 2025:HHC:5826 )

¶170

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¶171

was urged that the appellant would be satisfied in case the actual extent of land utilised by the State out of his ownership is verified by the Collector and compensation determined in Kanwar Singh's case under Award No. 10 of 2008 directed to be paid to the appellant depending upon the classification of the land that has been utilised by the State Government. It is urged that the appellant would keeping in view the intervening delay give up his right to claim compensation for the user of the land without acquisition and payment of statutory interest recoverable on the said amount. This would according to the learned counsel not only serve the ends of justice but also prevent any further litigation in the matter. It was submitted that this Court could in the peculiar facts and circumstances of this case and with a view to giving a quietus to the entire controversy make a suitable order that would meet the ends of justice.

¶172

There is in our opinion considerable merit in the submission made by Mr. Nag. It is true that the appellant had approached the High Court rather belatedly inasmuch the land had been utilised some time in the year 1985-86 while the writ petition was filed by the appellant in the year 2009. At the same time it is clear from the pleadings in the case at hand that the user of the land owned by the appellant is not denied by the State in the counter affidavit filed before the High Court or that filed before us. It is also evident from the averments made in the counter affidavit that the State has not sought any donation in its favour either by the appellant or his predecessor in interest during whose life time the road in question was constructed. All that is stated in the counter affidavit is that the erstwhile owner of the land “might have donated” the land to the State Government. In the absence of any specific assertion regarding any

¶173

( 2025:HHC:5826 )

¶174

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¶175

such donation or documentary to support the same, we are not inclined to accept the ipsit dixit suggesting any such donation. If that be so as it indeed is, we fail to appreciate why the State should have given up the land acquisition proceedings initiated by it in relation to the land of the appellant herein. The fact that the State Government had initiated such proceedings is not in dispute nor is it disputed that the same were allowed to lapse just the road had in the meantime been taken under the Pradhan Mantri Gram Sadak Yojna. It is also not in dispute that for the very same road the land owned by Kanwar Singh another owner had not only been notified for acquisition but duly for in terms of Award No. 10 of 2008.

¶176

7(iv). Plea of State Authorities that land was utilized on the basis of the oral consent given by land-owner(s) was negated by the Hon’ble Supreme Court, in Vidya Devi versus State of Himachal Pradesh and others, (2020) 2 SCC 569, which reads as under:

¶177

12.7. 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.

¶178

12.8. 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

¶179

( 2025:HHC:5826 )

¶180

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¶181

State.

¶182

7(v). In Sukh Dutt Ratra and another versus

¶183

State of Himachal Pradesh and others, (2022) 7 SCC 508, {i.e . CA No 2773 of 2022}, the Hon’ble Supreme Court has held that in absence of any material on record, the plea of verbal consent or the fact that land owner did not raise any objection cannot be used to deny compensation, in the following terms:

¶184

Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants’ alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the State’s position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.

¶185

This court is also not moved by the State’s contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason-construction of the Narag

¶186

( 2025:HHC:5826 )

¶187

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¶188

Fagla Road, in 1972-73, and much like the claimants before the reference court , these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court’s intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.

¶189

7(vi). The judgement in the case of Sukh

¶190

Dutt Ratra (supra) was again taken in Review Petition (Civil) Diary No. 7253 of 2023 titled as The State of Himachal Pradesh and others

¶191

versus Sukh Dutt Ratra, resulting in dismissal of review petition on 03.08.2023 in the following terms:

¶192

Review Petition (Civil) Diary No 7253 /2023

¶193

“Delay condoned.

¶194

Instant petition has been filed by the petitioners for review of order dated 6.4.2022 passed by this Court in CA No 2773 of 2022.

¶195

Having carefully perused the petition for review and the papers connected therewith, we do not find any reason for reconsideration of the above mentioned order.

¶196

The Review petition is accordingly dismissed .”

¶197

( 2025:HHC:5826 )

¶198

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¶199

Thus, taking into account the material

¶200

on record in the writ proceedings and even in instant Letters Patent Appeal, this Court is of the considered view, that the State Authorities have not placed any material on record to substantiate the plea of verbal consent by writ petitioner(s)private land owner and in absence of any proof of “consent on the basis of cogent and concrete evidence-material” the action of the State Authorities

¶201

in depriving the landowner-writ petitioner of his land(s) and in divesting a land owner of the right to get compensation for his lands but in utilizing such land for the construction of road, being without sanction of law does not stands the test of judicial scrutiny. In absence of any material, the contention of Learned State Counsel is misconceived on facts and also in view of the mandate of law in the case of Shankar Dass, Raj Kumar, Vidya Devi and Sukh Dutt Ratra (supra).

¶202

8. Second contention of the Learned State Counsel that the Mahota-Bagshar Road was

¶203

33 - ( 2025:HHC:5826 )

¶204

constructed under Pradhan Mantri Gram Sadak

¶205

Yojna [in short PMGSY] under the package for the year 2003-2004 and the land of the writ petitioner and others was utilized but since there is no provision in Pradhan Mantri Gram Sadak Yojna [in short PMGSY] guidelines for acquiring land and for payment of compensation, therefore, compensation could not be given to the writ petitioner.

¶206

8(i). The above plea of the Learned State Counsel does not stand the test of judicial scrutiny

¶207

for the reason that a reference was formulated as to whether a person whose land was utilized for construction of road under Pradhan Mantri Gram Sadak Yojna [in short PMGSY] is entitled to compensation has been answered by the Full Bench of this Court in LPA No. 33 of 2021, State of Himachal Pradesh and others versus Sita Ram, decided on 30.03.2022 in the following terms:

¶208

In view of the afore discussed law,

¶209

( 2025:HHC:5826 )

¶210

34 -

¶211

it must be held that even after the right of property enshrined under Article 19(I) (f) was deleted by the 44th amendment to the Constitution, Article 300A still retains right to property as the constitutional right as well as legal right and mandates that no person can be deprived of his property except by authority in law. Action of the State in dispossessing a citizen of his private property, without following the due process of law, would be violative of Article 300A of the Constitution of India, as negate his human right. Right to property has thus been acknowledged, not only constitutional as well as statutory, but also human right, to be construed in the realm of individual rights, such as right to health, livelihood, shelter, employment etc. in Welfare State. The State Authorities cannot dispossess any citizen of his property except in accordance with the procedure established by law, that too by due process of law and by acquiring land and paying adequate compensation .

¶212

The PMGSY Guidelines issued in April, 2012 clearly envisaged that land has to be provided by the State Authorities for construction of roads under that Scheme, but under PMGSY, no provision has been made for payment of compensation or acquiring the land. Either the State Government has to provide land by acquiring the land out of its own resources, or by persuading the citizens to voluntarily donate land or provide the land in exchange of some other land given to them by the State or by devising any other mechanism as may be considered appropriate to ensure availability of the land. Even the PMGSY Guidelines also do not envisage taking possession of the land of the citizen without his consent and without payment of due amount of compensation. It is however another matter if the citizen voluntarily surrenders his land, but the factum of voluntariness on his part and free consent

¶213

( 2025:HHC:5826 )

¶214

35 -

¶215

to part with possession of such land, has to be established by cogent and reliable material/evidence if and when such an action is called in question. Whether or not someone has voluntarily donated the land or has given his land in exchange of another land provided to him by the State or parted with possession of the land by any other mechanism, are all questions to be decided on facts of each case.

¶216

The judgments of this Court in Laiq Ram Dogra and Bhoop Ram, in the facts of those cases have been decided correctly by relying on the decision of Supreme Court in Raj Kumar’s case. The Supreme Court in Raj Kumar was also dealing with the case where initially the process for acquisition of land was started, but the proceedings were allowed to lapse, as subsequently the road, in question, was taken over under the PMGSY, which did not provide for compensation for land owners, if land was utilized for such projects. The Supreme Court rejected the argument that such land owners should be directed to approach the Civil Court for adjudication of the disputed questions of facts. It held that there was no reason as to why the owners whose land had been utilized for construction of road under PMGSY should be denied payment of compensation. The Supreme Court in that case also observed that the appellant had approached the High Court rather belatedly inasmuch as the land had been utilized sometime in the year 1985-1986 and the writ petition was filed by the appellant in the year, 2009. But at the same time, the Supreme Court noted that the user of the land owned by the appellant was not denied by the State in the counter-affidavit filed before the High Court or even before the Supreme Court.

¶217

The plea that the erstwhile owner of the land might have donated the land to the State Government, was not accepted in the

¶218

( 2025:HHC:5826 )

¶219

36 -

¶220

absence of any specific assertion regarding any such donation or documentary evidence to support the same. Against the backdrop of these facts, the Supreme Court directed the Collector Solan to verify the exact land utilized for construction of road and determine the amount of compensation and pay the same to the land owners.

¶221

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.

¶222

8(ii). Pursuant to Full Bench judgement in

¶223

LPA No. 33 of 2021 decided on 30.03.2022 in the case of Sita Ram (supra) the Division Bench of this Court, dismissed the state appeal

¶224

as State of Himachal Pradesh versus Sita Ram

¶225

on 3.11.2022, in the following terms:

¶226

During the course of hearing of the appeal, one of the moot questions arose as to whether a person(s) whose land(s) has been utilized for construction of road under 'PMGSY' is entitled to compensation and upon noticing the conflicting opinions, the issue was referred to Hon'ble Larger Bench for authoritative pronouncement.

¶227

Now, the Hon'ble Larger Bench of this Court vide its order dated 30.03.2022, has answered the question in the affirmative and held that the person(s) whose land(s) has

¶228

( 2025:HHC:5826 )

¶229

37 -

¶230

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.

¶231

8(iii). State Authorities assailed the judgement

¶232

in LPA No. 33 of 2021 before the Hon’ble Supreme Court in SLP (C) Diary No. 31814 of 2023, titled as The State of Himachal Pradesh & Ors versus

¶233

Sita Ram (since deceased) through LRs was also dismissed on 3.10.2023, in the following terms:

¶234

Delay condoned.

¶235

We are not inclined to interfere with the impugned judgment and order passed by the High Court . The special leave petition is dismissed accordingly.

¶236

Pending application(s), if any, stand disposed of.

¶237

Thus, taking into account the mandate

¶238

of Full Bench in the case of Sita Ram (supra)

¶239

which has been upheld by the Hon’ble Supreme Court in SLP referred to above, this Court upholds the findings recorded by the Learned Single Judge in the judgement dated 13.08.2024 in question that even in case of construction or

¶240

( 2025:HHC:5826 )

¶241

38 -

¶242

utilization of road under the Pradhan Mantri Gram

¶243

Sadak Yojna [in short PMGSY], the land owner(s) including the writ petitioner herein, is entitled for acquisition and compensation for the land utilized for construction of road by the State Authorities.

¶244

9. Third contention of Learned State Counsel is that the process for utilization-construction

¶245

of the road relating to package 2003-04 was started by State Authorities in the year 2005 and the same was completed in February 2009 and the writ petitioner approached this Court in June, 2022 and therefore, the claim suffer from delay and laches and therefore, no relief could have been granted to the writ petitioner by the Learned Single Judge.

¶246

Above contention of State Authorities invoking plea of delay and laches is untenable for the reason, that the State Authorities took possession and utilized the land belonging to

¶247

writ petitioner without any sanction of law as mandated by the Honble Supreme Court in Tukaram

¶248

( 2025:HHC:5826 )

¶249

39 -

¶250

Kana Joshi and others versus Maharashtra

¶251

Industrial development Corporation and others,

¶252

(2013) 1 SCC 353, in the following terms:

¶253

There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence , grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 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. There is a distinction, a true and concrete distinction, between the principle of "eminent domain" and "police power" of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of "absolute power" which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner

¶254

( 2025:HHC:5826 )

¶255

40 -

¶256

as a 'subject' of medieval India, but not as a 'citizen' under our constitution.

¶257

9(i). Repelling the contention of delay and laches or limitation the Honble Supreme Court mandated that the defence of delay and laches or limitation will not apply, if the case relates to a continuing cause of action or if circumstances shocks the conscious of the Court while exercising constitutional jurisdiction so as to do substantial justice in Vidya Devi versus State of Himachal Pradesh and others, (2020) 2 SCC 569, in the following terms:

¶258

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. and laches cannot be raised in a case of a continuing cause of action, of 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 how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.

¶259

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.

¶260

( 2025:HHC:5826 )

¶261

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¶262

9(ii). Negativating the contention of delay and

¶263

laches in case a person was forcibly dispossessed of private property without following due process of law and by mandating that there cannot be a limitation for doing justice the Hon’ble Supreme Court has held in Sukh Dutt Ratra and another versus State of Himachal Pradesh and others, (2022) 7 SCC 508 after following the mandate in the case of Vidya Devi (supra), in the following terms:

¶264

“16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains- can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.”

¶265

[Emphasis supplied]

¶266

This court is also not moved by the State’s contention that since the property is not adjoining to that of the appellants, it disentitles them from claiming benefit on the ground of parity . Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the

¶267

( 2025:HHC:5826 )

¶268

42 -

¶269

same reason-construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court’s intervention under Article 226 jurisdiction . In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.

¶270

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.

¶271

9(iii). A coordinate Division Bench of this Court

¶272

based on the mandate of the Hon’ble Supreme

¶273

Court in the case of Tukaram Kana Joshi, Vidya

¶274

Devi and Sukh Dutt Ratra (supra) had outlined

¶275

in LPA No. 54 of 2017, In re: State of Himachal Pradesh and others versus Upender Kumar and other connected matters decided on 27.3.2024 that

¶276

objection regarding limitation or delay and laches

¶277

43 - ( 2025:HHC:5826 )

¶278

cannot be permitted to come in the way so as render do substantial justice when, the action of forcible deprivation of private land owner from his property was without sanction of law, resulting in expropriation of property by State, resulting in a continuing cause of action and/or such act shocks the judicial conscience in the following

¶279

terms:

¶280

It is now trite law that in dealing with constitutional rights in the exercise of writ jurisdiction, one can no longer apply mutatis mutandis, the time frame stipulated in limitation law as if they were attracted . The issue has been dealt with time and again by the Hon’ble Supreme Court, particularly in the context of land acquisition.

¶281

In Tukaram Kana Joshi and others through Power-of-Attorney Holder versus Maharashtra Industrial Development Corporation and others (2013) 1 SCC 353 (“Tukaram”), the Hon’ble Supreme Court ruled that the constitutional right to property could not be defeated on technical grounds citing delay. Though, in the case of State of Maharashtra versus Digambar (1995) 4 SCC 683 (“Digambar”) the Hon’ble Supreme Court had denied relief to farmers on the ground of delay, but delay was not simply declared to be an absolute bar on filing of a writ petition.

¶282

It cannot be disputed that while deciding Tukaram’s case (supra), Digambar’s case (supra) had not been noticed, but the same was later noticed by the Hon’ble Supreme

¶283

( 2025:HHC:5826 )

¶284

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¶285

Court in a fairly recent case of Sukh Dutt Ratra and another versus State of Himachal Pradesh and others (2022) 7 SCC (“Sukh Dutt Ratra”) wherein the Hon’ble Supreme Court has dealt with a number of its judgments to emphasis that there can be no “limitation” to do justice if it is clear that the right to property has been intruded into without due process of law. The Hon’ble Supreme Court has repelled the citation of delay and laches in enforcement of the constitutional right to property in land The Hon’ble Supreme Court, as observed above, has considered the case Digambar.

¶286

Thus, the law as stands today is that the State cannot, on the ground of delay and laches, evade its responsibility towards those from whom private property been expropriated. In any case, what principles a Court must apply while assessing whether a writ petition is so hopelessly barred by delays and laches that a remedy is worthy of consideration, is well articulated in Maharashtra SRTC versus Balwant Regular Motor Service AIR 1969 SC 329 and these principles stand extracted and endorsed by the Hon’ble Supreme Court in Sukh Dutt Ratra’s case (supra) wherein it was as under:

¶287

“16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains- can the State, merely on the ground of delay and laches, evade its legal responsibility towards those whom private property has been expropriated ? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds

¶288

( 2025:HHC:5826 )

¶289

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¶290

equity and fairness.

¶291

When seen holistically, it is apparent that the State’s actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court’s directions to those who specifically approached the courts. The State’s lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in Anakh Singh v. State of H.P., 2007 SCC Online HP 220) and 20.12.2013 (in Onkar Singh vs. State, CWP No. 1356 / 2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.

¶292

There is a welter of precedents on delay and laches which conclude either way–as contended by both sides in the present dispute-however, the specific factual matrix compels this court to weigh in favour of the appellantland owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a ‘limitation’ to doing justice. This court in a much earlier caseMaharashtra State Road Transport Corporation v. Balwant Regular Motor Service (1969) 1 SCR 808 , held:

¶293

( 2025:HHC:5826 )

¶294

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¶295

"11……Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.

¶296

But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

¶297

By now, it is well settled that right to property though no longer a fundamental right and is otherwise a zealous possession of which one cannot be divested save and except by the authority of law as is enjoined by Article 300A of the Constitution of India. Any callous inaction or apathy of the State and its instrumentalities, in securing just compensation would amount to dereliction of

¶298

( 2025:HHC:5826 )

¶299

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¶300

a constitutional duty justifying issuance of writ of mandamus for appropriate remedial directions.

¶301

9(iv). The judgement in Upender Kumar’s case

¶302

(supra) was taken by State Authorities in SLP (C) No. 49057 of 2024 , titled as The State of Himachal

¶303

Pradesh and others versus Upender Kumar wherein,

¶304

after cautioning the State Authorities with exemplary

¶305

costs, the SLP was dismissed on 22.11.2024, in the following terms:

¶306

SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 49057/2024

¶307

[Arising out of impugned final judgment and order dated 27-03-2024 in LPA No. 54/ 2017 passed by the High Court of Himachal Pradesh at Shimla]

¶308

THE STATE OF HIMACHAL PRADESH & ORS. Petitioner(s) VERSUS UPENDER KUMAR Respondent(s)

¶309

Delay condoned.

¶310

We have come across several matters wherein the State of Himachal Pradesh has challenged the orders passed by the Division Bench of the High Court of Himachal Pradesh, thereby directing the compensation to be paid to the respondent(s).

¶311

The writ petitioner(s) has approached the High Court with a grievance that though the possession of their lands were taken for road construction, they did not receive compensation.

¶312

By the impugned judgment and order, the High Court has held that the State cannot

¶313

( 2025:HHC:5826 )

¶314

48 -

¶315

take possession of citizen land without paying the compensation.

¶316

Although the right to property is no longer considered a fundamental right, it is still a constitutional right. The State cannot be permitted to acquire citizen land without paying appropriate compensation.

¶317

In these circumstances, it would have been justified in dismissing the special leave petition(s) with exemplary cost. However, we refrain from doing so now and simply dismiss these special leave petitions.

¶318

9(v). While dealing with a claim by landlord

¶319

for compensation, who was non suited on the ground of delay and laches, the Hon’ble Supreme

¶320

Court allowed the compensation by negating the plea of delay and laches, so as to rectify injustice and moreso when, the right of an individual to vindicate and protect private property could not be brushed aside by invoking delay and laches in Urban Improvement Trust versus Vidhya Devi and others, Civil Appeal No. 14473 of 2024 decided on 13.12.2024 in the following terms:

¶321

Having heard the learned counsels appearing for the parties and having gone through the materials on record, the following questions fall for our consideration:

¶322

(i) Whether the High Court committed any error in taking the view that

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the respondents herein should be non-suited on the ground of delay and laches?

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As regards the appellant’s challenge to the inordinate delay of 21 years in filing of the writ petitions by the respondents , we are of the view that the same needs to be considered in the facts and circumstances of the case. While it is true that the courts have consistently held that undue delay in approaching the court can be a ground for refusing relief, the courts have also recognized that in exceptional cases, where the impugned action is patently illegal or affects fundamental rights, the delay must be condoned .

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It is pertinent for us to consider the judgment of this Court in Vidya Devi v. State of Himachal Pradesh reported in (2020) 2 SCC 569, wherein it was held, inter alia, as follows:

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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. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]” [Emphasis supplied] 48. The aforesaid view has also been reiterated by this Court in Sukh Dutt Ratra v. State of Himachal Pradesh reported in (2022) 7 SCC 508 wherein the court opined that there cannot be a ‘limitation’ to doing justice….” .

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This Court in its decision in Ramchandra Shankar Deodhar v. State of Maharashtra, reported in (1974) 1 SCC 317 held that:

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“10. … There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and this delay, contended the respondents, was sufficient to

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disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. We do not think this contention should prevail with us . In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] “is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit .... It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose”. …[ SCC para 11] …”

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(Emphasis supplied)

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The decisions of this Court have consistently held that the right to property is enshrined in the Constitution and requires that procedural safeguards be followed to ensure fairness and non-arbitrariness in decision-making especially in cases of acquisition by the State. Therefore, the delay in approaching the court, while a significant factor, cannot override the necessity to address illegalities and protect right to property enshrined in Article 300A. The court must balance the need for finality in legal proceedings with the need to rectify injustice. The right of an individual to vindicate and protect private property cannot be brushed away merely on the grounds of delay and laches.

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{Emphasis Ours}

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Based on the factual matrix and the

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legal mandate as discussed hereinabove, this Court is of the considered view that once the State Authorities have curtailed the constitutional right of the writ petitioner i.e. by forcibly depriving him of his property without sanction of law and in depriving such land owner of the compensation by utilizing the land of writ petitioner, even though for a public purpose i.e. construction of road. This action of the State Authorities has certainly resulted in civil consequences, by depriving the land owner-writ petitioner of his right to reap the benefits accruing from his land resulting in recurring loss and this action has shocked the conscience of this Court. In these circumstances,

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the plea of delay and laches cannot be permitted to be raised by the State so as to safeguard the rights of the writ petitioner so as to rectify injustice and to enable the writ petitioner to get compensation for his land, from which he was

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forcibly and illegally dispossessed in the teeth of Articles 14, 21 and 300-A of the Constitution of India. Accordingly, in facts of this case, the plea

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of delay and laches needs to be brushed aside so as to rectify injustice and to render substantial justice to writ petitioner. Accordingly, the contention of Learned State Counsel based on delay and laches does not stand the test of judicial scrutiny and the same is rejected.

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10. Fourth contention of Learned State Counsel

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is that the judgement in the case of State of Maharashtra versus Digambar (1995) 4 SCC 683

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has not been considered by the Learned Single Judge is misconceived when, the Learned Single

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Judge had referred to the judgment in the case of Sukh Dutt Ratra ( supra ), wherein, the judgement

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in Digambar’s case ( supra ) as discussed in the case of Vidya Devi (supra) was relied upon and based on aforesaid judgement(s), the plea of delay and laches was negated by the Hon’ble Supreme Court. Thus, in these circumstances, the contention

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of Learned State Counsel does not stand test of judicial scrutiny and is accordingly turned down. 11. Fifth contention of Learned State Counsel

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is that the judgement in case of Rajiv versus State of Himachal Pradesh has not been considered by the Learned Single Judge. The above contention is contrary to the records, when no such judgement was made part of reply affidavit before the writ court and even, in instant appeal, the aforesaid judgement has neither been referred to. Even on a query by this Court, Learned State Counsel was able to point out the aforesaid judgement, as quoted in grounds of appeal today.

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12. Last contention of Learned State Counsel is that the Full Bench judgement of this Court [though not quoted as to which Full Bench judgment] has been ignored. It appears that the

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above plea has been set-up, just to delay the implementation of Impugned judgement and to prolong the release of actual compensation to the land owner-writ petitioner. Moreover, the Learned

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Single Judge has discussed the mandate of Full Bench of this Court in the case of Sita Ram Sharma ( supra ), in Paras 4 and 5 of the judgement and has relied on the judgment in case of Sukh Dutt Ratra, wherein another Full Bench judgement in case of Shankar Dass has been duly relied upon-approved by the Honble Supreme Court..

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13. Notwithstanding the above, the instant appeal needs to be tested from another angle also. Admittedly, the State Authorities started the construction of Mahota Bagshar Road with total length of 00/00 to 17/00 upto village Telehan under Pradhan Mantri Gram Sadak Yojna [in short PMGSY] under package for the year 2003-04. Land of the writ petitioner and other co-owners, having adjoining lands namely Bhoop Ram and

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Neem Chand were also utilized for the construction of same subject road without sanction of law by the State Authorities. Feeling aggrieved Bhoop Ram filed CWP No. 2386 of 2009 and Neem Chand

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filed CWP No. 3090 of 2009 and both these

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writ petitions were allowed on 24.06.2016 and

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5.7.2016 by the Learned Single Judge. These

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judgement in the case of Bhoop Ram was taken in LPA No. 79 of 2017 decided on 8.8.2017 wherein

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the State Appeal was dismissed and CWP was upheld. After decision in LPA, the State Authorities as per material on record in the writ proceedings started the acquisition proceedings on 6.12.2018, by issuing notification under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement

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Act, 2013 leading to the passing of Award by Land Acquisition Collector, HPPWD (CZ), Mandi on 22.02.2022 [Annexure P-2 colly]. After passing

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of award in the case of Bhoop Ram and Neem Chand, the writ petitioner submitted representation

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on 21.04.2022 to State Authorities [Annexure P-3] whereafter the Land Acquisition Collector requested

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the Executive Engineer concerned on 27.4.2022 [Annexure P-4] to initiate appropriate action for acquiring the land. Even Special Secretary (PW)

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directed the concerned Executive Engineer and Land Acquisition Collector on 4.5.2022 [Annexure P-5]

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to take steps for payment of compensation to the writ petitioner [Charan Dass]. Since nothing was done therefore, the writ petitioner approached this Court in CWP No. 4226 of 2022 on 14.06.2022. In these circumstances, once the compensation has been given to Bhoop Ram and Neem Chand therefore, “Impugned Judgement dated 13.08.2024”, In re: Charan Dass versus State of Himachal Pradesh and others needs no inference so as to ensure parity in treatment and to avoid the charge of discrimination vis-à-vis other landowners of the adjoining lands for same subject road. The act of the State Authorities in compelling the writ petitioner to face litigation, one after the other, for his constitutional right to get compensation from the State Authorities against the illegal and forcible deprivation of his property without the sanction of law, and that too by a mere executive fiat, cannot be permitted to operate any longer.

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In order to balance the need for finality in legal proceedings, with the intent and object of need to rectify injustice and to enable the writ petitioner to vindicate and to protect his private property therefore, this Court b eing a “sentinel of justice” of constitutional right of property embodied in Article 300-A of the Constitution of India, when, benefit of compensation stands given to other landowners having adjoining lands for subject road as detailed hereinabove establishes unfairness, unreasonableness, discrimination and arbitrariness in State action, which also is not in spirit of the litigation policy of the State-Appellants. Accordingly, the Impugned judgement passed by the Learned Single Judge does not suffer from any illegality, infirmity or perversity and therefore, the instant appeal, is devoid of any merit.

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14. Based on the factual matrix and the

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mandate of law as discussed hereinabove, this Court does not find any merit in the contentions advanced by the Learned State Counsel, in the

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instant appeal which are just a reiteration of the pleas taken by the appellate-State Authorities before the Writ Court. Accordingly, the contentions of Learned State Counsel for appellants, are without

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merit and the same are accordingly turned down.

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CONCLUSION & DIRECTIONS:

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15. In view of the above discussion and for

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the reasons recorded hereinabove, the instant Letters Patent Appeal sans merit, and is dismissed in the following terms:-

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(i). Impugned judgement passed by Learned Single Judge, in CWP No. 4226 of 2022 decided on 13.08.2024 in Charan Dass versus State of Himachal Pradesh and others, is upheld;

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(ii). Respondents-State Authorities are directed to initiate the acquisition proceedings and/or to otherwise award compensation to the writ petitioner [Charan Dass], on same analogy it has been released to land owners having adjoining lands i.e. Bhoop Ram and Neem Chand [supra] which was used for same subject road ; with directions to complete entire process expeditiously and not later than the outer limit of one year as mandated

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by Learned Single Judge in judgement under reference.

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16. Before parting with this case, this Court observe that State Authorities have been filing appeals notwithstanding the fact that benefit of acquisition and/or compensation for utilization of lands of landowner(s) by the State Authorities in identical cases stands implemented. Yet, filing of instant appeal reveals a sorry state of affairs, for which this Court would have imposed exemplary costs. However, without observing further and by refraining ourselves, this Court hopes and trust that State Authorities shall follow its litigation policy in letter and spirit hereinafter, failing which we shall be constrained to levy exemplary costs which shall be liable to be paid by the officer concerned.

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In aforesaid terms, the letters patent appeal is dismissed in limine and pending miscellaneous application(s), if any, shall also stand disposed of accordingly.

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( G. S. Sandhawalia ) ( Ranjan Sharma ) Chief Justice. Judge. March 1, 2025 [tm]

State of Hp and Others v. Charan Dass

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State of Hp and Others v. Charan Dass

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