Hema Devi And Others vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Sri B.D. Pande, learned counsel for the appellants-writ petitioners, and Sri Vikas Pandey learned Standing Counsel for the State

Government, and, with their consent, the Special Appeal is disposed of at the stage of admission.

The jurisdiction of this Court was invoked by the appellants-writ petitioners seeking (i) a writ of mandamus directing the respondents not to

construct the Gagas-Urimahadev- Selapani road without adopting due process of land acquisition provided by law; and (ii) a writ of mandamus

directing the first respondent to set up a fair inquiry regarding relevancy and utility of the Gagas-Urimahadev-Selapani road.

When we asked Sri B.D. Pande, learned counsel for the appellants-writ petitioners, as to how the appellants-writ petitioners can invoke the extra-

ordinary jurisdiction of this Court seeking an inquiry regarding the relevancy and utility of a particular road, learned counsel would fairly state that the

appellants-writ petitioners are not pressing for the second prayer; and that his claim be confined to the grant of Prayer No. 1 alone. Prayer No. 2 of

the writ petition is, accordingly, dismissed as not pressed.

The appellants-writ petitioners’ case, in short, is that possession of their lands was sought to be forcibly taken for construction of a road, without

acquiring the same in accordance with law. They claim that, while some villagers had given their consent, several others, including the appellants-writ

petitioners, had not given their consent for possession of lands being taken for construction of a road and, consequently, they cannot be deprived of

their property except by initiating proceedings under the Land Acquisition Act.

Sri Vikas Pandey, learned Standing Counsel for the State Government, would fairly state that the contents of the counter-affidavit disclose that a

few villagers, including the appellants-writ petitioners, had not given their consent for possession of their lands being taken for construction of a road;

and no road has been constructed on the disputed portion of the land i.e. on that part of the land for which consent, for taking possession, had not been

given by the owners of the land.

In the order under appeal, the learned Single Judge appointed an Advocate Commissioner to examine whether the road in question served a public

purpose and, based on the report of the Advocate Commissioner, expressed its satisfaction that a link road, connecting the village of the appellants-

writ petitioners to the road already sanctioned, was in public interest. The learned Single Judge opined that, for this, approval had already been

granted; and the land had been acquired as per mutual negotiations.

While the State Government can, undoubtedly, enter into a mutual agreement with owners of the land, and purchase the land at the mutually agreed

price, so long as the mutually agreed price is fair and reasonable, no owner can otherwise be deprived of his / her land except by resort to acquisition

proceedings in accordance with the provisions of the Right to Fair Compensation and Transparency In Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (for short the ‘2013 Act’).

Under Article 300-A of the Constitution of India, no person shall be deprived of his property save by authority of law which, in the present case, is

the 2013 Act.

Since it is not in dispute that the appellants-writ petitioners have not consented to part with their lands for construction of the road, the only manner

in which the road can be laid is if the State Government exercises its powers of eminent domain, initiates proceedings for acquisition of the land, and

takes possession thereof in accordance with the provisions of the 2013 Act.

The order under appeal is, therefore, set aside and the writ petition is disposed of directing the respondents not to interfere with the appellants-writ

petitioners’ possession of the subject land, except after acquiring the subject land in accordance with the provisions of the 2013 Act.

The Special Appeal is disposed of accordingly. No costs.