VIDYA DEVI versus THE STATE OF HIMACHAL PRADESH & ORS. on 8 January 2020

[2020] 1 S.C.R. 749

VIDYA DEVI

v.

THE STATE OF HIMACHAL PRADESH & ORS.

(Civil Appeal Nos. 60-61 of 2020)

JANUARY 08, 2020

[INDU MALHOTRA AND AJAY RASTOGI, JJ.]

Constitution of India – Arts. 31, 136, 142 and 300A –Respondent-State took over the land of the appellant in 1967–68for the construction of Nadaun-Sujanpur Road, without takingrecourse to acquisition proceedings or following due process oflaw – Construction of the road completed by 1975 – In 2004, somesimilarly situated persons whose lands were also taken over by therespondent for the same public purpose, filed writ petition titledAnakh Singh & Ors. v. State of Himachal Pradesh & Ors. claimingcompensation – Allowed – Respondent initiated acquisitionproceedings under the 1894 Act only with respect to the lands ofthe writ petitioners, and not the other land-owners whose landswere also taken over – Appellant filed writ petition inter alia prayingthat the State be directed to pay compensation for the land acquiredin 1967-68 – High Court held that the matter involved disputedquestions of law and fact which could not be adjudicated in writproceedings, however granted liberty to the appellant to file suit–Review Petition dismissed – On appeal, held: In the present case,the appellant being an illiterate person, a widow coming from ruralarea was forcibly expropriated of her property in 1967, when theright to property was fundamental right (though ceased to be so bythe 1978 Amendment Act) guaranteed by Art.31 in Part III of theConstitution – To forcibly dispossess a person of his private property,without following due process of law, would be violative of humanright, as also the constitutional right u/Art.300 A – Cause of actionis a continuing one, since the appellant was compulsorilyexpropriated of her property in 1967 without any legal sanction–In view of extraordinary jurisdiction u/Arts. 136 and 142, the Stateis directed to pay compensation to the appellant on the same termsas awarded by the Reference Court by order dtd. 07.07.15 in AnakhSingh’s case with all statutory benefits including solatium, interest,etc. within 8 weeks, treating it as a case of deemed acquisition –

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AAffidavit of compliance be filed by the State before Supreme Courtwithin 10 weeks – If appeal is filed by the appellant within 8 weeksfrom the date of compensation being paid to her by the State, theappeal will be treated to be within limitation, and decided on itsown merits in accordance with law– State to pay legal costs andexpenses of Rs.1,00,0000/- to the appellant– Orders passed by theBHigh Court set aside– Land Acquisition Act, 1894– Constitution(Forty Fourth Amendment) Act, 1978– Doctrine of adversepossession.

Principles/Doctrines – Doctrine of adverse possession –Appellant’s land taken over by the Respondent-State in 1967–68Cfor the construction of Nadaun-Sujanpur Road, without takingrecourse to acquisition proceedings or following due process oflaw – Plea of adverse possession taken by State – Held: State beinga welfare State, cannot be permitted to take the plea of adversepossession, which allows a trespasser i.e. a person guilty of a tort,Dor even a crime, to gain legal title over such property for over 12years – State cannot be permitted to perfect its title over the land byinvoking the doctrine of adverse possession to grab the property ofits own citizens, as done in the present case.

Conclusion

Constitution of India – Arts.136, 142 and 226 – Land of theEappellant (an illiterate person, widow from rural area) was takenover by the Respondent-State in 1967–68 for the construction ofNadaun-Sujanpur Road, without taking recourse to acquisitionproceedings or following due process of law – Appellant approachedthe High Court in 2010 – State took the plea of delay and laches bythe appellant in moving the Court – Held: Rejected – Delay andFlaches 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 mustbe exercised judiciously and reasonably in the facts andcircumstances of a case – It will depend upon the breach ofGfundamental rights, and the remedy claimed, and when and howthe delay arose – There is no period of limitation prescribed for thecourts to exercise their constitutional jurisdiction to do substantialjustice.

Allowing the appeals, the Court

HELD: 1.1 The Appellant was forcibly expropriated of herproperty in 1967, when the right to property was a fundamentalright guaranteed by Article 31 in Part III of the Constitution.Article 31 guaranteed the right to private property, which couldnot be deprived without due process of law and upon just and faircompensation. To forcibly dispossess a person of his privateproperty, without following due process of law, would be violativeof a human right, as also the constitutional right under Article300 A of the Constitution. [Paras 10.1 and 10.2][755-G-H;756-C]

The State of West Bengal v. Subodh Gopal Bose andOrs. AIR 1954 SC 92 : [1954] SCR 587; K T PlantationPvt. Ltd. v. State of Karnataka (2011) 9 SCC 1 : [2011]13 SCR 636 – followed.

Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.(2013) 1 SCC 353 : [2012] 13 SCR 29; HindustanPetroleum Corporation Ltd. v. Darius Shapur Chenai(2005) 7 SCC 627 : [2005] 3 Suppl. SCR 388; N.Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC517 : [2008] 9 SCR 535; Delhi Airtech Services Pvt.Ltd. & Ors. v. State of U.P. & Ors. (2011) 9 SCC 354 :[2012] 12 SCR 191; Jilubhai Nanbhai Khachar v. Stateof Gujarat (1995) Supp. 1 SCC 596 : [1994] 1 Suppl.SCR 807 – relied on.

1.2 The Appellant could not have been forcibly dispossessedof her property without any legal sanction, and without followingdue process of law, and depriving her payment of justcompensation, being a fundamental right on the date of forcibledispossession in 1967. There is complete lack of authority andlegal sanction in compulsorily divesting the Appellant of herproperty by the State. In a democratic polity governed by therule of law, the State could not have deprived a citizen of theirproperty without the sanction of law. [Paras 10.3-10.5][756-F-G;758-A]

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752SUPREME COURT REPORTS

AState of Haryana v. Mukesh Kumar (2011) 10 SCC 404: [2011] 14 SCR 211; P.S. Sadasivaswamy v. State ofT.N. (1975) 1 SCC 152 : [1975] 2 SCR 356 – relied on.

1.3 The State being a welfare State, cannot be permitted toBtake the plea of adverse possession, which allows a trespasseri.e. a person guilty of a tort, or even a crime, to gain legal titleover such property for over 12 years. The State cannot bepermitted to perfect its title over the land by invoking the doctrineof adverse possession to grab the property of its own citizens, ashas been done in the present case. The contention advanced byCthe State of delay and laches of the Appellant in moving the Courtis also liable to be rejected. Delay and laches cannot be raised ina case of a continuing cause of action, or if the circumstancesshock the judicial conscience of the Court. Condonation of delayis a matter of judicial discretion, which must be exercisedDjudiciously and reasonably in the facts and circumstances of acase. It will depend upon the breach of fundamental rights, andthe remedy claimed, and when and how the delay arose. There isno period of limitation prescribed for the courts to exercise theirconstitutional jurisdiction to do substantial justice. [Paras 10.6,10.7][758-D-G]

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1.4 The Appellant being an illiterate person, who is a widowcoming from a rural area has been deprived of her private propertyby the State without resorting to the procedure prescribed bylaw. The Appellant has been divested of her right to propertywithout being paid any compensation whatsoever for over half aFcentury. The cause of action in the present case is a continuingone, since the Appellant was compulsorily expropriated of herproperty in 1967 without legal sanction or following due processof law. The present case is one where the demand for justice isso compelling since the State has admitted that the land was takenGover without initiating acquisition proceedings, or any procedureknown to law. Extraordinary jurisdiction is exercised underArticles 136 and 142 of the Constitution, and direct the State topay compensation to the Appellant. The Respondent–State isdirected to pay the compensation on the same terms as awardedby the Reference Court vide Order dated 07.07.2015 in AnakhH

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Singh’s case (i.e. Land Reference No.1 of 2011 RBT No.01/13)alongwith all statutory benefits including solatium, interest, etc.within a period of 8 weeks, treating it as a case of deemedacquisition. An Affidavit of compliance is directed to be filed bythe State before this Court within 10 weeks. It is informed thatan appeal has been preferred by Ravinder Singh s/o Anakh Singh& Ors. being RFA No.35 of 2016 which is pending before theHigh Court of Himachal Pradesh at Shimla. Taking note thereof,if an appeal is filed by the present appellant within 8 weeks fromthe date of compensation being paid to her by the State, the appealwill be treated to be within limitation, and would be decided onits own merits in accordance with law. Orders dated 11.09.13 and13.05.14 passed by the High Court are set aside. [Paras 11, 13-14][759-E-F; 760-B-D]

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 60-61of 2020.

From the Judgment and Order dated 11.09.2013 of the High Courtof Himachal Pradesh at Shimla in CWP No. 1736 of 2010-B and orderdated 13.05.2014 in Review Petition No. 50 of 2014.

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Ms. Radhika Gautam, Adv. for the Appellant.

Abhinav Mukerji, AAG, Ms. Bihu Sharma, Ms. Pratishtha Vij,Samarth Khanna, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by INDU MALHOTRA, J.

Delay condoned. Leave granted.

1. The Appellant now almost 80 years old, was undisputedly theBowner of land admeasuring about 3.34 Hectares comprised in Khata/Khatuni No. 105 min/127, Khasra No. 70 in Tika Jalari Bhaddirain, MaujaJalari, Tehsil Nadaun, Dist. Hamipur, Himachal Pradesh.

2. The Respondent–State took over the land of the Appellant in1967–68 for the construction of a major District Road being the NadaunC– Sujanpur Road, a major District Roadwithout taking recourse toacquisition proceedings, or following due process of law.

The construction of the road was completed by 1975.

3. The Appellant, being an illiterate widow, coming from a ruralbackground, was wholly unaware of her rights and entitlement in law,Dand did not file any proceedings for compensation ofthe land compulsorilytaken over by the State.

4. In 2004, some similarly situated persons whose landshad alsobeen taken over by the Respondent–State for the same public purpose,filed CWP No.1192 of 2004 titled Anakh Singh & Ors. v. State ofEHimachal Pradesh & Ors. claiming compensation before the High Courtof Himachal Pradesh.

The High Court vide Order dated 23.04.2007, allowed CWPNo.1192 of 2004, and directed the Respondent–State to acquire the landsof the Writ Petitioners under the Land Acquisition Act, 1894.

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5. Pursuant to the Order of the High Court in 2008, theRespondent–State initiated acquisition proceedings under the LandAcquisition Act, 1894 only with respect to the lands of the WritPetitioners,and not the other land-owners whose lands had also beentaken over.

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6. The Appellant submits that she learnt of these proceedings in2010, when she alongwith her two daughters filed C.W.P. No. 1736 of2010 before the Himachal Pradesh High Court, praying that the State bedirected to pay compensation for the land acquired in 1967–68; or, in thealternative, direct the State to initiate acquisition proceedings under theHLand Acquisition Act, 1894.

The Respondent–State filed its reply before the High Court,wherein it was admitted that the Department had used land in theownership of the Appellant for the construction of the Nadaun – Sujanpurroad, a major district road in 1967–68. The State had been in continuouspossession of the property since 1967–68,i.e., for the last 42 years, andthe title of the Respondent–State got converted into “adverse possession”.It was submitted that the statutory remedy available to the Appellantwas by filing a Civil Suit.

The State has further admitted that a Notification under Section 4of the Land Acquisition Act had been issued in 2008 with respect to theland of Anakh Singh a neighbouring land-owner, whose land was similarlytaken over for the same purpose. Furthermore, the Writ Petition wasbarred by laches, since the road was constructed in 1967–68, and metalledsince 1975. The land was utilized by the Respondent–State after theAppellant and her predecessors-in-interest had verbally consented tothe land being taken over without any objection.

7. The High Court vide the impugned Judgment and Order dated11.09.2013 held that the matter involved disputed questions of law andfact for determination on the starting point of limitation, which could notbe adjudicated in Writ proceedings. The Appellant was granted liberty tofile a Civil Suit.

8. Aggrieved, the Appellant filed a Review Petition against theJudgment and Order dated 11.09.2013 which was dismissed vide Orderdated 13.05.2014.

9. The Appellant has filed the present Appeals before this Court,to challenge the Judgment dated 11.09.2013 passed in the Writ Petitionand Order dated 13.05.2014 passed in the Review Petition.

10. We have heard learned Counsel for the parties and perusedthe record.

10.1. The Appellant was forcibly expropriated of her property in1967, when the right to property was a fundamental right guaranteed byArticle 31 in Part III of the Constitution.

Article 31 guaranteed the right to private property[1], which couldnot be deprived without due process of law and upon just and faircompensation.

1The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92.

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A10.2. The right to property ceased to be a fundamental right bythe Constitution (Forty Fourth Amendment) Act, 1978, however, itcontinued to be a human right[2 ]in a welfare State, and a Constitutionalright under Article 300 A of the Constitution. Article 300 A provides thatno person shall be deprived of his property save by authority of law. TheState cannot dispossess a citizen of his property except in accordanceBwith the procedure established by law. The obligation to pay compensation,though not expressly included in Article 300 A, can be inferred in thatArticle.[3]

To forcibly dispossess a person of his private property, withoutfollowing due process of law, would be violative of a human right, asCalso the constitutional right under Article 300 A of the Constitution.

Reliance is placed on the judgment in Hindustan PetroleumCorporation Ltd. v. Darius Shapur Chenai[4], wherein this Court heldthat:

D“6. … Having regard to the provisions contained in Article300-A of the Constitution, the State in exercise of its power of“eminent domain” may interfere with the right of property ofa person by acquiring the same but the same must be for apublic purpose and reasonable compensation therefor mustbe paid.”

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In N. Padmamma v. S. Ramakrishna Reddy[5], this Court held that:

“21. If the right of property is a human right as also aFconstitutional right, the same cannot be taken away except inaccordance with law.Article 300-A of the Constitution protectssuch right. The provisions of the Act seeking to divest such-right, keeping in view of the provisions of Article 300A ofthe Constitution of India, must be strictly construed.”

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2 Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353.

3 K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1.

4 (2005) 7 SCC 627.

H5 (2008) 15 SCC 517.

In Delhi Airtech Services Pvt. Ltd. &Ors. v. State of U.P. &Ors.[6],this Court recognized the right to property as a basic human right in thefollowing words:

“30. It is accepted in every jurisprudence and by differentpolitical thinkers that some amount of property right is anindispensable safeguard against tyranny and economicoppression of the Government.Jefferson was of the view thatliberty cannot long subsist without the support of property.“Property must be secured, else liberty cannot subsist” wasthe opinion of John Adams. Indeed the view that propertyitself is the seed bed which must be conserved if otherconstitutional values are to flourish is the consensus amongpolitical thinkers and jurists.”

In Jilubhai Nanbhai Khacharv. State of Gujarat,[7 ]this Courtheld as follows :

“48. …In other words, Article 300-A only limits the powers ofthe State that no person shall be deprived of his propertysave by authority of law. There has to be no deprivation withoutany sanction of law. Deprivation by any other mode is notacquisition or taking possession under Article 300-A.In otherwords, if there is no law, there is no deprivation.”

10.3. In this case, the Appellant could not have been forciblydispossessed of her property without any legal sanction, and withoutfollowing due process of law, and depriving her payment of justcompensation, being a fundamental right on the date of forcibledispossession in 1967.

10.4. The contention of the State that the Appellant or herpredecessors had “orally” consented to the acquisition is completelybaseless. We find complete lack of authority and legal sanction incompulsorily divesting the Appellant of her property by the State.

6 (2011) 9 SCC 354.

7 (1995) Supp. 1 SCC 596.

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A10.5. In a democratic polity governed by the rule of law, the Statecould not have deprived a citizen of their property without the sanctionof law. Reliance is placed on the judgment of this Court in TukaramKana Joshi &Ors. v. M.I.D.C. &Ors.[8]wherein it was held that theState must comply with the procedure for acquisition, requisition, or anyother permissible statutory mode. The State being a welfare StateBgoverned by the rule of law cannot arrogate to itself a status beyondwhat is provided by the Constitution.

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

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

10.7. The contention advanced by the State of delay and lachesof the Appellant in moving the Court is also liable to be rejected. Delayand laches cannot be raised in a case of a continuing cause of action, orif the circumstances shock the judicial conscience of theFCourt.Condonation of delay is a matter of judicial discretion, which mustbe exercised judiciously and reasonably in the facts and circumstancesof a case. It will depend upon the breach of fundamental rights, and theremedy claimed, and when and how the delay arose. There is no periodof limitation prescribed for the courts to exercise their constitutionaljurisdiction to do substantial justice.

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In a case where the demand for justice is so compelling, aconstitutional Court would exercise its jurisdiction with a view to promotejustice, and not defeat it.[9]

8 (2013) 1 SCC 353.H9 P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152.

In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,[10] this Courtwhile dealing with a similar fact situation, held as follows :

“There are authorities which state that delay and lachesextinguish the right to put forth a claim. Most of theseauthorities pertain to service jurisprudence, grant ofcompensation for a wrong done to them decades ago, recoveryof statutory dues, claim for educational facilities and othercategories of similar cases, etc. Though, it is true that thereare a few authorities that lay down that delay and lachesdebar a citizen from seeking remedy, even if his fundamentalright has been violated, under Article 32 or 226 of theConstitution, the case at hand deals with a different scenarioaltogether. Functionaries of the State took over possessionof the land belonging to the Appellants without any sanctionof law.The Appellants had asked repeatedly for grant of thebenefit of compensation. The State must either comply withthe procedure laid down for acquisition, or requisition, orany other permissible statutory mode.”

11. In the present case, the Appellant being an illiterate person,who is a widow coming from a rural area has been deprived of herprivate property by the State without resorting to the procedure prescribedby law. The Appellant has been divested of her right to property withoutbeing paid any compensation whatsoever for over half a century. Thecause of action in the present case is a continuing one, since the Appellantwas compulsorily expropriated of her property in 1967 without legalsanction or following due process of law. The present case is one wherethe demand for justice is so compelling since the State has admitted thatthe land was taken over without initiating acquisition proceedings, or anyprocedure known to law.We exercise our extraordinary jurisdiction underArticles 136 and 142 of the Constitution, and direct the State to paycompensation to the Appellant.

12. The State has submitted that in 2008 it had initiated acquisitionproceedings in the case of an adjoining land owner viz. Shri Anakh Singhpursuant to a direction given by the High Court in C.W.P.No.1192 of2004. The State initiated acquisition only in the case where directions AB

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Awere issued by the High Court, and not in the case of other land ownerswhose lands were compulsorily taken over, for the same purpose, and atthe same time. As a consequence, the present land owner has beendriven to move the Court in their individual cases for redressal.

13. In view of the aforesaid facts and circumstances of the presentBcase, the Respondent–State is directed to pay the compensation on thesame terms as awarded by the Reference Court vide Order dated07.07.2015 in Anakh Singh’s case (i.e. Land Reference No.1 of 2011RBT No.01/13) alongwith all statutory benefits including solatium, interest,etc. within a period of 8 weeks, treating it as a case of deemed acquisition.An Affidavit of compliance is directed to be filed by the State before thisCCourt within 10 weeks.

It is informed that an appeal has been preferred by Ravinder Singhs/o AnakhSingh &Ors. being RFA No.35 of 2016 which is pending beforethe High Court of Himachal Pradesh at Shimla.

DTaking note thereof, if an appeal is filed by the present appellantwithin 8 weeks from the date of compensation being paid to her by theState, the appeal will be treated to be within limitation, and would bedecided on its own merits in accordance with law.

The Respondent-State is directed to pay legal costs and expensesEof Rs.1,00,0000/- to the present appellant.

14. The Appeals are accordingly allowed. The Orders dated11.09.2013 and 13.05.2014 passed by the High Court are set aside.

Ordered accordingly.

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Divya Pandey

Appeals allowed.

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