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2016 DIGILAW 1188 (HP)

Upender Kumar v. State of H. P.

2016-06-27

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. 1. By way of present writ petition, petitioner has prayed for following reliefs: “(i) That the respondents may kindly be directed to produce the entire record pertaining to the case for the kind perusal of this Hon’ble Court. (ii) That appropriate orders and directions may kindly be issued, requiring the respondents to pay suitable compensation/damages on account of occupation and use of the land pertaining to the petitioner from the date of actual taking over the possession, after initiating the proceedings under Section 4 of the Land Acquisition Act. Time Bound directions may kindly be issued to the respondents to initiate the acquisition proceedings to finalize the same and pay the amount of compensation with respect to the land and properties/land/valuable trees as per the rate prevalent in the market alongwith interest @ 18% per annum from the acquisition of the land of the petitioners for the purpose of construction of road. (iii) That the petition may kindly be allowed with costs throughout. (iv) Any such other or further orders which this Hon’ble Court may deem just and proper in the light of facts and circumstances of the case may also kindly be passed.” 2. Facts as emerge from the record are that the petitioner is the owner of land comprising Khata Khatauni No. 23 min Khasra No. 26 area measuring 1-4 bighas (over Kahdi). The petitioner has also placed on record, copies of Jamabandi for the years, 2006-07 along with spot tatima and certificate to demonstrate the existence of road and aforesaid land of the petitioner. Petitioner has averred that respondents constructed a motorable “Maryog Narang Dharyar Marg” road in the year, 1975-76 at Mauza Badut, Tehsil Pachhad, District Sirmaur, H.P. and for the purpose of construction of the aforesaid road, the land comprising Khata Khatauni No. 23 min Khasra No. 26 area measuring 1-4 bighas (over Kahdi) has been taken/used for construction of the road to the extent of his share in the aforesaid khasra number of the petitioner. 3. It is specifically alleged that the respondents utilized the aforesaid valuable land of the petitioner for the purpose of construction without paying him any compensation qua the land used by them. 3. It is specifically alleged that the respondents utilized the aforesaid valuable land of the petitioner for the purpose of construction without paying him any compensation qua the land used by them. The petitioner by way of Annexure-P4 also placed on record copy of the notification issued by respondents intimating therein acquisition of land of certain people/villagers for construction of the Maryog Narang Dharyar Marg. The petitioner has specifically averred that despite there being several requests made to the respondents to initiate steps for acquisition of his land, used by the respondents for the construction of aforesaid road by issuing notification under Section 4 of the Land Acquisition Act, no steps, whatsoever, have been taken till date to issue notification to acquire the land and thereafter, pay compensation as is required under the Act. Petitioner has also averred that he has been discriminated because admittedly as emerges from the perusal of the Annexure P-4, land of the people belonging to adjoining villages Narang, Maryog, Chewla, Bakanag have been acquired in accordance with law and due and admissible compensation has been paid to them. It is also contended that land of the petitioner falls in middle of villages Narang and Maryog and road in question passes through same and, as such, he is also entitled to compensation on account of use and occupation of the land used by the respondents for construction of the Narang, Maryog, Chewla, Bakanag Marg. 4. Respondents by way of detailed reply to the petition have prayed for dismissal on the ground of delay and latches but fact remains that respondents have admitted that some part of the suit land situate on Khasra No. 26 in Mauza Badut, Pargana Girinwar Tehsil Pachhad, Distict Sirmour, HP, has been utilized by the respondent department for construction of road namely Maryog Narang Dharyar Road, which was given administrative approval and expenditure sanction during the year 1970 for the construction of the said road with the average width of 5-7 meters. It is also stated in the reply that land owners including the petitioners as well as their predecessor-in-interest represented to the State for construction of link road so as to provide them benefits of connectivity by volunteering to construct road through their land without raising any objection. It is also stated in the reply that land owners including the petitioners as well as their predecessor-in-interest represented to the State for construction of link road so as to provide them benefits of connectivity by volunteering to construct road through their land without raising any objection. It is also depicted in the reply that suit land is situated in KM 17/0 to 18/0 KM where construction of said link road was completed by the respondents during the year 1975-76 itself. Respondents have refuted the claim of the compensation, if any, put forth by the petitioner solely on the ground of delay and latches. 5. Ms. Shashi Kiran, Advocate, appearing for the petitioner vehemently argued that the petitioner is entitled to be compensated in accordance with law for use and occupation charges of the land, which has been admittedly used by respondents for the construction of the road in question. During arguments having been made by her, she specifically invited attention of this Court to the reply filed by the respondents to demonstrate that factum with regard to use of land pertaining to the petitioner has been duly admitted by the respondents. She forcefully contended that once other similarly situate persons, whose land was also used by respondents for construction, have been paid due compensation, no authority, whatsoever, lies with the respondents to deny/defeat the claim of the petitioner on the ground of delay and latches. 6. On the other hand, Mr. Rajat Chauhan, Law Officer, appearing for the State refuted the claim put forth by the petitioner and prayed that no relief, whatsoever, as prayed for, in the present petition can be granted at this belated stage that too after 35 years. He contended that road was constructed 35 years back and at that time, no objection, whatsoever, was over raised by the occupants/owners of the land. He forcefully contended that road in question was constructed for general public in public interest and no objection was raised till filing of the present petition, meaning thereby, there was an implied consent of the petitioner to construct road without determining any compensation. However, Mr. Chauhan, while arguing on behalf of respondents failed to refute the claim of the petitioner with regard to payment of compensation to other similarly situate persons for the construction of the same and similar road. 7. However, Mr. Chauhan, while arguing on behalf of respondents failed to refute the claim of the petitioner with regard to payment of compensation to other similarly situate persons for the construction of the same and similar road. 7. I have heard learned counsel for the parties as well carefully gone through the record. 8. Perusal of the pleadings available on file clearly suggests that in the year, 1974-75, respondents constructed the road known as “Maryog Narang Dharyar Marg” and for that purpose, some part of the land of the villagers, was used by the respondent-State. Perusal of Annexure-P4 leaves no doubt in the mind of this Court that respondentstate had issued notification (Annexure P-4) dated 28.5.2007 under Section 4 of the land Acquisition Act, 1894 proposing acquisition of land for construction of “Maryog Narang Dharyar Marg.” Admittedly aforesaid notification suggests that respondent-State proposed to acquire the land of persons in village Narang but it may be pointed out at this stage that road in question starts from village Narang to Maryag and in between from Narang to Dharyar, there are number of villages including the village of the petitioner. Further perusal of AnnexureP-6 placed on record by way of rejoinder suggests that persons from village Narang were paid compensation by the Court of Additional District Judge, Sirmour for the land used for construction of road in question. Perusal of award passed by the learned Additional District Judge suggests that similarly situate persons, whose land was acquired for the construction of aforesaid road, were paid compensation. After perusing reply filed by the respondents-State, it is clearly established that land of the petitioner has been used by the respondent for construction of the aforesaid road and as such state cannot be allowed to take hyper technical objections with regard to delay, if any, to deny the legitimate compensation of the petitioner, whose land has been also utilized in the construction of road in question. It also stands proved on record that respondents have already granted compensation to the similarly situate persons whose land had been utilized for the purpose of construction of road in question. Though, Mr. It also stands proved on record that respondents have already granted compensation to the similarly situate persons whose land had been utilized for the purpose of construction of road in question. Though, Mr. Chauhan had argued that since no objection for construction of road was ever raised by the petitioner at the time of construction and as such, it can be concluded that there was implied consent on the part of the petitioner to construct the road without getting any compensation, but aforesaid contention of Mr. Chauhan, cannot be accepted for the reason that it is not the case of the respondent State that land in question was voluntarily donated by the petitioner. Had it been the case of the respondents that petitioner had voluntarily donated the land for construction of road, certainly, plea of delay or implied consent as raised by the respondent would have come in the way of the petitioner, But once it stands proved, rather, admitted by the respondents that the other similarly situate persons whose lands were duly acquired by the respondent for construction of same and similar road were paid due and admissible compensation, action of respondent in denying the compensation, if any, to the petitioner cannot be held to be justifiable and the same deserves to be rectified in accordance with law since it is the violation of Article 300(A) of the Constitution of India. 9. The Hon’ble Coordinate Bench of this Court while dealing with the similar issue in CWP No. 128 of 2003 decided on 25.7.2007, titled Mathu Ram v. State of HP and Ors. wherein land was used for construction of road and compensation was paid to the similar situate persons, directed the respondents to initiate acquisition proceedings for acquisition of land of the persons and to pay compensation in accordance with law. As far as contention put forth by the respondents with regard to the inordinate delay in maintaining the petition as well as compensation is concerned, the Hon’ble Apex Court in case title Raj Kumar v. State of HP and Ors. in SLA (C) No. 2373 of 2014 decided on 29.10.2015, held as under:- “There is in our opinion considerable merit in the submission made by Mr. Nag. in SLA (C) No. 2373 of 2014 decided on 29.10.2015, 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 sometime in the year 1985-86 while the writ petition was filed by the appellant in the year 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 of that filed before us. It is also evident from the averments made in the counter 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 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 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 it, 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. In the totality of the above circumstances, the offer made by Mr. Nag to the effect that the appellant would be satisfied if he is paid compensation at the rate determined and paid to Kanwar Singh under Award No. 10 of 2008 appears to be reasonable. In the totality of the above circumstances, the offer made by Mr. Nag to the effect that the appellant would be satisfied if he is paid compensation at the rate determined and paid to Kanwar Singh under Award No. 10 of 2008 appears to be reasonable. That is so especially when the compensation in terms of Award No. 10 of 2008 was determined by reference to a Notification issued nearly 10 years ago The fact that the appellant is giving up his claim for any compensation for wrongful utilization of land and to the payment of interest which is otherwise statutorily prescribed makes the offer still more attractive for the State.” 10. Consequently, in view of the aforesaid discussion as well as decision rendered by this Court as well as the Hon’ble Apex Court in the case referred above, it would be in the interest of justice to issue directions to the respondents to start acquisition proceedings qua the land in question immediately and pay compensation to the petitioner in terms of the land acquisition act. Needless, to say that petitioner would be paid compensation in similar lines as have been paid to the other similar persons vide Annexure P-6. Accordingly, the present petition is disposed of with the direction to the respondents to complete acquisition proceedings in the aforesaid terms, as discussed above, within a period of six months.