IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA.
CWP No. 3734 of 2009
Reserved on 27.06.2016
Decided on: 5.07.2016
_________________________________________________________ P _____ .Sita Ram ....Petitioner Versus .
State of Himachal Pradesh and others .. ..R H espondents Coram: f
The Hon'ble Mr. Justice Vivek Singh T o hakur, Judge. Whether approved for reporting? 1 Yes ___________________________________t_____________________
For the petitioner: Mr. C.N. r Singh, Advocate.
For the respondents: o Mr. u Ramesh Thakur & Pankaj Negi, Deputy Advocates Generals. Vivek Singh Th C akur, Judge h Aggrieved by non payment of compensation for util g ization of his land comprised in Khasra No. 1, 65, 66, 67 and 6 i 8, Khata-Khatauni No. 21 and 30 situated at Chak Basmol,
H Tehsil Theog, District Shimla, H.P., for construction of link road from village Kiimah to Chailla-Mahori in the year 2007-2008, petitioner has preferred present petition with prayer for direction
1 Whether the reporters of the local papers may be allowed to see the judgment? Yes
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to respondents to pay compensation to petitioner for loss of hi . s aforesaid agriculture land. P
2. Petitioner has placed on record photogr . aphs of construction Annexure P-1, and notices dated 2 H 8.03.2007 and 17.02.2009 Annexure P-2 & Annexure f P-3 served upon respondents for payment of compen sa o tion by acquiring of his land utilized for construction of roa t d. Petitioner has also placed on record representation date r d 17.03.2008 submitted to the
Executive Engineer, H.P u .P.W.D. Theog Division Shimla for
protection of his ho o use from damage caused on account of
construction of C road in question. 3. h Respondent No. 1 in his reply has stated that pet g itioner did not object construction of road and Jeep-able road c i onstructed by Gram Panchayat was already there and the H respondents-State has constructed road only on old road on large public demand raised through number of representation of the inhabitants of area for construction of road in question with assurance to provide land, free of cost, for construction of road.
It is further claimed that the road has been constructed by
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spending public exchequer amounting to Rs. 1.54 Crore unde . r PMGSY/WORLD Bank Scheme for connecting villages w . ith P road. It is also submitted in case of non availability of free of cost land the road was not to be constructed as it was p H re-condition of
scheme to provide land without cost an f d at the time of
construction of road petitioner had a o greed and extended full
cooperation to the departmen r t a t nd the department has also constructed 50 mtrs. long u breast wall by spending 4.00 Lacs to protect house and agriculture land of petitioner from any damage. Lastly, it h o as been stated that after lapse of 2 years,
petitioner is n ot C entitled to raise demand of compensation. 4. h Respondent No. 1 has also placed on record detailed pro g ject report of road under PMGSY as Annexure P-1 and a i ffidavits of villagers giving consent for utilization of their land H free of cost for construction of road. 5. Respondents No. 2 and 3 have filed separate reply to the petition and have stated that there role was confined only to the extent that petitioner had applied for demarcation of land in
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dispute and in the demarcation was given to the best satisfactio . n of the present petitioner. P
6. In rejoinder, petitioner has stated that petiti . oner had stopped Gram Panchayat from carrying on any con H struction with respect to the road in question and the Gram f P anchayat did not ventured to interfere on the land o of petitioner thereafter. Petitioner has stated that pe r rso t ns who were interested in construction of road had u given their personal affidavits and as petitioner had objected, he had never given his consent for construction of road o in issue and no affidavit or consent letter
was ever give n b C y petitioner to respondents and respondents had construc h ted road over his property without his consent. 7. g On behalf of petitioner it is submitted that petitioner w i as agitating matter since beginning which is evident from H notices Annexure P-2 and Annexure P-3 and therefore, there was no delay on the part of petitioner in raising demand for compensation.
8. Petitioner has relied upon judgment passed by Hon'ble Supreme Court in case tilted as K.B. Ramachandra
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Raje Urs versus State of Karnataka and others reported i . n 2016(3) Supreme Court Cases 422 in which it has been h P eld as under:- .
"Time and again it has b H een said that while exercising the ju risdiction under Article 226 of the o Cons f titution of India the High Court is n ot bound by any strict rule of limitation. If substantial issues of public importanc r e ttouching upon the fairness of gove u rnmental action do arise, the delayed o approach to reach the Court will not stand in the way of the exercise of jurisdiction by
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the Court". 9. h It is settled law that justice should not be denied on tech g nical objections especially when State has taken property of c i itizen without following due process of law. The State is
H 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.
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10. Respondents have placed on record large number o . f affidavits for establishing consent given by villagers to con P struct the road in question by utilizing their land free of cost. . However, none of these affidavits has been filed by petitione H r. There is no material on record to establish consent giv f en by petitioner to utilize his land free of cost rather o there are legal notices Annexure P-2 and Annexure P- r 3 p t lac ed on record by petitioner vide which petitioner u had been asking for adequate compensation for utilization of his land by respondents for construction of the ro o ad.
11. In a C similar case, this Court vide judgment passed in case titled as Jai Ram versus State of Himachal Pradesh and oth g ers r h eported in 2011 (3) Shim. L.C. 91 has held as under:- i
"5. It is not the case of the respondents H
that petitioner had offered his land for being utilized for construction of road, under the aforesaid PGSMY Scheme. Their 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,
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either by the State or its Agencies or eve . n by a private person, does not disentitle him to seek his legal remedy. Neith P er the
scheme of PGMSY authoriti H es the. State or its Agencies to utilize private lands, without payment of compensati on to the land
owners nor could o have f a provision like that been made in the scheme as the same would ha r ve t bee n contrary to the mandate of Article 300-A of the Constitution of India u ".
12. Petitioner o has cited judgment of this Court passed in case titled a s C Jeet Ram versus State of Himachal Pradesh and oth h ers reported in Latest HLJ 2016(HP) 615 in which it has g been held as under:- i
"4. No person can be deprived of his H
property without following due process of law. Respondents have utilized the land of the 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
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construction of the road through his land. It is evident from the contents of Annexur.e P-1 that the nature of land in Khas P ra No. 279, as per Jamabandi for H the ye.ar 2001-02, is Bagicha. A valuabl e piece of land of the petitioner has be f en utilized in an arbitrary manner by the respondent-State, for the purpo t se of o construction/widening of the Shillaru-Reog road".
13. Reliance has been prut by petitioner upon judgments passed by coordinate o bencuh in CWP No. 2386 of 2009 titled as Bhoop Ram v C ersus State of Himachal Pradesh & others, decided on 2 4.06.2016 and CWP No. 659 of 2009 titled as Dalip S h ingh versus State of Himachal Pradesh & others,
d i ec g ided on 03.06.2016 in which in identical facts and circumstances, direction for acquisition of land has been issued
H to respondents. 14. Petitioner has also relied upon judgment passed by Hon'ble Supreme Court of India in Civil Appeal No. 9105 of 2015 titled as Raj Kumar versus State of Himachal Pradesh
& others, decided on 29.10.2015 in which respondents have
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been directed to pay compensation to petitioner whose land wa . s utilized for construction of road under PMGSY with . o P ut his consent and without paying compensation.
15. In view of above discussion, the pres H ent petition is disposed of in the following terms:- f
(i) Respondents ar o e directed to initiate process for acq r uis t ition of the land of petitioner utilized fo u r construction of road in accordance with law within 3 months from today and comp o lete entire process within a period of one
C year thereafter. h
(ii) Respondents may avoid acquisition of the g
land of petitioner either by vacating his land by i
constructing road from alternative route H
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
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experts, to petitioner for utilization of his lan . d till vacation. P
(iii) Needless to say that on dissat . isfaction with valuation of compensat ion H of damages assessed by the auth f orities concerned, petitioner may avail rem o edy available to him for enhancement of t compensation/damages in accordance wit r h law.
u o (Vivek Singh Thakur) Judge July 5, 2016
(Subh) C
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