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2018 DIGILAW 1394 (HP)

Bihari Lal v. State Of H P

2018-07-26

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The instant writ petition has been filed for the following substantive relief: "A writ of mandamus be passed against the respondents to acquire the land of the petitioner as detailed in Annexure P-4 to P-6 to the extent the same is utilized for the purpose of the link road known as Barsar to Jabbal Kherian Road and thereafter initiate the process of compensation under the land acquisition Act and grant the compensation at the market rate." 2. It Is Averred That The Predecessor-In-Interest Of The petitioners, namely, Sita Ram, was the owner of the land comprised in Khasra No. (old) 1824, new 1654, (old)1817, 1818/2, 1819 and 1820, new 1655 in Khewat No. 405, Khatauni No. 450 in Mohal Barsar, Mauza Pajgrhan, Tehsil Barsar, District Hamirpur, as per bandobast jadid for the year 2009-2010. It is further averred that the respondents have forcibly constructed and repaired the link road over a part of the suit land, of which no compensation has been awarded to them. In the earlier litigation, which reached up to this Court by way of RSA No. 531/2003, none of the parties had denied ownership and title of the petitioners and the suit as also the appeal filed by the predecessor in interest of the petitioners had been primarily dismissed on the ground that the road was already existing over a part of the suit land since 1981-82 and was repaired around the years 1991 and 1997 respectively. 3. The respondents have contested the petition by filing reply wherein it is averred that the respondents have nothing to do with the land of the petitioners as no part thereof has been used by them for any purpose whatsoever much less construction of the road. 4. The petitioners have filed rejoinder, wherein averments made in the petition were reiterated and the contrary averments made in the reply have been denied. 5. I Have Heard The Learned Counsel For The Parties And have also gone through the material placed on record carefully. 6. At The Outset, It Needs To Be Mentioned That Certain residents of Village Kheriyan as well as Gram Panchayat Barsar, District Hamirpur, H.P., had address a communication to the Hon''ble Chief Justice of this Court, highlighting the grievances with regard to delay being caused by certain individuals in the construction of the link road. 6. At The Outset, It Needs To Be Mentioned That Certain residents of Village Kheriyan as well as Gram Panchayat Barsar, District Hamirpur, H.P., had address a communication to the Hon''ble Chief Justice of this Court, highlighting the grievances with regard to delay being caused by certain individuals in the construction of the link road. This communication was treated as a public interest litigation and was registered as CWPIL No. 221/2017. 7. Evidently, the individual named in the communication was none other than the predecessor in interest of the petitioners. Noticeably, in the affidavit filed by the Superintending Engineer, it has specifically come on record that in the year 2007, the authorities, i.e. the respondents decided to construct and widen the aforesaid link road and in this regard, the project was approved by NABARD for an amount of Rs. 147.63 lacs. The work of construction was started in three phases by the respondents. The construction of the road from K.M. 0/0 to 5/465 stood completed and only stretch at RD 5/300 to 4/600 could not be completed as the land thereafter belonged to the petitioners. 8. No Doubt, Learned Division Bench Of This Court While deciding CWPIL No. 221/2017 has held the earlier suit filed by the predecessor in interest of the petitioners and the appeal carried out therein to be false, frivolous and vexatious and after taking into consideration this fact has further held that the predecessor-in-interest of the petitioners cannot be permitted to obstruct the widening of the road, however, at the same time, it has no where decided or held that he was not having any interest in the land through which the road had been constructed. 9. That Apart, It Would Be Noticed That The Suit Filed By the predecessor-in-interest of the petitioners was that of simpliciter injunction and, therefore, the adverse decision therein has no consequence upon the rights of the petitioners if otherwise established from other contemporaneous material available on record. 10. The Petitioners In Support Of Their Claim Regarding the ownership of the land have placed on record copy of bandobast jadid for the year 2009-2010, wherein the land in question has been shown to be belonging to them. That apart, the other revenue record, i.e. jamabandi for the year 1991-92 as also the field book prima facie show that the petitioners in fact are the owners of the land in dispute. That apart, the other revenue record, i.e. jamabandi for the year 1991-92 as also the field book prima facie show that the petitioners in fact are the owners of the land in dispute. If that be so, then obviously, they are required to be compensated in accordance with law. 11. In A Recent Judgment Of The Hon''ble Supreme Court in Mohammad Yusuf and others vs. State of Haryana and ors. , (2018) AIR SC 2248, it was observed that the intention behind the enactment of the Land Acquisition Act, 1894 was to acquire land for welfare purposes and to compensate the owners adequately. It was further held that it is well known fact that Right to Property is a Constitutional Right (earlier it was a Fundamental Right until 1978) as provided under Article 300-A of the Constitution of India. Lastly, it was held that the "compensation" has to be "a just equivalent of what the owner has been deprived of". Hence, the acquisition must pass the test of compensation being reasonable, just and fair as the term justice as enshrined in the preamble includes the justice in economic terms and the term economic justice in itself mandatorily requires compensation to be adequate. 12. At this stage, a feeble attempt is made by the learned Additional Advocate General to contend that the writ petition is highly belated and therefore, should be dismissed on this ground alone. 13. Even This Contention Is Without Any Merit And In fact no longer res integra in view of the judgment of the Hon''ble Supreme Court in SLP (C) 2373/2014, Raj Kumar vs. State of H.P. and ors, decided on 29.10.2015, wherein it was observed 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. 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. 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." 14. 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." 14. Consequently, In View Of The Aforesaid Discussions and bearing in mind the decisions of the Hon''ble Supreme Court, referred to above, it would be in the interest of justice to issue direction to the respondents to initiate acquisition proceedings qua land in question immediately and pay compensation to the petitioners in terms of the Land Acquisition Act. Ordered accordingly. 15. The respondents are directed to initiate the acquisition proceedings and complete the same as expeditiously as possible and preferably within one year from today. 16. The writ petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. The pending application(s), if any, also stands disposed of.