Himachal Pradesh High Court
Birbal vs State Of H.P. & Others on 8 July, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.2067 of 2008 alongwith CWP Nos.2065, 2081 and
.
2084 of 2008
Date of decision: 08.07.2016
1. CWP No.2067 of 2008
Birbal ....Petitioner
Versus
State of H.P. & Others ....Respondents
of
2. CWP No.2065 of 2008
Daya Ram ....Petitioner
Versus
State of H.P. & Others
rt ....Respondents
3. CWP No.2081 of 2008
Geeta Ram ....Petitioner
Versus
State of H.P. & Others ....Respondents
4. CWP No.2084 of 2008
Inder Pal ....Petitioner
Versus
State of H.P. & Others ....Respondents
Coram
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Petitioners: Mr.G.D. Verma, Senior Advocate
with Mr.B.C. Verma, Advocate.
For Respondents : Mr.Rupinder Singh Thakur,
Additional Advocate General.
Sandeep Sharma,J.
Since common question of law as well as facts is involved in the aforesaid writ petitions preferred on 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 2behalf of the respective petitioners, they all are being taken up together for disposal. Moreover, in all the .
petitions similar/identical relief(s) have claimed by the petitioners.
2. By way of aforesaid writ petitions, petitioners have invoked extra ordinary jurisdiction of this Court of under Articles 226/227 of the Constitution of India and have prayed for the following main reliefs:
rt " (i) That the respondents may be directed to produce total record of the case;
(ii) That appropriate orders and directions may be issued in favour of the petitioners against the respondents requiring them either to initiate acquisition proceedings and pay the amount of compensation with respect to aforesaid land of the petitioner and in case they are not ready and willing to do so, in that event the respondents may be ordered to restore vacant possession of the land of the petitioner of the aforesaid land and also they may be held liable to pay suitable amount of damages for the period from 1998 till handling over vacant possession of the area in question."
3. Facts, as emerged from the record, are that the land belonging to the petitioners, description whereof is available in para-2 of the petitions respectively, have been used by the respondents for construction of road from `Jalog to Gadheri' in the month of April, 1998.
Respondents started construction work of aforesaid road ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 3 in the month of April, 1998 and used the land of petitioners for the construction of aforesaid road.
.
Pleadings suggest that the petitioners, at the time of construction of the road, raised objections and prayed that before construction of road, respondents may acquire the land in accordance with Land Acquisition Act, 1894 of (for short `Act') and thereafter may commence with the construction of the road in question. However, on the undertaking given by the representatives/officers of the rt respondents-Department that acquisition proceedings would be started and amount of compensation would be paid in accordance with law, the present petitioners allowed the construction of the road through their land.
But, as emerge from record, no compensation, whatsoever, was ever paid to the petitioners in lieu of their land used by the respondents for construction of road in question and as such they were compelled to serve the respondents with the demand notices by registered post. But respondents failed to take any action even after receipt of notice issued on behalf of the petitioners.
Petitioners by way of Right to Information Act procured information, wherein they were informed that road in question was constructed by the department during the ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 4 year 1998-2002 under the State budget and the taring work was also carried out on the spot and road was .
constructed on public demand. However, respondent No.3 informed the petitioner through their counsel that since road in question was made on public demand and moreover, no objection, whatsoever, was raised at the of time of construction, there is no question of any payment of compensation in lieu of the land used by them for construction of the road.
rt Respondents also raised the plea of delay and latches and stated that since demand for payment of amount of compensation has been set up after a lapse of more than 10 years, they are not entitled to any compensation on account of land used for the purpose of road in question. When the claim of the petitioners for grant of compensation in lieu of land used by the respondents for construction of road was denied, they approached this Court by way of instant writ petitions.
4. Respondents, pursuant to issuance of notices, filed detailed reply and refuted the claim put forth by the petitioners. Respondents specifically stated that road was constructed during 1998-2002 with the consent of land owners on their demand and they neither objected the ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 5 construction of road over their land nor they asked for compensation till filing of the present writ petitions.
.
Respondents stated that since there is inordinate delay, the petitions deserve to be dismissed on this ground only.
5. Respondents also submitted that since the claim of the petitioners is seriously disputed by the of replying respondents and there are complicate questions of facts, petitioners should have filed Civil Suit, if any, for relief which is being claimed in the present petitions. At rt this stage, it would be apt to reproduce paras 5, 6 and 7 of the preliminary objections filed in the shape of written statement before this Court, which are as under:-
"5. The present petition is result of after thought to have compensation after completion of construction of road also being used by the petitioner. In case such persons succeed in their goal, there would be endless litigation and unwarranted, unmanaged, unplanned and unexpected financial burden on the Govt. which may result in collapse of system and Govt. may have to be forced to refrain from any such development activities on demand. Hence the present petition deserves to be dismissed.
6. That the department had constructed the road in question by spending a huge budgeted public money in the wider public interest and being itself a Public Demand Road including the petitioner had offered their land involved for the construction of the said road which they had offered willingly and the road was constructed. Since it was a Public Demand Road linked from Basantpur- Kingal DGBR road at Jalog to interior ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 6 station Gadheri, therefore, there was no provision of acquisition of land and payment of compensation in the budget and this fact was well known to every beneficiary of that area including the .
petitioner.
7. That with a view to provide better/satisfactory service of this road to the public including the petitioner, the tarring work of this road had been carried out under PMGSY. Obviously, therefore, this road had not been constructed over night but it had taken more than three years and during that of period neither the petitioner nor the other affected party had claimed compensation of land & restrained the concerned authorities from construction rt of road orally or in writing. Thus the instant CWP claiming the compensation of land at this stage is not maintainable because the petitioner had not coe forward through this petition with clean hands in the Hon'ble Court."
6. Careful perusal of the averments contained in aforesaid paras of the reply suggests that respondents-
department, apart from opposing the petition on ground of delay and latches, also stated that since the department constructed the road in question by spending huge public money in the public interest, petitioners may not be allowed to raise issue with regard to non-payment of compensation, at this belated stage. Respondents also stated that it was a Public Demand Road linked from Basantpur-Kingal DGBR road at Jalog to interior station Gadheri, therefore, there was no provision of acquisition ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 7 of land and payment of compensation in the budget, as such, petitioners are not entitled to any payment of .
compensation on account of acquisition of land.
Respondents specifically stated that with a view to provide better/satisfactory service of this road to the public including the petitioners, the tarring work of this road of was carried out under PMGSY. Therefore, this road had not been constructed over night and as such present petitioners claiming compensation of land at this stage is rt not maintainable.
7. Petitioners by way of filing rejoinder refuted the averments contained in paras 5, 6, and 7 and reiterated that they are entitled to compensation in terms of the Act as it stands duly proved on record that their land was used by the respondents for construction of the road in question.
8. Today when the matter was listed before this Court for hearing, learned Senior Counsel for the petitioners moved an application bearing CMP No.5077 of 2016, placing therewith a copy of award passed by the Additional District Judge-I, Shimla in land Reference No.1-S/4 of 2007, dated 31.12.2014 (Annexure-PB) to demonstrate that similar situate person, whose land was ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 8 also acquired for the construction of road in question, was paid compensation in lieu of land acquired by the State of .
Himachal Pradesh for construction of the road. Since respondents in their reply had stated that road in question was constructed on public demand with the State budget and that work was completed by doing tiring of work under PMGSY Scheme and no acquisition proceedings were started, petitioners filed the copy of award passed by Land Acquisition Collector to rebut the rt aforesaid contentions put forth on behalf of the respondents.
9. Shri G.D. Verma, learned Senior Counsel representing the petitioners, vehemently argued that it stands duly proved on record that the land of the petitioners were used by the respondents-Department for construction of Jalog-Gadheri road and no compensation, whatsoever, was ever paid to them in lieu of land required for the construction of the said road in question. He forcefully contended that factum with regard to use of land of the petitioners has nowhere been denied by the respondents, rather, very strange plea of tarring work of this road carried out under PMGSY has been taken, which cannot be a ground to reject the rightful claim of the ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 9 petitioners. Mr.Verma forcefully contended that the plea of delay and latches, at this stage, cannot be allowed to .
raise by the respondents-department because immediately after use of the land of the petitioners, respondents were served with the demand notice, but they, on one pretext or the other, kept on deliberately of delaying the matter. Lastly, Mr.Verma contended that bare perusal of the award Annexure-PA & Annexure-PB annexed with the application bearing CMP No.5077 of rt 2016 clearly suggests that similar situate person, whose land was also used for construction of the road in question, has been paid due and admissible compensation after initiating proceedings under the Act.
10. Shri Rupinder Singh Thakur, learned Additional Advocate General, opposed the aforesaid submissions having been made on behalf of the petitioners and stated that since road in question was constructed on public demand, there was no occasion, whatsoever, for the respondents to acquire the land of the petitioners. It is also contended on behalf of the respondents-State that road in question was constructed in the year 1998-2002, whereas present petition(s) for claiming compensation has/have been filed in the year ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 10 2008, meaning thereby that there is a delay of more than 11 years and as such no plea for compensation, if any, .
could be entertained by this Court at this belated stage.
11. Mr.Thakur also reiterated the stand taken by the respondents in the reply that since the tarring work of the road was done in PMGSY Scheme, there is/was no of question of granting any compensation to the petitioners for use of their land for construction of the road.
However, when this Court invited the attention of the rt learned Additional Advocate General towards the award dated 31.12.2014 (Annexure-PB), granting compensation to the owner of the land, whose land was also used by the respondents for construction of Jalog-Gadheri road, learned Additional Advocate General was unable to carve out any distinction between the petitioners as well as the beneficiaries of the award dated 31.12.2014 placed on record by the petitioners.
12. From careful perusal of the documents available on record, it is undisputed that lands belonging to the petitioners were used by the respondents-State for the construction of Galog-Gadheri road in the year 1998- 2002 and it is also undisputed that no compensation, whatsoever, was ever paid to the petitioners in lieu of the ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 11 land which was acquired for the construction of the road.
Respondents neither in their reply nor in the oral .
submissions, having been made at the time of hearing, disputed that lands of the petitioners were not used for construction of the road. Rather, very strange plea has been taken by stating that since tarring of the road in of question was done under PMGSY Scheme, there is/was no question of grant of any compensation. Respondents though have taken plea of delay and latches but have not rt placed on record any document to rebut the plea raised on behalf of the petitioners that they have been repeatedly requesting the respondents to acquire the land in accordance with law. Petitioners have placed on record demand notices issued by them and thereafter application seeking information under Right to Information Act, which are suggestive of the fact that the petitioners continuously represented to the respondents for acquisition of the land in question. As far as another plea taken by the respondents that tarring work of the road was done under PMGSY Scheme is concerned, the same seems to be baseless because as per perusal of Annexure PA, made available on record, clearly suggests that the respondents themselves stated that the road in question ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 12 was constructed in the year 1998-2002 under the State budget and the tarring work had also been carried out on .
the spot. After careful perusal of the contents of Annexure-PA, this Court is unable to accept the contention put forth on behalf of the respondents that tarring work was done under PMGSY Scheme, rather of Annexure-PA clearly suggests that the road in question was constructed under the State budget. Moreover, perusal of awards dated 16.9.2005 (Annexure-PA) and rt dated 31.12.2014 (Annexure-PB), placed on record by the petitioners, clearly suggest that the respondents-
department paid due and admissible compensation to the similar situate person, whose land was also acquired for the construction of same and similar road. Award No.24/2005, dated 16.9.2005, passed by Land Acquisition Collector (Annexure-PA), clearly suggests that respondents-State had issued notification No.PBW-
(B)(A)(3)-10/2002, dated 30.1.2003 under Section 4(1) of the Land Acquisition Act, 1894 to acquire the land bearing Khasra Nos.40.84 and 346, Kita 3, measuring on 0-54-41, situated in village Bagri, Tehsil Sunni, District Shimla, H.P. for public purpose namely for the construction of Jalog-Banua road in village Bagri.
::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 1313. Further, perusal of award dated 31.12.1014 (Annexure-PB) suggests that the aforesaid award passed .
by Land Acquisition Collector was further enhanced by the learned ADJ-I, Shimla, which has been also made available on record. At this stage, this Court is at loss to fathom when the people in the same revenue estate, of whose lands were also used for construction of same road were paid due and admissible compensation by invoking the provisions of Land Acquisition Act,1894, why no steps rt were taken to acquire land of the petitioners in the present case, where it stands duly proved on record that their lands were also used for construction of the same and similar road by the respondents.
14. The Hon'ble Coordinate Bench of this Court while dealing with the similar issue in CWP No. 128 of 2003 decided on 25.7.2007, titled "Mathu Ram v. State of HP and Ors.", wherein land was used for construction of road and compensation was paid to the similar situate persons, directed the respondents to initiate acquisition proceedings for acquisition of land of the persons and to pay compensation in accordance with law. As far as contention put forth by the respondents with regard to the inordinate delay in maintaining the petition as well as ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 14 compensation is concerned, the Hon'ble Apex Court in case title Raj Kumar v. State of HP and Ors. in SLP(C) No. .
2373 of 2014 decided on 29.10.2015, held as under:-
"There is in our opinion considerable merit in the submission made by Mr. Nag. It is true that the appellant had approached the High Court rather belatedly inasmuch the land had been utilized sometime in the year 1985-86 of while the writ petition was filed by the appellant in the year 2009. At the same time it is clear from the pleadings in the case at hand rt that the user of the land owned by the appellant is not denied by the State in the counter affidavit filed before the High Court of that filed before us. It is also evident from the averments made in the counter affidavit that the state has not sought any donation in its favour either by the appellant or his predecessor in interest during whose life time the road in question was constructed. All that is stated in the counter affidavit is that the erstwhile owner of the land "might have donated" the land to the State Government. In the absence of any specific assertion regarding any such donation or documentary evidence to support the same, we are not inclined to accept the ipsit dixit suggesting any such donation. If that be so as it indeed it, we fail to appreciate why the State should have given up the land acquisition proceedings initiated by it in relation to the land of the appellant herein. The fact that the State Government had initiated ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 15 such proceedings is not in dispute nor is it disputed that the same were allowed to lapse just because the road had in the meantime .
been taken under the Pradhan Mantri Gram Sadak Yojna. It is also not in dispute that for the very same road the land owned by Kanwar Singh another owner had not only been notified for acquisition but duly paid for in terms of Award No. 10 of 2008.
of In the totality of the above circumstances, the offer made by Mr. Nag to the effect that the appellant would be satisfied if he is paid rtcompensation at the rate determined and paid to Kanwar Singh under Award No. 10 of 2008 appears to be reasonable. That is so especially when the compensation in terms of Award No. 10 of 2008 was determined by reference to a Notification issued nearly 10 years ago The fact that the appellant is giving up his claim for any compensation for wrongful utilization of land and to the payment of interest which is otherwise statutorily prescribed makes the offer still more attractive for the State."
15. Hence, in view of the aforesaid observations made by the Hon'ble Apex Court plea of inordinate delay, if any, raised by the respondents deserves to be rejected.
16. Consequently, in view of the detailed discussion, made hereinabove, as well as law laid down by the Hon'ble Apex Court, these petitions filed by the ::: Downloaded on - 15/04/2017 20:46:57 :::HCHP 16 petitioners are allowed and the respondents are directed to pay due and admissible compensation to the .
petitioners in lieu of their land used by them for construction of `Jalog to Gadheri' road by resorting to proceedings as envisaged under Land Acquisition Act, 1894. Respondents are further directed to complete of proceedings under Land Acquisition Act for acquisition of the land of the petitioners within a period of six months from today and pay due and admissible compensation to rt the petitioners as has been paid to the similarly situate person vide award No.24/2005, dated 16.9.2005 passed by the Land Acquisition Collector, HPPWD, South Zone, Winter Field, Shimla.
17. All the interim orders are vacated. All miscellaneous applications are disposed of.
18. A copy of this judgment be placed on each of the connected files.
July 08, 2016 (Sandeep Sharma)
(aks) Judge
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