Himachal Pradesh High Court
Neem Chand vs State Of Himachal Pradesh And Others on 5 July, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 3090 of 2009 Reserved on 27.06.2016 Decided on: 5.07.2016 .
_______________________________________________________________ Neem Chand ....Petitioner Versus State of Himachal Pradesh and others ....Respondents of Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
rt Whether approved for reporting? 1 No ________________________________________________________________ For the petitioner: Mr. C.N. Singh, Advocate.
For the respondents: Mr. Ramesh Thakur & Pankaj Negi, Deputy Advocates Generals.
Vivek Singh Thakur, Judge Aggrieved by non payment of compensation for utilization of his land comprised in Khasra No. 459, Khata-
Khatauni No. 115/227 situated at Khandery (Basol Nala), Khasra No. 961 Khata-Khatauni No. 21/54 situated at Bagri and Khasra No. 629, Khata-Khatauni No. 27/72 situated at Majhar, Tehsil Karsog, District Mandi, H.P., for construction of link road between Mauta-Bakshad Road, in the year 2006-2007, petitioner has 1 Whether the reporters of the local papers may be allowed to see the judgment? No ::: Downloaded on - 15/04/2017 20:45:34 :::HCHP 2 preferred present petition with prayer for direction to respondents .
to pay compensation to petitioner for loss of his aforesaid agriculture land.
2. Petitioner has placed on record copy of letter dated 23.05.2009 Annexure P-1 submitted to the Secretary, H.P.P.W.D. of Shimla, Deputy Commissioner, Mandi, and Sub Divisional Magistrate, Karsog, District Mandi, H.P. for grant of compensation rt on account of utilization of land for construction of road.
3. Respondents in their reply have stated that there is no infringement of fundamental and legal right of petitioner and the road under dispute has been constructed under PMGSY Scheme in which there is no provision for acquisition of land and the road in this Scheme are constructed only with consent of land owners if land is donated by the land owners free of cost. It is also contended that petitioner did not raise any objection at the time of construction of road and petitioner is not entitled to any relief as the road is constructed for general welfare of villagers and public interest at large. It has been stated that payment of compensation would result in huge burden on exchequer of the State and if the petition is allowed it would result in huge loss to ::: Downloaded on - 15/04/2017 20:45:34 :::HCHP 3 the State Govt. It is further claimed that the road has been .
already constructed by the department well before 2003. The survey work of the road Km. 7/780 to 17/00 was conducted in the month of September, 2003 and therefore, petitioner is not entitled for compensation at this stage.
of
4. Respondents have placed on record site plan of Mahota Bagshad Road Annexure R-1, Jamabandi in the year rt 2003-2004 Annexure R-2 and instruction regarding submission of land acquisition cases Annexure R-3. As per instructions Annexure R-3, where the work has been started by P.W.D. on assurance of people of area to provide land for road free of cost to the Government, acquisition process is not to be initiated.
Respondents have also placed on record road fitness certificate Annexure R-4. Package summary of PMGSY Annexure R-5 pertaining to road from Mohata to Bagshair up to village Talyahan i.e. road in question.
5. Petitioner has relied upon judgment passed by Hon'ble Supreme Court in case tilted as K.B. Ramachandra Raje Urs versus State of Karnataka and others reported in 2016(3) Supreme Court Cases 422 in which it has been held as under:-
::: Downloaded on - 15/04/2017 20:45:34 :::HCHP 4"Time and again it has been said that while .
exercising the jurisdiction under Article 226 of the Constitution of India the High Court is not bound by any strict rule of limitation. If substantial issues of public importance touching upon the fairness of governmental of action do arise, the delayed approach to reach the Court will not stand in the way of rt the exercise of jurisdiction by the Court".
6. It is settled law that justice should not be denied on technical objections especially when State has taken property of citizen without following due process of law. The State is guardian of citizens and is supposed to be protector of their life and property. Therefore, in a case of depriving a citizen from his property, plea of respondents to reject the claim of petitioner on account of delay is not acceptable.
7. There is no material on record to establish consent given by petitioner to utilize his land free of cost rather there is a copy of letter Annexure P-1 placed on record by petitioner vide which petitioner had been asking for grant compensation for utilization of land by respondents for construction of the road.
::: Downloaded on - 15/04/2017 20:45:34 :::HCHP 58. In a similar case, this Court vide judgment passed in .
case titled as Jai Ram versus State of Himachal Pradesh and others reported in 2011 (3) Shim. L.C. 91 has held as under:-
"5. It is not the case of the respondents that petitioner had offered his land for of being utilized for construction of road, under the aforesaid PGSMY Scheme. Their rt plea is that the petitioner did not object to the construction of the road on the site. Non-raising of objection by a landowner, when his land is being encroached upon, either by the State or its Agencies or even by a private person, does not disentitle him to seek his legal remedy. Neither the scheme of PGMSY authorities the State or its Agencies to utilize private lands, without payment of compensation to the land owners nor could have a provision like that been made in the scheme as the same would have been contrary to the mandate of Article 300-A of the Constitution of India".
9. Petitioner has cited judgment of this Court passed in case titled as Jeet Ram versus State of Himachal Pradesh and ::: Downloaded on - 15/04/2017 20:45:34 :::HCHP 6 others reported in Latest HLJ 2016(HP) 615 in which it has .
been held as under:-
"4. No person can be deprived of his property without following due process of law. Respondents have utilized the land of the petitioner without paying him any of compensation. There is no contemporaneous record placed on record rt by the respondent-State to show that the petitioner had consented for the construction of the road through his land. It is evident from the contents of Annexure P-1 that the nature of land in Khasra No. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valuable piece of land of the petitioner has been utilized in an arbitrary manner by the respondent-State, for the purpose of construction/widening of the Shillaru-Reog road".
10. Reliance has been put by petitioner upon judgments passed by coordinate bench in CWP No. 2386 of 2009 titled as Bhoop Ram versus State of Himachal Pradesh & others, decided on 24.06.2016 and CWP No. 659 of 2009 titled as Dalip Singh versus State of Himachal Pradesh & others, ::: Downloaded on - 15/04/2017 20:45:34 :::HCHP 7 decided on 03.06.2016 in which in identical facts and .
circumstances, directions for acquisition of land has been issued to respondents.
11. Petitioner has also relied upon judgment passed by Hon'ble Supreme Court of India in Civil Appeal No. 9105 of of 2015 titled as Raj Kumar versus State of Himachal Pradesh & others, decided on 29.10.2015 in which respondents have been rt directed to pay compensation to petitioner whose land was utilized for construction of road under PMGSY without his consent and without paying compensation.
12. In view of above discussion, the present petition is disposed of in the following terms:-
(i) Respondents are directed to initiate process for acquisition of the land of petitioner utilized for construction of road in accordance with law within 3 months from today and complete entire process within a period of one year thereafter.
(ii) Respondents may avoid acquisition of the land of petitioner either by vacating his land by ::: Downloaded on - 15/04/2017 20:45:34 :::HCHP 8 constructing road from alternative route without .
utilizing land of the petitioner or adopting any other mode for restoring his land. In such eventuality respondents-State shall have to pay compensation, duly assessed from experts, to of petitioner for utilization of his land till vacation.
(iii) rt Needless to say that on dissatisfaction with valuation of compensation of damages assessed by the authorities concerned, petitioner may avail remedy available to him for enhancement of compensation/damages in accordance with law.
(Vivek Singh Thakur) Judge July 5, 2016 (Subh) ::: Downloaded on - 15/04/2017 20:45:34 :::HCHP