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Can State Claim Adverse Possession Over The Property Of It's Own Citizens- Implication Of Article 300-A Of The Constitution In This Regard?

India is a 'welfare state' wherein it is the duty of the state to look after the welfare of it's citizens. However, there are instances where the Government has taken over the land/ immovable property of the citizens without the authority of law. To justify unauthorised & illegal take over of such properties, the State often proclaims title on the basis of adverse possession. Question arises whether State can claim adverse possession over the property of it's own citizens?

At the very outset it is indeed surprising & shocking that the State adverts to plea of adverse possession only for the sake of denying fair compensation to citizens whose land/immovable property has been illegally taken over by the State without initiating due proceedings contemplated in law.

Before deliberating on the subject, it would be relevant to refer to Article 300A of the Constitution which reads as under:

'No person shall be deprived of his property save by authority of Law'.

It is apropos to refer to the Apex Court judgment in the case of Vidya Devi vs. The State of Himachal Pradesh and Ors.(2020) 2 SCC 569, wherein the Court categorically held that the State cannot be permitted to take the plea of adverse possession. The Court held that the State, professing to be a welfare state, cannot claim to have perfected its title over the said land by invoking the doctrine of adverse possession to grab the property of its own citizens. The Court held that forcible dispossession of a person from his private property is violative of human right and constitutional right under Article 300A.

The brief facts of the case are that the State had taken over the land of the appellant in 1967-68 for constructing a major road without taking recourse to acquisition proceedings or following due process of law. The construction of the road was completed by 1975.

The appellant filed a writ petition in the Himachal Pradesh High Court in 2010. The State took the plea of adverse possession and also the point that the writ petition was barred by laches. The High Court dismissed the writ petition holding that the same involved disputed questions of law and fact. The appellant's review petition was also dismissed by the High Court. Accordingly the appellant approached the Apex Court.

The Apex Court in a detailed judgment held thus:
10.1. 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, which could not be deprived without due process of law and upon just and fair compensation.

10.2. 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 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. 1 The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92. 2 Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353. 3 K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1. 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 Corporation Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627.wherein 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) In N. Padmamma v. S. Ramakrishna Reddy(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)

In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors.(2011) 9 SCC 354 this Court recognized 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, (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) 10.3. 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.

10.4. 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.

10.5. 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 & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353 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.

This Court in State of Haryana v. Mukesh Kumar 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.

10.6. 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.

10.7. 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.

It would be trite to refer to the case of B.K. Ravichandra & Ors. v. Union of India & Ors., 2020 SCC OnLine SC 950 wherein the Apex Court held thus:

29. It is, therefore, no longer open to the state : in any of its forms (executive, state agencies or legislature) to claim that the law - or the Constitution can be ignored, or complied at its convenience. The decisions of this Court, and the history of the right to property show that though its pre-eminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it.

The evolving jurisprudence of this Court also underlines that it is a valuable right ensuring guaranteed freedoms and economic liberty. The phrasing of Article 300-A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked-they in effect, are a guarantee of the supremacy of the rule of law, no less. To permit the State : whether the Union or any State Government to assert that it has an indefinite or overriding right to continue occupying one's property (bereft of lawful sanction)- whatever be the pretext, is no less than condoning lawlessness.

The Courts' role is to act as the 5 guarantor and jealous protector of the people's liberties : be they assured through the freedoms, and the right to equality and religion or cultural rights under Part III, or the right against deprivation, in any form, through any process other than law. Any condonation by the Court is a validation of such unlawful executive behaviour which it then can justify its conduct on the anvil of some loftier purpose, at any future time-aptly described as a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.

It would be apropos to refer to the case of Maharaja Ranjit Singh Gaekwad (now deceased) through LRs vs Union of India and ors decided by the Division Bench of the Delhi High Court on 6 October, 2022 wherein the Court held thus:

13. While the right to property is no longer a fundamental right [Constitution (Forty-fourth Amendment) Act, 1978], it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorisation of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington [Entick v. Carrington, 1765 EWHC (KB) J98 : 95 ER 807] and by this Court in Wazir Chand v. State of H.P. [Wazir Chand v. State of H.P., (1955) 1 SCR 408 : AIR 1954 SC 415] Further, in several judgments, this Court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.

The Jharkhand High Court went further ahead to pass exemplary orders in the case of Dularchand Yadav vs The State Of Jharkhand & Others in (Civil Writ Jurisdiction) W.P. (C) No. 2847 of 2020 & other connected matters decided on 8 July, 2022 wherein the Court awarded Double the compensation- one for land acquired and equal amount for mental harrassment, agony & for illegally taking possession along with interest @7.5% & also cost of Rs. 50000/- to each petitioner to be realised from the salary of erring officials.

The facts of the case are that the petitioners have filed writ petitions for grant of adequate compensation from the date of dispossession their raiyati lands which were forcefully & illegally taken over by the Road Construction Department, Government of Jharkhand without acquisition of the land under the Land Acquisition Act for construction of Road on the lands of the Petitioners.

The Court noted that a similar matter came before this Hon'ble Court for such act of respondent-authorities in the case of Basudeo Rana and others vs. The State of Jharkhand & Others vide W.P.(C) No.7709 of 2011. The High Court while disposing the said writ petition on 22.04.2014 had held this act as a case of administrative excess, hostility and arbitrariness for trampling the right of the citizens and forcibly constructing road on the Raiyati land of the petitioners without taking their consent or without taking any steps for acquisition of the said land in accordance with law.

The Court held vide it's order dated 22.04.2014 that such hostility, acts and deeds of the public officers erodes the peoples' faith in democracy and respect for rule of law. The Court further held that though the matter appears to be forcible dispossession of some persons from a small piece of land, it has colossal adverse effect on the civilized society and peace living denizens and onslaught on liberty and right of citizens guaranteed by the Constitution of India.

The Court in the said case, observed that the statement made in the affidavit of the respondent does not demonstrate any sign of remorse and repentance for such atrocious step by public officer of a Welfare State. The Court further observed thus:

Such instance cannot be simply ignored by giving opportunity to wipe out the adverse effect and offering compensation after forcibly dislodging the petitioners from their Raiyati land. Such incidents warrant due attention of the authority at the helm of the affairs so that effective measures be assured for peoples' safety of life and property and for preventing recurrence of unbecoming administrative actions.

In view of the above facts and circumstances, this writ petition is disposed of directing the Deputy Commissioner, Koderma to assess the amount of compensation according to the legal provisions prescribed for determining the valuation of land for acquisition, within a period of four weeks and determine and pay compensation adding the equal amount for causing mental agony, embarrassment and denigration to the petitioners by forcibly dispossessing them from their land and for putting them to continued loss of crops and harassment for years and depriving them of enjoying the legal rights of ownership of the property.

The respondents shall also pay Rs. 10,000/- to the petitioners as the consolidated cost of this writ petition within the said period. (emphasis supplied) If the amount of compensation, as directed above, is not paid within the said period, the petitioner is entitled to get compensatory interest @ 10% per annum in addition to the statutory interest from the date the petitioners were dispossessed from the land till the date of final payment.

In the present case the Court expressed dismay that inspite of the judgment of the High Court dated 22.04.2014 in similar matter, which had attained finality, they have not introspected their previous acts and have again committed the same mistake again.
The Court aptly remarked thus:

The State is a welfare State and the officials should work for the citizen of the State and the officials cannot become Monarch of the State, rather serve the people of the State, as such, their act in the present cases is highly deprecated by this Court.
Thus, this Court is taking serious view of the matter though not enhancing the compensation as it has been considered by the Apex Court in the case of Vidya Devi vs. State of Himachal Pradesh and others reported in (2020) 2 SCC 569, but only granting equal amount of compensation for causing mental agony, embarrassment and declaration to the petitioners by forcible dispossession from their land and putting them in continuous loss of crops and harassment for years as granted by Coordinate Bench in case of similar nature in the same district of Koderma in W.P. (C) No. 7709 of 2011.

This Court has also considered that loss of crops is loss of Nation and these officers have no respect for the same.

Under the aforesaid circumstances, equal amount of compensation shall be added in the compensation of the land while paying to the petitioners, but equal amount along with interest shall be paid @ 7.5% per annum to quantify the compensation, as held by the Apex Court, in the case of Dharampal and Sons vs. U.P. State Road Transport Corporation & Others, reported in (2008) 12 SCC 208, though it was a matter of Motor vehicle accident, but on the point of quantifying the interest, the Apex Court has considered it to be @ 7.5% per annum.

However, these two parts of the amount i.e. equal amount of compensation for causing mental agony, embarrassment, declaration to the petitioners because of forcible dispossession and loss of crops as well as interest shall be charged and paid by the State, but the same shall be recovered from the erring officer(s) in accordance with law within a period of six months from the date of communication of a copy of this order.

Further, cost of Rs.50,000/- shall be paid in each Writ Petition to the petitioners by the State, which shall also be recovered from the salary of the erring officer(s).

In yet another case, Chattisgarh High Court in Alok Lal vs State of Chhattisgarh in WPC No. 4770 of 2019 decided on 22 June, 2021 dealt with a similar issue.

The brief facts of the case are that the land of the petitioner was taken over illegally by the Municipal Corporation without following due course of law.

The Court followed the dictum as enunciated in D.B. Basnett (dead), through legal representatives Vs. Collector, East District, Gangtok Sikkim (2020) 4 SCC 572 & Vidya Devi v. State of H.P. (2020) 2 SCC 569 and deprecated such practice.

The Court lamented that instrumentalities of State should act in consonance with law. The Court observed thus:
9. The Supreme Court in case of Delhi Airtech Services Private Limited and Another Vs. State of Uttar Pradesh and Another reported in (2011) 9 SCC 354 has held that the authorities are instrumentalities of the State and the officers are empowered to exercise the power on behalf of the State and such exercise of power attains greater significance when it arises from the statutory provisions. The level of expectation of timely and just performance of duty is higher, as compared to the cases where the power is executively exercised in discharge of its regular business.

Therefore the administrative norms and principles of fair performance are applicable to the like nature of cases with equal force, as they are to the government department. The well established precepts of public trust and public accountability are fully applicable to the functions which emerges from the public servants or even the persons holding public office. It further observed that the doctrine of full faith and credit applies to the acts done by the officers. There is a presumptive evidence of regularity in official acts, done or performed, and there should be faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed.

Accordingly, the Court held that the Municipal Corporation, which is statutory body constituted under the Act, while dispossessing father of the petitioner did not adhere to the prescribed statute and without payment of any compensation, the petitioner was dispossessed of his right to hold the property which is against the mandate of Article 300-A of the Constitution of India. The Court directed the respondent/Municipal Corporation to grant compensation to the petitioner in lieu of the land acquired as he has been deprived of the property without due course of law or in alternate if there is municipal/government land available he may be alloted 30% municipal/government of total acquired land.

Thus, in view of the declaration of law by the Apex Court, it is no longer 'Res Integra' that the State cannot claim adverse possession over the property of it's citizens more particularly in view of Article 300A of the Constitution.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021

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