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2016 DIGILAW 2623 (HP)

Balwant Singh v. State of Himachal Pradesh

2016-12-09

SANJAY KAROL

body2016
JUDGMENT : Sanjay Karol, J. 1. It is rather unfortunate that after having taken a decision to initiate proceedings for acquisition of land over which Jhiknipul – Bhamta Road came to be constructed, now the respondents/State by taking a somersault are contesting the claim of the writ petitioners. 2. Record reveals, as is also evident from the response filed by the State, that the road in question came to be constructed by the State under the PMGSY Scheme. It is a Central Government sponsored Scheme and the road stands constructed by the State. It is not a case where the residents of the area themselves constructed the road or prior to its construction, land owners surrendered their rights therein. In fact, at some point in time, acquisition proceedings were initiated but for unexplained reasons, allowed to lapse. Even thereafter the State on its own, or may be on the asking of land owners, did take a decision to initiate fresh proceedings for acquisition of the land in question. Correspondence dated 30.10.2013 (Annexure P-4) and 19.07.2014 (Annexure P-5) is evidently clear in this regard. Yet it did not do anything, forcing the petitioners to approach this Court for redressal of their genuine grievances. Petitioners had been continuously pursuing their remedies before different authorities. 3. Right of property is enshrined in the Constitution. It is a settled principle of law that no person can be deprived of its property, save and except by following due process of law. Under these circumstances the writ petitioners legitimately canvass infringement of violation of such right. 4. Further right to property is now considered to be not only a constitutional or a statutory right but also a human right. Such principle stands fully reiterated and explained by Hon’ble the Supreme Curt of India in Tukaram Kana Joshi & Others vs. Maharashtra Industrial Development Corporation & Others, (2013) 1 SCC 353 , as under: "8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the Right to Property seized to be a Fundamental Right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the "law" as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar vs. State of Gujarat & Another, 1995 Supp (1) SCC 596 : AIR 1995 SC 142 , it has been held as follows:- "48. In other words, Article 300-A only limits the power of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation." 9. The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension. (Vide: Lachhman Dass vs. Jagat Ram & Others, (2007) 10 SCC 448 ; Amarjit Singh & Others vs. State of Punjab & Others, (2010) 10 SCC 43 ; State of Madhya Pradesh & Another vs. Narmada Bachao Andolan, 2011 AIR (SC) 1989; State of Haryana vs. Mukesh Kumar & Others, 2012 AIR (SC) 559 and Delhi Airtech Services Pvt. Ltd. vs. State of U.P. & Another, 2012 AIR (SC) 573) 10. In the case at hand, there has been no acquisition. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the Rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal. 11. 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 as a 'subject' of medieval India, but not as a 'citizen' under our Constitution." 5. To further clarify this position, it must be noted that the authorities have treated the land owner as a 'subject' of medieval India, but not as a 'citizen' under our Constitution." 5. Significantly in the very same decision, Court has dealt with the concept of delay and laches and the manner in which Court has to exercise discretion under Article 226 of the Constitution of India. 6. Contention that the petition is delayed by laches needs to be rejected not only on account of factual matrix as noticed hereinabove but also in view of latest decision rendered by the apex Court in K.B. Ramachandra Raje Urs (Dead) by Legal Representatives vs. State of Karnataka & Others, (2016) 3 SCC 422 , wherein it came to be observed as under: "28. It has been vehemently argued on behalf of the respondents that the writ petition ought not to have been entertained and any order thereon could not have been passed as it is inordinately delayed and the appellant has made certain false statements in the pleadings before the High Court details of which have been mentioned hereinabove. This issue need not detain the Court. Time and again it has been said that while exercising the jurisdiction under Article 226 of the Constitution of India the High Court is not bound by any strict rule of limitation. If substantial issues of public importance touching upon the fairness of governmental action do arise, the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction by the Court. Insofar as the knowledge of the appellant-writ petition with regard to the allotment of the land to Respondent 28 Society is concerned, what was claimed in the writ petition is that it is only in the year 1994 when Respondent 28 Society had attempted to raise construction on the land that the fact of allotment of such land came to be known to the appellant-writ petitioner." 7. Under these circumstances, petition is allowed and the respondents directed to initiate proceedings for acquisition of the land in terms of communications dated 27.7.2005 (Annexure P-1), dated 30.10.2013 (Annexure P-4) and dated 19.7.2014 (Annexure P-5). Steps shall positively be taken within a period of twelve weeks from today. Petition stands disposed of accordingly, as also pending applications, if any.