Right To Property Still A Constitutional Right: SC Warns Himachal Pradesh Govt Of Exemplary Cost For Acquiring Property Without Compensation

The Supreme Court recently refrained from imposing cost on the state of Himachal Pradesh government for filing SLP against an order of the High Court directing the compensation to be paid for acquisition of land. The Court observed that the State "cannot be permitted" to acquire the property of citizens without paying appropriate compensation.

The Court made the observation while hearing a Special Leave Petition against a Himachal Pradesh High Court Order that had held the state government had failed to establish that it had acquired the consent of certain land owners before taking possession to build roads, deeming their claim of having obtained oral consent "unsustainable in law". The High Court had said the state government had "no other option but to clear the land in accordance with law and pay compensation".

The Supreme Court noticed that it has come across several matters wherein the State of Himachal Pradesh had challenged the orders passed by Division Benches of the Himachal Pradesh High Court directing the compensation to be paid in land acquisition cases.

A two-Judge Bench of Justice B.R. Gavai and Justice K.V. Vishwanathan said, "Although the right to property is no longer considered a fundamental right, it is still a constitutional right. The State cannot be permitted to acquire citizen land without paying appropriate compensation." While the Court said it found the case fit for imposing exemplary costs, it refrained from doing so.

Advocate Varinder Kumar Sharma appeared for the State of Himachal Pradesh.

The cases relate to the taking of possession of certain properties by the state government in the 1970s and 80s for the construction of roads. The Petitioners argued before the High Court that before construction began, they had raised objections and requested the government to acquire their lands in accordance with the Land Acquisition Act, 1894. The land owners allowed the construction on an undertaking given by the government that acquisition proceedings would be started and compensation would be paid. However, they said, none was ever paid.

The state government had argued that the construction of roads was only undertaken after representations were made to it to provide them with road connectivity and no objections were raised during construction. Therefore, it contended, there was no provision of acquisition of land in the budget and the land owners were not entitled to the payment of any compensation. 

The High Court, in its Order, records that the state government had argued before the High Court that lands of the owners were only taken after obtaining their oral consent. However, the Court found this contention to be "unsustainable in the eyes of law", noting that the state had not placed anything on record to establish the consent of the owners at the time of the construction of the road or any time after that.

The Supreme Court's Judgment in Vidya Devi v. State of Himachal Pradesh (2020) was cited, where it had deemed a similar contention about acquisition of oral consent by the State to be "completely baseless". The Court had said,"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 300A, can be inferred in that Article."

"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." the Court had held in Vidya Devi.

Cause Title: State of Himachal Pradesh v. Upender Kumar [Special Leave Petition (Civil) Diary No. 49057/2024]

Click here to read/download the Order