SUKH DUTT RATRA & ANR. vs STATE OF HIMACHAL PRADESH & ORS.

SUKH DUTT RATRA & ANR. vs STATE OF HIMACHAL PRADESH & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2022

(ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. OF 2022)

(ARISING OUT OF S.L.P. (C) DIARY NO. 13202 OF 2020)

SUKH DUTT RATRA & ANR. ...APPELLANT(S)

VERSUS

STATE OF HIMACHAL PRADESH & ORS. ...RESPONDENT(S)

J U D G M E N T

S. RAVINDRA BHAT, J.

1. Delay condoned and leave granted. With consent of counsel for the parties,

the appeal was heard finally. The appellants are aggrieved by final judgment1 of

the High Court of Himachal Pradesh at Shimla, disposing their writ petition, with

liberty to institute a civil suit in accordance with law.

Facts

2. Sukh Dutt Ratra and Bhagat Ram (hereafter ‘appellants’) claim to be

owners of land2

situated at Mauzal Sarol Basach, Tehsil Pachhad, District

Sirmaour, Himachal Pradesh (hereafter ‘subject land’). The Respondent-State

1 Dated 12.09.2013 in CWP No. 7873/2011.

2 Khasra Nos. 141, 232/142, 143, 144, 145, 281/267, 206/147, 158, 268/149, 282/267, and Khasra Nos. 201/138,

242/146, 209/154, 158, 211/163, 16/172, further Khasra Nos. 50, 51, 89, 278/92, 280/93, and 205/147, 281/267,

151, 152, 283/153, 285/20.

2

utilised the subject land and adjoining lands for the construction of the ‘Narag

Fagla Road’ in 1972-73, but allegedly no land acquisition proceedings were

initiated, nor compensation given to the appellants or owners of the adjoining

land.

3. Pursuant to a judgment by the Himachal Pradesh High Court3

(hereafter

‘High Court’) directing the State to initiate land acquisition proceedings, a

notification under Section 4 of the Land Acquisition Act, 1894 (hereafter ‘Act’)

was issued on 16.10.2001 (published on 30.10.2001) and the award was passed

on 20.12.2001 fixing compensation at ₹30,000 per bigha. Proceedings under

Section 18 of the Act for enhancement of compensation, were initiated by ten

neighbouring land owners (Mata Ram and others), whose lands were similarly

utilised for the construction of the same road and an award4 dated 04.10.2005 was

passed by the reference court in their favour. It was held that the reference

petitioners were entitled to enhanced compensation of ₹39,000 per bigha;

solatium of 30% per annum on the market value of the land; additional

compensation at the rate of 12% per annum under Section 23(1-A) of the Act

w.e.f. 16.10.2001 (date of issuance of notification under Section 4) till the date of

making of the award by the Collector, i.e. 20.12.2001; and under Section 28,

interest of 9% per annum from 16.10.2001 for a period of one year, and thereafter

15% per annum, till date of payment. In 2009, the High Court dismissed5

 the

appeal against this order by those claimants, who were seeking statutory interest

from the date of taking possession (rather than date of initiation of acquisition

proceedings).

4. Similarly situated land owners, filed writ proceedings before the High

Court: a writ petition filed by one Anakh Singh, from the adjoining village was

allowed by the High Court6 with the direction to acquire lands of the writ

3

In Devender Singh & Ors. v. State of Himachal Pradesh CWP No. 816/1992.

4 Award in Land Ref. Petition No. 10-LAC/4 of 2004 and consolidated matters.

5 Dated 25.08.2009 in RFA No. 1-9/2006.

6 Order dated 23.04.2007 in CWP No. 1192/2004.

3

petitioners under the Act, with consequential benefits; subsequently other

similarly situated owners also received7

the benefit of these directions.

5. This led the appellants to file a writ petition before the High Court in 2011,

seeking compensation for the subject land or initiation of acquisition proceedings

under the Act. Relying on a Full bench decision8 of the High Court, it was held

in the impugned judgment that the matter involved disputed questions of law and

fact for determination on the starting point of limitation, which could not be

adjudicated in writ proceedings. The writ petition was disposed of, with liberty

to file a civil suit in accordance with law. Aggrieved, the appellants have

approached this court through these appeals.

Contentions of parties

6. Mr. Mahesh Thakur, learned counsel on behalf of the appellants argued

that the State had illegally usurped the appellants’ lands, without following due

process of law and reliance was placed on this court’s decision in State of U.P. v.

Manohar9

and Tukaram Kana Joshi & Ors. v. Maharashtra Industrial

Development Corporation (MIDC)10

.

7. It was further submitted that the appellants’ case is on the same footing as

that of adjoining land owners who were granted compensation and consequential

benefits by land acquisition award dated 04.10.2005, and in subsequent writ

proceedings. Counsel urged that the state’s inaction is arbitrary, given that the

lands adjoining the subject land were acquired under directions of the High Court,

despite it being used for the same purpose.

8. Counsel highlighted that the Respondent-State had not disputed that the

appellants were owners of the subject land, that it had been taken and used by the

State for construction of Narag Fagla Road, and that no compensation had been

7 Order dated 20.12.2013 in CWP No. 1356/2010.

8 Shankar Dass v. State of Himachal Pradesh CWP No. 1966/2010-C, judgment dated 02.03.2013 (hereafter

“Shankar Dass”).

9

(2005) 2 SCC 126 (hereafter “Manohar”)

10 2012 (13) SCR 29 (hereafter “Tukaram Kana Joshi”)

4

paid. So, given that these facts are undisputed, it was urged that the High Court

had erred in dismissing the writ petition, in light of this court’s decision in Air

India Ltd. v. Vishal Capoor11

.

9. Counsel drew our attention to a judgment of this court in Vidya Devi v.

State of Himachal Pradesh12

, which he argued had similar facts and prevailing

circumstances: petitioners’ lands had been taken by the State at the same time and

for the same purpose as that of the appellants, and this court had after condoning

delay of 1756 days, allowed the appeal and directed the State to pay compensation

along with all statutory benefits, including solatium, interest, etc.

10. Mr. Abhinav Mukerji, learned counsel on behalf of the State of Himachal

Pradesh, urged that the petition was hit by immense delay and latches and liable

to be dismissed on this ground alone: appellants had approached the High Court

after an inordinate delay of 38 years in 2011, against action taken by the State in

1972-73; and an inordinate delay of about 6 years in approaching this court after

passing of the impugned judgment in 2013. Reliance was placed on this court’s

decisions in State of Maharashtra v. Digambar13

, State of Madhya Pradesh &

Anr v. Bhailal Bhai & Ors.14 and Brijesh Kumar & Ors. v. State of Haryana15

.

Counsel also submitted that the decision in Tukaram Kana Joshi (supra) which

the appellants strongly rely on, is per incuriam in light of the larger bench decision

in Digambar (supra), which was not considered in Tukaram Kana Joshi. The

Respondent-State opposes the application for condonation of delay filed by the

appellants on the same grounds, by way of reply.

11. On facts, counsel on behalf of State submitted that the Narag Fagla road

was in fact constructed at the request of the appellants, and other landowners who

wanted the benefit of connectivity; counsel claims that they volunteered their land

for this purpose, and hence, it was constructed with their verbal consent. Since

11 2005 Supp (3) SCR 670.

12 (2020) 2 SCC 569; Civil Appeal Nos. 60-61/2020, judgment dated 08.01.2020 (hereafter “Vidya Devi”).

13 1995 Supp (1) SCR 492 (hereafter “Digambar”)

14 1964 (6) SCR 261

15 (2014) 11 SCC 351

5

1972-73 when it was built, there was no objection raised or compensation sought

by the appellants till 2011. Further, counsel contended that the lands dealt with in

other writ proceedings (CWP No. 1192/2004 and 1356/2010) are not adjoining

to the subject land of the appellants’, as claimed by them. It was submitted that

the appellants’ land falls in Sirmour District while the lands in the other writ

proceedings, were acquired for the road between Jalari to Sujanpur via BaraChoru, which is a different road, falling in the Hamirpur district. Therefore, on

these facts, the counsel urges that the ground of parity is untenable.

12. Lastly, it was argued that in light of the disputed questions of fact relating

to limitation, construction of the road, and verbal consent for the same – the

appropriate forum would be the civil court, and thus the impugned order required

no intervention.

Analysis and conclusion

13. While the right to property is no longer a fundamental right16, it is pertinent

to note that at the time of dispossession of the subject land, this right was still

included in Part III of the Constitution. The right against deprivation of property

unless in accordance with procedure established by law, continues to be a

constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be deprived

of liberty or property without due process, or authorization of law. The

recognition of this dates back to the 1700s to the decision of the King’s Bench in

Entick v. Carrington17 and by this court in Wazir Chand v. The State of Himachal

Pradesh18. Further, in several judgments, this court has repeatedly held that rather

than enjoying a wider bandwidth of lenience, the State often has a higher

responsibility in demonstrating that it has acted within the confines of legality,

and therefore, not tarnished the basic principle of the rule of law.

16 Constitution (Forty Fourth Amendment) Act, 1978.

17 [1765] EWHC (KB) 198

18 1955 (1) SCR 408

6

15. When it comes to the subject of private property, this court has upheld the

high threshold of legality that must be met, to dispossess an individual of their

property, and even more so when done by the State. In Bishandas v. State of

Punjab19 this court rejected the contention that the petitioners in the case were

trespassers and could be removed by an executive order, and instead concluded

that the executive action taken by the State and its officers, was destructive of the

basic principle of the rule of law. This court, in another case - State of Uttar

Pradesh and Ors. v. Dharmander Prasad Singh and Ors.

20

, held:

“A lessor, with the best of title, has no right to resume possession

extra-judicially by use of force, from a lessee, even after the expiry or

earlier termination of the lease by forfeiture or otherwise. The use of

the expression 're-entry' in the lease-deed does not authorise extrajudicial methods to resume possession. Under law, the possession of

a lessee, even after the expiry or its earlier termination is juridical

possession and forcible dispossession is prohibited; a lessee cannot

be dispossessed otherwise than in due course of law. In the present

case, the fact that the lessor is the State does not place it in any higher

or better position. On the contrary, it is under an additional inhibition

stemming from the requirement that all actions of Government and

Governmental authorities should have a 'legal pedigree'”.

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.

17. 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

19 1962 (2) SCR 69

20 1989 (1) SCR 176

7

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 CWP No.

1192/2004) and 20.12.2013 (in 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.

18. 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 appellant-land 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 case - Maharashtra State Road Transport Corporation v. Balwant Regular

Motor Service21, held:

"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.

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

21 1969 (1) SCR 808

8

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."

19. The facts of the present case reveal that the State has, in a clandestine and

arbitrary manner, actively tried to limit disbursal of compensation as required by

law, only to those for which it was specifically prodded by the courts, rather than

to all those who are entitled. This arbitrary action, which is also violative of the

appellants’ prevailing Article 31 right (at the time of cause of action),

undoubtedly warranted consideration, and intervention by the High Court, under

its Article 226 jurisdiction. This court, in Manohar (supra) - a similar case where

the name of the aggrieved had been deleted from revenue records leading to his

dispossession from the land without payment of compensation – held:

“Having heard the learned counsel for the appellants, we are satisfied

that the case projected before the court by the appellants is utterly

untenable and not worthy of emanating from any State which

professes the least regard to being a welfare State. When we pointed

out to the learned counsel that, at this stage at least, the State should

be gracious enough to accept its mistake and promptly pay the

compensation to the respondent, the State has taken an intractable

attitude and persisted in opposing what appears to be a just and

reasonable claim of the respondent.

Ours is a constitutional democracy and the rights available to the

citizens are declared by the Constitution. Although Article 19(1)(f)

was deleted by the Forty-fourth Amendment to the Constitution,

Article 300-A has been placed in the Constitution, which reads as

follows:

“300-A. Persons not to be deprived of property save by authority of

law.—No person shall be deprived of his property save by authority

of law.”

This is a case where we find utter lack of legal authority for

deprivation of the respondent's property by the appellants who are

State authorities. In our view, this case was an eminently fit one for

exercising the writ jurisdiction of the High Court under Article 226 of

the Constitution…”

9

20. Again, in Tukaram Kana Joshi (supra) while dealing with a similar fact

situation, this court held as follows:

“There are authorities which state that delay and laches extinguish

the right to put forth a claim. Most of these authorities pertain to

service jurisprudence, grant of compensation for a wrong done to

them decades ago, recovery of statutory dues, claim for educational

facilities and other categories of similar cases, etc. Though, it is true

that there are a few authorities that lay down that delay and laches

debar a citizen from seeking remedy, even if his fundamental right has

been violated, under Article 32 or 226 of the Constitution, the case at

hand deals with a different scenario altogether. The 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.”

21. 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.

22. 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 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,

10

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.

23. This court, in Vidya Devi (supra) facing an almost identical set of facts and

circumstances – rejected the contention of ‘oral’ consent to be baseless and

outlined the responsibility of the State:

“12.9. In a democratic polity governed by the rule of law, the State

could not have deprived a citizen of their property without the

sanction of law. Reliance is placed on the judgment of this Court

in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC,

(2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] wherein it was held that

the State must comply with the procedure for acquisition, requisition,

or any other permissible statutory mode. The State being a welfare

State governed by the rule of law cannot arrogate to itself a status

beyond what is provided by the Constitution.

12.10. This Court in State of Haryana v. Mukesh Kumar [State of

Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ)

769] held that the right to property is now considered to be not only a

constitutional or statutory right, but also a human right. Human rights

have been considered in the realm of individual rights such as right to

shelter, livelihood, health, employment, etc. Human rights have

gained a multi-faceted dimension.”

24. And with regards to the contention of delay and laches, this court went on

to hold:

“2.12. The contention advanced by the State of delay and laches of the

appellant in moving the Court is also liable to be rejected. Delay and

laches cannot be raised in a case of a continuing cause of action, or

if the circumstances shock the judicial conscience of the Court.

Condonation of delay is a matter of judicial discretion, which must be

exercised judiciously and reasonably in the facts and circumstances

of a case. It will depend upon the breach of fundamental rights, and

the remedy claimed, and when and how the delay arose. There is no

11

period of limitation prescribed for the courts to exercise their

constitutional jurisdiction to do substantial justice.

12.13. In a case where the demand for justice is so compelling, a

constitutional court would exercise its jurisdiction with a view to

promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of

T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]”

25. Concluding that the forcible dispossession of a person of their private

property without following due process of law, was violative22 of both their

human right, and constitutional right under Article 300-A, this court allowed the

appeal. We find that the approach taken by this court in Vidya Devi (supra) is

squarely applicable to the nearly identical facts before us in the present case.

26. In view of the above discussion, in view of this court’s extraordinary

jurisdiction under Article 136 and 142 of the Constitution, the State is hereby

directed to treat the subject lands as a deemed acquisition and appropriately

disburse compensation to the appellants in the same terms as the order of the

reference court dated 04.10.2005 in Land Ref. Petition No. 10-LAC/4 of 2004

(and consolidated matters). The Respondent-State is directed, consequently to

ensure that the appropriate Land Acquisition Collector computes the

compensation, and disburses it to the appellants, within four months from today.

The appellants would also be entitled to consequential benefits of solatium, and

interest on all sums payable under law w.e.f 16.10.2001 (i.e. date of issuance of

notification under Section 4 of the Act), till the date of the impugned judgment,

i.e. 12.09.2013.

27. For the above reasons, the appeal is allowed and the impugned order of the

High Court is hereby set aside. Given the disregard for the appellants’

fundamental rights which has caused them to approach this court and receive

22 Relying on Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai 2005 Supp (3) SCR 388; N.

Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517; Delhi Airtech Services Pvt. Ltd. & Ors. v. State of

Uttar Pradesh & Ors. 2011 (12) SCR 191; and Jilubhai Nanbhai Kahchar v. State of Gujarat 1994 Supp (1) SCR

807.

12

remedy decades after the act of dispossession, we also deem it appropriate to

direct the Respondent-State to pay legal costs and expenses of ₹ 50,000 to the

appellants. Pending applications, if any, are hereby disposed of.

…………….......................................................J.

 [S. RAVINDRA BHAT]

……………........................................................J.

[PAMIDIGHANTAM SRI NARASIMHA]

New Delhi,

April 06, 2022.