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Shiv Dutt and anr. Vs. State of Himachal Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 23 and 25 of 1952
Judge
Reported inAIR1953HP95
ActsCode of Civil Procedure (CPC) , 1908 - Section 80 - Order 8, Rule 1 - Order 27, Rule 1; ;Constitution of India - Articles 19(1), 31 and 226
AppellantShiv Dutt and anr.
RespondentState of Himachal Pradesh and anr.
Appellant Advocate C.L. Puri, Adv.
Respondent Advocate A.C. Mehta, Acting Govt. Adv.
DispositionPetition allowed
Cases ReferredJeshingbhai v. Emperor
Excerpt:
constitution - infringement - articles 19 (1) (f), 31 and 226 of constitution of india and code of civil procedure, 1908 - petitions to enforce fundamental right to hold property guaranteed by article 19 (1) (f) due to alleged contravention of article 31 - admittedly land belonged to petitioners - respondent urged that land was lawfully acquired by ruler of baghat for public purpose of holding solan fair on fixation of compensation - petitioners made representations to authorities for release of land but without avail and they were informed that land was required for government purposes - allegedly no proceedings under act ever took place and no compensation was fixed or paid and that land is being retained without consent of petitioners - further allegation that very object for which.....chowdhry, j.c.1. these are two petitions under article 226 of the constitution to enforce the fundamental right to hold property guaranteed by article 19(1)(f), due to an alleged contravention of the provisions of article 31, directed against the state of himachal pradesh, one by balaram in respect of 3 bighas and 13 bis-was, and the other by shiv dutt in respect of 1 bigha 1 biswa and 15 biswansis, the two areas forming one compact piece of land in the town of solan,2. the allegations in the two petitions, except for a slight variation (to be referred to presently), are identical. the petitioners claim, along with their co-owners, to be the proprietors of the respective areas. the co-owners, krishna dutt minor in the case of balaram andmt. gangi in that of shiv dutt, have been, impleaded.....
Judgment:

Chowdhry, J.C.

1. These are two petitions under Article 226 of the Constitution to enforce the fundamental right to hold property guaranteed by Article 19(1)(f), due to an alleged contravention of the provisions of Article 31, directed against the State of Himachal Pradesh, one by Balaram in respect of 3 bighas and 13 bis-was, and the other by Shiv Dutt in respect of 1 bigha 1 biswa and 15 biswansis, the two areas forming one compact piece of land in the town of Solan,

2. The allegations in the two petitions, except for a slight variation (to be referred to presently), are identical. The petitioners claim, along with their co-owners, to be the proprietors of the respective areas. The co-owners, Krishna Dutt minor in the case of Balaram andMt. Gangi in that of Shiv Dutt, have been, impleaded as pro forma respondents.

3. The petitioners' case is 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 Balaram to show cause why the land be not permanently acquired for the said purpose and that Balaram objected to the acquisition. A certified copy of the statement of Balaram, dated 27-4-1938, making the objection has been filed. The petitioners further allege 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 (certified copy filed), 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.

4. That was almost on the eve of accession, to India of 21 former Punjab Hill States, including Baghat, with their tributaries and the formation of the respondent State of Himaehal Pradesh on April 15, 1948. About three years thereafter, viz. on 12-4-1951, the petitioners-were summoned, as they allege, by the Tehsildar of Solan and informed that the price of the land had been settled at Rs. 125/- per bigha. The petitioners contend that it was only then that they came to know for the first time that the land was being acquired permanently for a nominal price.

5. The petitioners contend that they had been making representations to the authorities for the release of their land but to no efflect. Finally, the Assistant Secretary (Home and Revenue) informed the petitioners by his letter dated 25-6-1952 (filed in original) that the land in question could not be released 'as the same is required for Government purposes'. The present petitions were filed on 15-9-1952.

6. The contentions of the petitioners are that no proceedings under the Land Acquisition Act I of 1894 were ever taken in that no compensation was fixed or paid nor formal possession taken according to law, and that the, land is being retained without the consent of the petitioners. It is further alleged that the very object for which the land was originally taken on rent did no longer exist as for the last two years the fair was being held at another place, called the Thodo ground, & the land in question was being used as a jail garden. It is, therefore, alleged that the action of the former ruler of Baghat was arbitrary, illegal and ultra vires, and so also that of his successor, the respondent State of Himachal Pradesh, which is alleged further to have contravened the provision of Article 31 of the Constitution.

7. The petitioners, therefore, pray for the issue of the 'directions, orders and writs (1) that respondent 1 (the State of Himachal Pradesh) should no longer continue to use the said land as jail garden and should immediately, deliver back possession of the same to the petitioners & their co-owners, & (2) that such other orders & directions as may be deemed fit and proper after taking into consideration the attitude of respondent 1 and its predecessor, theruler of Baghat, in arbitrarily withholding payment of rent at the agreed rate of Rs. 30/-per bigha since 1938 and retaining possession of the land in dispute against the) express wishes of the petitioners, may kindly be passed.'

8. In the petition of Balaram twp other respondents have been impleaded besides his co-owner and the State of Himachal Pradesh, viz. Ram Sukh Dass and Assa Ram, sons of Shiv Ditta Mal, on the allegation that they had constructed a shed on one biswa (described in the petition) out of the 3 bigwas and 13 biswas in dispute with the consent of the State of Himachal Pradesh. The petitioner, therefore, prays for the additional relief that these respondents be ordered to demolish the shed and deliver possession of its site to the petitioner and his co-owner. This is the variation in one of the petitions referred to above.

9. Ram Sukh Dass and Assa Ram did not put in appearance despite service of notices. The State contested both the petitions. It was admitted that the land in question belonged to the petitioners, and that it was taken on rent by the former ruler of Baghat for holding the Solan fair. It was, however, pleaded that the land 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/- was also fixed, but that the petitioners never turned up to receive it. It was, therefore, contended that the efforts of the petitioners for release of the land were misconceived. To the petitioners' allegation of diversion of the property for the last two years to another purpose, viz., to its use as a jail garden, the contesting respondent pleaded ignorance. It was further pleaded that the acquisition of the land by the then ruler of Baghat, who was the executive head of the State and enjoyed sovereign powers, was an act of State which could not be challenged; that the petitioners had no locus standi as the State of Himachal Pradesh, as successor to the ruler, never recognised the alleged right of the petitioners; that the claim of the petitioners for recovery of rent or com-pensation or of possession of the land is time-barred; and that the petitioners served two notices on the respondent and themselves thus chose a remedy which, however, they did not pursue but have instead invoked the extraordinary jurisdiction of this Court by way of petitions under Article 226 of the Constitution.

10. I have to say a word here with regard to the written-statement filed on behalf of the State. To the petitioners' allegation that on 12-4-1951 they were summoned by the Tehsildar of Solan and informed that price of land had been settled at Rs. 125/- per bigha, and that it was only then that they came to know for the first time that the land was being acquired permanently for a nominal price, the respondent replied that the petitioners had knowledge of the permanent acquisition of the land, not on 12-4-1951, but on 27-1-1938, when the ruler of Baghat is alleged to have initiated steps to acquire the land, or in any case on 2-5-1938, when he is said to have fixed compensation at Rs. 125/- per bigha. It was not stated whether the allegation as to the Tehsildar having summoned the petitioners on 12-4-1951 and informed them of fixation of price at Rs. 125/- per bigha was ad-mitted or denied. Equally prevaricative were the respondent's replies to the petitioners' averments that they made several abortive representations for return of the land, and that finally they were informed by the Assistant Secretary (Home and Revenue) by a letter dated 25-6-1952 that the land could not be released as the same was required for Government purposes. With regard to the former it was not stated whether the representations had, or had not, been madet, but that the efforts of the petitioners were misconceived. With regard to the latter the reply was that the petitioners 'may have received the letter', and that despite the fact that the letter in question had been filed in original and purported to have emanated from an officer of the respondent. The respondent pleaded ignorance as to the petitioner Balaram having made a statement before the Ruler on 27-4-1938 that he objected to the acquisition of the land. This is strange, seeing that a copy of the statement certified as true copy on 4-8-1952 by an official of the respondent had been filed by the petitioner. The respondent further pleaded ignorance to the petitioners' allegations of diversion of the land to another use and of construction of a shed on a portion of it by the respondents Ram Sukh Dass & Assa Ram which is extremely strange since the former act was alleged to have been done by the contesting respondent itself and the latter with its consent.

11. Of course, these evasive replies avail the respondent nothing since, in view of the provisions of Rules 3 to 5 of Order 8, Civil P. C., it will be taken to have admitted the allegations in question. But it is regrettable that a written-statement fited on behalf of the State should have laid itself open to the above criticism. The reason for it appears to be that the preparation of the written-statement was entrusted to the Government Advocate. Order 27, Rule 1 of the Code makes it obligatory that in any suit by or against the Government the pleadings shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and verified by any person so appointed and acquainted with the facts of the case,. A written-statement filed on behalf of the Government in reply to a writ petition instituted in this Court is not exempt from the provisions of this rule. It may be that the State had appointed the Government Advocate to sign and verify the writtenr-statement, but in doing so it obviously contravened that portion of the above mandatory rule which requires such person to be acquainted with the facts of the case. True, 'acquainted' in the rule is a wide word and may also mean 'acquainted on the authority of information received from others'. --'Port Canning Co. v. Dharni-dhar', 9 Cal W N 608 (A). Indeed, the Government Advocate may well take shelter behind this wida interpretation of the word, for he has verified the contents of the written-statement as being true to the best of his instructions. But then the task of imparting instructions to the Government Advocate in this case does not appear to have been entrusted to an officer who was acquainted, or who took the trouble of acquainting himself, with the factsof the case. Judged by any standard, the filing of a written-statement is a responsible task: it is much more so when the party filing it is the State and the proceeding one instituted on a writ petition under Article 226 of the Constitution. It is 1o be hop-ed therefore that in future a responsible officer of the Government acquainted with the facts of the case is entrusted with the task of signing and verifying a pleading on behalf of the Government, or of at least giving the requisite information to the person signing and verifying the pleading.

12. From the above pleadings, and from certain additional grounds taken in the course of arguments by the learned acting Government Advocate, the following are the points that arise for determination:

(1) Has the petitioners' fundamental right to hold property under Article 19(1)(f) of the Constitution been infringed by contravention, of the provisions of Article 31? (2) Whether there has been diversion of property to another purpose, and, if so, what is its effect? (3) Was the property 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, & therefore the latter have no locus standi? (5) Whether the present petitions under Article 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 undar Article 226? (8) Whether the petitioners were guilty of laches and the petitions should therefore be dismissed on that ground? (9) Whether the petitioners seek retrospective operation of Article 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?

13. Before I take up the above points I have to dispose of a preliminary objection of the learned counsel for the respondent relating to the affidavit filed by the petitioners in support of their respective petitions. He pointed out various defects in the affidavits : Firstly, the verification was defective in two ways : it did not purport to be on oath or solemn affirmation, as required by rule 15, Chapter 12-B, Volume IV of the Punjab High Court Rules and Orders which have been adopted by this Court, and facts within the petitioners' knowledge were not spoken to directly, as required by Rule 9 (iii) of the said Chapter in conformity with Order 19, Rule 3, C. P. C., but indirectly by the use of the words 'to the best of my knowledge'. Secondly, the documents referred to in the affidavits were not exhibited, as required by Rule 12, nor attested in form, II-A of the same Chapter. The objections are well founded, and, so far as the first objection is concerned, that would form a good, ground for rejection of the affidavits. But that would not affect the disposal of the present cases since it depends on facts which are either admitted, orwhich have not been substantiated, by the respondent.

14. Of a preliminary nature are also the contentions of the respondent which gave rise to points 5 to 8. These may therefore be disposed of first. As regards the fifth point, the argument was that the petitioners gave notices to the respondent under Section 80, C. P. C. The notices have not been filed. But the mere fact of the petitioners having given such notices does not mean that they had chosen the remedy of filing a suit, or, if they had chosen that remedy, that they were thereby estopped from filing the present petitions under Article 226 of the Constitution, if they were otherwise entitled so to do. The ruling,--'Punjab National Bank Ltd. v. A. N. Sen', AIR 1952 Punj 134 (B), cited by the learned acting Government Advocate, does not support the contention. That was a case relating to an order passed by an Industrial Disputes Tribunal, and the writ petition filed under Article 226 for quashing the order was dismissed on the ground that as the Industrial Disputes (Appellate Tribunal) Act 48 of 1950 provided a specific and adequate legal remedy for the redress of the injury, if any, the proper course for the aggrieved party was to pursue that remedy before applying to the High Court for relief under Article 226 when no case of want of jurisdiction or excess of jurisdiction was established. There was no enactment cited in the present case whereunder the petitioners could have pursued their remedy. On the contrary, it was held by this Court in--'Chamba Valley Transport Ltd. v State of Himachal Pradesh', AIR 1953 Him - P. 8 (C), as follows :

('There is no other statute but the Constitution which prescribes the remedy of the enforcement of the fundamental rights, and the power of enforcement of those rights has been conferred on only the Supreme Court under Article 32 and the High Courts under Article 226. There is therefore no other adequate remedy open to a person whose fundamental right has been infringed.'

It follows therefore that, infringement of a fundamental right being the grievance of the petitioners, the proper course for them was to file, as they have done, these petitions under Article 226.

15. As regards the sixth point, neither arrears of rent nor compensation has been specifically prayed for, and the petitioners' learned counsel stated that these reliefs were not claimed. The relief of restoration of possession is obviously not time-barred since the petitioners' right to it on foot of infringement of a fundamental right came into existence only on the enforcement of the relevant provisions of the Constitution on 26-1-1950.

16. The contention of the learned counsel for the respondent giving rise to the seventh point was based on two decisions:--'Dhan Bahadur v. The State', AIR 1953 Assam 61 (D), and--'Laxman Singh v. Raj Pramukh of Madhya Bharat', AIR 1953 Mad-B. 54 (E). The former was a Criminal Miscellaneous case started on a petition purporting to be one under Rule 22 of the. Rules for Administration of Justice and Police in the Garo Hills District against an order of expulsion passed against the petitioner by the Deputy Commissioner. TheHigh Court was of the view that the rule in question did not empower it to hear an appeal or revision from the order. Thereupon the petitioners' counsel contended that the petition, may be treated as one under Article 226 of the Constitution. Repelling this con-tention, it was held that mere mention of an Article of the Constitution was not enough to make out a case for issue of an appropriate writ. In the present cases, it is not merely that certain Articles of the Constitution have been mentioned, but, on the contrary, specific allegations have been made, as aforesaid, which, if well founded, would make out a case of infringement of the fundamental right guaranteed to the petitioners under Article 19(1) (f). In the other ruling the practice of couching the prayer in applications under Article 226 in such general terms as 'the Court may be pleased to grant such writs as it may think fit' was condemned. The present petitions do not lay themselves open to such a charge since, as shown the. prayers are specific & precise. The mere fact that mandamus, certiorari or prohibition have not been mentioned is immaterial, for it is for the Court to decide what, in view of the facts and circumstances established, is the proper writ, direction or order that should be issued under Article 226.

17. The argument of the learned counsel for the respondent in connection with the eighth point, viz., that of laches, was that although admittedly the ruler of Baghat refused to return the land to the petitioners by an order dated 10-4-1948 it was only on 15-9-1952, more than four years after the order, that the present petitions were filed. According to the learned counsel 10-4-1948 was the crucial date. This argument is devoid of force. The present petitions could not possibly have been filed immediately after 10-4-1948, or at any time before 26-1-1950, when the relevant provisions of the Constitution came into force. Even after that, the petitioners contend that the Tehsildar of Solan called them on 12-4-1951 and offered them Rs. 125/- par bigha as the price of the land, that the petitioners made representations to the authorities for the release of the land but without avail, and that eventually they were informed by the Assistant Secretary (Home and Revenue) by a letter dated 25-6-1952 that the land could not be released as it was required for Government purposes. These allegations were either specifically or, as adverted to above, impliedly admitted by the respondent. The letter of the Assistant Secretary has been filed by the petitioners in original. Less than three months thereafter the present petitions were filed on 15-9-1952. This delay was not so excessive as to be a bar in itself, and therefore the petitions could not be held to be barred on the ground of laches unless there has been acquiescence on the part of the petitioners or any change of position on the part of the respondent. Halsbury's Laws of England, Hailsham Second Edition, Volume XIII, page 212. Neither of elements is present here. Indeed, the learned counsel for the respondent himself did not refer to the lapse of time between the dates of the letter of the Assistant Secretary and the preferment of the present petitions as delay amounting to laches, although, strictly speaking, this was the only relevant period of time to be taken into con-sideration in connection with the plea of laches since the time before that was taken up in making representations to the respondent. I hold that the petitions cannot be thrown out on the ground of laches.

18. The crucial point requiring determination is the first, and interconnected there-with are the third and tenth points. | That the land in question originally belonged to the petitioners is admitted. That being so, the petitioners have the right to hold the land in exercise of the funda-mental right guaranteed to them by Article 191 (1)(f) unless the right has ceased to exist by reason either of their having been deprived of the property by authority of law under Clause (1), or of the property having been acquired or taken possession of under Clause (2) of Article 31 of the Constitution. In other words, if there has been expropriation of property under either of the aforesaid provisions of Article 31, the question of enforcement of the fundamental right under Article 19 (1)(f) does not arise. --'A. K. Gopalan v State of Madras', AIR 1950 S. C 27 at p. 113 (F);--'Sudhindra Nath v. Sailendranath', AIR 1952 Cal 65 (G); --'Dwarkadas v. Sholapur Spg. & Wvg. Co. Ltd.', AIR 1951 Bom 86 (H). There need be no groping in the dark in these cases as to which of the two provisions of Article 31 is applicable since it is the specific case of the respondent that the land had been lawfully acquired in the year 1938 by the ruler of Baghat for the public purpose of holding the Solan fair on fixation of Rs. 125/- per bigha as compensation--only the petitioners never turned up to receive the compensation. If that be correct, the petitioners' right to en-force their right under Article 19(1)(f) is barred by Clause (2) of Article 31. The petitioners, however, continue to be recorded as proprietors of the! land in the latest Jamabandi prepared before the institution of the present petitions by the revenue officials in the. employ of the respondent. It lay on the respondent, therefore, to prove the alleged acquisition by its predecessor-in-interest, the ruler of Baghat. And this onus could have been easily discharged by the respondent filing certified copies of the two orders of the ruler referred to in the respondent's written-statement, viz, one dated 27-1-1938 by which the acquisition proceedings are alleged to have been initiated, and thei other dated 2-5-1938 by which the proceedings are said to have been confirmed and the compensation fixed. It is not the respondent's contention that the relevant documents of the ruler's time relating to the land in question have not come into its possession. The petitioners have filed certified copies of the aforesaid objection of Balaram dated 27-4-1938, and the last demand for release of land made in the ruler's time on 22-3-1948, the originals of which are in possession of the defendant since the copies* were issued by officials in the employ of the respondent in 1952. Therefore, if the aforesaid or any orders acquiring the land were passed, they should, have been in possession. of the respondent. No such orders have been filed by the respondent. The presumption therefore is that no such orders were really passed. And this presumption stands converted into proof that the land was never acquired by a certified copy of the report of theTehsildar of Solan filed by the petitioners. It is dated the 10th December, but the year is not given the note of the copying department being that the year was torn out on the original. As however there is reference in it to the Deputy Commissioner of Mahasu, the report appears to have been made, after formation of the respondent State. This report is to the following effect :

'In the Court of D. C. Mahasu regarding land for Solan fair.

Forwarded in original to the M.I.C. & A. C. I. Grade for necessary action. The land of the applicant was acquired for public purposes under the order of His Highness the Ruler of Baghat dated 2-5-1938. But it appears that in spite of this order the compensation due to the applicants has not been paid to them so far nor formal possession of the land appears to have been taken.

Now either they should be paid full amount of compensation plus the rent due to them to date and the land may be taken possession of or if considered admissible steps under the Land Acquisition Act may be taken afresh to legalise the proceedings.

Sd/ Jaipal Singh (In English)

T. Solan.

10-12- (torn out).'

19. This document was specifically referred to in Para 9 of the petitions as supporting the petitioners' contention that the land had not been acquired, but the respondent's writ-ten-statement is quite silent with regard to it. True, the report speaks of the land having been acquired for public purposes under an order of the ruler dated 2-5-1938, but, as already stated, the order has not been filed. What is more, the Tehsildar suggests at the end that steps be taken afresh under the Land Acquisition Act to legalize the proceedings. This shows that, whatever the proceedings that were taken in 1938, they were not proceedings taken according to law. The learned counsel for the petitioners_ drew my attention to a notification in the Baghat State gazette for Baisakh 2002 (corresponding roughly to 1945 A. D.) which published a list of enactments in force in the Punjab and the rest of British India and declared 'in order to clarify the position' that those enactments 'are applicable mutatis mutandis to the Baghat State'. Among these enactments figured also the Land Acquisition Act (1 of 1894). The wordings of the notification show that the enactments, including the Act just mentioned, were already in force in Baghat State before the publication of the notification. The. respondent has not shown when exactly this Act was enforced in Baghat State. Presumably, it was in force in 1938 also since it is said that the land was acquired for a public purpose on fixation of compensation,. In any case, even if the Act was for the first time promulgated in the State in 1945, there was ample time before merger of the State 'to legalise the proceedings', in the language of the Tehsildar's report. In point of fact, all this secretiveness on the part of the respondent in regard to a matter which was easily capable of clarification by the production of necessary documents from the archives of the former Baghat State, whichhave demonstrably come into its possession, is quite understandable and is reconcilable with only one possibility, namely, that the intention of the ruler to acquire the land was never translated into action. And this possibility is turned to certainty by a perusal of the aforesaid letter of the Assistant Secretary (Home and Revenue) wherein as late as 25-6-1952 it was still stated that the land could, not be released, not because it had already been duly acquired, but because it was required for Government purposes. The irresistible conclusion is that the latest Jamabandi represents the true state of affairs: the land was never acquired and the petitioners and their co-owners, the pro forma respondents, continue to be its owners. That being so, the petitioners have1 not been expropriated under Article 31, and I hold that the action of the respondent State in retaining possession of the land without paying any rent since 1938. and on the mere ground that it was needed for a public purpose, without taking any step to acquire it according to law, amounts to a clear infringement of the fundamental right of the petitioners to hold their; property under Article 19(1)(f) of the Constitution.

20. I have stated above that the third and tenth points are interconnected with the first which has just been disposed of. It having been found that the land was never acquired, thei question of such, an acquisition by the ruler amounting to an unchallengeable act of State does not arise. As regards the tenth point, the learned counsel for respondent cited two cases : --'Mohi Chandra v. Secretary Local Self Government of Assam', AIR 1953 Assam 12 (I) and Samarendra v. The University of Calcutta', AIR 1953 Cal 172 (J). There is no doubt that proceedings under Article 226 being of a summary nature, no writ will issue where the right to it de-pefads on proof of complicated questions of fact which are not capable of establishment in such proceedings. But where the disputed questions of fact are easily provable, as, for example, by the filing of originals or certified copies of incontrovertible documents, relief will not be disallowed in such proceed- ings on the mere ground of the facts stated by the petitioner being disputed by the oppo- site party. In the present cases, as already seen, the dispute raised by the respondent with regard to the petitioners' title to the land was easily capable of being resolved by the respondent filing originals or certified copies of documents relating to acquisition, of land which, did they exist, should have been in its possession. The respondent's-plea giving rise to the tenth point has also therefore no force.

21. In support of the plea of the respondent which gave rise to the fourth point the ruling --'Asrar Ahmed v. Durgah Committee Ajmer', AIR 1947 P. C. 1 (K), was cited. That was a case where the plaintiff-appellant claimed the right to office of mutawalli of a Durgah in Ajmer on the grounds of its being hereditary in his family on foot of a sanad? granted to a predecessor of his in 1813 by the House of Scindia. In 1818 Ajmer was cededto the British by Scindia. And in that connection their Lordships observed as follows :

'From this it follows that the rights, which the inhabitants of that State enjoyed against its former rulers, availed them nothing against the British Government and could not be asserted in the Courts established by that Government except so far as they had been recognised by the new Sovereign Power. Recognition may be by legislation or by agreement express or implied. This well-established rule of law, for which reference may be made to --'Secy of State v. Bai Rajbai', AIR 1915 PC 59 at p. 62 (L) and --'Vajesinghji Jorawarsinghji v. Secy, of State', AIR 1924 PC 216 at P. 217 (M), appears to their Lordships to be peculiarly applicable to an office, to which material benefits appertain and which, so far as the records show, had consistently been regarded as within the disposition of the Sovereign Power. Their Lordships think that this aspect of the matter has perhaps not received sufficient attention in the Courts of India. The first question then is whether after the cession of 1818 the hereditary right of the appellant's family to the office of Mutawalli was recognized by the British Government. Counsel for the appellant could point to no instrument or act which amounted to an express recognition of such a right. Is it then to be implied from the conduct or mode of dealing with the matter by the British Government? The contrary seems to be established beyond all possible doubt.'

The right claimed by the petitioners in the present case is the right of ownership in the land in question. The act of the respondent State which amounts to an express recognition of thaf right is the mode in which it has been dealing with it. And this, as adverted to already, is that it has bean recording the petitioners and their co-owners as proprietors of the land. The State has therefore recognised their right after the merger of the former State of Baghat, and that right can be asserted by them in the Courts established by the present Government.

22. The respondent's plea on which the ninth point arose is equally devoid of force. There is no doubt that the provisions of the Constitution are not retrospective, so that no writ can be issued under Article 226 in respect of any act done before the commencement of the Constitution, as laid down in the following case cited by the learned counsel for the respondent : --'Mahabir Parshad v. Commissioner of Income Tax Punjab', AIR 1953 Punj 16 (N). But the act against which the present petitions are directed is one done after the commencement of the Constitution. True, the ruler of the former Baghat State was wrong in not releasing the land although he neither paid rent nor acquired the land, but that was before the Constitution came into force. At that time the fundamental right now sought to be vindicated did not exist. As held by this Court in --'AIR 1953 H. P. 8 (C)',

'In short, the right in question was, prior to that date (meaning 26-1-1950 when the Constitution commenced), simply non esse. There could, therefore, be no question of its ante-Constitution infringement or petitioner's acquiescence in the infringement.

For the same reason, there could also be no question of retrospective application of the provisions of Article 19 of the Constitution. The right in question became exercisable as soon as it assumed the badge of a legal right by being recognised by the State in our Constitution, irrespective of whether the act which gave cause to the exercise of the right was performed before or alter the birth of the right. Or, borrowing with respect the reasoning of Chagla, C. J., in the aforesaid ruling, --'Jeshingbhai v. Emperor', AIR 1950 Bom 363 (O), (at p. 366, first column), what the petitioner is doing by the present petition is not so much the challenging of the act of the respondent in stopping the carrying on of the petitioner's business as the assertion of a fundamental right granted to the petitioner since 26-1-1950.'

There is therefore no question in this case of retrospective application of the provisions of the Constitution, since, firstly, whatever may have been done by the ruler, the act of the respondent on account of which relief as claimed by these writ petitions continued to be committed even after the coming into force of the Constitution, and, secondly, in the wordings of Chagla, C. J., what the petitioners are doing by the present petitions is not so much the, challenging the act of the respondent as the assertion of a fundamental right granted to them since 26-1-1950.

23. The second point, which appears to be based on the view that once property has been acquired for one purpose it cannot be diverted to another purpose, does not really arise, even supposing that the view is correct, since the property in this case was never acquired for any purpose.

24. This disposes of all the points, and in view of the finding on the first point that the action of the respondent in retaining possession | of the land without paying rent, and on the mere ground that it was required for a public purpose, without taking any step to acquire it according to law amounts to a clear infringement of the fundamental right of the petitioners under Article 19(1)(f) of the Constitution, this is a fit case in which a writ of mandamus should issue to direct the respondent State to do that which has clearly been in the nature of a public duty for it to perform, namely, to acquire the property according to law. And if it fails to perform that duty, there should be a further order for restoration of possession of the land to the petitioners.

25. Accordingly, the petitioners in both the cases are allowed and the contesting respondent, the State of Himachal Pradesh, is hereby ordered, if it wishes to retain possession of the land in question or to acquire it, to do so according to law, and, for the starting of such proceedings according to law, it is hereby given three months time from the date of this judgment; otherwise, it shall restore possession of the land to the petitioners, in which case, if the respondents Ram Sukh Dass and Assa Ram do not remove within two months of the expiry of the aforesaid three, months the superstructure of the constructions made by them or a portion of the land which is the subject-matter of Balaram's petition, the petitioner Balaram will be entitled, at his option, either to havethe superstructure removed at the cost of the said Ram Sukh Dass and Assa Ram, or to restoration of possession of the site along with the superstructure. In each of the two cases the aforesaid contesting respondent shall pay Rs. 50/- as costs to the respective petitioners. In 'Balaram's case the petitioner will get further costs of Rs. 20/- from respondents Ram Sukh Dass and Assa Ram..


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