Himachal Pradesh High Court
Sh. Durga Singh S/O Late Sh. Abhi Ram vs State Of on 23 November, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 23rd DAY OF NOVEMBER 2021
.
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 4477 of 2015
Between:-
SH. DURGA SINGH S/O LATE SH. ABHI RAM,
R/O VILLAGE CHALHOG, POST OFFICE SHAKRAH,
TEHSIL & DISTRICT SHIMLA, H.P.
.....PETITIONER
(BY SH. ROMESH VERMA, ADVOCATE)
AND
s
1. THE STATE OF HIMACHAL PRADESH THROUGH
SECRETARY (HPPWD), SHIMLA-1.
2. THE ENGINEER-IN-CHIEF,
H.P. PUBLIC WORKS DEPARTMENT,
NIRMAN BHAWAN, SHIMLA-171002.
3. THE SUPERINTENDING ENGINEER,
HPPWD, FOURTH CIRCLE,
WINTER FIELD, SHIMLA-3.
4. THE EXECUTIVE ENGINEER,
HPPWD, SHIMLA RURAL
DIVISION AT DHAMI,
TEHSIL & DISTRICT SHIMLA, H.P.
.....RESPONDENTS
(BY SH. ASHWANI SHARMA, ADDITIONAL ADVOCATE
GENERAL WITH SH. KUNAL THAKUR & SH. VIKRANT
CHANDEL, DEPUTY ADVOCATES GENERAL)
WHETHER APPROVED FOR REPORTING? YES.
_______________________________________________________
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2
This petition coming on for hearing this day, the
.
Court passed the following:
ORDER
The grievance projected by the petitioner in the instant petition is that land owned by him comprised in Khasra Nos. 180 and 288 situated at Mauja Chalhog, Tehsil and District Shimla has been utilized by the respondents for construction of Ganahatti-Nalhatti-Arki road, however, no compensation in lieu of the same has been paid to him.
2. The case set up by the petitioner is that:-
2(i) A notification under Section 4 of Himachal Pradesh Road Infrastructure (Protection) Act, 2002 was issued by the respondents on 7.12.2006. At serial No. 6 of the notification was the Ganahatti-Arki road for construction of which various parcels of land were to be utilized by the respondents. Khasra Nos. 170, 177, 288 and 180 belonging to Mauza Chalhog figured at serial Nos. 26, 27, 29 and 31 under Ganahatti-Arki road in this notification.
2(ii) The land in question falls in the alignment of the road, however, it has not been acquired. No compensation qua the land utilized by the respondents-State for the construction of ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 3 road in question was paid to the owners. Khasra Nos. 170 and 177 also falling in the road alignment were co-owned by the .
petitioner alongwith one Shri Rameshwar Lal. Said Rameshwar Lal instituted a civil suit for mandatory injunction against the State of Himachal Pradesh in respect of Khasra Nos. 170 and 177 in the year 2005. The respondents-State assured the plaintiff therein that notification under Section 4 of the Land Acquisition Act in respect of suit land i.e. Khasra Nos. 170 and 177 was going to be issued shortly. On the basis of this assurance, the civil suit was withdrawn by the plaintiff Rameshwar Lal on 13.3.2006. The order dated 13.3.2006 dismissing the suit filed by Rameshwar Lal as withdrawn reads as under:
"Two witnesses present and examined. The plaintiff vide his separate statement recorded has stated in view of the statement deposed by PW-1 and PW-2 that proceeding before LAO of the suit land is pending and notification under Section 4 of the Land Acquisition Act is going to be notified. Due to this reason he does not want to proceed with this case and prayed that it be dismissed as withdrawn. In view of the statement of the plaintiff, this suit is dismissed as withdrawn. File after due completion be consigned to record room."::: Downloaded on - 31/01/2022 23:19:03 :::CIS 4
2(iii) Subsequently, acquisition proceedings were initiated by the respondents in respect of Khasra Nos. 170 and 177.
.
Award No. 55/2011 was passed on 30.9.2011 under Section 11 of the Land Acquisition Act for these two Khasra numbers.
Petitioner as well as Rameshwar Lal i.e the co-owners were compensated for acquisition of these two khasra Nos. i.e. 170 and 177.
2(iv) to On 21.2.2012, the petitioner represented to the respondents that Khasra Nos. 180 and 288 exclusively owned by him and situated at Mauza Chalhog, Tehsil and District Shimla have also been utilized by them for the construction of Ganahatti-Nalhatti-Arki road. However, he has not been compensated for this land. Getting no response, the petitioner got issued legal notices to the respondents on 19.3.2013 and 10.5.2013. He also exchanged correspondence with the concerned officials of the respondent department with respect to acquisition of his land comprised in Khasra Nos. 180 and 288 total measuring 0-04-53 hectares. The response given by the respondents was that though the road has been constructed over the land in question, however, the same has not been acquired, therefore, no compensation can be paid to the ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 5 petitioner for want of acquisition of the land i.e. Khasra Nos. 180 and 288.
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3. It is in the above background that the petitioner has preferred instant petition praying for following substantive reliefs:
" ii) That appropriate order and directions may be issued in favour of the petitioner and against the respondents that since they have utilized the land of the petitioner as entered against Khasra Nos. 180 as well as 288 situated at Mauja Chalhog, Tehsil and District Shimla, therefore, appropriate legal proceedings be initiated and finalized and the amount of compensation may be paid in accordance with law. For this purpose direction may be issued to them to complete the acquisition proceedings without further delay.
iii) That in case the respondents still claim that they do not require area of Khasra No. 288 at Mauja Chalhog, in that event, necessary orders may kindly be passed, so that the land belonging to the petitioner whatsoever is found to have been occupied by the respondents is restored and physical possession thereof is handed over to the petitioner and the respondents may be directed to pay the amount of damage for the period from 2006 to date on account of unlawful occupation in accordance with law."
4. Learned counsel for the petitioner submitted that the respondents have utilized the land owned by the petitioner comprised in Khasra Nos. 180 and 288, situated in Mauza ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 6 Chalhog, Tehsil and District Shimla for the construction of Ganahatti-Nalhatti-Arki road. However, this land has not been .
acquired by the respondents in accordance with law. Relying upon various judgments of Hon'ble Apex Court, learned counsel contended that the petitioner cannot be divested of his land save and except in accordance with land and since the respondents have utilized his land, therefore, land is required to be acquired in accordance with law and the compensation is liable to be paid to the petitioner.
Opposing the petition, learned Additional Advocate General submitted that the petitioner has raised the issue of acquisition of land after a long delay. The writ petition is not maintainable on grounds of delay and laches.
5. Two Khasra numbers involved in this petition are being considered hereinafter under different heads:-
5(i) Khasra No. 180:
5(i)(a) The respondents have not disputed that the
Ganahatti-Arki road passes through Khasra No. 180 and that they have utilized Khasra No. 180 exclusively owned by the petitioner for the construction of the road in question. In fact, the petitioner has also placed on record a communication dated ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 7 11.12.2014 (Annexure P-19) from the office of Executive Engineer, Shimla, Rural Division HPPWD Dhami addressed to .
the petitioner stating therein that the acquisition proceedings have been initiated for Khasra No. 180 as the road traverses through this khasra number. It would be appropriate to extract the relevant contents from this letter:
"Sh. Durga Singh S/O Shri Abhi Ram R/O Village Chalog P.O Shakrah.
Tehsil and Dist. Shimla H.P Subject:- Supply of information under Right to Information Act to Sh.
Durga Singh Son of Sh. Abhi Ram R/O Village Chalog P.O Shakrah Teh. and Distt Shimla H.P In connection with supply of copy of Notification under Section-9 of the Land Acquisitions Act as well as copy of award passed in connection with acquisition of land for construction of road at Village Chalog With reference to your application No. Nil dated Nil on the subject cited above vide which you have sought the requisite information.
In this connection it is intimated that acquisition proceedings have been started only for khasra No 180 because the road passes though only this khasra No. The revenue papers have been sent to S.D.M. (Rural) for obtaining inescapability Certificate vide letter no J.S.D./C-1/2014-15-1355- 56 dated 8.12.2014 where in the land falling in khasra No 288 is not required by this department as already intimated to you vide this office letter No. 5158-59 dated 28.8.2014.
Encl:- As above Executive Engineer
Shimla Rural Division
HPPWD Dhami.
1. Copy to Assistant Engineer Jutogh Sub-Division HPPWD Jutogh for information w.r. to his letter No. 1369 dated 10.12.2014.::: Downloaded on - 31/01/2022 23:19:03 :::CIS 8
2 Copy to P.I.O. Cum Executive Engineer (M&P) Nirman Bhawan Nigam Vihar HPPWD Shimla-171002 w.r.to his letter No. 8876-78 dated 21.11.2014."
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5(i)(b) The fact that Khasra No. 180 exclusively owned by the petitioner has been utilized by the respondents for the construction of Ganahatti-Arki road has been fairly admitted by the respondents in their rely filed to the writ petition. Para-9 of the reply on merits reads as follows:-
"That the contents of this para of the petition is matter of record hence not disputed. However, it is respectfully submitted that the respondent department had taken demarcation of the concerned land on 7-12-2013 which clearly shows that the road passes through only Khasra No. 180 and not in Khasra No. 288. It is further submitted that as per statement of R.K. Katoch JE dated 07-12-2013 it clearly shows that in revenue record Khasra No. 288 is shown as Gair Mumkin sarak however as per site, Khasra No. 288 is Ghasni and as per this statement the correction of the same can be got done by petitioner from revenue agency."
The plaintiff has also placed on record the jamabandi for the year 2007-2008 (Annexure P-6) where 'Gair Mumkin Sarak' has been shown to be constructed over khasra No. 180. According to the respondents the road in question was constructed during the year 1983 whereas according to the petitioner the same ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 9 was constructed and completed in the year 2006. Hon'ble Apex Court in (2020) 2 SCC 569, titled Vidya Devi versus State of .
Himachal Pradesh and Others has held that ground of delay and laches cannot be raised in a case of continuing cause of action. The State was directed to pay compensation to the appellant therein in respect of utilization of her land for as under:
r to construction of road. The relevant paras from the judgment are "12.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property, which could not be deprived without due process of law and upon just and fair compensation.
12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article.
12.9 In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 10 the judgment of this Court in Tukaram Kana Joshi v. MIDC wherein it was held that the State must comply with .
the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. 12.12 The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice."
In (2020) 9 SCC 356, titled Hari Krishna Mandir Trust versus State of Maharashtra and Others, it was held as under:
"96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300-A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel. In view of the mandate of Article 300-A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with law.::: Downloaded on - 31/01/2022 23:19:03 :::CIS 11
97. Article 300-A of the Constitution of India embodies the doctrine of eminent domain which .
comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar v. Project Uchcha Vidya, Sikshak Sangh; Jelubhai Nanbhai Khachar v. State of Gujarat.; Bishambhar Dayal Chandra Mohan v. State of U.P., the State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders vs. State of Maharashtra.
100. 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."
Hon'ble Apex Court in SLP No. 2373/2014, titled Raj Kumar versus State of H.P. & others decided on 29.10.2015 rejected the contention of the State that if the land owners do not raise any objection and voluntarily donate their lands for construction of road under PMGSY, then it is not open ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 12 for them to approach the court of law to seek compensation.
Following directions were issued in the matter:-
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"1) That Deputy Commissioner Collector, Solan shall undertake a verification and determine the exact extent of land utilized for construction of road in question out of Survey No. in which the appellant holds a share and thereby determine the exact extent of land which the appellant has been deprived of on account of such construction/utilization.
2) Upon determination of the extent of land of which the appellant has been deprived of by reason of construction of the road in question, the Deputy Commissioner shall determine the amount of compensation payable to him based on the amount determined towards compensation in Award No. 10 of 2008 relating to the land acquired for the very same road in favour of other owners including Kanwar Singh having regard to the classification of the land.
3) Upon determination of the amount so payable the Deputy Commissioner shall disburse the said amount within a period of three months form the date the determination is completed. The payment of the amount so determined shall represent the amount due and payable to the appellant in full and final settlement of all his claims towards the value of the land utilized for the construction of the road. In case however the payment is not made within the time so stipulated even after determination, the amount so determined shall start earning interest @ 12% p.a from the date the period of three months expires."::: Downloaded on - 31/01/2022 23:19:03 :::CIS 13
LPA No. 79 of 2017, titled State of H.P. and others versus Bhoop Ram instituted by the State was .
dismissed on 8.8.2017 following the judgment in Raj Kumar's case supra. To the similar effect is the judgment passed on 23.3.2021 in LPA No. 12 of 2019, titled State of H.P. & others versus Liaq Ram Dogra wherein while dismissing the appeal r to filed by the State with cost, it was held as under:
"13. From the perusal of the aforesaid judgment, it is clear that right to property is not a fundamental right, however, the same is a human right in a welfare State and a Constitutional right under Article 300-A of the Constitution and no person can be deprived of his property and the State cannot dispossess a citizen of his property except in accordance with the procedure established by law.
14. The procedure established by law is that if land of a person is acquired for construction of road etc., he or she is entitled to compensation, since the right to property is a human right.
15. As discussed hereinabove, once the plea raised by the State with regard to non-availability of land acquisition under PMGSY, has been rejected by the Hon'ble Supreme Court in Raj Kumar's case, supra and thereafter by this Court in Bhoop Ram's case, it is not open for the appellants-State to raise the same plea time and again. The present appeal appears to have been filed by the appellants without application of mind.
16. In view of the aforesaid discussion/observations, the appeal deserves to be dismissed and the same is ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 14 accordingly dismissed with costs of Rs.50,000/-, which shall be paid by the appellants-PWD Department by .
depositing the same in Advocate's Welfare Fund."
In their instructions dated 6.4.2019 placed on record of the case, the respondents submitted that "only Kh. no. 180 is falling on the alignment of the road. Since the petitioner has filed the CWP in the Hon'ble Court the process of the acquisition to acquire the land in Kh. No. 180 measuring 0-03- 48 Hect. has been stopped in the pendency of the case in the Hon'ble High Court." This stand was deprecated in the order dated 5.7.2019 passed in the petition.
Since in the instant case Khasra No. 180 owned by the petitioner has admittedly been utilized by the respondents for construction of Ganahati-Arki road, therefore, following the ratio of law discussed above, the land falling in this khasra number is required to be acquired by the respondents in accordance with law by paying the due and admissible compensation to the petitioner.
5(ii). Khasra No. 288:
On facts, learned Additional Advocate General submitted that Khasra No. 288 owned by the petitioner has not been utilized by the respondents for construction of road in ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 15 question and further that the respondents have no intention to utilize this khasra number. In fact specific submissions in this .
regard were noticed in the order dated 22.11.2021 which reads as under:-
"Learned Additional Advocate General on the basis of instructions submits that Khasra No.288 in question is neither in possession of the respondents/department nor they intend to utilize the same. At his request, list the matter on 23.11.2021. "
In the revenue record i.e. Jamabandi for the year 2007-2008 (Annexure P-3), entry of 'Gair Mumkin Sarak' exists against Khasra No. 288.
In Hari Krishana Mandir Trust's case supra, the Hon'ble Apex Court had allowed the modification involving deletion of name of Pune Municipal Corporation as holder of the private road in view of the stand taken by the parties therein that the deletion of the entry was a minor modification. In the instant case, the respondents-department have clearly stated that they are neither in possession of Khasra No. 288, nor the road in question has been constructed by them over this Khasra number, nor they intend to utilize the same. Learned Additional Advocate General stated at bar that the respondents will have ::: Downloaded on - 31/01/2022 23:19:03 :::CIS 16 no objection for correction of revenue entry in respect of Khasra No. 288 to be recorded in ownership and possession of the .
petitioner after deletion of existing entry of 'Gair Mumkin Sarak' against this khasra number. In view of the stand taken, it shall be open for the petitioner to take appropriate steps in accordance with law for correction of the revenue entries in respect of Khasra No. 288.
In light of the above discussion, this writ petition is allowed. The respondents are directed to take steps in accordance with law for acquisition of Khasra No. 180 measuring 0-03-48 hectares situated in Mauja Chalhog, Tehsil and District Shimla within a period of six weeks from today. It shall also be open for the petitioner to take steps for correction of revenue entries in respect of Khasra No. 288 for recording the same in the ownership and possession of the petitioner after deletion of existing revenue entry of 'Gair Mumkin Sarak'.
Pending application(s), if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 23rd November, 2021 (vs) ::: Downloaded on - 31/01/2022 23:19:03 :::CIS