Himachal Pradesh High Court
Labdhu Ram vs State Of H.P. & Others on 28 June, 2023
Bench: M.S. Ramachandra Rao, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No.6581 of 2021 .
Reserved on: 22.06.2023
Decided on: 28.06.2023
Labdhu Ram ...Petitioner
Versus
State of H.P. & others ...Respondents
Coram
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?
For the petitioner(s): Mr. Romesh Verma, Senior Advocate with Mr. Hitesh Thakur, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with M/s Rakesh Dhaulta and Pranay Pratap Singh, Additional Advocate Generals and M/s Arsh Rattan and Gautam Sood, Deputy Advocate Generals, for the respondents-State.
M.S. Ramachandra Rao, Chief Justice Contentions of petitioner In this Writ petition, the petitioner contends that he owns land of extent 00-27-79 Hac. in Khata No.158, Khatauni No.429, Khasra No.1485 at Mohal Lower Koti, Tehsil Rohroo, District Shimla, H.P ; and that in this land a road was laid in 1995-96 known as Rohroo-Parsa-Dhara-Lowerkoti-Shekhal road, but no acquisition proceedings were initiated and no compensation was paid to the petitioner.
::: Downloaded on - 28/06/2023 20:33:18 :::CIS 22. He alleged that when he raised objections for laying of the road, he was given an impression that he would be paid compensation .
in accordance with law, but nothing has been paid, though certain others, whose lands were utilized for the same road, have been paid compensation vide., Award No.26/2010 passed by the Land Acquisition Collector, HPPWD, South Zone, Winter Field, Shimla on 17.06.2010, Award No.50/2011, passed by the Land Acquisition Collector, HPPWD, South Zone, Winter Field, Shimla on 24.08.2011, which are filed as Annexures P-3 and P-4.
3. He stated that he was a poor person and could not afford to come to High Court earlier for seeking reliefs and he had issued a demand notice on 23.07.2021 through RPAD requesting the respondents to acquire the land and make payment of compensation.
4. According to him, the area of his land which was utilized for the purpose of the road is of extent 1.50 Hac. and this is mentioned in the enclosed tatima as Khasra No.1485/1 issued by the Halqua Patwari on 16.06.2021.
5. According to him, by the construction of the road though Khasra No.1485/1, the entire area of his land stood bifurcated and he has been burdened with extra expenditure for looking after and ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 3 maintaining the two portions of his land as no protection walls were provided to protect the left over portion.
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Reply of respondents
6. Reply has been filed by respondents no.1 to 3 contending that the work of construction of the said road was initiated on the persistent demand of people of the area including petitioner and his predecessors to provide road connectivity; and the people of the village including petitioner voluntarily offered their land for availing road connectivity.
7. According to the respondents, the demand for compensation raised after availing road connectivity is unjustified.
8. They plead that a policy decision was taken in 1998-1999 that all rural link roads will be constructed only after the land owners donate their land free for construction of the road.
9. It is admitted that no documentary formalities were done in respect of donation of land as this would have entailed taking of a long time.
10. It is stated that the road was constructed with the consent of the petitioner and he voluntarily surrendered his land for the road construction, which commenced in 1995 and got completed in 1997- ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 4
98. It was denied that any assurance was given to him regarding payment of compensation.
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11. Laches on the part of the petitioner is also pleaded.
Consideration by the Court
12. We have noted the contentions of both the parties.
13. From the facts narrated above, it is clear that the respondents have utilized the land of the petitioner for construction of the road without initiating any proceeding for acquisition of the same and without having any evidence of consent of the petitioner for the same.
14. We may point out that in case of State of Himachal Pradesh vs. Umed Ram Sharma1 the Supreme Court held that the entire State of Himachal Pradesh is a hilly area and without workable roads, no communication is possible; every person is entitled to life as enjoined in Article 21 of the Constitution of India; every person has right under Article 19 (1) (b) of the Constitution of India to move freely, throughout the territory of India ; for the residents of hilly areas, access to road is access to life itself.
It accepted the proposition that there should be road for communication with reasonable conditions in view of the constitutional imperative and denial of that right would be denial of 1 (1986) 2 SCC 68 ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 5 the life as understood in its richness and fullness by the ambit of the Constitution.
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It declared that to the residents of the hilly areas, as far as feasible and possible, society has a constitutional obligation to provide road for communication. This was reiterated in Swaraj Abhiyan(I) vs Union of India an others2 .
15. Therefore, the stand of the State that there was a policy for providing roads on demand of residents as a favour to them on conditions that they would not claim compensation, cannot be sustained because such a stand is violative of Article 300A of the Constitution of India.
16. As held by the Supreme Court in Hari Krishna Mandir Trust vs State of Maharashtra and others, 3 though the right to property is not a fundamental right, it is still a constitutional right under Article 300A of the Constitution of India and also a human right; in view of the mandate of Article 300A, no person can be deprived of his property save by the authority of law; though the State possesses the power to take or control the property of the owner of the land for the benefit of public, it is obliged to compensate the injury by making just compensation.
2(2016) 7 SCC 498 3 (2020) 9 SCC 356 ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 6 The Supreme Court held that though the right to claim compensation or the obligation of the State to pay compensation to a .
person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is in-built in the said Article, and the State, seeking to acquire private property for public purpose, cannot say that no compensation shall be paid.
It also held that the High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.
In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.
In appropriate cases, it held that in order to prevent injustice to the parties, the Court may itself pass an order or give ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 7 directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.
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The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined and the High Court has jurisdiction in a petition under Article 226 to try issues both of fact and law.
17. Similar view was also taken in D.B. Basnett vs. Collector, East District, Gangtok, Sikkim and another4.
In that case, certain private land was found by the owner in March 2002 to have been wrongly encroached and trespassed by the Agriculture Department of the Government of Sikkim which was using it as an agricultural farm. He got issued a notice under Section 80 of the Code of Civil Procedure, 1908 alleging trespass and seeking possession. When there was no response to this notice, he filed a suit before the Court of District Judge (E&N), Gangtok, Sikkim, but the suit was dismissed on 31.10.2006 on the ground of limitation and also on merits.
Appeal filed against the said judgment was also dismissed by the High Court.
4(2020) 4 SCC 572 ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 8 The Agriculture Department had contested the proceedings stating that it had followed due process while acquiring .
the land in 1980 and had even paid compensation and the suit was also barred by limitation.
The Supreme Court allowed the appeal of land owner. It held that there was no evidence that the land was acquired by initiating process under Section 4 of the Land Acquisition Act, 1894 or by issuance of a declaration thereafter. There was also no material to show that the compensation was paid or consent was obtained for acquisition.
It held that following the procedure under the Land Acquisition Act, 1984, is mandatory and an entry into premises without complying with the same would result in the entry being unlawful.
It concluded that the respondents had failed to establish that they acquired the land in accordance with law and pay due compensation, and directed restoration of possession, and also payment of damages for illegally use and occupation of the same for the period of three years prior to the issuance of the suit notice. These principles were again reiterated in B.K. Ravichandra and others vs. ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 9 Union of India and others5 and Sukh Dutt Ratra and another vs. State of Himachal Pradesh & others6.
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18. In Sukh Dutt Ratra ( 4 Supra) , the appellants land had been utilized for construction of road in 1972-73 without initiating any proceedings for acquisition and without paying any compensation.
When the petitioner filed a writ petition on the basis of relief granted to other owners whose land was so acquired, the said Writ petition was dismissed by the High Court holding that there were disputed questions of law and fact for determination on the starting point of limitation, which cannot be adjudicated in the writ proceeding and the petitioners were given liberty to approach the Civil Court.
The Supreme Court reversed the said decision and held that nobody can be deprived of liberty or property without due process, or authorization of law and the State has a higher responsibility in demonstrating that it has acted within the confines of legality, and had not tarnished the basic principle of the rule of law.
It held that State, merely on the ground of delay and laches, cannot evade its legal responsibility towards those from whom private property has been expropriated.
5(2021) 14 SCC 703 6 (2022) 7 SCC 508 ::: Downloaded on - 28/06/2023 20:33:18 :::CIS 10 It observed that the State was initiating acquisition proceedings selectively and not in every case like that of the .
appellants whose land was taken, and at every stage it sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.
It held that the State cannot shield itself behind the ground of delay and laches in such a situation as there cannot be a limitation to doing justice.
It also rejected the plea alleged verbal consent or lack of objection on the ground that no material was placed on record to substantiate the said plea and held that the State was unable to produce any evidence indicating that the land of the appellant had been taken over or acquired in the manner known to law, or that it had ever paid any compensation.
It declared that there is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. It directed the State to treat the subject land as a deemed acquisition and disburse compensation to the appellants therein in terms of similar orders passed in other cases within four months.
::: Downloaded on - 28/06/2023 20:33:18 :::CIS 1119. In view of the above settled legal position, we are of the opinion that the stand of the State that it need not pay any .
compensation for utilizing the petitioner's land for the purpose of laying a road cannot be countenanced and the State is bound to pay market value compensation to the petitioner for utilizing his land for the purpose of the road.
20. Therefore, the writ petition is allowed with costs of Rs.10,000/-
and a direction is issued to the respondents to demarcate the land of the petitioner utilized for the purpose of the road in question within four weeks, treat it as having been acquired for the said purpose and pay him the highest amount towards compensation among compensation under the awards Annexures P-3 and P-4 with all statutory benefits under the Land Acquisition Act,1894 within eight weeks.
21. Pending application(s), if any, shall also stand disposed of.
( M.S. Ramachandra Rao ) Chief Justice ( Ajay Mohan Goel ) Judge June 28, 2023 (vt) ::: Downloaded on - 28/06/2023 20:33:18 :::CIS