Himachal Pradesh High Court
State Of H.P. & Ors vs Dalip Singh on 28 November, 2019
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No. 93 of 2017 Reserved on : 22.11.2019 .
Date of decision: 28.11.2019.
State of H.P. & Ors. ...... Appellants
Vs.
Dalip Singh ..... Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No. For the Appellants : Mr. Ashok Sharma, Advocate General with Mr. Vinod Thakur, Addl. A.G., Mr. Bhupinder Thakur, Ms. Svaneel Jaswal, Mr. Narinder Thakur, Dy.
A.Gs. and Mr. Ram Lal Thakur, Asstt.
A.G. For the Respondent : Mr. Dalip K. Sharma, Advocate.
Tarlok Singh Chauhan, Judge Aggrieved by the judgment passed by the learned writ court whereby it directed the appellant to acquire the land of the writ petitioner, the State has preferred this Letters Patent Appeal.
2. The petitioner approached this Court by filing CWP No. 659 of 2019, wherein he sought the following substantive relief(s):-
"(a) That Writ of Mandamus may be issued directing the respondent to acquire the land of the petitioner and award the compensation and the compensation in respect to the 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes.::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 2
land may be granted to the petitioner as discrimination has been done with the petitioner as, as the land of the other similarly situated land owner has been acquired and the compensation in respect to their land have been .
granted to them.
3. The case of the writ petitioner was that he was permanent resident of village Baandar, Pargana Stota, Tehsil Chopal, District Shimla and is owner in possession of land comprised in Khewat No. 23/22, Khatauni No. 61, Khasra No. 634, measuring 00-13-92, Khasra No. 636 measuring 00-33-84 and Khasra No. 635, measuring 00-30-36 hectares, situated at Mohal Baandar, Tehsil Chopal, District Shimla. It was pleaded that while constructing Antrawli-Baandaur-Paban road had been constructed under PMGSY, the land comprised in Khasra No. 635 had been utilised without his consent by the appellant for construction of the road which was not even included in the initial survey. It was further averred that petitioner filed a civil suit in the Court of Civil Judge (Junior Division), Chopal praying for permanent prohibitory injunction for restraining the appellants from constructing the road in respect of Khasra Nos. 634 and 636 but despite this the State proceeded with the construction of road over Khasra No. 635 and the same was not the subject matter of the suit. He thereafter applied for demarcation of land wherein it was found that the road had been constructed over the petitioner land comprised in Khasra No. 635. The petitioner approached the ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 3 department to acquire his land but to no avail. Hence, the writ petition.
4. The appellants contested the petition wherein it was .
averred that the road in question has been constructed under the PMGSY entirely through the government land and gifted land and further that Khasra No. 635 had been used by the Department for construction of the road after obtaining verbal consent of the land owners including the petitioner. It was further pleaded that there is no provision of acquisition of private land for the road, which is constructed under PMGSY and the road constructed by the State under this scheme are out of the funds deposited for the work by the Government of India.
5. Aggrieved by the judgment passed by the learned Writ Court, the State has filed the instant appeal mainly on the ground that the learned Writ Court ignored the fact that the road had been constructed under PMGSY scheme wherein there is no provision of compensation for the land utilised in the said scheme and the roads were constructed only after the land owners surrendered the land.
We have heard learned counsel for the parties and have gone through the records of the case.
6. It is not in dispute that earlier to the filing of the writ petition, the writ petitioner had filed a civil suit in the Court of learned Civil Judge (Junior Division) Chopal but the same was ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 4 unconditionally withdrawn on 15.01.2009 as is evident from the order passed on the said date, which reads as under:-
"At this stage, plaintiff separate statement Ext. CA has .
withdrawn the instant case. Hence, in view of the statement of plaintiff Ext. CA the instant civil suit is hereby dismissed as withdrawn. After due completion it be consigned to records.
7. It is, thereafter that the instant writ petition has been filed on 06.03.2009. Therefore, once the civil suit had been unconditionally withdrawn by the petitioner, we are clearly of the view that the writ petition thereafter filed by the petitioner was not maintainable and was clearly hit by the principles of Order 2 Rule 2 and Order 23 Rule 1 of the CPC.
8. That apart, even if it is assumed that the writ petition was maintainable, even then it has to be remembered that rural roads is a State subject and it is the responsibility of the State Government to ensure the availability of land for construction of road under PMGSY. In view of the common benefit generally the land for construction of road under PMGSY is made voluntarily by the villagers/Panchayats free of costs through voluntarily donations.
9. The laudable object of this is to provide network of roads in the rural areas and it is for this reason that there is no provision for acquisition of land on payment of compensation but ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 5 based on voluntarily surrender of the land by the villagers or over the land which was used by the villagers as 'Aam Rasta'.
10. In case the petitioner was seriously aggrieved by the .
action of the appellants then there was no occasion to him to have unconditionally withdrawn the suit and only thereafter filed the instant petition.
11. Lastly and more importantly, we notice that the writ petitioner has only a minuscule share of 1/10th in the land in
12.
r to question whereas the other co-sharers who are having 9/10 share of the land are at all not aggrieved.
Therefore, in the given circumstances, in case the litigation of instant kind is encouraged, it would virtually be impossible to provide road connectivity to rural Himachal. That is not to suggest that State is free to bulldoze, its way on any private land and, therefore, facts and circumstances of each case will have to be seen.
13. However, in the instant case, as noticed above, the total land comprised in Khasra No. 635 is 00-03-80 hectares and not 00-30-36 hectares which works out to approximately 380 sq. mtrs. and accordingly the share of the petitioner works out to only 38 sq. mtrs. In case there was no consent on the part of the petitioner as is claimed then why the other co-sharers who had 9/10th share in the land have not objected. Thus, it is clearly proved that there was implied consent on the part of the ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 6 petitioner and even otherwise one disgruntled or unsatisfied person cannot be permitted to deprive the other co-sharers as also the other beneficiaries of the road.
.
14. As observed above, the land used for construction of road is only 00-03-80 hectares and not 00-30-36 hectares as is evident from the demarcation report annexed with the reply of respondent No. 2. The relevant portion whereof, reads as under:-
"Today on 02.06.2008 I attended for the demarcation of Dalip Singh s/o Chet Ram r/o village Bandur at spot alongwith the Field Kanungo and Patwari Halqua Antrawali. Sh. Dalip Singh above applicant has moved an application for demarcation of chak Bandur for khasra No. 634, 635 & 636 kita-3 area. The applicant has made the second party to the Assistant Engineer, HPPWD Sub Division Shamtha (Nerwa). Sh. Vipan Sharma, Assistant Engineer is present from HPPWD. The applicant has attached the copy of Jamabandi for the year 2001-02 and copy of Shajra Kistwar duly certified from record room Chopal. Right from starting the demarcation the measuring tap (Jareb) has been checked and after that with the help of measuring tape and scale the process of demarcation started. First of all three pillars were detected. Due to the total banjar land only two pillar could be fixed which are both edge of Khasra No. 638-35 & 21, 12 & 28. The resent persons are satisfied with these edges. With the help of these two spots the third spot was fixed which is spot No. 35 & 21) and which are 1900 metre in the interior side of field and spot No. 2 (12 & 28) metre to 33 metre fixed.
Now at the spot No. 2 & 3 by fixed flags and on this line at spot No. 2 to 21 metre distance towards North Zone. The perpendicular of 121 metre was laid. This perpendicular passes through khasra No. 636 & 637. Now ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 7 with the help of this perpendicular at spot and with the help of spot No. 2 & 3. The pillars were fixed by taking distance of Khasra No. 635 & 636 on the basis of by fix these pillars measured the spot it found that in the some .
portion of Khasra No. 635 road has been constructed which is also shown by the tatima and the area of road is 0-03-80 hectares. In the some portion of Khasra No. 636 some debris and stone exist. At spot the area is banjar. The applicant Dalip Singh satisfied with this demarcation and whereas second party the Assistant Engineer HPPWD Sub Division Shamtha (Nerwa) has objection with this demarcation and not satisfied with this demarcation.
Hence, the application for demarcation is necessary to consign the record room.
15. Noticeably the only ground which prevailed the writ court to allow the writ petition is that there was no undertaking by way of affidavit or gift deed available on record which could establish on record that the writ petitioner had undertaken not to claim any compensation but then what appears to be clearly ignored is that only 00-03-80 hectares of land has been acquired of which the petitioner is owner to the extent of 1/10th share i.e. 38 sq. mtrs. whereas the remaining co-owners of 9/10 th share, are not at all aggrieved. The petition appears to be mischievous because the writ has been filed only after the road had been constructed knowing fully well that once the road is constructed the writ petitioner would be free to use the same.
16. Even otherwise encouraging the litigation of instant kind where a person only has a minuscule share i.e. 1/10th i.e. 38 ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 8 sq. mtrs. in the entire property and would still try to deprive other co-sharers and the other residents of village and adjoining villages of the road, cannot be encouraged as it would .
otherwise open a flood gate of litigations for other similar situate persons to come with the plea which would ultimately delay the construction of the road and apart from leading to other complications, after all road is the life line.
17. The Hon'ble Supreme Court in State of H.P. vs. Umed Ram Sharma (1986) 2 SCC 68, has held that denial of usable road especially to poor residents of hilly areas is violative of the provisions of Article 19(1)(d), 21 and 38 of the Constitution of India.
18. It would be fruitful to reproduce the relevant observations as contained in para-11 which read as under:-
"It appears to us that in the facts of this case, the controversy lies within a short compass. It is well settled that the persons who have applied to the High Court by the letter are persons affected by the absence of usable road because they are poor Harijan residents of the area, their access by communication, indeed to life outside is obstructed and/or prevented by the absence of road. The entire State of Himachal Pradesh is in hills and without workable roads, no communication is possible. Every person is entitled to life as enjoined in Article 21 of the Constitution and in the facts of this case read in conjunction with Article 19(1)(d) of the Constitution and in the background of Article 38(2) of the Constitution every person has right under Article 19(1)(d) to move freely through out the territory of India and he has also the right ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP 9 under Article 21 to his life and that right under Article 21 embraces not only physical existence of life but the quality of life and for residents of hilly areas, access to road is access to life itself. These propositions are well settled. We .
accept the proposition that there should be road for communication in reasonable conditions in view of our constitutional imperative and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution. To the residents of the hilly areas as far as feasible and possible society has constitutional obligation to provide roads for communication.
19. In view of the aforesaid discussion, we find merit in this petition and the same is accordingly allowed. The order passed by the learned writ Court on 03.06.2016 is set aside and the writ petition is ordered to be dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge (Chander Bhusan Barowalia) Judge Dated: 28.11.2019 (Sanjeev) ::: Downloaded on - 29/11/2019 20:24:17 :::HCHP