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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 1967–68

for the construction of Nadaun-Sujanpur Road, without taking

recourse to acquisition proceedings or following due process of

law – Construction of the road completed by 1975 – In 2004, some

similarly situated persons whose lands were also taken over by the

respondent for the same public purpose, filed writ petition titled

Anakh Singh & Ors. v. State of Himachal Pradesh & Ors. claiming

compensation – Allowed – Respondent initiated acquisition

proceedings under the 1894 Act only with respect to the lands of

the writ petitioners, and not the other land-owners whose lands

were also taken over – Appellant filed writ petition inter alia praying

that the State be directed to pay compensation for the land acquired

in 1967-68 – High Court held that the matter involved disputed

questions of law and fact which could not be adjudicated in writ

proceedings, 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 rural

area was forcibly expropriated of her property in 1967, when the

right to property was fundamental right (though ceased to be so by

the 1978 Amendment Act) guaranteed by Art.31 in Part III of the

Constitution – To forcibly dispossess a person of his private property,

without following due process of law, would be violative of human

right, as also the constitutional right u/Art.300 A – Cause of action

is a continuing one, since the appellant was compulsorily

expropriated of her property in 1967 without any legal sanction–

In view of extraordinary jurisdiction u/Arts. 136 and 142, the State

is directed to pay compensation to the appellant on the same terms

as awarded by the Reference Court by order dtd. 07.07.15 in Anakh

Singh’s case with all statutory benefits including solatium, interest,

etc. within 8 weeks, treating it as a case of deemed acquisition –

[2020] 1 S.C.R. 749

749

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750 SUPREME COURT REPORTS [2020] 1 S.C.R.

Affidavit of compliance be filed by the State before Supreme Court

within 10 weeks – If appeal is filed by the appellant within 8 weeks

from the date of compensation being paid to her by the State, the

appeal will be treated to be within limitation, and decided on its

own merits in accordance with law– State to pay legal costs and

expenses of Rs.1,00,0000/- to the appellant– Orders passed by the

High Court set aside– Land Acquisition Act, 1894– Constitution

(Forty Fourth Amendment) Act, 1978– Doctrine of adverse

possession.

Principles/Doctrines – Doctrine of adverse possession –

Appellant’s land taken over by the Respondent-State in 1967–68

for the construction of Nadaun-Sujanpur Road, without taking

recourse to acquisition proceedings or following due process of

law – Plea of adverse possession taken by State – Held: State being

a welfare State, cannot be permitted to take the plea of adverse

possession, which allows a trespasser i.e. a person guilty of a tort,

or even a crime, to gain legal title over such property for over 12

years – State cannot be permitted to perfect its title over the land by

invoking the doctrine of adverse possession to grab the property of

its own citizens, as done in the present case.

Constitution of India – Arts.136, 142 and 226 – Land of the

appellant (an illiterate person, widow from rural area) was taken

over by the Respondent-State in 1967–68 for the construction of

Nadaun-Sujanpur Road, without taking recourse to acquisition

proceedings or following due process of law – Appellant approached

the High Court in 2010 – State took the plea of delay and laches by

the appellant in moving the Court – Held: 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 period of limitation prescribed for the

courts to exercise their constitutional jurisdiction to do substantial

justice.

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751

Allowing the appeals, the Court

HELD: 1.1 The Appellant was forcibly expropriated of her

property in 1967, when the right to property was a fundamental

right guaranteed by Article 31 in Part III of the Constitution.

Article 31 guaranteed the right to private property, which could

not be deprived without due process of law and upon just and fair

compensation. To forcibly dispossess a person of his private

property, without following due process of law, would be violative

of a human right, as also the constitutional right under Article

300 A of the Constitution. [Paras 10.1 and 10.2][755-G-H;

756-C]

The State of West Bengal v. Subodh Gopal Bose and

Ors.AIR 1954 SC 92 : [1954] SCR 587; K T Plantation

Pvt. 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;Hindustan

Petroleum Corporation Ltd. v. Darius Shapur Chenai

(2005) 7 SCC 627 : [2005] 3 Suppl. SCR 388; N.

Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC

517 : [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. State

of Gujarat(1995) Supp. 1 SCC 596 : [1994] 1 Suppl.

SCR 807 – relied on.

1.2 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. There is complete lack of authority and

legal sanction in compulsorily divesting the Appellant of her

property by the State. 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. [Paras 10.3-10.5][756-F-G;

758-A]

VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.

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752 SUPREME COURT REPORTS [2020] 1 S.C.R.

State of Haryana v. Mukesh Kumar(2011) 10 SCC 404

: [2011] 14 SCR 211;P.S. Sadasivaswamy v. State of

T.N.(1975) 1 SCC 152 : [1975] 2 SCR 356 – relied

on.

1.3 The State being a welfare State, cannot be permitted to

take the plea of adverse possession, which allows a trespasser

i.e. a person guilty of a tort, or even a crime, to gain legal title

over such property for over 12 years. The State cannot be

permitted to perfect its title over the land by invoking the doctrine

of adverse possession to grab the property of its own citizens, as

has been done in the present case. 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 period of limitation prescribed for the courts to exercise their

constitutional jurisdiction to do substantial justice. [Paras 10.6,

10.7][758-D-G]

1.4 The Appellant being an illiterate person, who is a widow

coming from a rural area has been deprived of her private property

by the State without resorting to the procedure prescribed by

law. The Appellant has been divested of her right to property

without being paid any compensation whatsoever for over half a

century. The cause of action in the present case is a continuing

one, since the Appellant was compulsorily expropriated of her

property in 1967 without legal sanction or following due process

of law. The present case is one where the demand for justice is

so compelling since the State has admitted that the land was taken

over without initiating acquisition proceedings, or any procedure

known to law. Extraordinary jurisdiction is exercised under

Articles 136 and 142 of the Constitution, and direct the State to

pay compensation to the Appellant. The Respondent–State is

directed to pay the compensation on the same terms as awarded

by the Reference Court vide Order dated 07.07.2015 in Anakh

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753

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 deemed

acquisition. An Affidavit of compliance is directed to be filed by

the State before this Court within 10 weeks. It is informed that

an appeal has been preferred by Ravinder Singh s/o Anakh Singh

& Ors. being RFA No.35 of 2016 which is pending before the

High Court of Himachal Pradesh at Shimla. Taking note thereof,

if an appeal is filed by the present appellant within 8 weeks from

the date of compensation being paid to her by the State, the appeal

will be treated to be within limitation, and would be decided on

its own merits in accordance with law. Orders dated 11.09.13 and

13.05.14 passed by the High Court are set aside. [Paras 11, 13-

14][759-E-F; 760-B-D]

Case Law Reference

[1954] SCR 587 followed Para 10.1

[2012] 13 SCR 29 relied on Para 10.1

[2011] 13 SCR 636 followed Para10.1

[2005] 3 Suppl. SCR 388 relied on Para 10.2

[2008] 9 SCR 535 relied on Para 10.2

[2012] 12 SCR 191 relied on Para 10.2

[1994] 1 Suppl. SCR 807 relied on Para 10.2

[2011] 14 SCR 211 relied on Para 10.5

[1975] 2 SCR 356 relied on Para 10.5

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 60-61

of 2020.

From the Judgment and Order dated 11.09.2013 of the High Court

of Himachal Pradesh at Shimla in CWP No. 1736 of 2010-B and order

dated 13.05.2014 in Review Petition No. 50 of 2014.

Ms. Radhika Gautam, Adv. for the Appellant.

Abhinav Mukerji, AAG, Ms. Bihu Sharma, Ms. Pratishtha Vij,

Samarth Khanna, Advs. for the Respondents.

VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.

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The Judgment of the Court was delivered by

INDU MALHOTRA, J.

Delay condoned. Leave granted.

1. The Appellant now almost 80 years old, was undisputedly the

owner of land admeasuring about 3.34 Hectares comprised in Khata/

Khatuni No. 105 min/127, Khasra No. 70 in Tika Jalari Bhaddirain, Mauja

Jalari, Tehsil Nadaun, Dist. Hamipur, Himachal Pradesh.

2. The Respondent–State took over the land of the Appellant in

1967–68 for the construction of a major District Road being the Nadaun

– Sujanpur Road, a major District Roadwithout taking recourse to

acquisition 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 rural

background, was wholly unaware of her rights and entitlement in law,

and did not file any proceedings for compensation ofthe land compulsorily

taken over by the State.

4. In 2004, some similarly situated persons whose landshad also

been taken over by the Respondent–State for the same public purpose,

filed CWP No.1192 of 2004 titled Anakh Singh & Ors. v. State of

Himachal Pradesh & Ors. claiming compensation before the High Court

of Himachal Pradesh.

The High Court vide Order dated 23.04.2007, allowed CWP

No.1192 of 2004, and directed the Respondent–State to acquire the lands

of the Writ Petitioners under the Land Acquisition Act, 1894.

5. Pursuant to the Order of the High Court in 2008, the

Respondent–State initiated acquisition proceedings under the Land

Acquisition Act, 1894 only with respect to the lands of the Writ

Petitioners,and not the other land-owners whose lands had also been

taken over.

6. The Appellant submits that she learnt of these proceedings in

2010, when she alongwith her two daughters filed C.W.P. No. 1736 of

2010 before the Himachal Pradesh High Court, praying that the State be

directed to pay compensation for the land acquired in 1967–68; or, in the

alternative, direct the State to initiate acquisition proceedings under the

Land Acquisition Act, 1894.

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755

The Respondent–State filed its reply before the High Court,

wherein it was admitted that the Department had used land in the

ownership of the Appellant for the construction of the Nadaun – Sujanpur

road, a major district road in 1967–68. The State had been in continuous

possession of the property since 1967–68,i.e., for the last 42 years, and

the title of the Respondent–State got converted into “adverse possession”.

It was submitted that the statutory remedy available to the Appellant

was by filing a Civil Suit.

The State has further admitted that a Notification under Section 4

of the Land Acquisition Act had been issued in 2008 with respect to the

land of Anakh Singh a neighbouring land-owner, whose land was similarly

taken over for the same purpose. Furthermore, the Writ Petition was

barred by laches, since the road was constructed in 1967–68, and metalled

since 1975. The land was utilized by the Respondent–State after the

Appellant and her predecessors-in-interest had verbally consented to

the land being taken over without any objection.

7. The High Court vide the impugned Judgment and Order dated

11.09.2013 held 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 Appellant was granted liberty to

file a Civil Suit.

8. Aggrieved, the Appellant filed a Review Petition against the

Judgment and Order dated 11.09.2013 which was dismissed vide Order

dated 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 Petition

and Order dated 13.05.2014 passed in the Review Petition.

10. We have heard learned Counsel for the parties and perused

the record.

10.1. The Appellant was forcibly expropriated of her property in

1967, when the right to property was a fundamental right guaranteed by

Article 31 in Part III of the Constitution.

Article 31 guaranteed the right to private property

1

, which could

not be deprived without due process of law and upon just and fair

compensation.

1

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

VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.

[INDU MALHOTRA, J.]

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10.2. The right to property ceased to be a fundamental right by

the Constitution (Forty Fourth Amendment) Act, 1978, however, it

continued to be a human right

2

in a welfare State, and a Constitutional

right under Article 300 A of the Constitution. Article 300 A provides that

no person shall be deprived of his property save by authority of law. The

State cannot dispossess a citizen of his property except in accordance

with the procedure established by law. The obligation to pay compensation,

though not expressly included in Article 300 A, can be inferred in that

Article.

3

To forcibly dispossess a person of his private property, without

following due process of law, would be violative of a human right, as

also the constitutional right under Article 300 A of the Constitution.

Reliance is placed on the judgment in Hindustan Petroleum

Corporation Ltd. v. Darius Shapur Chenai

4

, wherein this Court held

that:

“6. … Having regard to the provisions contained in Article

300-A of the Constitution, the State in exercise of its power of

“eminent domain” may interfere with the right of property of

a person by acquiring the same but the same must be for a

public purpose and reasonable compensation therefor must

be paid.”

(emphasis supplied)

In N. Padmamma v. S. Ramakrishna Reddy

5

, this Court held

that:

“21. If the right of property is a human right as also a

constitutional right, the same cannot be taken away except in

accordance with law. Article 300-A of the Constitution protects

such right. The provisions of the Act seeking to divest such

right, keeping in view of the provisions of Article 300-A of

the Constitution of India, must be strictly construed.”

(emphasis supplied)

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.

5

(2008) 15 SCC 517.

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In Delhi Airtech Services Pvt. Ltd. &Ors. v. State of U.P. &Ors.

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,

this Court recognized the right to property as a basic human right in the

following words:

“30. It is accepted in every jurisprudence and by different

political thinkers that some amount of property right is an

indispensable safeguard against tyranny and economic

oppression of the Government. Jefferson was of the view that

liberty cannot long subsist without the support of property.

“Property must be secured, else liberty cannot subsist” was

the opinion of John Adams. Indeed the view that property

itself is the seed bed which must be conserved if other

constitutional values are to flourish is the consensus among

political thinkers and jurists.”

(emphasis supplied)

In Jilubhai Nanbhai Khacharv. State of Gujarat,

7

this Court

held as follows :

“48. …In other words, Article 300-A only limits the powers of

the State that no person shall be deprived of his property

save by authority of law. There has to be no deprivation without

any 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.”

(emphasis supplied)

10.3. 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.

10.4. 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 the State.

6

(2011) 9 SCC 354.

7

(1995) Supp. 1 SCC 596.

VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.

[INDU MALHOTRA, J.]

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10.5. 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 &Ors. v. M.I.D.C. &Ors.

8

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.

This Court in State of Haryana v. Mukesh Kumar 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.

10.6. We are surprised by the plea taken by the State before the

High Court, that since it has been in continuous possession of the land

for over 42 years, it would tantamount to “adverse” possession. The

State being a welfare State, cannot be permitted to take the plea of

adverse possession,which allows a trespasser i.e. a person guilty of a

tort, or even a crime, to gain legal title over such property for over 12

years. The State cannot be permitted to perfect its title over the land by

invoking the doctrine of adverse possession to grab the property of its

own citizens,as has been done in the present case.

10.7. 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 period

of limitation prescribed for the courts to exercise their constitutional

jurisdiction to do substantial justice.

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.

9

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(2013) 1 SCC 353.

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P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152.

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In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,

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this Court

while dealing with a similar fact situation, 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. 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.”

(emphasis supplied)

11. In the present case, the Appellant being an illiterate person,

who is a widow coming from a rural area has been deprived of her

private property by the State without resorting to the procedure prescribed

by law. The Appellant has been divested of her right to property without

being paid any compensation whatsoever for over half a century. The

cause of action in the present case is a continuing one, since the Appellant

was compulsorily expropriated of her property in 1967 without legal

sanction or following due process of law. The present case is one where

the demand for justice is so compelling since the State has admitted that

the land was taken over without initiating acquisition proceedings, or any

procedure known to law.We exercise our extraordinary jurisdiction under

Articles 136 and 142 of the Constitution, and direct the State to pay

compensation to the Appellant.

12. The State has submitted that in 2008 it had initiated acquisition

proceedings in the case of an adjoining land owner viz. Shri Anakh Singh

pursuant to a direction given by the High Court in C.W.P.No.1192 of

2004. The State initiated acquisition only in the case where directions

10

(2013) 1 SCC 353.

VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.

[INDU MALHOTRA, J.]

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were issued by the High Court, and not in the case of other land owners

whose lands were compulsorily taken over, for the same purpose, and at

the same time. As a consequence, the present land owner has been

driven to move the Court in their individual cases for redressal.

13. In view of the aforesaid facts and circumstances of the present

case, the Respondent–State is directed to pay the compensation on the

same terms as awarded by the Reference Court vide Order dated

07.07.2015 in Anakh 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 deemed acquisition.

An Affidavit of compliance is directed to be filed by the State before this

Court within 10 weeks.

It is informed that an appeal has been preferred by Ravinder Singh

s/o AnakhSingh &Ors. being RFA No.35 of 2016 which is pending before

the High Court of Himachal Pradesh at Shimla.

Taking note thereof, if an appeal is filed by the present appellant

within 8 weeks from the date of compensation being paid to her by the

State, the appeal will be treated to be within limitation, and would be

decided on its own merits in accordance with law.

The Respondent-State is directed to pay legal costs and expenses

of Rs.1,00,0000/- to the present appellant.

14. The Appeals are accordingly allowed. The Orders dated

11.09.2013 and 13.05.2014 passed by the High Court are set aside.

Ordered accordingly.

Divya Pandey Appeals allowed.