On May 13, 2024, the Supreme Court expressed its disappointment over
the approach of the Patna High Court in the case Dharnidhar Mishra Vs.
of State Bihar. The Court asked why the Appellant was not compensated
for forty-two years after acquiring his land. Supreme Court's division
bench of Justices J. B. Pardiwala and Manoj Mishra has sent the case
back to the High Court for reconsideration. It was filed on May 4, 2023 and registered on May 13, 2024. Meanwhile, Dharnidhar Mishra is dead.
Supreme Court concluded: "The impugned order passed by the High Court is set aside and the matter is remitted to the High Court for fresh consideration. Letters Patent Appeal No 997 of 2019 is restored to its original file. The High Court shall hear both the sides and pass an appropriate order in accordance with what has been observed by this Court in this order. We request the High Court to decide the matter within a period of two months from today."
The Court allowed the application for substitution to bring on record the legal heirs of the first petitioner.
Originally, there were two petitioners in the case, namely, Dharnidhar Mishra and
Sushil Kumar Mishra from Hanuman Nagar, Bharbari, Rosera,
Samastipur. The legal hers are:Panchwati Devi, Saroj Devi, Indira Kumari, Ranjana Devi and Kanchan Devi.
The Court observed: "There are many issues arising in this litigation and the
High Court should have taken little pains to ask the State why it made
the appellant run from pillar to post. It is sad to note that the
appellant passed away fighting for his right to receive compensation.
Now the legal heirs of the appellant are pursuing this litigation."
This
appeal arose from a order passed by Patna High Court dated
February 7, 2023 by which the Division Bench of the High Court disposed
of the Letters Patent Appeal by asking the appellant herein to file an
appropriate application before the concerned authority for disbursement
of the value of the land assessed at Rs 4,68,099.
In the year 1976, a notification under Section 4 of the Land Acquisition Act, 1894 was issued for the purpose of construction of State Highway as notified by the State of Bihar. The land owned by the appellant herein was included in Section 4 notification referred to above. Sometime in 1977, the land of the appellant was acquired. However, it is the case of the appellant that not a single penny was paid to him towards compensation.
The
appellant preferred an appropriate application addressed to the State
Government immediately after his land came to be acquired and possession
was taken over in the year 1977 for payment of compensation. It is the
case of
the appellant that State did not even pass any award of compensation
and kept the matter in limbo. Years passed by and the appellant kept on
requesting the authorities to pass an appropriate award and pay the
amount towards compensation.
As
the respondents did not pay heed to the say of the appellant, he was
left with no other option but to file a writ petition in the High Court
of Patna. The writ petition was heard by a Single Judge and by order
dated July 19, 2019 rejected the same only on the count that the petition
had been filed after a period of forty-two years of the acquisition.
While dismissing the writ petition, the learned Single Judge also
observed that the appellant had failed to submit any paper or notification in connection with acquisition of his land for the purpose of payment of compensation.
Being
dissatisfied with the order passed by the learned Single Judge
rejecting his writ petition, the appellant went in appeal. The appeal
came to be disposed of by a Division Bench of the High Court.
Dharnidhar
Jha, the senior counsel appearing for the appellant submitted that the
State conceded to the fact that the land of the appellant had been
acquired and was put to use for the purpose the same was acquired. He
would submit that if the State thought fit to acquire the land of his
client, then it was obligatory on the part of the State to pass an appropriate
award determining the amount towards compensation. He would submit that
it is not the case that the appellant herein was lethargic in asserting
his rights, but rather kept on requesting the authorities concerned to determine the amount towards compensation and pay the same.
On
the other hand, the counsel appearing for the State of Bihar submitted
that no error, not to speak of any error of law could be said to have
been committed by the High Court in passing the impugned order. He
submitted that it is not in dispute that the land of the appellant was
acquired for a public purpose, but at the same time, it was the duty of
the appellant to pursue the matter further for the purpose of getting
appropriate compensation determined in accordance with law.
Having
heard the counsels appearing for the parties and having gone through
the materials on record, the Supreme Court considered the question as to
whether the High Court committed any error in passing the impugned
order.
The Court noted that Justice Chakradhari Sharan Singh, the Single
Judge of the High Court thought fit to reject the writ petition only on
the ground of delay and in appeal, the appellate court disposed of the
appeal asking the appellant herein to file an application before the
concerned authority for disbursement of the amount of compensation.
Supreme
Court's order takes notice of two things: First, the High Court in its
impugned order has stated that the appellant herein has been informed
about the value of the land
assessed at Rs 4,68,099. It reads: "We fail to understand on what basis
this figure has been arrived at; at what point of time this amount came
to be assessed; and
the basis for the assessment of such amount. Secondly, the order of the
High Court could be said to be a non-speaking order." It
records that the counsel appearing for the State of Bihar submitted
that "it was an order obtained with the consent of the parties, yet
there is nothing to indicate that any consent was given by the appellant
herein to pass such an order."
Supreme Court's order observes: "The first thing that the High Court should have enquired with the State is as to
why in the year 1977 itself, that is the year in which the land came to
be acquired, the award for compensation was not passed. The High Court
should have enquired why it took forty-two years for the State to
determine the
figure of Rs 4,68,099. The High Court should also have asked the State
the basis of the determination of the amount towards compensation. It is
a well settled position of law that after the award towards
compensation is passed,
if the owner of the land is not satisfied with the quantum, he can even
file an appeal for the enhancement of the same. The High Court
proceeded on the footing that the amount of Rs 4,68,099 has been
assessed and it is now for the appellant to file an appropriate
application and get the amount disbursed in his favour. We are not
convinced but rather disappointed with the approach of the High Court
while disposing of the appeal."
The Court underlined that "In 1976, when the land of the appellant came to be acquired 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, which could not be deprived without due process of law and upon just and fair compensation. 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 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 ofhis 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. [See: K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1]
The Court drew on its decision in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai reported in (2005) 7 SCC 627, this Court held that: “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)
The Court drew on its decision in N. Padmamma v. S. Ramakrishna Reddy reported in (2008) 15 SCC 517, 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 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)
The Court recalled that in Delhi Airtech Services (P) Ltd. v. State of U.P. reported in (2011) 9 SCC 354, this Court recognised 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 reported in 1995 Supp (1) SCC 596, this Court held as follows: “48.
… In other words, Article 300-A 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
300-A. In other words, if there is no law, there is no deprivation.” (Emphasis supplied)
In Tukaram Kana Joshi v. MIDC reported
in (2013) 1 SCC 353, this Court 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.
The Court drew on its decision in State of Haryana v. Mukesh Kumar reported
in (2011) 10 SCC 404 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
multifaceted dimension.
The
Court observed: "We regret to state that the learned Single Judge of
the High Court did not deem fit even to enquire with the State whether
just and fair compensation was paid to the appellant or not. The learned
Single Judge rejected the writ petition only on the ground of delay. As
held by this court in Vidya Devi v. The State of Himachal Pradesh & Ors.
reported in (2020) 2 SCC 569, 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. The condition of delay is a matter of
judicial discretion, which must be exercised judiciously and reasonably
in the facts and circumstances of the case. As held by this Court, it
would 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."
The Court relied on its decision in P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152. The Court observed that 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.
In Tukaram Kana Joshi v. MIDC reported in (2013) 1 SCC 353, this Court while dealing with a similar fact situation, held as follows:“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 area 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)
Prior to this,
in Dharnidhar Mishra v. State of Bihar, the Patna High Court Justice
Chakradhari Sharan Singh had passed a judgement July 19, 2019. It reads:
"The petitioners are seeking quashing of an order dated 08.01.2019,
passed in Misc. Case No. 02 of 2019 by the Collector, Samastipur,
whereby the petitioners’ claim for compensation against acquisition of
their land has been rejected. It is the petitioners’ case that the land,
in question, was acquired in L.A. Case No. 07 of 1976. After 42 years
of the said acquisition, the petitioners appear to have filed their
application before the Collector. The Collector has noted that the
petitioners did not submit any paper or notification in connection with
acquisition of their land for payment of compensation. I do not find any
justification on record coming forth to explain the delay of 42 years.
This writ application appears to be misconceived and is accordingly
dismissed." A Letters Patent Appeal was filed in this very case. A
division bench of Justices Ashutosh Kumar and Satyavrat Verma passed a
judgement on February 7, 2023. The judgement reads: "In view of the
categorical stand of the State that the land of the appellants had been
consumed and that the State is ready to compensate the appellants,
nothing remains in this appeal to be decided. The appellants have been
informed about the value of the land has been assessed at Rs.4,68,099/-.
All that the appellants have to do is to file an application before the
concerned authority as to how the amount shall be apportioned between
him and his son. It is expected that the decision in that regard by the
State authority shall be taken without any delay as already the matter
has become five decades old. The appeal stands disposed of."
The
penultimate para of the Supreme Court's order reads: "we are of the view that
we should set aside the impugned order passed by the High Court and
remit the matter for fresh consideration." The court found both the orders of the High Court to be unjust.
