1953 Supreme(HP) 21

HIGH COURT OF HIMACHAL PRADESH
CHOWDHRY, J.
Shiv Dutt
Versus
State of H. P.
Writ Petns. Nos.23 and 25 of 1952
Decided On : 03-06-1953

The fundamental right to hold property under Art.19(1)(f) of the Constitution cannot be infringed by the State's action in retaining possession of land without paying rent and without taking any step to acquire it according to law.

Headnote:

LAND ACQUISITION - Fundamental right to hold property - Infringement - Acquisition of land by former ruler of Baghat State - Whether lawful - Whether act of State - Recognition of petitioners' right by respondent State - Retrospective operation of Art.226 of the Constitution - Writ of mandamus.

Fact of the Case:

The petitioners, claiming to be the proprietors of certain land in the town of Solan, filed two petitions under Art.226 of the Constitution to enforce their fundamental right to hold property guaranteed by Art.19(1)(f), due to an alleged contravention of the provisions of Art.31. The petitioners alleged that the land was originally taken on rent by the ruler of Baghat for holding Solan fair, that no rent had been paid since 1938, that in that year the ruler called upon only one of the petitioners to show cause why the land be not permanently acquired for the said purpose and that the petitioner objected to the acquisition. The petitioners further alleged that despite repeated demands the ruler neither paid any rent or compensation nor released the land but continued to use it as aforesaid. The last demand was made by an application dated 22-3-1948, but by an order dated 10-4-1948 the ruler refused to release the land, said nothing about payment of compensation and directed the balance due to the Zamindars, which, according to the petitioners, only meant arrears of rent, to be paid. The respondent State contested the petitions, admitting that the land belonged to the petitioners, but pleading that it had been lawfully acquired in the year 1938 by the ruler of Baghat for the public purpose of holding the fair, that the petitioners were duly informed of the same, that suitable compensation at Rs.125/- per bigha was also fixed, but that the petitioners never turned up to receive it.

Finding of the Court:

The Court found that the land in question was never acquired by the ruler of Baghat State and that the petitioners' fundamental right to hold property under Art.19(1)(f) of the Constitution had been infringed by the respondent State's action in retaining possession of the land without paying rent and without taking any step to acquire it according to law.

Issues: 1. Whether the petitioners' fundamental right to hold property under Art.19(1)(f) of the Constitution had been infringed by contravention of the provisions of Art.31? 2. Whether there had been diversion of property to another purpose, and, if so, what was its effect? 3. Whether the property was acquired by the then ruler of Baghat State, and if so, did the acquisition constitute an act of State by an executive head with full sovereign powers, and therefore it cannot be challenged? 4. Whether the contesting respondent has not recognised the right of the petitioners, and therefore the latter have no locus standi? 5. Whether the present petitions under Art.226 of the Constitution are not maintainable because, if at all, the petitioners had, before filing the petitions, chosen another remedy which they did not pursue? 6. Which of the reliefs claimed by the petitioners, if any, are time-barred? 7. Whether the petitions are not properly framed as petitions under Art.226? 8. Whether the petitioners wore guilty of laches and the petitions should therefore be dismissed on that ground? 9. Whether the petitioners seek retrospective operation of Art.226, and, if so, what is its effect? 10. Whether the petitioners are not entitled to any writ inasmuch as their title is disputed and the same cannot be decided in the present proceedings? 11. To what relief, if any, are the petitioners entitled?

Ratio Decidendi: 1. The Court held that the petitioners' fundamental right to hold property under Art.19(1)(f) of the Constitution had been infringed by the respondent State's action in retaining possession of the land without paying rent and without taking any step to acquire it according to law. 2. The Court held that the land in question was never acquired by the ruler of Baghat State and that the petitioners' fundamental right to hold property under Art.19(1)(f) of the Constitution had been infringed by the respondent State's action in retaining possession of the land without paying rent and without taking any step to acquire it according to law. 3. The Court held that the acquisition of the land by the ruler of Baghat State did not constitute an act of State by an executive head with full sovereign powers, and therefore it could be challenged. 4. The Court held that the respondent State had recognised the petitioners' right to the land by recording them as proprietors of the land in the latest Jamabandi prepared before the institution of the present petitions. 5. The Court held that the present petitions under Art.226 of the Constitution were maintainable because the petitioners had not chosen another remedy before filing the petitions. 6. The Court held that none of the reliefs claimed by the petitioners were time-barred. 7. The Court held that the petitions were properly framed as petitions under Art.226. 8. The Court held that the petitioners were not guilty of laches and that the petitions should not be dismissed on that ground. 9. The Court held that the petitioners were not seeking retrospective operation of Art.226 of the Constitution. 10. The Court held that the petitioners were entitled to a writ of mandamus directing the respondent State to acquire the land according to law, and, if it failed to do so, to restore possession of the land to the petitioners.

Final Decision: The Court allowed the petitions and ordered the respondent State to acquire the land in question according to law within three months from the date of the judgment, otherwise, to restore possession of the land to the petitioners. The respondent State was also ordered to pay costs to the petitioners.