Nathu Ram & Another vs State Of H.P. & Others

M.S. Ramachandra Rao, CJ

Contentions of petitioners

In this Writ petition, the petitioners contend that they are absolute owners of land comprised in Khata-Khatauni no. 75/202, Khasra no. 629, 575 etc., situated at Mohal Bella, Patwar Circle Bandli, Tehsil Shillai, District Sirmour, Himachal Pradesh which was inherited by them from their father late Sh. Guman Singh and which is of extent two bighas. They have filed Annexure-P-1-Jamabandi for the year 2018-19 which supports their claim.

They allege that without acquiring any portion of their land, the respondents have laid a link road from Bella to Siyasu under HP PWD Shillai recently. According to them, a total extent of land owned by them is 24.13 bighas; there are many fruit plants and trees of valuable timber wood; and that while laying the road, their land was used; and it was destroyed completely and made uncultivable.

It is contended that at the time of construction of the road, the petitioners had requested the contractor engaged by the HP PWD as well as the said Department not to use their land, but they used it without paying any compensation to them; and even thereafter, the petitioners gave a representation Annexure P-2 to the respondents/competent Authority on 24.02.2023 claiming compensation.

In the said letter/representation P-2 dt.24.2.2023, it is contended that construction of the link road from Bella to Siyasu was started on 20th May, 2018 and completed on 20th January, 2022 for a cost of Rs.4,85,21,820/- as per information provided by Executive Engineer, PWD, Division Shillai vide letter no. PW/SD/CB/RTI-05/2022-23 11292, dt. 15.09.2022; that a very large part of the land of the petitioners in Khata/Khatauni no. 75/202, situated at Mauja Bella was utilized for the construction of the road, but no NOC had been taken by the PWD Department; and no compensation has been paid to the petitioners. The petitioners alleged that this violates Article 300-A of the Constitution of India and they are entitled to compensation as per law.

Reliance is placed by the petitioners on the judgment of the Court in Kalyani (dead) through LRs & others versus The Sulthan Bathery Municipality & others decided on 26.04.2022. It is further contended that substantial portion of the petitioners’ land even adjoining to the road was used for construction, and that it was destroyed completely without taking any proper measures by constructing a retaining wall.

A direction is sought to the respondents to acquire the land of the petitioners comprised thereunder which was used for construction of the road from Bella to Siyasu.

Reply of respondents

The defence of the respondents is that the work of construction of the said link road was started on the persistent demand of the people of the area including the petitioners to provide road connectivity during the year 2006-2007 and it was completed in the year 2010 under PMGSY Phase-1 Scheme Package No. HP-10- 66. It is contended that as per guidelines of the said Scheme, roads can be constructed under the Scheme only where land owners provide land free of cost and there is no provision for payment of compensation for land utilized for construction of the road.

It is contended that father of the petitioners alongwith other villagers voluntarily offered their land for construction of the road and on the basis of their verbal consent, the road was laid.

It is contended that the writ petition was filed after 17 years from the date of construction of the road and is not maintainable.

Reliance is placed on a judgment of the Full Bench of this Court in CWP no. 1966/2010-C, Shankar Dass vs. State of H.P. and it is contended that in the said Full Bench decision, the parties were directed to approach the Civil Court and so the Writ Petition should be dismissed.

It is contended that the demand for compensation made by the petitioners is unjustified because there was a policy decision taken by the Government of Himachal Pradesh in 1998-99 that all rural link roads would be constructed only after the land owners donate their land for construction of the road in view of limited financial resources of the State Government.

Other allegations about damage to the land have been denied.

Consideration by the Court

We have noted the contentions of both sides.

From the facts narrated above, it is clear that the respondents have utilized the land of the petitioners for construction of the road without initiating any proceedings for acquisition of the same and without having any evidence of consent of the petitioners for the same.

We may point out that in case of State of Himachal Pradesh vs. Umed Ram Sharma (1986) 2 SCC 68 the Supreme Court held that the entire State of Himachal Pradesh is a hilly area and without workable roads, no communication is possible; every person is entitled to life as enjoined in Article 21 of the Constitution of India; every person has right under Article 19 (1) (b) of the Constitution of India to move freely, throughout the territory of India; and for the residents of hilly areas, access to road is access to life itself.

It accepted the proposition that there should be road for communication with reasonable conditions in view of the constitutional imperative, and denial of that right would be denial of the life as understood in its richness and fullness by the ambit of the Constitution.

It declared that to the residents of the hilly areas, as far as feasible and possible, society has a constitutional obligation to provide road for communication. This was reiterated in Swaraj Abhiyan(I) vs Union of India and others (2016) 7 SCC 498 .

Therefore, the stand of the State that there was a policy for providing roads on demand of residents apparently as a favour to them on condition that they would not claim compensation, cannot be sustained because such a stand is violative of Article 300A of the Constitution of India.

As held by the Supreme Court in Hari Krishna Mandir Trust vs State of Maharashtra and others, (2020) 9 SCC 356 though the right to property is not a fundamental right, it is still a constitutional right under Article 300A of the Constitution of India and also a human right; in view of the mandate of Article 300A, no person can be deprived of his property save by the authority of law; though the State possesses the power to take or control the property of the owner of the land for the benefit of public, it is obliged to compensate the injury by making just compensation.

The Supreme Court held that though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is in -built in the said Article, and the State, seeking to acquire private property for public purpose, cannot say that no compensation shall be paid.

It also held that the High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant considerations.

In all such cases, it was held that the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.

In appropriate cases, it held that in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the Government or the public authorities should have passed, had it properly and lawfully exercised its discretion.

The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined and the High Court has jurisdiction in a petition under Article 226 to try issues both of fact and law.

Similar view was also taken in D.B. Basnett vs. Collector, East District, Gangtok, Sikkim and another(2020) 4 SCC 572.

In that case, certain private land was found by the owner in March 2002 to have been wrongly encroached and trespassed by the Agriculture Department of the Government of Sikkim which was using it as an agricultural farm. He got issued a notice under Section 80 of the Code of Civil Procedure, 1908 alleging trespass and seeking possession. When there was no response to this notice, he filed a suit before the Court of District Judge (E&N), Gangtok, Sikkim, but the suit was dismissed on 31.10.2006 on the ground of limitation and also on merits.

Appeal filed against the said judgment was also dismissed by the High Court.

The Agriculture Department had contested the proceedings stating that it had followed due process while acquiring the land in 1980 and had even paid compensation and the suit was also barred by limitation.

The Supreme Court allowed the appeal of land owner. It held that there was no evidence that the land was acquired by initiating process under Section 4 of the Land Acquisition Act, 1894 or by issuance of a declaration thereafter. There was also no material to show that the compensation was paid or consent was obtained for acquisition.

It held that following the procedure under the Land Acquisition Act, 1984 is mandatory, and an entry into premises without complying with the same would result in the entry being unlawful.

It concluded that the respondents had failed to establish that they acquired the land in accordance with law and pay due compensation, and directed restoration of possession, and also payment of damages for illegally use and occupation of the same for the period of three years prior to the issuance of the suit notice.

These principles were again reiterated in B.K. Ravichandra and others vs. Union of India and others (2021) 14 SCC 703 and Sukh Dutt Ratra and another vs. State of Himachal Pradesh & others(2022) 7 SCC 508.

In Sukh Dutt Ratra (6 Supra), the appellants’ land had been utilized for construction of road in 1972-73 without initiating any proceedings for acquisition and without paying any compensation.

When the petitioner filed a writ petition on the basis of relief granted to other owners whose land was so acquired, the said Writ petition was dismissed by the High Court holding that there were disputed questions of law and fact for determination on the starting point of limitation, which cannot be adjudicated in the writ proceeding and the petitioners were given liberty to approach the Civil Court.

The Supreme Court reversed the said decision and held that nobody can be deprived of liberty or property without due process, or authorization of law and the State has a higher responsibility in demonstrating that it has acted within the confines of legality, and had not tarnished the basic principle of the rule of law.

It held that the State, merely on the ground of delay and laches, cannot evade its legal responsibility towards those from whom private property has been expropriated.

It observed that the State was initiating acquisition proceedings selectively and not in every case like that of the appellants whose land was taken, and at every stage it sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.

It held that the State cannot shield itself behind the ground of delay and laches in such a situation as there cannot be a limitation to doing justice.

It also rejected the plea of alleged verbal consent or lack of objection on the ground that no material was placed on record to substantiate the said plea, and held that the State was unable to produce any evidence indicating that the land of the appellant had been taken over or acquired in the manner known to law, or that it had ever paid any compensation.

It declared that there is no period of limitation prescribed for the courts to exercise their Constitutional jurisdiction to do substantial justice. It directed the State to treat the subject land as a deemed acquisition and disburse compensation to the appellants therein in terms of similar orders passed in other cases within four months.

In view of the above settled legal position, we are of the opinion that the stand of the State that it need not pay any compensation for utilizing the petitioners’ land for the purpose of laying a road cannot be countenanced and the State is bound to pay market value compensation to the petitioner for utilizing his land for the purpose of the road.

Accordingly, the Writ petition is allowed with costs of Rs. 10,000/- and a direction is issued to the respondents to demarcate the land of the petitioners utilized for the purpose of the road in question within four weeks, treat it as having been acquired for the said purpose in 2010 and pay to the petitioners compensation under the Land Acquisition Act, 1894 with all statutory benefits there under within four months.

Pending application(s), if any, shall stand disposed off.