Himachal Pradesh High Court
Bhoop Ram vs State Of Himachal Pradesh & Others on 24 June, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 2386 of 2009.
Decided on: 24.06.2016.
.
Bhoop Ram
....Petitioner.
Versus
State of Himachal Pradesh & others.
... Respondents.
of
................................................................................................
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt
Whether approved for reporting?1 Yes.
For the petitioner. : Mr. Devender Sharma, Advocate vice
Mr. C.N. Singh, Advocate.
For the respondents. : Mr. V.S. Chauhan, Addl. Advocate
General with Ms. Parul Negi, Dy.
Advocate General.
Ajay Mohan Goel, J (Oral).
This writ petition has been filed praying for the following reliefs:-
"(i) Writ of Mandamus, or any other writ, order, direction be issued to the respondents to follow the procedure of law by initiating proceedings under the Land Acquisition Act, 1894, for acquiring the land of the petitioner land at Mohal Kot-114, khevat 27 min Khatauni No. 61 Village Panetu, Tehsil Karsog, Distt. Mandi (HP), unauthorizedly used so that the petitioner can be compensated for the loss of his agriculture land in dispute in accordance with law.1
Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:40:38 :::HCHP 2(ii) That the appropriate directions be issued to the respondents to proceed in accordance with law in a time bound manner so that further harassment, humiliation of the petitioner could be avoided."
.
2. The case of the petitioner is that he is resident of village Bhandli, PO Jassal, Tehsil Karsog, Distt. Mandi and he is owner of agricultural land at Mohal Kot-114, Khevat 27 Min, Khatuani No. 61 Village Panetu, Tehsil Karsog, Distt. Mandi. According to the of petitioner, a link road has been constructed by respondent-State between Mauta-Bagshar under the "Prime Minister Gram Sarak rt Yojna" (PMGSY) in the year 2005-2006 in which agricultural land of the petitioner has been utilized by the State. As per him, the construction of the road on the agricultural land of petitioner has been done by the respondent-State without any permission or consent of the petitioner. The petitioner has also stated that as a result of said forceful use of his agricultural land, he has suffered loss and his livelihood has also been adversely affected. He has also stated that he has approached the concerned officers of the department on various occasions for being compensated but respondent-State has not compensated him till date in accordance with law in lieu of utilization of his land. In this regard, he also made representation to the respondent-State on 18.2.2009. However, as no steps were taken by the respondent-State to compensate him in accordance with law in lieu of utilization of his said land, therefore, ::: Downloaded on - 15/04/2017 20:40:38 :::HCHP 3 he was forced to file the present petition praying for the reliefs aforementioned.
3. In its reply filed to the petition, the factum of utilization of .
land of petitioner for the purposes of construction of road has not been denied by the State. However, according to respondent-State, the land in question has been utilized by the department with implied consent of the land owner/petitioner and according to the State, the of construction of the road over the land of the petitioner was never objected by him either at the time of the construction of the road or rt at the time of survey of the road. The relevant para of the reply filed by the respondent-State is reproduced herein below:-
"3. ...... x x x x x It is submitted that the road from Mahota to Bagshar upto village Telehan has already been constructed upto Km 14/00 prior to 2/2009. As the suit land falls on the road Km 8/530 to 8/620 which has already been constructed by the respondent department with the implied/oral consent of the land owner/petitioner well before 17.1.2005 as they have never objected at the time of construction of road as well at the time of survey. Moreover, the petitioner and his representatives alongwith other land owners remained present at the site of work at the time of carrying out of survey work and formation cutting of road through their land, and they donated their land with their sweet will. Hence, the claim of the petitioner is an after thought to receive an unwanted amount of compensation alongwith the benefit of road. As the road is constructed under the scheme PMGSY in which there is no provision for acquisition of land after payment of compensation. In such type of scheme the beneficiaries of the area have to arrange the land free from all encumbrances and free of cost. However, the construction of this road is on demand of the public for which the land has to be donated by the community. Copy of PMGSY guidelines for construction of road are attached Annexure R-3."::: Downloaded on - 15/04/2017 20:40:38 :::HCHP 4
Thus, it is apparent that the stand of the respondent-State is that there is no provision of acquisition of land for the purpose of construction of roads which are constructed under PMGSY.
.
4. Mr. V.S. Chauhan, learned Additional Advocate General has submitted that under the said scheme i.e., "Prime Minister Gram Sarak Yojna" roads are constructed through the land of private land owners only when they have given undertaking by way of affidavit of that they shall not claim any compensation in lieu of the utilization of the land for the purpose of construction of the road or they donate rt the said land by way of gift deed in favour of the department. It is further submitted by Mr. Chauhan that in the present case also there was no occasion for the Government to pay any compensation to the petitioner, as his land was utilized on the basis of his consent, though this consent was verbal.
5. I have heard learned counsel for the parties and also gone through the records of the case carefully.
6. In my considered view, there is merit in the submission of the petitioner that his land could not have been utilized for the purpose of construction of the road without compensating him in accordance with law, in view of the fact that he has not given any written consent whatsoever in any form, manner or shape permitting the respondent department to utilize his land for the purpose of construction of road.
::: Downloaded on - 15/04/2017 20:40:38 :::HCHP 57. It is apparently clear from the reply of the State that there is no written consent obtained from the petitioner which could prove that he had agreed for the construction of road from his land .
without seeking any compensation.
8. Admittedly, there is no undertaking given by the petitioner by way of an affidavit that he shall not claim any compensation for his land which has been utilized for the purpose of of construction of the road. Further, no donation by way of gift deed etc. has also been made by the petitioner for utilization of his land.
rt Therefore, in the absence of these two eventualities, the State could not have utilized his land for construction of road under the Pradhan Mantri Gram Sadak Yojna at all. In this background, the contention of the State that everything was done with the consent and knowledge of the petitioner cannot absolve them of the legal consequences of utilizing the land of a person without duly compensating him. No one can be deprived of his property except by the procedure laid down by law which includes payment of due and admissible compensation to the affected party. In this view of the matter, in my considered view, the respondent-State cannot absolve itself of its liability to compensate the petitioner for the land which has been utilized by it for the construction of road in issue without the permission of the petitioner.
::: Downloaded on - 15/04/2017 20:40:38 :::HCHP 69. The Hon'ble Supreme Court in Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705 has held as under:-
.
"The right to property is now considered to be not only a constitutional right but also a human right.
The Declaration of Human Rights (1789) enunciates under Article 17:
of "Since the right to property is inviolable and sacred, no- one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
rt Further under Article 217 of 10th December, 1948, adopted in the General Assembly Resolution it is stated that : (i) Everyone has the right to own property alone as well as in association with others. (ii) No-one shall be arbitrarily deprived of his property.
Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights.
As President John Adams (1797-1801) put it,:
"Property is surely a right of mankind as real as liberty."
Adding, "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence".
Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law."
::: Downloaded on - 15/04/2017 20:40:38 :::HCHP 7Accordingly, the present petition is disposed of with the following directions:-
(a) The respondent-State shall initiate the .
steps to acquire the land of the petitioner which has been utilized for the purpose of construction of Mauta-
Bagshar Road within a period of three months from today.
of
(b) In case the respondent did not intend to acquire the land of the petitioner, then the respondent rtmay re-align the road by "bye passing" the property of the petitioner within a period of three months from today and vacate the land of the petitioner.
(c ) In the eventuality of the respondent-State deciding to vacate the land of the petitioner, which has been used by it for the purpose of construction of road in issue, then the respondent No. 1 shall have the damage caused to the land of the petitioner assessed from the PWD and revenue authorities of the State of Himachal Pradesh and pay to the petitioner the amount of compensation so assessed with interest @ 6% per annum from the date of filing of writ petition. In case the petitioner is not satisfied with the valuation of compensation/damage assessed by the authorities ::: Downloaded on - 15/04/2017 20:40:38 :::HCHP 8 concerned, then he shall be at liberty to approach the appropriate Forum/Court of law for the redressal of his grievance in this regard, i.e. enhancement of .
compensation/damages.
No order as to costs.
(Ajay Mohan Goel) Judge of 24th June, 2016.
(Guleria) rt ::: Downloaded on - 15/04/2017 20:40:38 :::HCHP