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Himachal Pradesh High Court · body

2019 DIGILAW 764 (HP)

Kehar Singh v. State of Himachal Pradesh

2019-06-24

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. I have learned counsel for the parties and gone through the record. 2. The factual position emerging from the pleadings of the parties can be summed up as under:- a.) Vide letter dated 19.10.2000, respondent No.6 requested the Public Works Department to widen the Largi Sainj Road. On the request and such requisition of respondent No.6/ NHPC, the Public Works Department started the process for widening of Largi Sainj Road. For this purpose, the acquisition proceeding were also initiated by the department. The notifications under Sections 4, 6, 7 and 9 of the Land Acquisition Act were issued in respect of 17-12-06 bighas of land with effect from 19th December, 2006, which is the date of issuance of notification under Section 4 of the Act. The area included private land as well as about 15 private houses. b.) Road was widened to the extent of 5/7 metres in width on vacant land. At that stage, matter was taken up with respondent No.6/ NHPC for acquisition of land and houses. On 16th February, 2010, vide Annexure P-11, respondent No.6/NHPC informed the State Public Works Department as under:- “Kindly refer to your letter No.PW/BSD/C- 15/2009-4664-67 dated 06.01.2010 on the above cited subject. After going through the same, it is found that the matter is mainly related to construction of Adit for Parbati H.E. Project stage- III. There is no doubt that HPPWD had been asked to accelerate the widening of road. But land/houses acquisition processes were to be taken on priority i.e. before widening of road. As the road width of HPPWD road in this reach is sufficient to meet out ongoing construction activities of Parbati HE Project Stage-II, as on date, the acquisition of any houses is not required. In view of the above, it is requested to take up the issue of acquisition of houses with Parbati H.E. Project Stage-III, in case any acquisition is required due to their construction activities”. (Emphases supplied) c.) Due to refusal of NHPC/respondent No.6 to acquire and pay compensation for total proposed land inclusive of houses, further widening work was stopped. The notifications issued under Sections 4, 6, 7 and 9 of Land Acquisition Act lapsed. 3. (Emphases supplied) c.) Due to refusal of NHPC/respondent No.6 to acquire and pay compensation for total proposed land inclusive of houses, further widening work was stopped. The notifications issued under Sections 4, 6, 7 and 9 of Land Acquisition Act lapsed. 3. Aggrieved against this action of the respondents in not acquiring the total land measuring 17-19-7 bighas of land, situated in village Phati Kanon, Tehsil Sainj, District Kullu, H.P., the petitioners have preferred the present Writ Petition with following prayers:- “a. Issue a writ of mandamous directing the respondents to acquire the land and houses of the petitioners as mentioned in the notification under Sections 4, 6 and 9 of the Land Acquisition Act and pass the compensation award in favour of the petitioners for the value of their land and houses which they have suffered due to widening of the Largi Sainj Road. b. to issue any order or direction as this Hon’ble Court deem fit in the peculiar circumstances of this case”. 4. The stand taken by respondents No.1 to 5, in their reply is that:- a) On the requisition of respondent No.6/NHPC Authority, the land/houses of the petitioners were to be acquired for widening of the road. However, later on, when the Department widened the road to the extent of 5/7 metres in the width on vacant land, the NHPC intimated them that acquisition of houses is not required. Whereafter further widening work was stopped. b) It is further stated in the reply that houses of the petitioners have neither been disturbed nor damaged. The houses of the petitioners are not required for widening of the road. c) It was further informed in the reply that the Public Works Department was going to initiate fresh proceedings for acquisition of the land, which had actually been used for widening of the road. Paras 2 and 4 of preliminary submission of the reply of respondents No.1 to 5 are reproduced hereinafter:- “2. That the Largi Sainj Road was already in existence prior to 1965 as it was constructed by the Forest Department and was handed over to Public Works Department in the year 1965-66. Paras 2 and 4 of preliminary submission of the reply of respondents No.1 to 5 are reproduced hereinafter:- “2. That the Largi Sainj Road was already in existence prior to 1965 as it was constructed by the Forest Department and was handed over to Public Works Department in the year 1965-66. It is further submitted that in the year 2000, the authority of NHPC Ltd. made request to the Public Works Department vide their office letter No.NHPC (18III) 2000 dated 19.10.2000 (attached at R-1, to widen the said road, as NHPC authority had to transport Tunnel Boring Machine and other heavy machinery to Power House site for the construction of Parbati Hydro Electric Project. On the request and requisition of NHPC, the Public Works Department started widening of the Largi Sainj Road and acquisition proceedings was also initiated by the Department on the assurance of NHPC Authority. The NHPC Authority time and again requested the replying respondent Department to widen the above mentioned road and to assess the value of houses/land which were supposed to be acquired for the purpose of widening of the road. Copy of requisition/request letter and other correspondence made by NHPC Authority in this regard are attached as (R-1 to R-2) for kind perusal of this Hon’ble Court. It is pertinent to mention here that notifications under Sections 4, 6, 7 and 9 of the Land Acquisition Act were already issued timely and matter was taken with the NHPC Authority as some of the private houses were required to be acquired to complete the widening work. But the NHPC Authority vide their office letter No.NHPC/PHEP II/PHC/2010/282-86 dated 16.02.2010 intimated the replying respondent/Department that “there is no doubt that HPPWD had been asked to accelerate the widening of road. But land/houses acquisition processes were to be taken on priority i.e. before widening of road. As the road width of HPPWD road in this reach is sufficient to meet out ongoing construction activities of Parbati HE Project Stage-II as on date, the acquisition of any houses is not required”. Keeping in view the non responsible attitude of NHPC Authority the notification issued under Sections 4, 6, 7 and 9 were lapsed. However, now the department is going to start fresh acquisition proceedings, for the land only which has already been used for the purpose of widening of above mentioned road. Keeping in view the non responsible attitude of NHPC Authority the notification issued under Sections 4, 6, 7 and 9 were lapsed. However, now the department is going to start fresh acquisition proceedings, for the land only which has already been used for the purpose of widening of above mentioned road. It is respectively submitted that due to non responsible attitude of NHPC Authority now, no house of petitioners is required to be acquired as Public Works Department has stopped the widening work. It is further submitted that earlier on the requisition of NHPC Authority the land/houses of petitioners were supposed to be acquired for widening of the road, but later on when the department widened the road to the extent of 5/7 metres, in width on vacant land and the NHPC Authority was requested for acquisition of land and houses, the NHPC Authority intimated the replying department that acquisition of houses is not required. Hence, no house of the petitioner was disturbed/ damaged as the houses of the petitioners were not required for widening of the road. 4. That respondents had already initiated proceedings for acquisition of land well within time after receiving letter dated 19.10.2000 issued by Chief Engineer NHPC and necessary notification under Sections 4, 6, 7 and 9 of Land Acquisition Act were issued immediately. However, due to refusal of NHPC Authority to pay compensation for total proposed land and houses required for widening of road and award could not be announced and as a result of this, the proceedings were lapsed and further widening work was also stopped. However as already submitted in para supra, now the Department is going to initiate the fresh proceedings for acquisition of land already used for widening of the road. As such the present writ petition is not maintainable and liable to be dismissed ”. 5. As undertaken in the reply, notification dated 2.10.2015 (Annexure P-15), under Section 11 of the Right to Fair Compensation and Transparency, Land Acquisition, Rehabilitation and Resettlement Act, 2013, was issued during the pendency of this petition, whereby the land measuring 5-9-2 bighas is being sought to be acquired and acquisition proceedings have been initiated for this land. 6 (a). The grievance of the petitioners, now is that Annexure P-15 is in respect of only 5-9-2 bighas of land out of earlier notified land of 17-19-7 bighas. 6 (a). The grievance of the petitioners, now is that Annexure P-15 is in respect of only 5-9-2 bighas of land out of earlier notified land of 17-19-7 bighas. Therefore, petitioners’ contention is that entire land and houses as proposed in earlier notifications are required to be acquired. 6 (b). In support of his contention, learned counsel for the petitioners relied upon (2016) 13 SCC 180 titled as Visakhapatnam Urban Development Authority Versus S.S. Naidu and Others, to assert that issuance of notifications dated 19.12.2006 under Section 4 of the Land Acquisition Act in respect of 17-19-7 bighas of land to the ifso-facto mean taking over the possession of entire proposed land by the State. Therefore, fresh acquisition proceedings should have been for the entire proposed land and not just for the part of it. 7 (a). The above contention is misplaced. In Visakhapatnam Urban Development Authority’s case relied by the petitioners, the factual position was different from the present case. There the award was made, compensation in respect of the land was determined, the amount was deposited in the Court and possession of the land was also taken. There was no dispute with respect to taking over the possession of the land in the case. In (1993) 4 SCC 375 titled as Parsinni (dead) by LRs and Others Versus Sukhi and others, it was held by the Hon’ble Apex Court that possession can be taken of the proposed land after the award of compensation is passed. The land vests in the government upon taking of possession. Till that time title remains with the land owner. It is apt to reproduce relevant paragraph 15 of the judgment:- “Ordinarily, the Government can take possession of the land proposed to be acquired only after an award of compensation in respect thereof has been made under Section 11. Upon the taking of possession the land vests in the Government, that is to say, the owner of the land loses to the government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse …….” In another judgment in (1988) 1 SCC 50 titled as Special Land Acquisition Officer, Bombay and Others Versus M/S Godrej and Boyce, it was held that neither the notification under Section 4 nor the declaration under Section 6 nor the notice under Section 9 of the Act is sufficient to divest the original owner of his land/rights therein and that it is only when the possession is taken by the government, that the title to the land can vest in the government under Section 16 of the Land Acquisition Act. Till that point of time, the land continues to be with the original owner and he is free to deal with the land as he likes. Relevant paras of the judgment are quoted hereinafter:- “5. We are of opinion that the High Court erred in striking down the order under Section 48 and compelling the State Government to acquire the lands of the respondent. Under the scheme of the Act, neither the notification under Section 4 nor the declaration under Section 6 nor the notice under Section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein. Section 16 makes it clear beyond doubt that the title to the land vests in the government only when possession is taken by the government. Till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes, although it may be that on account of the pendency of [proceedings for acquisition intending purchases may be chary of coming near the land. So long as possession is not taken over, the mere fact of a notification under Section 4 or declaration under Section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments. Again, such a notification does not either confer on the State Government any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safeguard the interests of the original owner of the land. It is in view of this position, that the owner’s interests remain unaffected until possession is taken, that Section 48 gives a liberty to the State Government to withdraw from the acquisition at any stag before possession is taken. By such withdrawal no irreparable prejudice is caused to the owner of the land, and if at all he has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under Section 28 (2). In this view of the matter, it does not matter even if there is lapse of considerable time between the original notification and withdrawal under Section 28 as held in Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanoddhaya Trust v. State of Gujarat. It also follows that the State can be permitted to exercise its power of withdrawal unilaterally and no requirement that the owner of the land should be given an opportunity of being heard before doing so should be read into the provision. 6. The High Court has taken the view that a decision of withdrawal from acquisition must be backed by reasons and cannot be arbitrary or whimsical. We may observe that having regard to the scheme of the Act as discussed above, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for a decision not to go ahead with its proposal to acquire a piece of land. It is well settled in the field of specific performance of contracts that no person will be compelled to acquire a piece of land As any breach of a contract to purchase it can always be compensated for by damages. That is also the principle of Section 48 (2). It is well settled in the field of specific performance of contracts that no person will be compelled to acquire a piece of land As any breach of a contract to purchase it can always be compensated for by damages. That is also the principle of Section 48 (2). But this consideration apart, and even assuming that a withdrawal order under Section 48 should be backed by reasons and should be bona fide, we are of the opinion that in the present case the order is not vitiated in any manner. The government had intended to acquire a vast piece of vacant land for construction of houses by the State Housing Board. But this land had been overrun by slum dwellers to such an extent that it was no longer possible for the government to effectuate the intended purpose of acquisition. The High Court’s observations that “the respondents have not stated in their affidavit that the lands in question are unsuitable for the purpose in question” and that “the purpose continues to exist” lose all meaning in the face of the finding recorded by the High Court itself at another place that “the lands of the petitioners today are fully occupied by unauthorised hutments which have come up on these lands, rendering the lands worthless”. The basis question is really whether the government can be held responsible for this state of affairs and can be compelled to go ahead with the acquisition though its purpose could not be achieved. We have already pointed out that the State cannot be held responsible for the occupation of the land by trespassers. It is true that if the government decides to go ahead with the acquisition and to take possession of the land, it has powers to evict trespassers and to secure possession of the land but, for this reason alone, they cannot be compelled to go ahead with the acquisition……….” 7 (b) In the present case, it is undisputed that earlier notifications issued under Sections 4, 6, 7 & 9 of the Land Acquisition Act had lapsed. The case of the respondents is that for widening of road, only part of the land out of entire initially proposed land had been used, for which, fresh acquisition proceedings have been initiated vide Annexure P-15, isseed during the pendency of the present writ petition. Use of any other land/houses is disputed. The case of the respondents is that for widening of road, only part of the land out of entire initially proposed land had been used, for which, fresh acquisition proceedings have been initiated vide Annexure P-15, isseed during the pendency of the present writ petition. Use of any other land/houses is disputed. Taking of possession over any other land/house is not admitted. It has been further asserted that no damage, disturbance etc. has been caused to the houses in question. 7 (c) The prayer of petitioners for directing the respondents to acquire entire 17- 19-7 bighas of land cannot be granted, in view of factual stand taken by respondents No.1 to 5 and 6, to the effect that:- i) No other land save and except what is notified in terms of Annexure P-15 dated 2.10.2015 has been utilized for widening of road in question and that possession of any other land/houses was not taken. ii) Neither the houses of the petitioners were disturbed/damaged nor there is any future proposal to acquire any house of the petitioners as such, therefore, the remaining land or the houses are not required to be acquired. Learned counsel for the petitioners has asserted that houses of the petitioners have actually been damaged in widening of road and are not inhabitable. To prove this fact, he has prayed for appointment of a Local Commissioner in terms of prayer made in CMP No. 2122 of 2019, under Order 26, Rule 9 of Code of Civil Procedure. This prayer cannot be accepted while exercising writ jurisdiction under Article 226 of Constitution of India more particularly in a case of this nature when facts are highly disputed. 8. For redressal of grievance of petitioners in seeking direction to the respondents, with respect to acquisition of entire 17-19-7 bighas of land in question, all above disputed questions of fact need to be gone into by a Court of Competent Jurisdiction by looking into cogent and reliable evidence which is to be produced and proved in accordance with law by the parties. 9. In view of foregoing observations, present writ petition is dismissed with liberty to the petitioners to file appropriate proceedings in accordance with law in the Court of Competent Jurisdiction in respect of all the surviving grievances. Needles to say, in case they succeed, all consequential benefits will be granted to them. 9. In view of foregoing observations, present writ petition is dismissed with liberty to the petitioners to file appropriate proceedings in accordance with law in the Court of Competent Jurisdiction in respect of all the surviving grievances. Needles to say, in case they succeed, all consequential benefits will be granted to them. Respondents are, however, directed to expeditiously complete acquisition proceedings initiated under Annexure P-15 dated 2.10.2015. It is made clear that observations made in this order will not come in the way of the petitioners, in any other proceedings, which may be initiated by them in accordance with law. All pending application (s), if any, are also disposed off.