Himachal Pradesh High Court
______________________________________________________________________ vs The State Of H.P. And Others on 11 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 3467 of 2009
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Reserved on: 22.07.2016
Date of Decision: 11.08.2016
______________________________________________________________________
Shri Prakarti Bhushan Singh .....Petitioner.
Vs.
The State of H.P. and others .....Respondents.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 No.
rt
For the petitioner: Mr. G.D. Verma, Sr. Advocate, with Mr.
B.C. Verma, Advocate.
For the respondents: Mr. V.S. Chauhan, Additional Advocate
General.
Ajay Mohan Goel, J. :
By way of present petition, the petitioner has prayed for the following reliefs:
"(I) That the appropriate orders and directions may kindly be issued in favour of the petitioner against the respondents requiring them to initiate acquisition proceedings and to pay the amount of compensation with respect to land of the petitioner as mentioned above in accordance with law. In the alternative, respondents may be directed to hand over the vacant possession of the area in question to the petitioner so that he is not deprived of his property without adopting due process of law.
Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 2(II) Any other suitable relief as deemed fit under the facts and circumstances of the case may kindly be given to the petitioner and against the respondents."
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2. Case of the petitioner is that he is owner of land comprised in Khata No. 1 min, Khatauni No. 6, Khasra Nos. 19, 26, 27, 32 and 36, Kita 5 measuring 0.37-55 hectares at village Shai Tehsil Theog, District Shimla and without his knowledge and consent, the respondents have of constructed road known as 'Balag-Kuthad Road' through the aforesaid land of the petitioner. As per him, after he came to know about the rt commencement of construction work of the road, he objected to the same, however, he was assured by the persons who were working on the spot that the land which was being utilized for construction of road shall be duly acquired in accordance with law and that the petitioner shall be duly compensated for the said land of his. It is further the case of the petitioner that in the same revenue estate, land of Shri Daulat Ram and Shri Ram Singh was also utilized for construction of the said road and these persons were duly compensated by the State Government by way of acquiring their land. According to the petitioner, he took up the matter with the authorities and he also served demand notice vide registered post on 07.07.2008 upon the respondents and requested them to compensate him for his land which had been utilized. He sought information with regard to his matter under the Right to Information Act. Petitioner has also placed on record letter dated 17.03.2009 vide which the respondent-State has informed the ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 3 petitioner through his counsel that it was not possible to compensate the petitioner for the land which had been utilized for the construction of 'Balag-Kuthad Road' as the road was constructed and completed in .
the year 1978 and after a gap of 30 years, the petitioner was demanding compensation, whereas prior to this the owner of the land had never made any representation and may be the owner was satisfied with the facility of the road provided to the village.
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3. In the reply filed by the respondents, the factum of utilization of the land of the petitioner for the purpose of construction of road is not disputed. However, as per the respondent-State, since the rt petitioner verbally and willfully allowed the construction of the road through his land without raising any objection, therefore, he is not entitled to be compensated for utilization of the said land at such a belated stage. Para 5 of the reply filed by respondents No. 1 to 4 is quoted hereinbelow:
"Para-5: That the contents of para 5 of the C.W.P. are admitted to the extent that road namely Kuthat-
Basadhar Balag-Kuthar was taken in hand on the persistent demand of the people of the area, when neither petitioner nor any other land owners raised any objections. Rather all of them volunteered to construct the same through their land so as to take early benefit of said road. However, since the petitioner verbally and willfully allowed the construction of road through his land without raising any objection, now at this belated stage after a gap of many years he is demanding compensation and ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 4 wants to kill two birds with one stone i.e. one facility of connectivity through road and 2nd money. Hence, the present petition is not maintainable and deserves dismissal in the interest of justice."
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4. During the pendency of the writ petition on 17.06.2016, this Court passed the following order:
"When this case was taken up for arguments today, Mr. G.D. Verma, learned Senior of Counsel appearing for the petitioner submitted that there was a specific and categorical averment made in paragraph No. 6 of the petition to the rteffect that the petitioner has discriminated against as far as acquisition of his been land is concerned because the land of other persons which was used by the Government for the purpose of construction of road in issue was duly acquired and all affected persons were duly compensated by the Government. According to Mr. Verma, similarly situated persons cannot be treated with different yardsticks.
A perusal of the reply filed by the respondents to said paragraph of the petition reveals that the same is cryptic.
Faced with this situation, Mr. V.S. Chauhan, learned Additional Advocate General submitted that the State may be permitted to file an additional affidavit explaining therein this particular aspect of the matter. Accordingly, three weeks' time is granted to the State to file an additional affidavit, in which State shall explain therein as to whether any compensation has been ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 5 paid to the persons mentioned in paragraph No. 6 of the petition or not. The said affidavit shall be filed by respondent No. 1. List on 13th July, 2016."
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5. In obedience to the said order, compliance affidavit has been filed on behalf of Additional Chief Secretary (PW), Government of Himachal Pradesh on 21st July, 2016, in which it is stated that replying respondents arrived at a negotiable settlement with Sh. Daulat Ram of with regard to his land which was utilized for the purpose of construction of road and on the basis of the same, a sale deed was
6. rt executed in favour of the Department.
I have heard learned counsel for the parties and also gone through the records of the case.
7. In order to substantiate its case that at this stage no relief can be granted to the petitioner, learned Additional Advocate General has relied upon a Full Bench judgment of this Court in Shankar Dass Vs. State of Himachal Pradesh and Connected Matter, 2013(2) Him L.R. (FB) 698. The following was the question referred for adjudication by Full Bench of this Court:-
"In cases where the State has not taken steps under the Land Acquisition Act for the purpose of construction of roads, on the ground that the required land has been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, can they seek a direction in a writ petition filed after a long time for a direction to the State ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 6 to initiate land acquisition proceedings in respect of their such land which has been utilized for the purposes of construction of the road?"
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8. The reference was answered by the Full Bench of this Court in the following manner:-
"As per the view of the majority, the Reference is answered as follows:
of "In cases where the State has not taken steps under the Land Acquisition Act for the purpose of construction of roads on the ground that the rt required land had been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, they can invoke the jurisdiction refuting such express or implied consent or the stand of the State on voluntary surrender, only within the time within which such a relief can be claimed in a Civil Suit. Once such a question is thus raised in a Writ Petition the same can be considered in the Writ Petition itself." Post these cases in the respective Benches."
9. The Hon'ble Supreme Court in K.B. Ramachandra Raje Urs (Dead) By Legal Representatives. Vs. State of Karnataka and others (2016) 3 Supreme Court Cases 422 has held in para 28 as under:-
"28. It has been vehemently argued on behalf of the respondents that the writ petition ought not to have been entertained and any order ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 7 thereon could not have been passed as it is inordinately delayed and the appellant has made certain false statements in the pleadings before the High Court details of which have been .
mentioned hereinabove. This issue need not detain the Court. 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 of upon the fairness of governmental action do arise, the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction by rt the Court. Insofar as the knowledge of the appellant-writ petitioner with regard to the allotment of the land to Respondent 28 Society is concerned, what was claimed in the writ petition is that it is only in the year 1994 when Respondent 28 Society had attempted to raise construction on the land that the fact of allotment of such land came to be known to the appellant-
writ petitioner."
10. The Hon'ble Supreme Court in SLP(C) No(s) 2373/2014, Raj Kumar Vs. State of H.P. & others decided on 29.10.2015 has held as under:-
"There is in our opinion considerable merit in the submission made by Mr. Nag. It is true that the appellant had approached the High Court rather belatedly inasmuch the land had been utilized some time in the year 1985-86 while the writ petition was filed by the appellant in the year ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 8 2009. At the same time it is clear from the pleadings in the case at hand that the user of the land owned by the appellant is not denied by the State in the counter affidavit filed before the High .
Court or that filed before us. It is also evident from the averments made in the court affidavit that the State has not sought any donation in its favour either by the appellant or his predecessor in interest during whose life time the road in question was constructed. All that is stated in of the counter affidavit is that the erstwhile owner of the land "might have donated" the land to the State Government. In the absence of any specific rt assertion regarding any such donation or documentary evidence to support the same, we are not inclined to accept the ipsit dixit suggesting any such donation. If that be so as it indeed is, we fail to appreciate why the State should have given up the land acquisition proceedings initiated by it in relation to the land of the appellant herein. The fact that the State Government had initiated such proceedings is not in dispute nor is it disputed that the same were allowed to lapse just because the road had in the meantime been taken under the Pradhan Mantri Gram Sadak Yojna. It is also not in dispute that for the very same road the land owned by Kanwar Singh another owner had not only been notified for acquisition but duly paid for in terms of Award No. 10 of 2008."::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 9
11. The Hon'ble Supreme Court in State of U.P. and Others Vs. Manohar has held as under:-
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"5. As a matter of fact, the appellants were unable to produce even a scrap of evidence indicating that the land of the respondent had been taken over or acquired in any manner known to law or that he had ever been paid any compensation in respect of such acquisition. That the land was thereafter constructed upon, is not of denied.
6. Having heard the learned counsel for the appellants, we are satisfied that the case rt projected before the Court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.
7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the 44th Amendment to the Constitution, Article 300A has been placed in the Constitution, which reads as follows: "300A- Persons not to be deprived of property save by authority of law _ No person shall be deprived of his property save by authority of law."
8. This is a case where we find utter lack of legal authority for deprivation of the respondent's ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 10 property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of .
the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us."
12. The Hon'ble Supreme Court in Tukaram Kana Joshi and of others through power of attorney holder Vs. Maharashtra Industrial Development Corporation and others, (2013) 1 Supreme Court Cases 353 has held as under:-
rt "16. The High Court committed an error in holding the appellants non-suited on the ground of delay and non-availability of records, as the Court failed to appreciate that the appellants had been pursuing their case persistently. Accepting their claim, the statutory authorities had even initiated the acquisition proceedings in 1981, which subsequently lapsed for want of further action on the part of those authorities. The claimants are illiterate and inarticulate persons, who have been deprived of their fundamental rights by the State, without it resorting to any procedure prescribed by law, without the Court realizing that the enrichment of a welfare State, or of its instrumentalities, at the cost of poor farmers is not permissible, particularly when done at the behest of the State itself. The appellants belonged to a class which did not have any other vocation or any business/calling to fall ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 11 back upon, for the purpose of earning their livelihood.
17. Depriving the appellants of their immovable properties was a clear violation of .
Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons of to become vagabonds or to indulge in anti- national activities as such sentiments would be born in them on account of such ill-treatment.
rt Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.
18. The appellants have been deprived of their legitimate dues for about half a century. In such a fact situation, we fail to understand for which class of citizens the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country, to whom constitutional/statutory benefits are accorded, in accordance with the law."
13. This Court in Jeet Ram Vs. State of Himachal Pradesh and others, Latest HLJ 2016 (HP) 615 has 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 ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 12 petitioner without paying him any compensation. There is no contemporaneous record placed on record 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 of construction/widening of the Shillaru-Reog road.
5. It is also argued by Mr. Anup Rattan, rt Additional Advocate General, that there is delay in filing the present petition, as construction of the road on the suit land was only undertaken on 5.6.2006. Immediately thereafter, the petitioner had served a notice upon the respondents on 30.4.2007. Some action ought to have been taken on notice dated 30.4.2007. Petitioner was constrained to serve another notice on 22.9.2009.
Despite that no action has been taken by the respondent-State to redress the grievance of the petitioner.
6. Legitimate right of a citizen, that too pertaining to valuable property, can not be defeated merely on the technical objections. There ought to be difference in the approach of a private litigant vis-à-vis State. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 13 can not be any estoppel/ waiver against the constitutional/fundamental/legal rights."
14. In view of the above discussed law, now I will revert to the .
facts of the present case. The factum of the land of the petitioner having been utilized for the purpose of construction of 'Balag-Kuthad Road' is not disputed by the respondent-State. There is no material produced on record by the State from which it can be inferred that the said road was of utilized by the State for the construction of the road with the consent of the petitioner implied or otherwise. There is no cogent explanation rt given by the State as to why the land of the petitioner was not acquired as per the provisions of Land Acquisition Act when the land of similarly situated persons was duly acquired under the provisions of Land Acquisition Act and they have been duly compensated for the utilization of their land as per law.
15. It is matter of record that respondent-State has compensated a similarly situated land owner, whose land was utilized by the Government for the construction of the same road. This is evident from the compliance affidavit filed by the State which has also been referred to above and relevant portion of which is quoted hereinbelow:
"6. That thus based upon above directions, negotiated settlement with such Daulat Ram (petitioner) were got convened by the LAO on 01.03.2007. Upon the approval of Govt. on this negotiated settlement with land owner Sh. Daulat ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 14 Ram, sale deed was also got entered/registered with Sub-Registrar, Theog on 29.05.2007. The copy of amicable settlement order alongwith copy of sale deed are annexed herewith as Annexure R-1 and R-
.
2 respectively."
16. Besides this, the writ petition has been filed on 18.09.2009 and the refusal which has been conveyed to the petitioner through his counsel by Executive Engineer, Theog Division (B & R), HP PWD, Theog of to the effect that the petitioner cannot be compensated for utilization of his land is dated 17.03.2009.
17. rt In my considered view, keeping in view the fact that the petitioner for the first time had been intimated vide communication dated 17.03.2009 by the respondent of the reasons as to why he is not to be compensated by the State for utilization of his land and the petition has been filed on 18.09.2009, it cannot be said that there is inordinate delay in filing of the writ petition.
18. As per the judgment of Full Bench of this Court in cases where the State has not taken steps under the Land Acquisition Act for the purpose of construction of roads on the ground that the required land had been willingly surrendered either orally or otherwise or with implied or express consent by the owners at the relevant time, the petitioners can invoke the jurisdiction refuting such express or implied consent or the stand of the State on voluntarily surrender only within the time within which such a relief can be claimed in a civil suit. It has ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 15 also been held that once such a question has been raised in the writ, the same can be considered in the writ petition.
19. As I have already held above, the State for the first time .
intimated the petitioner about the factum of his not being compensated only vide communication dated 17.03.2009 and there is no material on record produced by the State to the effect that the State had earlier also made it evident to the petitioner that no compensation shall be paid to of him as his land has been utilized with his consent.
20. Therefore, in my considered view, in view of the law laid down by the Hon'ble Supreme Court and Full Bench of this Court it rt cannot be said that the petition filed by the petitioner is hit by delay and laches.
21. It is settled law that no person can be deprived of his property without following due process of law. It is not disputed by the respondent-State that they have utilized the land of the petitioner without paying compensation. No material has been placed on record by the State to show that the petitioner had consented for the construction of the road through his land, thus the fact remains that the land of the petitioner has been utilized by the State for the purpose of construction of the road in issue without following the procedure of law and without compensating him as per law. In this view of the matter and in view of the law discussed above in my considered view the right of the petitioner pertaining to valuable right of property cannot be defeated on technical objections like delay and laches, especially ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 16 keeping in view the fact that the land has been utilized by the State and the status of the State is on high pedestal as compared to a private litigant.
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22. Further keeping in view the fact that it is the duty of the functionaries of the State to maintain the Rule of Law. The State cannot be permitted to deprive the petitioner due and just compensation for the utilization of his land which has been used by the State for the of construction of the road.
23. It is reiterated that the State has not been able to demonstrate that the petitioner had consented for the use of his land rt for the purpose of road and even otherwise, keeping in view the fact that right to property is a constitutional right, there cannot be estoppel/waiver against constitutional/fundamental/legal rights.
24. Accordingly, the present writ petition is allowed and the respondents are directed to initiate the process for acquisition of land of the petitioner in accordance with law and complete the entire proceedings before 30th April, 2017.
25. This Court expresses its anguish over the number of petitions which are filed by the land owners claiming compensation for the utilization of their land by the Government on the ground that the said land of their's has been utilized by the Government without their consent and without acquiring the said land in accordance with law.
Accordingly, it is directed that henceforth no land of a private land owner shall be utilized by the State Government or its agencies for any ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP 17 purpose whatsoever either without the consent of the land owner, which consent shall be obtained expressly in writing or without acquiring the said land in accordance with law. It is further directed .
that the consent of the land owner shall be obtained by the authority concerned before utilizing his or her land for public purpose. It is further directed that henceforth in case any private land is utilized by the Government or its agencies without either the expresses written of consent of the land owner or without acquiring it in accordance with law, then the officer/official responsible for the utilization of the said land shall be personally liable for the same and the compensation rt which shall become payable to the land owner whose land is so utilized shall be recovered from the erring officer/official.
26. A copy of this judgment shall be made available to the Chief Secretary, Government of Himachal Pradesh, who shall issue necessary directions/instructions to all concerned in this regard.
The writ petition is allowed in the above terms. No order as to cost.
(Ajay Mohan Goel) Judge August 11, 2016 (bhupender) ::: Downloaded on - 15/04/2017 21:00:53 :::HCHP