VIDYA DEVIversusTHE STATE OF HIMACHAL PRADESH & ORS.

                          [2020] 1 S.C.R. 749                             749


                            VIDYA DEVI                                    A
                                  v.
        THE STATE OF HIMACHAL PRADESH & ORS.
                  (Civil Appeal Nos. 60-61 of 2020)
                         JANUARY 08, 2020                                 B
       [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
                                                                          C
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                 D
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
                                                                          E
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        F
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
                                                                          G
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 –        H
                                  749
750            SUPREME COURT REPORTS                        [2020] 1 S.C.R.


A     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
B
      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
C     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,
D     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
E     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
F     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
G     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.


H
VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.                   751


     Allowing the appeals, the Court                                 A
      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    B
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]
                                                                     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.                    D
     (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 :          E
     [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    F
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        G
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]


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


A           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
B     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
C     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
D     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]
E
            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
F     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
G     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
H
VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.                     753


Singh’s case (i.e. Land Reference No.1 of 2011 RBT No.01/13)           A
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
                                                                       B
& 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       C
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
                                                                       D
[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
                                                                       E
[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         F
      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.                    G
      Ms. Radhika Gautam, Adv. for the Appellant.
     Abhinav Mukerji, AAG, Ms. Bihu Sharma, Ms. Pratishtha Vij,
Samarth Khanna, Advs. for the Respondents.
                                                                       H
754            SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A           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
B     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
C     – 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,
D     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
E     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.
F            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.
G            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
H     Land Acquisition Act, 1894.
VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.                            755
                 [INDU MALHOTRA, J.]

        The Respondent–State filed its reply before the High Court,           A
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”.
                                                                              B
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           C
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          D
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         E
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.                     F
       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
                                                                              G
Article 31 in Part III of the Constitution.
      Article 31 guaranteed the right to private property1, 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.    H
756             SUPREME COURT REPORTS                             [2020] 1 S.C.R.


A            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 right2 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
B
      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
C     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 Chenai4, wherein this Court held
      that:
D             “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.”
E
                                                              (emphasis supplied)
              In N. Padmamma v. S. Ramakrishna Reddy5, this Court held
      that:
              “21. If the right of property is a human right as also a
F             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.”
G                                                             (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.
H     5
        (2008) 15 SCC 517.
VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.                          757
                 [INDU MALHOTRA, J.]

      In Delhi Airtech Services Pvt. Ltd. &Ors. v. State of U.P. &Ors.6,    A
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               B
         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       C
         political thinkers and jurists.”
                                                     (emphasis supplied)
       In Jilubhai Nanbhai Khacharv. State of Gujarat,7 this Court
held as follows :                                                           D
         “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     E
         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             F
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          G
compulsorily divesting the Appellant of her property by the State.



6
    (2011) 9 SCC 354.
7
    (1995) Supp. 1 SCC 596.                                                 H
758                SUPREME COURT REPORTS                          [2020] 1 S.C.R.


A            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
B
      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
C     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
D     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
E     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
F     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.
G
             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

      8
          (2013) 1 SCC 353.
      9
H         P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152.
VIDYA DEVI v. THE STATE OF HIMACHAL PRADESH & ORS.                             759
                 [INDU MALHOTRA, J.]

      In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,10 this Court            A
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          B
          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       C
          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          D
          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    E
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        F
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.
                                                                               G
      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.                                                         H
760             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A     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
B     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
C     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.
D            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
E     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.

F
      Divya Pandey                                                  Appeals allowed.




G




H