Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1604 (HP)

Rajiv v. State Of H P

2018-09-05

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J. - By way of present writ petition, petitioners have prayed for the following reliefs: "(i) That the respondents may be directed to produce entire record in connection with construction work of road from village Banuti to village Loharb in Tehsil and District Shimla along with entire record of the remaining portion from Loharb to Mauja Pahal Tehsil Sunni showing the process and proceeding which were started for acquisition of land and for payment of amount of compensation. (ii) That the respondent may be directed not to deprive the petitioners of their property without adopting due process of law and that they should act in accordance with law and make payment of amount of compensation as per provision of law. (iii) That in case the respondents are not ready and willing to start and complete acquisition proceeding and make payment of amount of compensation in that event they may be directed to hand over the physical possession of the land in question to the petitioner and also they may be held liable to pay use and occupation charges from the period from 1996 to date. (iv) Any other suitable relief as consider just and proper under the facts and circumstances of the petition may kindly be granted to petitioners." 2. The grievance of the petitioner is that their land as detailed in the petition stands utilized for the construction of Banuti to Pahal road as far back as in the year 1996, however till date, no compensation in lieu of the same stands paid to them. As per the petitioners though initially a notification under Section 4 was issued for acquisition of land at village Tikkari on 17.5.1996 and thereafter on 25.8.2004 for acquisition of land at village Panti, Janol and Loharb, however, the notification so issued under Section 4 of the land acquisition act was permitted to lapse. Further as per the petitioners despite their having approached the respondents on various occasions for paying compensation to them, till date nothing in this regard has been done. 3. A perusal of the reply filed by the State demonstrates that factum of the land of the petitioners having been utilized for the construction of the road has not been disputed. Further as per the petitioners despite their having approached the respondents on various occasions for paying compensation to them, till date nothing in this regard has been done. 3. A perusal of the reply filed by the State demonstrates that factum of the land of the petitioners having been utilized for the construction of the road has not been disputed. However, as per the state the same was done on the request of the petitioners and with condition that they will not claim compensation for the same though at that time no written document was executed in this regard. Relevant portion of the reply filed by the State is quoted hereinbelow: "That the contents of para 4 of the writ petition are not correct hence denied. It is submitted that at the time when the road was constructed through the land of the petitioner on their request and under condition that they will not claim compensation of them same, however at that time no written document was executed in this respect. Due to this reason the construction work of the road was completed without acquisition proceeding by the state government. It is wrong that any assurance was given by the respondents with regard to payment of compensation. As already submitted the road was constructed on the demand of the public of area including the petitioner. The version of the petitioner is not at all believable as no such oral assurances are given by the officials of the respondents. Had there been any truth in the plea of the petitioner, the petitioner would have raised the objection during the long period of 20 years. The petition is an after though and filed with a view to avail undue advantage/benefit." 4. Be that as it may, taking into consideration the fact that some portion of the land of the petitioner has been utilized for the purpose of construction of the road, it is but obvious that the petitioner has to be compensated for the same, especially when the land of the petitioner has been utilized without his consent. In my considered view, respondents cannot be permitted to escape from their responsibility by taking the pleas as are reflected in the reply. Even delay and latches, as alleged by the respondents, cannot be a ground to deprive the petitioner of his legitimate compensation for utilization of his land by the respondents. 5. In my considered view, respondents cannot be permitted to escape from their responsibility by taking the pleas as are reflected in the reply. Even delay and latches, as alleged by the respondents, cannot be a ground to deprive the petitioner of his legitimate compensation for utilization of his land by the respondents. 5. The Hon''ble Supreme Court in K.B. Ramachandra Raje Urs (Dead) By Legal Representatives. Vs. State of Karnataka and others , (2016) 3 SCC 422 has held in para 28 as under: "28. It has been vehemently argued on behalf of the respondents that the writ petition ought not to have been entertained and any order thereon could not have been passed as it is inordinately delayed and the appellant has made certain false statements in the pleadings before the High Court details of which have been mentioned hereinabove. This issue need not detain the Court. Time and again it has been said that while exercising the jurisdiction under Article 226 of the Constitution of India the High Court is not bound by any strict rule of limitation. If substantial issues of public importance touching upon the fairness of governmental action do arise, the delayed approach to reach the Court will not stand in the way of the exercise of jurisdiction by the Court. Insofar as the knowledge of the appellantwrit petitioner with regard to the allotment of the land to Respondent 28 Society is concerned, what was claimed in the writ petition is that it is only in the year 1994 when Respondent 28 Society had attempted to raise construction on the land that the fact of allotment of such land came to be known to the appellantwrit petitioner." 6. The Hon''ble Supreme Court in SLP(C) No(s) 2373/2014, Raj Kumar Vs. State of H.P. & others decided on 29.10.2015 has 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 some time in the year 198586 while the writ petition was filed by the appellant in the year 2009. Nag. It is true that the appellant had approached the High Court rather belatedly inasmuch the land had been utilized some time in the year 198586 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 or that filed before us. It is also evident from the averments made in the court 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 is, 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." 7. This Court in Jeet Ram Vs. State of Himachal Pradesh and others,2016 LatestHLJ 615 (HP)has held as under: "4. No person can be deprived of his 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 respondentState to show that the petitioner had consented for the construction of the road through his land. It is evident from the contents of Annexure P1 that the nature of land in Khasra No. 279, as per Jamabandi for the year 2001 02, is Bagicha. There is no contemporaneous record placed on record by the respondentState to show that the petitioner had consented for the construction of the road through his land. It is evident from the contents of Annexure P1 that the nature of land in Khasra No. 279, as per Jamabandi for the year 2001 02, is Bagicha. A valuable piece of land of the petitioner has been utilized in an arbitrary manner by the respondentState, for the purpose of construction/widening of the ShillaruReog road. 5. It is also argued by Mr. Anup Rattan, Additional Advocate General, that there is delay in filing the present petition, as construction of the road on the suit land was only undertaken on 5.6.2006. Immediately thereafter, the petitioner had served a notice upon the respondents on 30.4.2007. Some action ought to have been taken on notice dated 30.4.2007. Petitioner was constrained to serve another notice on 22.9.2009. Despite that no action has been taken by the respondentState to redress the grievance of the petitioner. 6. Legitimate right of a citizen, that too pertaining to valuable property, can not be defeated merely on the technical objections. There ought to be difference in the approach of a private litigant visvis State. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There can not be any estoppel/ waiver against the constitutional/fundamental/legal rights." 8. It is settled law that no person can be deprived of his property without following due process of law. It is not disputed by the respondentState that they have utilized the land of the petitioner without paying compensation. No material has been placed on record by the State to show that the petitioner had consented for construction of the road through his land, thus the fact remains that the land of the petitioner has been utilized by the State for the purpose of construction of the road in issue without following the procedure of law and without compensating him as per law. In this view of the matter and in view of the law discussed above in my considered view, the right of the petitioner pertaining to valuable right of property cannot be defeated on technical objections like delay and laches, especially keeping in view the fact that the land has been utilized by the State and the status of the State is on high pedestal as compared to a private litigant. 9. Further keeping in view the fact that it is the duty of the functionaries of the State to maintain the Rule of Law, the State cannot be permitted to deprive the petitioner due and just compensation for the utilization of his land which has been used by the State for the construction of the road. 10. It is reiterated that the State has not been able to demonstrate that the petitioner had consented for the use of his land for the purpose of road and even otherwise, keeping in view the fact that right to property is a constitutional right, there cannot be estoppel/waiver against constitutional rights. 11. Accordingly, the present writ petition is allowed and the respondents are directed to initiate the process for acquisition of land of the petitioners in accordance with law and complete the entire proceedings before 30th April, 2019. Petition stands disposed of, so also miscellaneous applications, if any. No order as to costs.