IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 5TH DAY OF FEBRUARY, 2024

BEFORE

THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

WRIT PETITION NO. 103703 OF 2021 (LA-RES)

BETWEEN:

• 1. VIDHYA W/O PANDURANGA RAO HULIGOLKAR, AGE: 55 YEARS, OCC: HOUSEWIFE,
• 2. ABHIJEET S/O PANDURANGA RAO HULIGOLKAR, AGE. 30 YEARS, OCC. STUDENT,

BOTH ARE R/O.NARIBHAVI STREET, H.NO.2559/B, GADAG DISTRICT. GADAG

…PETITIONERS

(BY SRI LINGRAJ MARADI, ADVOCATE.)

AND:

• 1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY VIDHAN SOUDHA BUILDING, BENGALURU-560001.
• 2. MINISTRY OF PUBLIC WORKS DEPARTMENT, PWD SECTOR, VIDHAN SOUDHA BUILDING, BENGALURU-560001.
• 3. DEPUTY COMMISSIONER DC OFFICE, KOPPAL-583231.
• 4. THE EXECUTIVE ENGINEER, KARNATAKA PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT KOPPAL-583231.

SUJATA SUBHASH PAMMAR

Digitally signed by SUJATA SUBHASH PAMMAR Date: 2024.02.09 06:11:17 +0530

• 5. THE ASSISTANT COMMISSIONER, AC OFFICE, KOPPAL-583231.
• 6. THE ASSISTANT EXECUTIVE ENGINEER, KARNATAKA PUBLIC WORKS, PORTS AND INLAND WATER TRANSPORT DEPARTMENT SUB DIVISION, KOPPAL-583231.
• 7. THE THASILDAR, KOPPAL-583231.
• 8. THE ASSISTANT DIRECTOR, LAND RECORDS, KOPPAL-583231.

…RESPONDENTS

(BY SRI HANAMANTHARAY LAGALI, ADDL. GOVERNMENT ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO

A. ISSUE A WRIT IN THE NATURE OF CERTIORARI THE IMPUGNED ORDER PASSED VIDE ANNEXURE-F IN BEARING NO. ¸ÀA:PÀA: ¨ sÉÆ ¸Áé:D¦Ã®Ä: 2017-18 DATED. 14-02-2019 PASSED BY RESPONDENT NO.3. IN VIEW OF THE JUDGMENT PASSED IN AIR ONLINE 2020 SC 19 (VIDYA DEVI VS STATE OF HIMACHAL PRADESH) BY HON BLE SUPREME COURT.

B. ISSUE WRIT IN THE NATURE OF MANDAMUS TO DIRECT THE RESPONDENTS TO INITIATE THE ACQUISITION PROCEEDINGS AND PAY THE COMPENSATION REGARDING SY.NO.733/2 MEASURING 1 ACRE 27 GUNTA SITUATED NEAR BHAGYA NAGAR OF KOPPAL.

THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Petitioners complaining that their land bearing Sy. No.733/2 measuring 1 acre 27 guntas, situated at Bhagya Nagar, Taluk and District Koppal, was utilized for the purpose of formation of public road without following due process of law, submitted a representation with the respondents to initiate proceedings and pay suitable compensation.

2. The representation having not been considered, prompted the petitioners to approach this Court in W.P. No.101240/2016. This Court vide order dated 24.04.2018 directed the respondents herein to consider the petitioners' claim after holding reasonable enquiry/ investigation as to the status of the petitioners' land within a period of three months. In pursuance of the direction issued by this Court, the respondent No.3 based on the report submitted by Executive Engineer, PWD and SLAO, passed the impugned order rejecting the claim of the petition stating that the subject property was utilized for formation of public road about 50 to 60 years back and the belated claim of the petitioners cannot be considered. Taking exception to the same, this petition is filed.

3. Learned counsel for the petitioners submits that the forcible dispossession of the land is in violation of the constitutional and human right, and the State Government cannot invoke doctrine of adverse possession to protect its title over the subject land so as to deprive the petitioners of their right to claim compensation, as stated under Article 300A of the Constitution of India. Therefore, the impugned order passed by the respondent No.2 is arbitrary and discriminatory.

4. In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Vidya Devi vs. The State of Himachal Pradesh reported in Air Online 2020 SC 19.

5. Per contra learned Addl. Government Advocate for the State would submit that the subject land was utilized for the purpose of formation of road about 50-60 years back, and the public have been using the said road without any intervention, the belated claim of the petitioners for grant of compensation cannot be granted. Therefore, the impugned order passed by the 2nd respondent is in conformity with the

provisions of law and the same does not warrant any interference.

6. Considered the submissions made by the learned counsels for the parties.

7. In pursuance of the direction issued by this Court, the petitioners' claim for compensation was considered by the 2 nd respondent.

8. This Court on an earlier occasion had observed that since the entries in the record of rights and RTC have got a presumptive value as stated under section 133 of the Karnataka Land Revenue Act, 1964, prima facie the ownership of the petitioners over the subject land is established. The entries in the record of rights also indicated that name of the petitioners is shown in the owners column and the same is not disputed by the respondent State. The 2nd respondent in the impugned order has also not denied the right of the petitioners over the subject land, however, denied the claim of the petitioners for compensation solely on the ground that the subject land was utilized for formation of road about 50-60

years back and the belated claim of the petitioners cannot be considered.

9. The Hon'ble Supreme Court in the case of Vidya

Devi (supra), has held as follows.

"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 — 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.

3. 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.

4. In 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 v. State of H.P., claiming compensation before the High Court of Himachal Pradesh. The High Court vide order dated 23-4-2007 [Anakh Singh v. State of H.P., 2007 SCC OnLine HP 220] , 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.

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 landowners whose lands had also been taken over.

6. The appellant submits that she learnt of these proceedings in 2010, when she along with her two daughters filed CWP No. 1736 of 2010 before the Himachal Pradesh High Court, praying that the State be directed to pay compensation for the land acquired in 1967-1968; or, in the alternative, direct the State to initiate acquisition proceedings under the Land Acquisition Act, 1894.

8. 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 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 1967-1968, and metalled since 1975. The land was utilised by the respondent State after the appellant and her predecessors-ininterest had verbally consented to the land being taken over without any objection.

10. Aggrieved, the appellant filed a review petition against the judgment and order dated 11-9-2013 [Vidya Devi v. State of H.P., 2013 SCC OnLine HP 5384] which was dismissed vide order dated 13-5-2014 [Vidya Devi v. State of H.P., 2014 SCC OnLine HP 5941] .

11. The appellant has filed the present appeals before this Court, to challenge the judgment dated 11-9-2013 [Vidya Devi v. State of H.P., 2013 SCC OnLine HP 5384] passed in the writ petition and order dated 13-5-2014 [Vidya Devi v. State of H.P.,

2014 SCC OnLine HP 5941] passed in the review petition.

12.1. 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 [State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92] , which could not be deprived without due process of law and upon just and fair compensation.

12.2. 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 right [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] 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. [K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414]

12.3. 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 Corpn. Ltd. v. Darius ShapurChenai [Hindustan Petroleum Corpn. Ltd. v. Darius ShapurChenai, (2005) 7 SCC

627] , wherein this Court held that: (SCC p. 634, para 6)

"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."

(emphasis supplied)

12.4. In N. Padmamma V. S. Ramakrishna Reddy [N. Padmamma v. S. Ramakrishna Reddy, (2008) 15 SCC 517] , this Court held that: (SCC p. 526, para 21)

"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 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."

(emphasis supplied)

12.5. In Delhi Airtech Services (P) Ltd. v. State of U.P. [Delhi Airtech Services (P) Ltd. v. State of U.P., (2011) 9 SCC 354 : (2011) 4 SCC (Civ) 673] , this Court recognised the right to property as a basic human right in the following words: (SCC p. 379, para 30)

"30. It is accepted in every jurisprudence and by different

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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 seedbed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists."

(emphasis supplied)

12.7. 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 compensation, being a fundamental right on the date of forcible dispossession in 1967.

12.8. 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.

12.9. 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 v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] 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.

12.10. This Court in State of Haryana v. Mukesh Kumar [State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769] 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 in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.

12.11. 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.

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. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]

12.14. In Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] , this Court while dealing with a similar fact situation, held as follows: (SCC p. 359, para 11)

"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. The 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)

13. 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.

14. The State has submitted that in 2008 it had initiated acquisition proceedings in the case of an adjoining landowner viz. Shri Anakh Singh pursuant to a direction given by the High Court in Anakh Singh v. State of H.P. [Anakh Singh v. State of H.P., 2007 SCC OnLine HP 220] The State initiated acquisition only in the case where directions were issued by the High Court, and not in the case of other landowners whose lands were compulsorily taken over, for the same purpose, and at the same time. As a consequence, the present landowner has

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been driven to move the Court in their individual cases for redressal.

15. 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 7-7- 2015 in AnakhSinghcase [Anakh Singh v. State of H.P., 2007 SCC OnLine HP 220] (i.e. Land Reference No. 1 of 2011 RBT No. 01/13) along with 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.

16. 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.

17. 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."

10. What emerges from the ratio laid down by the Hon'ble Supreme Court in the aforesaid case is as follows.

11. Article 300A of the Constitution of India only limits the powers of the State that no person shall be deprived of his property subjected by authority of law. The owner could not

have been forcibly dispossessed of his property without any legal sanction and without any due process of law and depriving payment of just compensation being a fundamental right on the date of forcible disposition. 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 of India. The right to property is not only a constitutional or statutory right, but also a human right. The State being a welfare State, cannot be permitted to take the place of adverse possession, and cannot be permitted to perfect its title over the land by invoking doctrine of adverse possession to grab the property of its own citizens. There is no period of limitation prescribed for the Courts to exercise their constitutional jurisdiction to do substantial justice.

12. In view of the ratio enunciated by the Hon'ble Supreme Court in the aforesaid case, the reasons assigned by the 2nd respondent in rejecting the claim of the petitioners is arbitrary and discriminatory and violates Article 300A of the Constitution of India. Therefore, the claim of the petitioners requires to be reconsidered. Accordingly, I pass the following:

ORDER

i) The writ petition is allowed.

ii) The impugned order dated 14.02.2019 passed by respondent No.3, vide Annexure-F is hereby quashed.

iii) The respondents are hereby directed to reconsider the claim of the petitioners for initiating acquisition proceedings and pay suitable compensation in accordance with law.

iv) The said exercise shall be concluded within a period of four months from the date of receipt of certified copy of this order.

Sd/- JUDGE

RSH, MRK CT:GSM List No.: 2 Sl No.: 7