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.

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