REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7780 OF 2012
(Arising out of SLP(C)No.2418 OF 2012)
Tukaram Kana Joshi & Ors. thr. Power
of Attorney Holder ……. Appellant (s)
Versus
M.I.D.C. & Ors.
……..Respondent(s)
J U D G M E N T
Dr. B.S. Chauhan, J.
1. Leave granted.
2. This appeal has arisen from the impugned judgment and order
dated 14.11.2011, passed by the High Court of Bombay in Writ Petition
No.9513 of 2009, by way of which the High Court has rejected the claim
of the appellants for any compensation due to them for the land taken
by the respondent authorities, without resorting to any procedure
prescribed by law.
3. The facts and circumstances giving rise to this appeal are as
under:
A. The land in dispute admeasuring 0-2-3 and 0-7-1 (9500 sq.mtrs.)
in Survey nos. 2 and 3 respectively, situate in the revenue estate of
village Shirwame Taluka and District Thane, was owned by the
predecessors-in-interest of the appellants, namely, Kana Ganpat Joshi,
Maruti Kana Joshi, Dinanath Ganpat Joshi and Gopinath Ganpat Joshi. A
very large chunk of land including the said land stood notified under
Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to
as the ‘Act’) on 6.6.1964 for the establishment of the Ulhas Khore
Project i.e. a project for industrial development. However, no
subsequent proceedings were taken up thereafter, and the acquisition
proceedings lapsed. The predecessors-in-interest of the appellants
were not merely illiterate farmers, but were also absolutely unaware
of their rights and hence too inarticulate to claim them. Thus, they
could be persuaded by the officers of the respondent authorities to
hand over possession of the said land. Actual physical possession of
the said land was taken by the State authorities and handed over to
the Maharashtra Industrial Development Corporation (hereinafter called
as the ‘Development Corporation’) in the year 1964 itself.
B. Similarly situated persons who were also deprived of their
rights in a similar manner were granted compensation vide order dated
17.6.1966.
C. The respondent-authorities realised in 1981 that grave injustice
had been done to the appellants. Thus, in respect of the land in
dispute, a fresh notification under Section 4 of the Act dated
14.5.1981 was issued. However, no further proceedings under the Act
were initiated. The appellants had been pursuing the authorities
persuading them to complete the deemed acquisition proceedings, but
despite their efforts, even a declaration under Section 6 of the Act
was not issued and therefore, such proceedings also died a natural
death.
D. On 30.4.1988, the Development Corporation, under the
instructions of the Government of Maharashtra handed over the
possession of the said land to the City Industrial Development
Corporation of Maharashtra (hereinafter referred to as ‘CIDCO’). The
appellants were unable to get any compensation for the said land or
even for that matter, any land in lieu of the lands so taken, in spite
of their best efforts made in this regard. Various beneficial schemes
were floated by the State authorities in favour of persons who had
been deprived of their livelihood and those, whose land had been
acquired for the same purpose and under such schemes, such uprooted
persons were granted a particular piece of developed land,
proportionate to their area acquired. But, appellants’ efforts in
this regard also could not be fruitful.
E. As the appellants were unable to get any relief from any
authority, though they were continuously pursuing their remedies by
approaching the Special Land Acquisition Officer, as well as the
Revenue Authorities of the State, without any success whatsoever, they
then, feeling totally distraught/frustrated, approached the High Court
of Bombay as a last resort, by filing Writ Petition No. 9513 of 2009.
The same was dismissed by the High Court only on the grounds of delay,
and the non-availability of certain documents.
Hence, this appeal.
4. We have heard the learned counsel for the parties and perused
the record.
5. This Court has dealt with this case on several occasions in the
past and has repeatedly asked the State authorities to be sensitive,
sympathetic and requested them to put forward suggestions before the
court, to enable it to redress the grievances of the appellants. The
respondents herein have placed various affidavits on record and the
facts of the case have fairly been admitted.
6. The appellants were deprived of their immovable property in
1964, when Article 31 of the Constitution was still intact and the
right to property was a part of fundamental rights under Article 19 of
the Constitution. It is pertinent to note that even after the Right
to Property seized to be a Fundamental Right, taking possession of or
acquiring the property of a citizen most certainly tantamounts to
deprivation and such deprivation can take place only in accordance
with the "law", as the said word has specifically been used in
Article 300-A of the Constitution. Such deprivation can be only by
resorting to a procedure prescribed by a statute. The same cannot be
done by way of executive fiat or order or administration caprice. In
Jilubhai Nanbhai Khachar, etc. etc. v. State of Gujarat & Anr., AIR
1995 SC 142, it has been held as follows: -
"In other words, Article 300-A only limits the power of the
State that no person shall be deprived of his property save by
authority of law. There is no deprivation without due 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."
7. The right to property is now considered to be, not only a
constitutional or a statutory right, but also a human right. Though,
it is not a basic feature of the Constitution or a fundamental right.
Human rights are considered to be in realm of individual rights, such
as the right to health, the right to livelihood, the right to shelter
and employment etc. Now however, human rights are gaining an even
greater multi faceted dimension. The right to property is considered,
very much to be a part of such new dimension.
(Vide: Lachhman Dass v. Jagat Ram & Ors. (2007) 10 SCC 448; Amarjit
Singh & Ors. v. State of Punjab & Ors. (2010) 10 SCC 43; Narmada
Bachao Andolan v. State of Madhya Pradesh & Anr. AIR 2011 SC 1989;
State of Haryana v. Mukesh Kumar & Ors. AIR 2012 SC 559 and Delhi
Airtech Services Pvt. Ltd. v. State of U.P & Anr. AIR 2012 SC 573)
8. 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.
9. 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.
10. The State, especially a welfare State which is governed by the
Rule of Law, cannot arrogate itself to a status beyond one that is
provided by the Constitution. Our Constitution is an organic and
flexible one. Delay and laches is adopted as a mode of discretion to
decline exercise of jurisdiction to grant relief. There is another
facet. The Court is required to exercise judicial discretion. The said
discretion is dependent on facts and circumstances of the cases. Delay
and laches is one of the facets to deny exercise of discretion. It is
not an absolute impediment. There can be mitigating factors,
continuity of cause action, etc. That apart, if whole thing shocks
the judicial conscience, then the Court should exercise the discretion
more so, when no third party interest is involved. Thus analysed, the
petition is not hit by the doctrine of delay and laches as the same is
not a constitutional limitation, the cause of action is continuous and
further the situation certainly shocks judicial conscience.
11. The question of condonation of delay is one of discretion and
has to be decided on the basis of the facts of the case at hand, as
the same vary from case to case. It will depend upon what the breach
of fundamental right and the remedy claimed are and when and how the
delay arose. It is not that there is any period of limitation for the
Courts to exercise their powers under Article 226, nor is it that
there can never be a case where the Courts cannot interfere in a
matter, after the passage of a certain length of time. There may be a
case where the demand for justice is so compelling, that the High
Court would be inclined to interfere in spite of delay. Ultimately, it
would be a matter within the discretion of the Court and such
discretion, must be exercised fairly and justly so as to promote
justice and not to defeat it. The validity of the party’s defence must
be tried upon principles substantially equitable. (Vide: P.S.
Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. & Ors.
v. Nandlal Jaiswal & Ors., AIR 1987 SC 251; and Tridip Kumar Dingal &
Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768;)
12. No hard and fast rule can be laid down as to when the High Court
should refuse to exercise its jurisdiction in favour of a party who
moves it after considerable delay and is otherwise guilty of laches.
Discretion must be exercised judiciously and reasonably. In the event
that the claim made by the applicant is legally sustainable, delay
should be condoned. In other words, where circumstances justifying the
conduct exist, the illegality which is manifest, cannot be sustained
on the sole ground of laches. When substantial justice and technical
considerations are pitted against each other, the cause of substantial
justice deserves to be preferred, for the other side cannot claim to
have a vested right in the injustice being done, because of a non-
deliberate delay. The court should not harm innocent parties if their
rights have infact emerged, by delay on the part of the Petitioners.
(Vide: Durga Prasad v. Chief Controller of Imports and Exports &
Ors., AIR 1970 SC 769; Collector, Land Acquisition, Anantnag & Anr.
v. Mst. Katiji & Ors., AIR 1987 SC 1353; Dehri Rohtas Light Railway
Company Ltd. v. District Board, Bhojpur & Ors., AIR 1993 SC 802; Dayal
Singh & Ors. v. Union of India & Ors., AIR 2003 SC 1140; and Shankara
Co-op Housing Society Ltd. v. M. Prabhakar & Ors., AIR 2011 SC 2161)
13. In the case of H.D Vora v. State of Maharashtra & Ors., AIR
1984 SC 866, this Court condoned a 30 year delay in approaching the
court where it found violation of substantive legal rights of the
applicant. In that case, the requisition of premises made by the State
was assailed.
14. The High Court committed an error in holding the appellants non-
suited on the ground of delay and non-availability of records, as the
court failed to appreciate that the appellants had been pursing their
case persistently. Accepting their claim, the Statutory authorities
had even initiated the acquisition proceedings in 1981, which
subsequently lapsed for want of further action on the part of those
authorities. The claimants are illiterate and inarticulate persons,
who have been deprived of their fundamental rights by the State,
without it resorting to any procedure prescribed by law, without the
court realising that the enrichment of a welfare State, or of its
instrumentalities, at the cost of poor farmers is not permissible,
particularly when done at the behest of the State itself. The
appellants belonged to a class which did not have any other vocation
or any business/calling to fall back upon, for the purpose of earning
their livelihood.
15. Depriving the appellants of their immovable properties, was a
clear violation of Article 21 of the Constitution. In a welfare State,
statutory authorities are bound, not only to pay adequate
compensation, but there is also a legal obligation upon them to
rehabilitate such persons. The non-fulfillment of their obligations
would tantamount to forcing the said uprooted persons to become
vagabonds or to indulge in anti-national activities as such sentiments
would be born in them on account of such ill-treatment. Therefore, it
is not permissible for any welfare State to uproot a person and
deprive him of his fundamental/constitutional/human rights, under the
garb of industrial development.
16. The appellants have been deprived of their legitimate dues for
about half a century. In such a fact-situation, we fail to understand
for which class of citizens, the Constitution provides guarantees and
rights in this regard and what is the exact percentage of the
citizens of this country, to whom Constitutional/statutory benefits
are accorded, in accordance with the law.
17. The appellants have been seriously discriminated against qua
other persons, whose land was also acquired. Some of them were given
the benefits of acquisition, including compensation in the year 1966.
This kind of discrimination not only breeds corruption, but also dis-
respect for governance, as it leads to frustration and to a certain
extent, forces persons to take the law into their own hands. The
findings of the High Court, that requisite records were not available,
or that the appellants approached the authorities at a belated stage
are contrary to the evidence available on record and thus, cannot be
accepted and excused as it remains a slur on the system of governance
and justice alike, and an anathema to the doctrine of equality, which
is the soul of our Constitution. Even under valid acquisition
proceedings, there is a legal obligation on the part of the
authorities to complete such acquisition proceedings at the earliest,
and to make payment of requisite compensation. The appeals etc. are
required to be decided expeditiously, for the sole reason that, if a
person is not paid compensation in time, he will be unable to
purchase any land or other immovable property, for the amount of
compensation that is likely to be paid to him at a belated stage.
18. While dealing with the similar issue, this Court in K. Krishna
Reddy & Ors. v. The Special Dy. Collector, Land Acquisition Unit II,
LMD Karimnagar, Andhra Pradesh, AIR 1988 SC 2123, held as under:
“….After all money is what money buys. What the claimants could
have bought with the compensation in 1977 cannot do in 1988.
Perhaps, not even one half of it. It is a common experience that
the purchasing power of rupee is dwindling. With rising
inflation, the delayed payment may lose all charm and utility of
the compensation. In some cases, the delay may be detrimental to
the interests of claimants. The Indian agriculturists generally
have no avocation. They totally depend upon land. If uprooted,
they will find themselves nowhere. They are left high and dry.
They have no savings to draw. They have nothing to fall back
upon. They know no other work. They may even face starvation
unless rehabilitated. In all such cases, it is of utmost
importance that the award should be made without delay. The
enhanced compensation must be determined without loss of time….”
19. In view of the above, the instant case represents a highly
unsatisfactory and disturbing situation prevailing in one of the most
developed States of our country.
20. Be that as it may, ultimately, good sense prevailed, and
learned senior counsel appearing for the State came forward with a
welcome suggestion stating that in order to redress the grievances of
the appellants, the respondent-authorities would notify the land in
dispute under Section 4 of the Act within a period of 4 weeks from
today. Section 6 declaration will be issued within a period of one
week thereafter. As the appellants have full notice and information
with respect to the proceedings, publication in the newspapers either
of the notification or of the declaration under the Act are dispensed
with. Notice under Section 9 of the Act will be served within a period
of 4 weeks after the publication of Section 6 declaration and award
will be made within a period of three months thereafter. The deemed
acquisition proceedings would thus, be concluded most expeditiously.
Needless to say, the market value of the land in dispute will be
assessed as it prevails on the date on which the Section 4
notification is published in the Official Gazette. Payment of
compensation/award amount will be made to the claimants/persons-
interested immediately thereafter, alongwith all statutory benefits.
The appellants shall be entitled to pursue the statutory remedies
available to them for further enhancement of compensation, if so
desired.
21. Before parting with the case, we appreciate the gesture shown by
the State Government for coming forward with a most appropriate
suggestion to enable us to resolve the controversy involved herein, in
a manner so cordial and sympathetic.
22. With these observations, the appeal stands disposed of.
…….. …….......................J.
(Dr. B.S. CHAUHAN)
…….. …….......................J.
(JAGDISH SINGH KHEHAR)
New Delhi,
November 2, 2012
