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Judgment
(Per Abasaheb D. Shinde, J.) :
Rule. Rule is made returnable forthwith. With the consent of the parties, the writ petition is heard finally at the stage of admission.
By this Writ Petition, filed under Article 226 of the Constitution of India, the petitioner has putforth the following prayer :
“ B) By way of appropriate Writ order or directions in the like nature, the impugned order dated 08.09.2023 passed by the Ld. Collector, Nandurbar may kindly be quashed and set aside and the respondents be directed to initiate and complete land acquisition proceeding in respect of land bearing Gat No. 326 to the extent of 34R land which is used for construction of road. ”
FACTS GIVING RISE TO FILING OF THIS PRESENT PETITION CAN BE SUMMARIZED AS UNDER :-
It is case of the petitioner that he is the owner of land bearing Gut No.326 admeasuring 5H 63R situated between village Korit to Sawalda, which is adjacent to State Highway no.7, out of which the respondents have utilized 34R land (hereinafter referred to as “the Writ Land”) for the construction of State Highway no.7 (Rural Road No.27) (hereinafter called as “the said road”) without initiating land acquisition proceedings and without paying him any compensation as contemplated under the Land Acquisition Act, 1894 (hereinafter referred to as “the Act of 1894”).
It is further case of the petitioner that, the said road initially was known as Rural Road No.27 and was under the jurisdiction of Respondent No.5-Zilla Parishad, Nandurbar. Later on, the said road was handed over to Respondent No.7-Public Works Department, Nandurbar. As a result of which the status of Rural Road No.27 is changed to State Highway No.7.
In the year 1981, the State Government published a road development scheme, viz., the Road Development Scheme 1981-2001(hereinafter referred to as “the scheme of 1981”). As per the said Scheme, the said road is shown at Sr. No. 27. Since the writ land shown to have been deducted in the Revenue Records, the petitioner, therefore, solicited information under Right to Information Act, 2005, from Respondent No.5. From the information received by him on 08.07.2021, it reveals that though the said road was constructed under the scheme of 1981, no acquisition proceedings were initiated nor any compensation was paid to the petitioner.
Though, petitioner persistently requested the Respondent Authorities to pay the compensation, the respondents did not pay any heed. He, therefore, was constrained to issue a legal notice to the Respondents on 10.03.2022. In reply to the said notice, Respondent No.7 admitted the fact about construction of the said road passing through the writ land on the basis of a inquiry report dated 07.09.2022. The report further reveals that there is upgradation of the said road. It further reveals from the said report that initially the said road was within the jurisdiction of Respondent No.5, which later on was handed over to Respondent No.7, without initiating land acquisition proceedings. Even the joint measurement carried out by Deputy Superintendent of Land Records, Nandurbar, as well as the Panchanama and the Measurement Report depicts that 34R land of the petitioner has been utilized for construction of the said road.
Despite there being sufficient material to show that the writ land has been affected by construction of the said road, the Respondents failed to initiate land acquisition proceedings and pay compensation. The petitioner therefore approached this Court by filing Writ Petition No.12292 of 2022 seeking direction to initiate land acquisition proceedings and pay him the compensation. In the light of communication dated 28.11.2022 addressed by Respondent No.6 to Respondent No.3, thereby requesting to initiate acquisition proceedings, this Court disposed of the said Writ Petition and expected Respondent No.3 to take appropriate decision as early as possible. Respondent No.3 instead of taking decision pursuant to the directions issued by this Court, raised certain queries in the proposal for initiation of acquisition proceeding, by directing Respondent No.6 to re-submit the proposal.
Respondent No.6 on 06.01.2023, re-submitted the proposal for acquisition by showing that, the said road is a non-plan road, therefore, there is no need to acquire the writ land, eventually the compensation is not payable. The petitioner, therefore, was again required to approach this Court by way of Writ Petition No.6171 of 2023 challenging the said communication. This Court by an order dated 12.06.2023 disposed of the said Writ Petition by directing Respondent No.3 to take an appropriate decision after hearing the stakeholders, if required.
Respondent No.3 on 14.06.2023, once again directed Respondent No.6 to submit a revised acquisition proposal. Respondent No.6 instead of submitting acquisition proposal, submitted a report on 22.08.2023, contending that the said road has now been handed over to Respondent No.7, by reiterating that the same is a non-plan road. On the basis of report submitted by Respondent No.6, Respondent No.3, by impugned order dated 08.09.2023, refused to acquire the writ land of the petitioner and pay him compensation. The petitioner, therefore, has approached this Court by challenging the impugned order.
SUBMISSIONS :-
Learned Counsel for the petitioner submits that, the impugned order is contrary to the directions issued by this Court in Writ Petition No.6171 of 2023, since, Respondent No.3 before passing the impugned order did not grant opportunity of hearing to the petitioner, hence it is violative of principles of natural justice. He further submits that though there is voluminous record to show that the writ land has been affected by construction of the said road, i.e. neither the same is acquired nor the petitioner is paid compensation. He would submit that, assuming though not admitting the said road to be a non-plan road, even in that case the Respondents are required to initiate acquisition proceedings. The Respondents cannot deprive the petitioner from enjoying his property without following due procedure of law. He, therefore, urged that the impugned order is liable to be quashed and set aside by directing the Respondents to initiate and complete the land acquisition proceedings in respect of the writ land. In support of his submissions, learned Counsel for the Petitioner relied on the following judgments :-(i) Prakash s/o Gangaram Dhage and Ors. Vs. The State of Maharashtra and Others (Writ Petition No.3609 of 2020) (ii) Kolkata Municipal Corporation and Anr. Vs. Bimal Kumar Shah and Ors. Reported in (2024) 10 SCC 533 (iii) Tukaram Kana Joshi and Others Vs. Maharashtra Industrial Development Corporation and Others (2013) 1 SCC 353 (iv) Dharnidhar Mishra (D) and Anr. Vs. State of Bihar and Others (Civil Appeal No.6351 of 2024) (v) Shekhar Ghanshyam Janbandhu Vs. The State of Maharashtra and Ors. (Writ Petition No.910 of 2026)
Learned Counsel appearing for Respondent Nos.5 to 7 at the outset raised a preliminary objection about maintainability of the Writ Petition on the ground of delay and laches as well as misjoinder of parties. He submits that the Petitioner’s predecessors allowed to take the possession of the writ land 40 years back without any protest. Neither the predecessors-in-title nor the petitioner raised any grievance either by seeking initiation of acquisition proceedings or payment of compensation. The petitioner, for the first time, on 08.07.2021, sought information under Right to Information Act, 2005, as to whether the said road is constructed under the scheme of 1981, and thereafter issued a legal notice on 10.03.2022. He, therefore, submits that the Writ Petition suffers on count of delay and laches. He would submit that, respondent no.3, therefore, has rightly passed the impugned order thereby rejecting the claim of petitioner for initiation of land acquisition proceedings. Even otherwise, as per the report submitted by respondent no.6 dated 21.02.2023, the said road does not fall within the jurisdiction of Respondent Nos.5 to 7 but it falls within the jurisdiction of the Public Works Department, therefore, Respondent Nos.5 to 7 have no concern whatsoever. He, therefore, urged that the Writ Petition is misconceived and the same therefore deserves to be dismissed.
In support of his submissions, learned Counsel for Respondent Nos.5 to 7 relied on the following judgments :
State of Maharashtra Vs. Digambar 1995 AIR (SC) 1991
Nagorao s/o Sitaram Kulkarni and Others Vs. State of Maharashtra and Others (Writ Petition No.723 of 2024)
Ramkrushna s/o Nilkanth Borole, and Others Vs. The State of Maharashtra and Others (Writ Petition No.2310 of 2017).
Learned AGP appearing for Respondent/State while towing the same line as of learned counsel for Respondents Nos. 5 to 7 opposed the writ petition inter alia contending that, the said road does not fall within the jurisdiction of Respondent Nos.1 to 4. He submits that this fact has already been brought to the notice of Respondent Nos.5 to 7 as well as the petitioner. He further submits that the Writ Petition suffers on the count of delay and laches, since the Writ Petition has been filed after almost 40 years from the date of taking possession of the writ land. He, therefore, urged that the Writ Petition deserves to be dismissed.
CONSIDERATION :-
We have heard learned Counsel for the petitioner, learned AGP for Respondent/State, learned Counsel for Respondent Nos.5 to 7 at length as well as gone through the written submissions filed by them and with their able assistance have perused the record and the judgments cited on their behalf.
Indisputably, the Revenue Record shows that the petitioner is the owner of the writ land. The record further reveals that the said road is included in the scheme of 1981. The information furnished by Respondent No.7 vide communication dated 08.07.2021 to the petitioner reveals that the said road has now been changed to State Highway No.7 and handed over to Public Works Department, Nandurbar. The information supplied as regards Point No.2 is crucial as the same depicts that the said road under the scheme of 1981 is passing through the writ land. The contends of point No.2 in verbatim reads thus :-
“मुद्रा क्र. २ :-
सदरचे रस्ते कोरीट सावळदा मार्ग (डांबरी) ३ कि.मी. चा कामी मौजे कोरीट शिवारातील शेत क्रमांक ३२६ ची जमिन रस्त्यात गेलेली असून सदर शेत क्रमांक ३२६ मध्ये रस्ता बनविला आहे. तसेच शिंदे लहान शहादे मार्ग २ कि. मी च्या रस्त्यासाठी मौजे लहान शहादे शिवारातील शेत क्रमांक ३२ मधुन रस्ता बनविला गेला असल्याने जिल्हा परिषद कडून मोबदल्याच्या अनुषंगाने भू संपादनाचा अहवाल / प्रस्ताव शासनाकडे / भू संपादन अधिकारी कडे पाठविण्यात आलेला नव्हता / नाही, व त्याचे कागदपत्र / दस्ताऐवज अभिलेखात पडताळणी केली असता अढळ होत नाहीत. तसेच शेत क्रमांक ३२६ व शेत क्रमांक ३२ च्या भू धारकाला मोबदला अदा करण्यात आलेला नाही व त्याचे कागदपत्र / दस्ताऐवज अढळ होत नाही.”
Apart form the above, the joint measurement Report and the Map prepared pursuant thereto, annexed with the Writ Petition demonstrate that the said road is passing through the writ land, however, there is no record to show that any acquisition proceedings were initiated in that regard. Though it is sought to be contended by the Respondents that the petitioner’s predecessors-in-title allowed the said road to be constructed four decades ago without demure, however, this Court while disposing of Writ Petition no.12292 of 2022 vide order dated 06.12.2022, made following observations :
“ Heard.
2.The petitioners claim that their property has been affected by a public road without undertaking any acquisition proceeding.
3.The learned advocate for the petitioner tenders across the bar a copy of the communication addressed by the Executive Engineer of Zilla Parishad Nandurbar to the District Collector Nandurbar dated 28.11.2022 requesting to start acquisition process. It is taken on record and marked as 'X' for the purpose of identification. He submits that in view of such supervening event, the Collector may be directed to take appropriate decision.
4.The learned Government Pleader after going through this copy of communication submits that already a proposal must have been received by the Collector and he would take appropriate decision in accordance with law.
5.Hoping that the Collector Nandurbar pursuant to the communication dated 28.11.2022 would take appropriate decision without wasting any time in accordance with the law, we dispose of the writ petition.”
The communication dated 28.11.2022, referred to in the aforesaid order, depicts that the Respondents intended to acquire the writ land since the same is being utilized for the purpose of construction of the said road. However, for the first time Respondent No.5 vide communication dated 21.02.2023 and Respondent No.6 in his report dated 22.08.2023, took a somersault thereby contending that the said road is not a part of State Highway No.7 but it is a non-plan road. We find that the approach of Respondent Nos.5 and 6 is contrary to the record. There is impeachable record to show that the writ land is being utilized for the said road without initiating the land acquisition proceedings.
In the light of aforesaid discussion, we would first deal with preliminary objection raised by learned AGP and learned Counsel for Respondent Nos.5 to 7 regarding delay and laches. In that regard, it would be profitable to rely on the judgment of the Hon’ble Apex Court in the case of Tukaram Kana Joshi (supra) wherein it is held that,
“10.In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the Rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the Appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal.
11.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. There is a distinction, a true and concrete distinction, between the principle of "eminent domain" and "police power" of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of "absolute power" which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner as a 'subject' of medieval India, but not as a 'citizen' under our constitution.”
In the case of Prakash s/o Gangaram Dhage (supra), a co-ordinate Bench of this Court, in almost similar set of facts while entertaining the Writ Petition filed by the petitioner therein, after 47 years, relying on the ratio laid down by the Hon’ble Apex Court in the case of Vidya Devi vs. State of Himachal Pradesh, 2020 (1) RCR Civil 670, held thus :-
“20.It is a fact that the lands in dispute have been used for constructing the road though way back 1971-72, it was the property of the forefathers of the petitioners, their forefathers never objected. To resist the claim of the petitioners, the contesting respondents, in earlier writ petition, had pleaded that the erstwhile owners of the lands in dispute have already donated the lands voluntarily to the Government for construction of the road in 1972. However, they admitted that the acquisition proceedings was not initiated either under the B.H.Act or the then L.A.Act. Though the learned A.G.P. has vehemently argued that the erstwhile owners of the lands in question had donated the lands to the Government, they did not produce any document as such. Therefore, it does not inspire the confidence that the erstwhile owners of the land had donated their lands for the construction of the road under the Employment Guarantee Scheme, 1971. The plea raised by the respondents in reply-in-affidavit are indirectly based upon plea of “adverse possession”. Such a plea has been discarded by the Hon’ble Supreme Court, in the case of Vidya Devi (supra). Considering the admissions of the respondent/State that the land in question is in their possession and absence of record showing documents of donation by the erstwhile owners, the relief of the petitioners for initiating the scheme for acquisition deserves to be allowed. (emphasis supplied)
Similarly, in the case of Shekhar Ghanshyam Janbandhu (supra) a co-ordinate Bench of this Court at Nagpur, while dealing with almost identical issue where the representation of the petitioner therein for grant of compensation for the utilization of land for construction of the road was rejected on the ground of having made after lapse of more than 20 years after considering the authoritative pronouncements of the Hon’ble Apex Court on this issue, held thus :-
(22)In the aforementioned background, if case of Sukh Dutt Ratra (supra, delivered by two judges bench,) more particularly para 10 is considered where in, the argument of the State were noted, same would reveal that even case of Digambar was taken into consideration:-
“10.Mr. Abhinav Mukerji, learned counsel on behalf of the State of Himachal Pradesh, urged that the petition was hit by immense delay and laches and liable to be dismissed on this ground alone : the 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. Digambar, (1995) 4 SCC 683 (hereafter “Digambar”), State of M. P v. Bhailal Bhai AIR 1964 SC 1006 and Brijesh Kumar v. State of Haryana (2014) 11 SCC 351. The counsel also submitted that the decision in Tukaram Kana Joshi (2013) 1 SCC 353 which the appellants strongly rely on, is per incuriam in light of the larger bench decision in Digambar (1995) 4 SCC 683, which was not considered in Tukaram Kana Joshi (2013) 1 SCC 353. ………..”
(23)Dealing with the aforesaid aspect, the Hon’ble Apex Court then in paragraphs 22, 24 and 25 of the said judgment has observed as under :-
“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, 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 vs. State of H.P., 2013 SCC OnLine HP 681 itself, which is relied upon in the impugned judgment.
24.And with regards to the contention of delay and laches, this court went on to hold (Vidya Devi vs. State of H.P. (2020) 2 SCC 569, pp 574-75,para 12) :
“12.12.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 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.”
25.Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative 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.”
Thus, it can be seen that the point raised by the petitioner as regards the applicability of judgment of Digambar(supra) was dealt with in case of Sukh Datt Ratra(supra). The case of Digambar is a three-Judges Bench decision, while Sukh Dutt Ratra is a subsequent decision of the two-Judges bench. Notably, Sukh Dutt Ratra explicitly acknowledged the State’s reliance on Digambar and the argument that Tukaram Kana Joshi was per incuriam. However, it held that in the specific circumstances before it, delay and laches could not defeat the claim where the State had acquired the land without lawful authority and without compensation.
We can say that Digambar(supra)continues to govern the exercise of discretionary jurisdiction under Article 226 of the Indian Constitution, where delay, laches, acquiescence or other blameworthy conduct justifies refusal of relief.
The only reason advanced by the State to oppose the prayer made by the petitioner is delay and laches. The State has forgotten that it has duty to pay the compensation for the land acquired. The State further cannot ignore the fact that our country is governed by “Rule of Law” and not “Rule by Law”. The continuing cause of action, uninformed consent of the owners, constitutional mandate of Article 300-A of the Constitution of India, taking land without “authority of law”, clearly shows that the State has not acted in fair and proper manner.31) Thus, the obligation to provide just and fair compensation is an important constitutional consequence of compulsory deprivation of private property, as recognised in the jurisprudence under Article 300-A of the constitution of India.
In the aforesaid background, we do not find any merit in the opposition made by learned AGP. The petitioner has rightly contended that he would be entitled for the compensation for the possession, which was taken by the State for construction of road. As regards the reliance placed by learned AGP on the Judgment of High Court of H.P. in case of Shankar Das (supra) suffice it to say that the majority view of the said High Court is reflected in paragraph 56 which says that where the State has not acquired land in accordance with law, and roads have been constructed the land owners can approach the High Court within reasonable time. The delay will have to be explained by the petitioner. It was further observe that when State pleads consent, it must show some tangible form of consent and the mere fact of construction of roads, cannot be deemed to be implied consent. The minority view has held that in case where the State has not taken steps under the Land Acquisition Act for the purpose of construction of road on the ground that required land have been willingly surrender either orally or otherwise, then land owners can invoke the jurisdiction refuting such express or implied consent only within time within such a relief can be claimed in a civil suit. Once such a question is thus raised in writ petition the same can be considered in the writ petition itself. We have already discussed the aforesaid aspect and even otherwise the High Court of H.P. through the majority has held that when consent is pleaded by the State it must show some tangible form of consent.
In the light of the legal exposition laid down by the Hon’ble Apex Court in the case of Tukaram Kana Joshi (supra) as well as of this Court in the cases of Prakash s/o Gangaram Dhage (supra) and Shekhar Ghanshyam Janbandhu (supra), the preliminary objection raised by learned AGP as well as learned Counsel appearing for Respondent Nos. 5 to 7 as regards delay and laches is misconceived hence, deserves to be rejected.
As far as judgments relied upon by learned Counsel for Respondent Nos. 5 to 7 are concerned, the judgment of the Hon’ble Apex Court in the case of Digambar (supra) has been elaborately discussed by this Court in the case of Shekhar Ghanshyam Janbandhu (supra), we, therefore, do not wish to burden our judgment by further dilating on it.
Similarly, in the case of Nagorao (supra), the petitioner in that case had approached this Court after 68 years from the date of effecting Mutation Entry pursuant to the acquisition of land without disclosing as to when he got the knowledge about the same. It is in this context that this Court dismissed the Writ Petition on the ground of delay and laches.
Likewise in the case of Ramkrushna s/o Nilkanth Borole (supra), the petitioner therein had failed to place on record the documents demonstrating non payment of compensation or pendency of any acquisition proceedings. It is in this context, this Court dismissed the Writ Petition on the ground of delay and laches. We are of the considered view that the judgments relied upon by learned Counsel for the Respondent Nos. 5 to 7 are clearly distinguishable.
CONCLUSION :-
In the present case, the respondents have admitted that the said road which is passing through the writ land is constructed under the scheme of 1981 and is being utilized without initiating acquisition proceedings and paying compensation to the petitioner. We thus find that, the Respondents have been using the writ land for a public purpose without demonstrating any authority of law by which the petitioner or his predecessor-in-title were deprived of the writ land. It is well established that though the right to property has ceased to be a fundamental right, however, the same is a Constitutional Right enshrined under Article 300-A of the Constitution of India. Therefore, unless due procedure of law is followed by the respondents, they cannot deprive the petitioner of his property. Mere absence of objection in absence of any material establishing lawful surrender, transfer or consent to permanent deprivation cannot constitute authority of law within the meaning of Article 300-A of the Constitution of India. The reliance placed on the Government Resolution dated 26.10.2010 by learned AGP and learned Counsel for Respondent Nos.5 to 7 to contend that the petitioner and his predecessors have waived their right to compensation therefore cannot be countenanced. We thus find that the Writ Petition deserves to be allowed. We, therefore, pass the following order :-
:: ORDER ::
The Writ Petition is allowed in terms of prayer Clause (B). ii. Respondent Nos.5 to 7 are directed to submit a proposal for acquisition of the writ land to Respondent No.3 within a period of 2 months from the date of receipt of a copy of this order. iii. Respondent Nos.3 and 4 in turn shall initiate the land acquisition proceedings within a period of two months from the date of receipt of said proposal as per the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Rule is thus made absolute in above terms. There shall be no order as to costs.