IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.1439 of 2007 Reserved on 20.3.2008 Date of decision 5.4.2008 Het Ram Petitioner Vs. State of H.P. and others Respondents Coram: The Hon’ble Mr.Justice Rajiv Sharma,J. Whether approved for reporting?1 Yes For the Petitioner: Mr. Sanjay Sharma, Advocate. For the Respondents: Mr.Vivek Thakur, Addl. Advocate General. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the road, namely, Matiana-Dharampur was accorded administrative approval by the State on 26.9.1984. The construction of the road was undertaken in the year 1985-86. The road was constructed from km 0/0 to 5/0 till 1985-86. The land of the petitioner fell on alignment of the road between two reaches at R.D.3/360 to 3/855. The petitioner had contended that his land has been utilized by the State for the construction of Matiana- Dharampur road without acquiring his land under the Land Acquisition Act, 1894. He had earlier filed a Civil Writ Petition No.414 of 2004 before this Court which was dismissed as withdrawn on 30.6.2004. In this petition he is seeking a direction to the respondents to acquire his land utilized by the State for the construction of Matiana-Dharampur road. The State had filed a detailed reply to the writ petition. Mr. Sanjay Sharma, learned counsel appearing for the petitioner had strenuously argued that once the land of the petitioner has been 1 Whether reporter of local papers are allowed to see the judgment ? Yes 2 utilized for the construction of Matiana-Dharampur road in the year 1985- 86, his client is entitled to compensation as per the provisions of the Land Acquisition Act, 1894. Mr.Vivek Thakur learned Additional Advocate General appearing for the respondents had strenuously argued that the petition is belated and the petitioner cannot claim any compensation at this stage. I have heard the learned counsel for the parties and have gone through the record of the case carefully. The respondents have admitted in their reply that the land of the petitioner was utilized while constructing Matiana-Dharampur road in the year 1985-86. The administrative approval was accorded for the construction of the road on 26.9.1984. The petitioner has also served a legal notice upon the respondents on 17.6.2002 seeking compensation. The only ground for denying the compensation to the petitioner is that he had approached this court after a gap of more than 20-21 years. It is also contended by Mr.Vivek Thakur that the petitioner had consented for the construction of the road in the year 1985-86 and now he cannot be permitted to seek compensation. It is admitted; by the respondents in their replies categorically that the suit land falls within the Kms 3/360 to 3/855. The respondents have not placed any material on record to suggest that the petitioner had ever consented in writing for the construction of the road without claiming compensation. This Court in Nokhia and others vs. State of H.P. and others, ILR 1984 H.P. 9 has gone into the entire gamut of the expression verbal consent, if any, given by the land owners at the initial stage of construction of the road. Their Lordships have held as under: “Now, the version set out in the affidavit that possession of the land of the petitioners and other landowners, which was and is being utilized for the construction of the Bhatta Kuffar Koti road, was taken “with due verbal consent of the landowners” does not appear to us to be true or, at any rate, wholly true. The material particulars, such as, when precisely the consent was obtained, 3 whether the consent was given by all interested persons and, if so, whether it was free consent given after full knowledge of their rights and of the implications involved in surrendering the possession even before the acquisition proceedings were under active contemplation and initiated, who was the authority that obtained the consent and in what manner, etc., are not set out in the affidavit. A vague assertion that the landowners orally consented to the taking of possession on a verbal assurance held out to them that due compensation will be paid on completion of the acquisition proceedings cannot be accepted in view of the version set out in the petition and the subsequent conduct of the concerned authority in failing to initiate the acquisition proceedings by the issue of a notification under Section 4 for five years and that under Section 6 for seven years. Besides, there is internal indication in the affidavit itself which belies the version relating to the alleged oral consent. The deponent has stated that it is on account of such “verbal consent that the landowners did not object to the construction of the road through their lands in the “initial stage”. Implicit in this assertion is a concession that the landowners remained passive spectators only in the initial stages of the construction of the road, presumably because they were unaware of their rights, which is the case of the petitioners, and that at subsequent stages the landowners had raised some protest or attempted to assert their legal rights. These facts emerging from the affidavit themselves are destructive of the theory of oral consent. Besides, if consent is the defence for by-passing the substantive and procedural requirements of law relating to the acquisition of property, what the authority has to show is that the consent was not only free but informed. Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake. Consent can be regarded as informed when it is an act of reason, accompanied with deliberation of a mind which knows the right and wrong, good and evil, and it postulates an active will on the part of the person giving consent to permit the doing of the act complained of with full knowledge of the nature of the act that is being done and the rights and obligations of the parties involved in the commission of the act. Even if the verbal consent, as alleged, was given by the landowners in the instant case, no material has been brought on record to show that it was free and informed consent in the sense explained above. In the absence of any such material and in light of the circumstances to be presently noticed, it would not be unreasonable to proceed on the basis that such consent, even if 4 obtained, was not free and informed. The consent was given on the strength of a representation with regard to the payment of compensation which has not been acted upon for an unreasonably long period and from the lackadaisical manner in which the authority has since acted shows that such representation, when made, was not intended to be really acted upon. The consent, if any, was, therefore, obtained upon a misrepresentation. The class of society to which the petitioners, who are amongst the landowners, belong, is a factor which by itself is sufficient to sustain a legitimate inference that the consent could not have been informed. Indeed, the averments made in the petition-“we learn that no road can be constructed until and unless compensation is given to the landowners”- lends support to the view that the consent, if any, was not the deliberate act of persons who knew the true nature and character of the act and who were capable of taking a balanced decision with full awareness of their legal rights as well as statutory obligations of the authorities. We are, therefore, clearly of the view that the theory of oral consent is a clear after thought and that, in any case, even if such consent was given or obtained, it cannot be set up as a valid defence, since it cannot be regarded as free and informed consent in the eye of law.” A specific averment has been made in the petition that in the revenue record in Khasra Nos.233, 234, 236, 1241, 1258, 1297, 1298 and 1414, measuring 0.21.84 hectares had been recorded in the ownership of the petitioner and the State has been shown in the column of possession. The respondents have not denied in their reply the averments made by the petitioner with regard to column of ownership and possession. The petitioner’s property has been taken over and utilized by the State for the construction of Matiana-Dharampur road without acquiring the same as per Land Acquisition Act, 1894. It is settled law by now that no person can be deprived of his property save in accordance with law. The petitioner’s right to get the compensation in accordance with law cannot be permitted to be defeated by the State only on the plea of delay and laches. 5 Their Lordships of the Supreme Court had the occasion to deal with a similar situation in case State of U.P. and others vs. Manohar, (2005) 2 SCC 126. Their Lordships have held as under: “As a matter of fact, the appellants were unable to produce even a scrap of evidence indicating that the land of the respondent had been taken over or acquired in any manner known to law or that he had ever been paid any compensation in respect of such acquisition. That the land was thereafter constructed upon, is not denied. Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to bring a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the constitution, Article 300-A has been placed in the Construction, which reads follows: “300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.” This is a case where we find utter lack of legal authority for deprivation of the respondent’s property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us.” Their Lordships of the Supreme Court have held in P.T. Munichikkanna Reddy and ors. Vs. Revamma and ors., 2007(6) Scale 95 that the right to property is considered not only constitutional or statutory right but also a human right. Their Lordships have held as under: 6 RIGHT TO PROPERTY AS HUMAN RIGHT “There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17: “Since the right to property in inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid”. Moreover, Universal declaration of Human Rights, 1948 under section 17(i) and 17(ii) also recognizes right to property: “17(i) Everyone has the right to own property alone as well as in association with others. (ii) No-one shall be arbitrarily deprived of his property.” Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The activist approach of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer {2005 (3) WLR 554: 2005 EWHC 817 (Ch.)} and JA Pye (Oxford) Ltd. v. United Kingdom {2005} ECHR 921} The court herein tried to read the Human Rights position in the context of adverse possession. But what is commendable is that the dimension of human rights has widened so much that now property dispute issues are also being raised within the contours of human rights.” In view of the observations made above and the law laid down by the Hon’ble Supreme Court and this Court, I am of the considered opinion that the petitioner’s land has been used by the respondent State for the construction of Matiana-Dharmapur road unconstitutionally and illegally. The State if intends to use the land of any citizen for a public purpose must acquire the same in accordance with law. The plea of delay and laches raised by the respondents for denying the compensation to the petitioner can not be accepted. Similarly, the plea raised by the state that 7 the petitioner had given verbal consent at the initial stage of the construction of the road is also liable to be rejected in absence of any evidence on record. Consequently, the writ petition is allowed. The respondents are directed to acquire the land of the petitioner utilized by it for the construction of Matiana-Dharampur road under the provisions of the Land Acquisition Act, 1894 within a period of one year. No order as to costs. April 5, 2008(g) ( Rajiv Sharma ), J.