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2016 DIGILAW 1298 (HP)

Tek Chand v. State of Himachal Pradesh

2016-07-07

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. This writ petition has been filed praying for the following reliefs: (i) That the respondents may be restrained from constructing the road through the land of the petitioners comprised in Khasra Nos. 264, 266, 271, 272, situated at Mohal Thogi, Tehsil Karsog, District Mandi, H.P. (ii) That the respondents may be directed to construct the said road through the nearby Government land. (iii) That in alternative the respondents may be directed to acquire the petitioner’s land lawfully before making further construction after paying due compensation for land, damaged trees as well as compensating the loss as to the crops, plants and horticulture. (iv) That the entire record pertaining to the construction of the road from the respondents be summoned for the kind perusal of this Hon’ble Court. (v) Any other relief which this Hon’ble Court deem just and proper keeping in view the facts and circumstances of the case may kindly be granted in favour of the petitioners and against the respondents.” 2. Case of the petitioners in brief is that they are owners in possession of land comprised in Khasra Nos. 264, 266, 271 and 272, situated at Mohal Thogi, Tehsil Karsog, District Mandi, H.P. and in the course of the construction/widening of ‘Tattapani-Lamshar Khanderi Savindhar Road’ which has been constructed under the Pradhan Mantri Gram Sarak Yojna (hereinafter referred to as ‘PMGSY’), the abovesaid land of the petitioners is being threatened to be utilized by the respondents without acquiring the same and without adequately compensating the petitioners. It is further the case of the petitioners that they have approached the authorities concerned and have intimated them that they are not willing to permit the construction/widening of the said road by utilizing their land without due compensation, however, despite their request and notices, the respondents were persisting to utilize the land of the petitioners without acquiring the same in accordance with law. Hence in these circumstances, the petitioners filed the present writ petition. 3. A perusal of the reply filed by the State demonstrates that the factum of the intent of the respondents to utilize the land of the petitioners is not denied. Hence in these circumstances, the petitioners filed the present writ petition. 3. A perusal of the reply filed by the State demonstrates that the factum of the intent of the respondents to utilize the land of the petitioners is not denied. However, as per the respondents, no objection was raised by the petitioners at the time of survey of the road and the earlier construction carried out of the road in issue which was being partially widened to facilitate the plying of heavy vehicles. It is further the case of the respondent-State that the road has been constructed under PMGSY, in which there is no provision of acquisition of land and payment of compensation to land owner. According to the State, as per the said Scheme, beneficiaries of the area are getting connectivity and they have to arrange the land free from all encumbrances and free of cost as the construction of the road is done on the demand of the public. It is further the case of the respondent-State that the petitioners are claiming the compensation unnecessarily, whereas they alongwith other beneficiaries are getting benefit of the road facility. 4. During the pendency of the petition, the petitioners filed CMP No. 19385 of 2013 praying therein that the respondents be restrained from carrying out any construction activity over the land of the petitioners which was apprehended at the time when the said miscellaneous application was filed. The reply filed to the said application by the respondent-State reveals that it is mentioned therein that on the objection of the petitioners, no widening work has been done on that portion of the land which is adjoining to the suit land and no land of the petitioners has been used for widening of the road. 5. Be that as it may, the fact of the matter remains that the petitioners are not willing to let the respondents utilize their land for the purpose of construction/widening of the road in issue which has been constructed under the PMGSY without the petitioners being adequately compensated in accordance with law and according to the State, no compensation can be paid to the petitioner because there is no provision of compensating the land owners under the PMGSY and further the petitioners themselves are the beneficiaries of the project in issue. 6. 6. I have heard the learned counsel for the parties and also gone through the records of the case. 7. In my considered view, the respondent-State cannot deprive a citizen of his property without following the due process of law. No doubt under the PMGSY, there is no provision of acquiring the land and compensating the land owner for the use of the land, but the fact still remains that roads are constructed under the abovementioned Schemes only when the land owners either give an affidavit in writing that they shall not be claiming any compensation for utilization of their land or the said land is duly donated in accordance with law by the land owner in favour of the department. Thus, there is no provision under the PMGSY that the respondents can utilize the land of a person without his consent in writing to the effect that he shall not claim any compensation for the same or without the said land having been donated in favour of the department as per law. 8. Right to property is a Constitutional right guaranteed under Article 300 (A) of the Constitution of India, according to which, no person shall be deprived of his property save by authority of law. 9. The Hon’ble Supreme Court in Tukaram Kana Joshi and others Vs. Maharashtra Industrial Development Corporation and others (2013) 1 SCC 353 has held that the State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. It has also held that in a welfare State, statutory authorities are bound not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. It has also held that it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of development. 10. The Hon’ble Supreme Court in State of U.P. and others Vs. Manohar (2005) 2 SCC 126 has held that ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution of India, which expressly provides that no person shall be deprived of his property save by authority of law. 11. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution of India, which expressly provides that no person shall be deprived of his property save by authority of law. 11. This Court has repeatedly held in Jeet Ram Vs. State of Himachal Pradesh and others, Latest HLJ 2016 (HP) 615 and Lal Chand Vs. State of H.P. and others, CWP No. 2540 of 2009, decided on 13.05.2016 that no person can be deprived of his property without following the due process of law. 12. Thus, in view of what has been discussed above, the present writ petition is disposed of with the directions that the respondent-State shall not utilize the land of the petitioners subject matter of the present petition for the purpose of construction/widening of ‘Tattapani-Lamshar Khanderi Savindhar Road’ without the express consent of the petitioners as is envisaged in the PMGSY or without the said land being donated by the petitioners to the concerned department as per law or in the alternative without acquiring the said land as per the provisions of the Land Acquisition Act. With the said directions, the writ petition is disposed of.