Himachal Pradesh High Court
Sh. Shiv Singh And Others vs State Of H.P. And Others on 1 November, 2016
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWP No. 2159 of 2016 Judgment reserved on: 22.10.2016 Date of Decision : 01 November, 2016.
Sh. Shiv Singh and others ...Petitioners
of
Versus
State of H.P. and others . ...Respondents.
Coram rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ? Yes For the Petitioners : Mr. Ramakant Sharma Senior Advocate, with Mr. Basant Thakur, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan, Mr. Romesh Verma, Addl. Advocate Generals and Mr. J.K.Verma, Dy. Advocate General.
Tarlok Singh Chauhan, Judge The instant writ petition has been filed seeking direction against the respondents to construct the link road from Saur-Ruhil Dhar via Guttu and not via Kuper as is proposed in the notifications dated 8.12.2015 (Annexure P-18) and 29.7.2016 (Annexure P-25) issued for some other land under the 'Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 2013 Act) and have further sought quashment of such notifications.
2. It is averred that the petitioners had been continuously representing to the Government for construction of link road from Saur-
______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 2Ruhil Dhar via Guttu and had even donated their lands by .
executing gift deeds in favour of Public Works Department annexed with the petition as Annexures P-1 to P-8, respectively. It is averred that the 'No Objection Certificate' by Forest Rights Committee had been issued on 7.6.2014 and even the Deputy Commissioner in the of meeting held on 9.9.2014 had recommended the aforesaid road.
Thereafter, the other authorities including the Gram Panchayat have rt also issued No Objection Certificates. However, when the proceedings were conducted by the Sub Divisional Officer, Rohru on 4.11.2015 for arriving at a consensus for construction of this link road all except one family of the Pradhan, Gram Panchayat, Nandpur objected to this construction as he was interested to see that the road instead of passing via 'Guttu' is constructed through Kuper.
3. On 8.12.2015 the respondents issued a notification under Section 11 of the 2013 Act proposing to acquire the land for construction of the Saur -Ruhil Dhar road via Kuper, constraining the petitioners to make a representation to their elected representatives i.e. MLA, Jubbal and Kotkhai -cum- Chief Parliamentary Secretary (Agriculture) to the Government of H.P., who in turn, vide his communication dated 3.5.2016 wrote to respondent No.1 and requested him to intervene and withdraw the notification in view of the fact that the petitioners had already executed gift deeds for construction of the link road via Guttu.
4. Respondent No.1, in turn, vide its communication dated 9.5.2016 informed respondent No.2 that as per the Government Policy, objections would be entertained only where the ::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 3 land owners offer or gift the land free of cost to the Government and, .
therefore, follow up decision be taken up strictly in accordance with the instructions already issued on 12.6.2001.
5. It is averred that despite the petitioners having repeatedly objected to the construction of the link road via 'Kuper', the of respondents proceeded to issue notification under Section 19 of the 2013 Act, whereby it proposed to acquire 250 meters of land which is rt contrary to the policy issued by the Government on 12.6.2001 and is further against the H.P. Road Construction Policy framed by the respondent pursuant to the directions issued by this Court in CWPIL No. 9 of 2013.
6. The respondents have opposed the petition by filing reply wherein it has been stated that there are two groups of local people in Village Ruhil, who are in conflict with each other with respect to alignment and survey of the road. One group of the local inhabitants wants the road to be constructed from Bus Stand Ruhil to Village Ruhil via Guttu, whereas the other faction wants the road to be constructed via Kuper. It was after analyzing the various factors like distance of the road from Bus Stop Ruhil Dhar to Village Ruhil , impact on environment, involvement of forest area, number of land holdings of the villagers and other factors that the respondents decided to construct the road from Ruhil Dhar Bus Stoppage to Ruhil via Kuper.
This decision has been taken keeping in view the fact that no forest area is involved in construction of road via Kuper, whereas there is thick forest of various species of trees on the alignment/land towards place via Guttu. In case the road is constructed through place Guttu, ::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 4 the same will destroy and damage the ecology of the area as large .
number of trees will be required to be axed. On the other hand, there are no trees on the land via Kuper through which the road is proposed to be constructed.
7. It is further averred that all the local inhabitants whose of land will be used for construction of the road via Kuper have surrendered their land in favour of the respondents for construction of rt the road and only a path of 250 mtr. in length at the initial point has been objected by its owner and for the purpose of acquiring the said small portion of the land, proceedings under the 2013 Act have already been initiated.
8. It is lastly averred that it would not be in larger public interest to construct the road in question via Guttu and such decision of the respondents is uninfluenced by any extraneous factors and the same has been taken only in the larger public interest.
We have heard learned counsel for the parties and gone through the material placed on record.
9. A perusal of the notification dated 12.6.2001 shows that the same was issued in the backdrop of the Budget Speech of 1998-99 wherein the Hon'ble Chief Minister had announced as under:
"New Roads to be constructed only if communities give land free of cost, work to start only after the land is transferred to the Government. Alternative land to be allotted to those who become landless or otherwise eligible, subject to availability of land with the Government."::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 5
10. It was as a follow up of this speech that these instructions .
were issued and the relevant portion of the instructions is extracted below:
"As you are already aware of the fact that the Government has been following the policy since the budget 1998-99 to the fact that the rural/arterial roads are to be constructed only if the of rural community contribute the land free of cost. However, for the period prior to 1.4.98 back of cases for acquisition of land under Land Acquisition Act, 1894 are being received in the rt Department. These cases are required to have much stiffer scrutiny with a view to ensuring that land under the Act ibid is not required for acquisition in those cases where the work was started by the Public Works Department on the assurance of the people of the area that the land required for the road would be transferred free of cost to the Government.
In view of the above, you are requested to examine all the cases prior to 1.4.98 pertaining to rural/arterial roads on case to case basis and the land acquisition proceedings would be initiated only when these are found to be absolutely necessary.
These instructions would be complied with meticulously."
11. Similarly, the Clause 8 (b) of the H.P. Road Construction Policy (for short Policy), reads as under:
"8(B). Construction stage:
1. For construction of new roads, the alignment finalised earlier during the planning stages should strictly be followed. However, in private land, alignment may be changed, if necessary, provided alternate land is made available by the land owners free of cost."
Therefore, the moot question that arises for consideration is as to whether the respondents can in the larger public interest be permitted to deviate from its policy.
::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 612. It cannot be disputed that once the Government has laid .
down the norms and policy, there must be valid reasons to deviate from that as it is the salutary duty cast upon it to comply with the terms of the policy. However, even then the Government is entitled to make pragmatic adjustments after all the extraordinary situations require of extraordinary remedies and if so required, the Government can deviate from the letter and spirit of the instructions and provide relief in cases rt where it is so warranted. To hold as a matter of law that the Government cannot deviate even minutely from the policy would be to ignore the realities of life. The Government can always pass orders which would best serve the interest of the people and further qualify the test of reasonableness and non-arbitrariness as these are the core of our constitutional scheme and structure.
13. It is more than settled that the action by the State, whether administrative or executive, has to be fair, reasonable and non-
arbitrary and even if there are no rules in force to govern the executive action still such action is stated functional, should be just, fair and transparent. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities. There has to be reasonableness and the State cannot be bogged down in every minuscule detail of a subordinate legislation, like a policy decision and it is open for it to depart, provided it fulfills the aforesaid test. The courts cannot be expected to presume the alleged irregularities, illegalities or unconstitutionality in the respondents' action nor can the Court substitute their opinion for the bona fide opinion of ::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 7 the State executive. The Courts are not concerned with the ultimate .
decision, but only with the fairness of the decision making process.
14. Adverting to the facts, it would be noticed that the decision to have the road constructed via Kuper, has been taken to avoid axing of large number of trees that exist on the alignment/land towards via of Guttu and this fact has not even been denied by the petitioners. There cannot be any denying of fact that the people have long referred to the rt trees as 'Earth's lungs' as they play a crucial role in our existence, consuming large quantities of carbon dioxide and producing oxygen which enables us to breathe. Apart from providing oxygen, they also cleanse the air and improve its quality, control climate, protect soil and support vast varieties of wildlife. It is universally accepted that deforestation is major contributing factor of climate change and that is why it is so important to protect trees and secure our natural landscapes for future generations.
15. In case the respondents have chosen to protect the pristine forest, obviously then the same has definitely been taken in the larger public interest and individual interest(s) has to give way. Though, the learned counsel for the petitioners would vehemently argue that the decision taken by the respondents is malafide and has taken to protect the interest of one family. However, we do not find it to be so, more particularly, when it has come on record that there are two groups of local people in Village Ruhil, who are in conflict with each other with respect to alignment and survey of the road. Whereas, the respondents have taken the decision to construct the road via Kuper in larger public interest after keeping in view the factors like distance of the road from ::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 8 Bus Stop Ruhil Dhar to Village Ruhil, impact on environment, .
involvement of forest area, number of land holdings of the villagers etc.
16. That apart, the petitioners have not even chosen to array the said family or any of its members as party-respondent and, therefore, no order can be passed behind the back of such family of adversely affecting it and such an order if passed, is liable to be ignored being not binding on such party as the same would be passed
17. rt in violation of the principles of natural justice.
In addition to the above, it is not for the Court to sit in appeal and examine correctness of decision taken by the respondents, more particularly, when the same has not been shown to be unfair, arbitrary or against any statutory or non-statutory policy or tainted with malafide intent. It is trite law that the power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is only concerned with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers. There is a long line of decision of the Hon'ble Supreme Court on the subject and which has been followed and reiterated by this Court from time to time and reference in this regard can conveniently be made to a recent decision rendered by this Court ::: Downloaded on - 15/04/2017 21:29:01 :::HCHP 9 in Rajan Singh and others vs. State of Himachal Pradesh and .
others 2016 (3) Him. L.R. 1571.
18. It is evident from the pleadings as well the material placed on record that the instant petition has been filed out of ego problem rather than on the ground of violation of any right and we observe so of because despite the pressure sought to be exercised by the petitioners through their elected representative, the respondents have stood their rt ground and taken decision in the larger public interest without succumbing to such pressure.
19. In view of the aforesaid detailed discussion, we find no merit in this petition and the same is accordingly dismissed, so also the pending applications, leaving the parties to bear their own costs.
( Mansoor Ahmad Mir)
Chief Justice
November 01, 2016 (Tarlok Singh Chauhan),
(GR) Judge
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