State can not take plea of adverse possession over the property of its subject = 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.

State can not take plea of adverse possession over the property of its subject = 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 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. – 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 Road without taking recourse to acquisition proceedings, or following due process of law.The construction of the road was completed by 1975.-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 of the land compulsorily taken over by the State.-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.- 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” –

Apex court held that 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. – 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.-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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 60­61 OF 2020

(Arising out of SLP (Civil) Nos. 467­468/2020 @D..No.36919/2018)

Vidya Devi …Appellant

Versus

The State of Himachal Pradesh & Ors. …Respondents

J U D G M E N T

INDU MALHOTRA, J.

Delay condoned. Leave granted.

1The 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.

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

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

1

the Nadaun – Sujanpur Road, a major District Road without

taking recourse to acquisition proceedings, or following due

process of law.

The construction of the road was completed by 1975.

3The 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 of

the land compulsorily taken over by the State.

4In 2004, some similarly situated persons whose lands had 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.

5Pursuant 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

2

the Writ Petitioners, and not the other land­owners whose

lands had also been taken over.

6The 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.

   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

3

with respect to the land of Anakh Singh a neighbouring landowner, 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

  1. The land was utilized by the Respondent–State after the

Appellant and her predecessors­in­interest had verbally

consented to the land being taken over without any objection.

7The 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.

8Aggrieved, the Appellant filed a Review Petition against the

Judgment and Order dated 11.09.2013 which was dismissed

vide Order dated 13.05.2014.

9The 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.

4

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 property1

,

which could not be deprived without due process of law and

upon just and fair compensation.

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 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

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

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.

5

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 Chenai4

,

wherein this Court held that:

“ 6. … Having regard to the provisions contained in

Article 300­A 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 Reddy5

, 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 300­A

of the Constitution protects such right. The

provisions of the Act seeking to divest such right,

keeping in view of the provisions of Article 300­A of

the Constitution of India, must be strictly construed.”

(emphasis supplied)

4 (2005) 7 SCC 627.

5 (2008) 15 SCC 517.

6

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

& Ors.6

, 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 Khachar v. State of Gujarat,7

this

Court held as follows :

“48. …In other words, Article 300­A 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 300­A. 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

6 (2011) 9 SCC 354.

7 (1995) Supp. 1 SCC 596.

7

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.

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.

8 (2013) 1 SCC 353.

8

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 multi­faceted

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

9

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

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

10 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

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

10 (2013) 1 SCC 353.

10

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.

11

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 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.

12

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.

The Respondent­State 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.

…..……………………………J.

(INDU MALHOTRA)

..….…………………………..J.

(AJAY RASTOGI)

New Delhi

January 08, 2020.

13