TUKARAM KANA JOSHI THR. POWER OF ATIORNEY HOLDER & Ors. v. M.l.D.C & Ors.

2.1 The High Court committed an error in holding the G 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 H TUKARAM KANA JOSHI & ORS. THR. POWER OF ATIORNEY HOLDER v. M.l.D.C. 33 action on the part of those authorities. The claimants are A 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 B not permissible, particularly when done at the behest of the State itself. [Para 14] [43-H; 44-A-B]

2.2 The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a C status beyond one that is provided by the Constitution. The Constitution of India is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of D 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 of action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the E 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 F conscience. [Para 1 O] [42-B-E] H.D Vora v. State of Maharashtra and Ors. AIR 1984 SC 866: 1984 (2) SCR 693 - relied on.

2.3 The question of condonation of delay is one of G 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 H 34 SUPREME COURT REPORTS [2012] 13 S.C.R. A 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 B 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 c substantially equitable. [Para 11) [42-E-H; 43-A] P. S. Sadasivaswamy v. State of T. N. AIR 197 4 SC 2271: 1975 (2) SCR 356; State of M.P. and Ors. v. Nandlal Jaiswal and Ors. AIR 1987 SC 251: 1987 (1) SCR 1; and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors. D (2009) 1 sec 768: 2008 (15) SCR 194 - relied on.

2.4 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 E 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 G 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. [Para 12] [43-B-E] F Durga Prasad v. Chief Controller of Imports and Exports H TUKARAM KANA JOSHI & ORS. THR. POWER OF ATIORNEY HOLDER v. M.l.D.C. 35 and Ors. AIR 1970 SC 769: 1969 (2) SCR 596; Collector, A Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. AIR 1987 SC 1353: 1987 (2) SCR 387; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors. AIR 1993 SC 802: 1992 (2) SCR 155; Dayal Singh and Ors. v. Union of India and Ors. AIR 2003 SC 1140: 2003 (1) B SCR 714; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar and Ors. AIR 2011 SC 2161: 2011 (7) SCR 468 - relied on.

#3. The appellants have been seriously discriminated against qua other persons, whose land was also C 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 D 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 anci excused as it remains E a slur on the system of governance and justice alike, and an anathema to the doctrine of equality, which is the soul of the Constitution. Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at F 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 G amount of compensation that is likely to be paid to him at a belated stage. [Para 17] [44-H; 45-A-D] K. Krishna Reddy and Ors. v. The Special Dy. Collector, H 36 SUPREME COURT REPORTS [2012] 13 S.C.R. A Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh, AIR 1988 SC 2123: 1988 (2) Suppl. SCR 853 - relied on. 8

#4. 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 the date of this judgment. 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 ne.wspapers either of the notification or of the C 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 D thus, be concluded most expeditiously. The market value of the land in dispute 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. [Para 20] [46-B-F] E Case Law Reference: 1994 (1) Suppl. SCR 807 Relied on 2007(2) SCR 980 Relied on 2010 (12) SCR 163 Relied on 2011 (6) SCR 443 2011 (14) SCR 211 Relied on Relied on 2012 (12) SCR 191 Relied on Para 1 Para 2 Para 2 Para 2 Para 2 Para 2 F G H TUKARAM KANA JOSHI & ORS. THR. POWER OF ATTORNEY HOLDER v. M.l.D.C. 37 1984 (2) SCR 693 Relied on Para 4 A 1975 "(2) SCR 356 Relied on Para 5 1987 (1) SCR 1 Relied on Para 5 2008 (15) SCR 194 Relied on Para 5 1969 (2) SCR 596 Relied on Para 6 1987 (2) SCR 387 Relied on Para 6 1992 (2) SCR 155 Relied on Para 6 2003 (1) SCR 714 Relied on Para 6 2011 (7) SCR 468 Relied on Para 6 1988 (2) Suppl. SCR 85~ Relied on Para 9 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7780 of 2012. From the Judgment & Order dated 14.11.2011 of the High Court of Judicature at Bombay in Writ Petition No. 9513 of 2009. V.C. Daga, Dilip Annasaheb Taur, Sujay N. Gowde, Retu Rastogi, Anil Kumar for the Appellant. B c D E Guru Prasad Pal, Ramni Taneja, Anil Shrivastav, Pankaj Bhasme, A.S. Bhasme, B.H. Marlapalle, Shankar Chillargei F Asha Gopalan Nair for the Respondents. The Judgment of the Court was delivered by 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 G H 38 SUPREME COURT REPORTS [2012) 13 S.C.R. A 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: B 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 C 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 D 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. E F B. Similarly situated persons who were also deprived of their rights in a similar manner were granted compensation vide order dated 17.6.1966. G 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 H been pursuing the authorities persuading them to complete the TUKARAM KANA JOSHI & ORS. THR. POWER OF ATTORNEY HOLDER v. M.l.D.C. [DR. 8.S. CHAUHAN, J.] 39 deemed acquisition proceedings, but despite their efforts, even A 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 B 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. C 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 D 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, E 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 F the non-availability of certain documents. Hence, this appeal.

#4. We have heard the learned counsel for the parties and perused the record. G

#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 H 40 SUPREME COURT REPORTS [2012) 13 S.C.R. A 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 8 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 C 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 D Jilubhai Nanbhai Khachar, etc. etc. v. State of Gujarat & Anr., AIR 1995 SC 142, it has been held as follows:- E "/n 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 Jaw. 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 F 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 G 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 H SCC 448; Amarjit Singh & Ors. v. State of Punjab & ·Ors. TUKARAM KANA JOSHI & ORS. THR. POWER OF ATTORNEY HOLDER v. M.l.D.C. [DR. B.S. CHAUHAN, J.] 41