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2016 DIGILAW 1023 (HP)

Dalip Singh v. State of Himachal Pradesh

2016-06-03

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. (Oral) : This petition has been filed praying for the following reliefs: “(a) That Writ of Mandamus may be issued directing the Respondent to acquire the land of the petitioner and award the compensation and the compensation in respect to the land may be granted to the petitioner as discrimination has been done with the petitioner, as the land of the other similarly situated land owner has been acquired and the compensation in respect to their land have been granted to them. (b) That the entire record pertaining to the case may be called for the kind perusal of this Hon’ble Court. (c) Any such other order which this Hon’ble Court may deem fit in the given set of circumstances may also be passed in favour of the petitioner. 2. The case of the petitioner is that he is permanent resident of village Baandar, Pargana Stota, Tehsil Chopal, District Shimla and is owner in possession of land comprised in Khewat No. 23/22, Khatauni No. 61, Khasra No. 634, measuring 00-13-92, Khasra No. 636 measuring 00-33-84 and Khasra No. 635, measuring 00-30-36 hectors, situated at Mohal Baandar, Tehsil Chopal, District Shimla. According to him, in the course of construction of Antrawli-Baandur-Paban road, which has been constructed by the respondent department, his land comprised in Khasra No. 635, measuring 00-30-36 hectors, situated at Mohal Baandar, Tehsil Chopal, District Shimla has been utilized without his consent and without compensating him. Further as per him, the road in issue has been constructed under the Pardhan Mantri Gram Sadak Yojna (hereinafter referred to as ‘PMGSY’ for short) and the Khasra number of the petitioner which has been utilized for the construction of the road was not included in the initial survey. He has further mentioned that he had filed a Civil Suit in the Court of Civil Judge (Junior Division), Chopal praying for permanent prohibitory injunction for restraining the defendants to execute the construction work of the road in respect of Khasra Nos. 634 and 636 mentioned above. But the State constructed the road from Khasra No. 635 which was not subject matter of Civil Suit. 634 and 636 mentioned above. But the State constructed the road from Khasra No. 635 which was not subject matter of Civil Suit. His further case is that on 29.05.2008, he applied for demarcation of land and the said demarcation was conducted on 02.06.2008, report of which is placed on record as Annexure P-7, from which it is evident that the respondents have constructed the road in issue over Khasra No. 635. As per the petitioner, he approached the authorities to acquire the said land as per law and compensate him for utilizing his land, but as the respondents failed to do so, therefore, he filed this petition praying for the reliefs already mentioned above. 3. In the reply, the factum of land comprised in Khasra No. 635 having been utilized by the Government for the construction of road in issue has not been denied. However, the case of the respondents is that the road in question has been constructed under PMGSY entirely through Government land and gifted land and further as per the State, Khasra No. 635 has been used by the respondent department for construction of land after obtaining verbal consent of the land owners including the petitioner. Further, the case of the State is that there is no provision of acquisition of private land for the road which is constructed under the PMGSY. According to the State, roads under this scheme are constructed with the funds deposited for the work by the Government of India. 4. Learned Additional Advocate General also submitted that under the PMGSY, road is constructed through the land of private land owners only if they give an undertaking by way of an affidavit that they shall not claim any compensation of the land utilized for construction of road or they donate the said land by way of gift deed in favour of the department. Therefore, according to him, in the present case also there was no occasion for the Government to pay any compensation to the petitioner as he had consented to his land being utilized for the construction of the road and this consent was verbal. 5. I have heard the learned counsel for the parties and have also perused the pleadings. 6. Therefore, according to him, in the present case also there was no occasion for the Government to pay any compensation to the petitioner as he had consented to his land being utilized for the construction of the road and this consent was verbal. 5. I have heard the learned counsel for the parties and have also perused the pleadings. 6. The contents of paragraphs 5 and 6 of the reply filed by respondents 1 to 3 to the petition on merit reads as under: “Para-5 That the contents of this para are baseless and incorrect hence denied. However, it is again submitted here that the road in question being constructing under PMGSY entirely through government land and gifted land and the land of the Kh. No. 635 measuring 0-03-80 hectare has also been used by the respondent department for construction of road only after obtaining verbal consent of the owners of the land including the petitioner because there is no provision of acquisition of private land for the roads being constructed under PMGSY with the funds deposited for the work by the Government of India. Para-6 That the contents of this para except the averments relating to withdrawal of civil suit filed in the court of Civil Judge Jr. Division, Chopal in January 2009 are denied being wrong and in correct. However, it is further pointed out that the road Antrawli-Paban is being constructed by the respondent department as deposit work with the funds provided by Central Government under PMGSY and there is no provision of acquisition of private land for the construction of road under PMGSY as such till date no compensation has been paid to any private individual for using his land for construction of the road in question.” 7. There is merit in the contention of the petitioner that his land could not have been utilized for the purpose of construction of the road without adequately compensating him in accordance with law, in view of the fact that he had not given any written consent whatsoever in any form, manner or shape permitting the respondent department to utilize his land for the purpose of construction of road. 8. It s evident from the reply of the State that there is no written consent obtained from the petitioner which could demonstrate that he had agreed for the construction of road from his land without seeking any compensation. 9. 8. It s evident from the reply of the State that there is no written consent obtained from the petitioner which could demonstrate that he had agreed for the construction of road from his land without seeking any compensation. 9. Admittedly, there is no undertaking given by the petitioner by way of an affidavit that he shall not claim any 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. has also been made by the petitioner for utilization of his land. Therefore, 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. No one can be deprived of his property except by the procedure laid down by law which includes payment of due and admissible compensation to the affected party. In this view of the matter, in my considered view, the respondent-State cannot absolve itself of its liability to compensate the petitioner for the land which has been utilized by it for the construction of road in issue without the permission of the petitioner. 10. Accordingly, the present petition is disposed of with the following directions: (a) The respondent-State shall initiate the steps to acquire the land of the petitioner which has been utilized for the purpose of construction of Anttrawli-Baandur- Paban road within a period of three months from today. (b) In case the respondent did not intend to acquire the land of the petitioner, then the respondent may re-align the road by “bye passing” the property of the petitioner within a period of three months from today and vacate the land of the petitioner. (b) In case the respondent did not intend to acquire the land of the petitioner, then the respondent may re-align the road by “bye passing” the property of the petitioner within a period of three months from today and vacate the land of the petitioner. (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 of the petitioner assessed from the PWD and revenue authorities of the State of Himachal Pradesh and pay to the petitioner the amount of 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 he 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.