Himachal Pradesh High Court
______________________________________________________________________ vs The State Government Of Himachal ... on 1 June, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 4947 of 2010
Reserved on: 26.05.2016
.
Date of Decision: 01.06.2016
______________________________________________________________________
Sh. Liaq Ram
......Petitioner.
Vs.
The State Government of Himachal Pradesh
through the Secretary (PWD) and ors.
.....Respondents.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
For the petitioner:
rt
Whether approved for reporting?1 Yes.
Mr. G.D. Verma, Senior Advocate, with
Mr. B.C. Verma, Advocate.
For the respondents: Mr. V.S. Chauhan, Additional Advocate
General and Ms. Parul Negi, Dy. A.G.
Ajay Mohan Goel, J. (Oral) :
The present writ petition has been filed praying for the following reliefs:
"(i) That the respondents may be directed to produce total record of the case for the perusal of this Hon'ble Court, so that this Hon'ble Court may be able to decide the subject matter of the dispute;
(ii) That appropriate orders and directions may be issued in favour of the petitioner and against the respondents that the petitioner should not be deprived of his property without payment of amount of compensation and the due process should be Whether the reporters of the local papers may be allowed to see the Judgment? Yes.::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 2
initiated in accordance with law for payment of amount of compensation in accordance with law.
(iii) In case the respondents are not willing to acquire the land in question, directions may be issued to the respondents to vacate the area in .
question and handover the physical possession thereof to the petitioner and also they may be required to pay the amount of compensation/dues on account of damage as already caused by uprooting and felling down the fruit bearing apple plants and of by way of throwing debris stones.
Any other suitable relief which this Hon'ble Court deems fit and proper under the given facts and circumstances of the case may also be passed in rt favour of the petitioner.
2. The case of the petitioner is that he is owner in possession of the land comprised in Khata Khatauni No. 1/1, Khasra No. 358, measuring 0-21-46 hectares, situated at Mauza Nohra, Pargana Baragaon, Tehsil Chopal, District Shimla, H.P. As per him, the respondents started the work of construction of Reoni to Khagna road during the year, 2008 and as per initial survey for construction of this road, land of the petitioner was not required. In other words, the road in question was to be constructed without occupying the land of the petitioner. However, despite this, the respondents without any justification altered the survey in such a manner that the road was constructed through the land of the petitioner.
3. When he came to know about this, he objected that the survey should not be changed and his land should not be utilized for ::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 3 the purpose of construction of the road. His grievance is that despite his objections, respondent No. 3 unauthorizedly and illegally started the construction work of the road in issue in Khasra No. 348 owned by him.
4. The case of the petitioner further is that the construction of .
road commenced in October, 2008 and by the time he served legal notice dated 14.01.2009 upon the respondents, his orchard has been badly damaged as a result of construction work of the said road. It is further his case that in response to the applications filed by him under of the Right to Information Act, the Executive Engineer, Chopal Division, H.P. P.W.D. vide communication dated 05.11.2009 (Annexure P-11) rt stated that the land of the petitioner was not deliberately used by the department, but the petitioner permitted the department to use the said land and further that there was no provision of compensation of land under Pradhan Mantri Gram Sarak Yojana and that the department was constructing road in larger public interest. It was further mentioned in the communication that at the time of survey, the petitioner allowed the department to conduct the survey of the land.
According to the petitioner, the contention of respondent No. 3 was totally incorrect because he had not given any consent whatsoever to the effect that he was willing to have a road constructed through his land.
5. Thus, according to the petitioner, in the present case, his land has been utilized by the respondents for the purpose of construction of road and he has been deprived of his property by the ::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 4 Government without adequately compensating him. It is in this background that he has filed the present writ petition.
6. In its reply, the respondent-State reiterated that the construction of the road has been done as the petitioner himself allowed .
the respondent department to construct the road adjacent and through the suit land and after construction of more than 500 meters of road towards Khagna, petitioner objected regarding construction of the same over some portion and demanded compensation for the same. It was of further the case of the State that the respondent department was not having any option than to construct the alternative road from the point rt of suit land and the respondent department was going to vacate the suit land and the damaged land can be used as a plain field by the petitioner and orchard can be planted on the suit land. It was further submitted in the reply that the compensatory plantation shall be provided to the respondent department to compensate the damaged apple plants during the construction of road in lieu of damages. It was also the stand of the State that there was no provision of any compensation for construction of such like road which was being constructed under the Pradhan Mantri Gram Sadak Yojna and if the respondent department had knowledge about the ulterior motive of the petitioner, then the respondent department would not have constructed the road over the land of the petitioner.
7. When this case was listed on 22.03.2016, this Court passed the following order:
"Heard for some time.::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 5
In reply to the writ petition the stand of the respondent-State is that the road over a portion of the land belonging to the petitioner has been constructed in his presence and with his consent upto a distance of 500 meters and beyond that he did not .
allow the construction of road and any further. As per further stand of the respondent-State, the only option now left is to change the alignment of the road and to vacate the land of the petitioner already occupied. The response to this fact has been filed on 05.01.2011, of i.e., five years back. What is the factual position qua existence of the road as of today, let the first respondent to apprise this Court qua the same by filing supplementary affidavit within two weeks. In rt the event of the road still exists on the land of the petitioner and its alignment is not changed, the first respondent to state specifically in the affidavit that the respondent-State still intends to vacate the land of the petitioner and change the alignment of the road or to allow the road to continue over the land of the petitioner.
An authenticated copy to learned Deputy Advocate General for compliance"
8. Compliance affidavit has been filed by the Additional Chief Secretary (PWD) to the Government of Himachal Pradesh. A perusal of the said affidavit demonstrates that the respondent-State is not denying the fact that some portion of the land of the petitioner has been used for construction of the road in issue. It is stated in the affidavit that at RD 3/139 to 3/225 a hair pin bend has been constructed by the respondent department for maintaining proper grade of the road and ::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 6 the same falls in petitioner's land. It is further mentioned that on the hill side of the road, there is Government land where the said hair pin bend has been constructed and ahead of that also forest land is situated. As per the respondents, at the relevant time, to maintain .
proper grade, road has been constructed through some portion of the land by the contractor with the oral consent of the petitioner. It is further stated that through this connectivity, the petitioner is also one of the beneficiary. It is further submitted that under the Pradhan of Mantri Gram Sadak Yojna, there is no provision of payment of compensation to land owners. As per this affidavit, the Pradhan Mantri rt Gram Sadak Yojna is implemented when the land owners either give an undertaking by way of affidavit that they shall not claim any compensation for utilized land or the land owners donate the land through gift deed in favour of the department, which is based on alignment survey. Relevant paragraphs of the affidavit are quoted hereinbelow:
"...Thus, this scheme (PMGSY is implemented when the land owner(s) either make undertaking in affidavit that he/they shall not claim any compensation for utilized land or land owner(s) have to donate the land through gift deed in favour of deptt. Which is based upon alignment survey. Hence, the State/deptt. is now in a fix as to how to deal with this situatin because kachha road in the entire length stood constructed by the respondent deptt. Uder PMGSY scheme with a total road legth of 10 km. At RD3/139 to 3/225 through suit land as per MB NO. CHD 1113 entry so made at page ::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 7 52 to 54 on 1.09.2009 cutting work has been done by the contractor namely Smt. Kamlesh Puri W/o Sh. Mahesh Puri Prop. M/s M.K. Earth Moovers to whom this work was awarded for an amount of Rs.3,99,34,404/- i.e. approx. 4 crores. The road is still .
kachha road and no mentalling and tarring work has been done till now. Therefore, its re-alignment is also possible by avoiding suit land which is also evident from two photographs of the spot Annexure R-1 (Colly.), as such it appears that at the time of filing reply by SE, of 14th Circle Rohroo available option of making change of alignment was also made but had not been acted upon till now whereas on 31.03.2011 the work has been closed. rt
4. That as far as damages to suit land is concerned, the agreement No. 80/2007-2008 so entered between M/s M.K. Earth Moover and Executive Engineer, HPPWD Chopal under package No. HP09-136, under General Condition of Contract, Clause 12, i.e. Contracts Risk, is provided as under;
"All risks of loss of or damage to physical property and of personal injury and death which arise during and in consequence of the performance of the Contract other than the excepted risks, referred to in clause 11.1 are the responsibility of the Contractor."
Therefore, 2nd claim of damages to the suit land by throwing debris, said claim is maintainable against contractor Smt. Kamlesh Puri, Prop. M/s M.K. Earthmoovers, Dhingra Estate Boileauganj, Shimla-5. Hence, for said claim contractor deserves to be impleaded as respondent to this writ petition.
::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 85. That as far as the claim of acquisition of part of suit land so found utilized in consturucting hair pin bend in photograph Annexure R-1 is concerned, it is respectfully submitted that as submitted in para-3 above also under PMGSY, construction of road, land .
falling on the alignment of said link road is to be donated by land owners free of cost so as to get the benefit of connectivity when DPR is prepared. Therefore, if petitioner still insists for acquisition of utilized land in said construction, then at this stage respondent deptt.
of may kindly be granted 3 months time so that, re- alignment/re-gradation of the road be got completed at spot at deptt. Level whereby that portion of land as found utilized in the construction of said road belonging rt to petitioner could be "Bye passed" by respondent. Deptt. for which EE, SE & JE shall be jointly visiting the spot in the first week of May, 2016 as after retirement incumbent EE on 30.04.2016, new incumbent has also been posted on 5.05.2016 and by 30.06.2016 he may also re-align the link road under his personal supervision and deliver back the possession of land belonging to petitioner after re-alignment through deptt.
man and machinery. By doing this residents of remaining area, beyond RD 3/225 to upto RD 10/00 km shall continue to avail road connectivity facility despite change of alignment through deptt. man and machinery being PMGSY Package of this road already closed on 31.03.2011 for doing all this SE, EE and AE have been issued strict instructions on 28.04.2016 by CE(S) to get this job completed by 31.05.2016 and send its compliance by 1st June, 2016 failing which disciplinary proceedings against them shall follow. The copy of same is annexed as Annexure R-2."
::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 99. I have heard the learned counsel for the parties and also gone through the records, including the latest affidavit filed on behalf of the respondent-State.
.
10. In my considered view, the land of the petitioner could not have been utilized for the purpose of construction of road without either adequately compensating him in accordance with law or in the alternative without taking his consent in writing that in lieu of his land of being utilized for the purpose of construction of road, he shall not claim any compensation from the Government.
11. It is apparent from the reply of the State as well as the rt latest affidavit filed by respondent No. 1 that no such consent has been taken in writing from the petitioner by the State while utilizing his land for the construction of road.
12. The stand of the State is that oral consent was given by the petitioner to the contractor at the time of utilization of his land for construction of road. In my considered view, this contention of the State merits rejection because the State cannot be permitted to deprive owner of the land of his property without duly compensating him on such like bald assertions that the owner of the property had given his verbal consent for utilization of the same.
13. The second contention of the State is that the road has been constructed under the Pradhan Mantri Gram Sadak Yojna and under this particular scheme, there is no provision to compensate the person whose land is utilized for the construction of the road because ::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 10 the land is either utilized on the basis of written undertaking by way of an affidavit given by the owners of the land that they shall not seek any compensation for the land of theirs which is used for construction of road or in the alternative, the land owners have to donate the land .
through gift deed in favour of the department which is based on alignment survey.
14. Admittedly, in the present case, there is no undertaking given by the petitioner by way of an affidavit that he shall not claim any of compensation for his land which has been utilized for the purpose of construction of the road. Further, no donation by way of gift deed etc. rt has also been made by the petitioner for utilization of his land. Thus, in the absence of these two eventualities, the State could not have utilized his land for construction of road under the Pradhan Mantri Gram Sadak Yojna at all. In this background, the contention of the State that everything was done with the consent and knowledge of the petitioner cannot absolve them of the legal consequences of utilizing the land of a person without duly compensating him.
15. Therefore, keeping in view the above facts and the stand of the State in its reply as well as in the latest affidavit filed by it, this petition is disposed of with the following directions:
(a) The respondent-State shall initiate the steps for acquiring the land of the petitioner for utilizing the same for construction of Reoni to Khagna road within a period of three months from today; or ::: Downloaded on - 15/04/2017 20:30:05 :::HCHP 11
(b) In the alternative, the respondents may re-
align/re-grade the road "bye passing" road of the petitioner within a period of three months from today.
(c ) In the eventuality of the respondent-State .
deciding to vacate the land of the petitioner, which has been used by it for the purpose of construction of road in issue, then the respondent No. 1 shall have the damage caused to the land and orchard of the petitioner assessed of from the PWD and revenue authorities of the State of Himachal Pradesh and pay to the petitioner the amount of rt compensation so assessed with interest @ 6% per annum from the date of filing of writ petition. In case the petitioner is not satisfied with the valuation of compensation/damage assessed by the authorities concerned, then the petitioner shall be at liberty to approach the appropriate Forum/Court of law for the redressal of his grievance in this regard, i.e. enhancement of compensation/damages.
No order as to costs.
(Ajay Mohan Goel) Judge June 01, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:30:05 :::HCHP