Vivek Singh Thakur JUDGMENT
Vivek Singh Thakur, J.
1. Aggrieved by non payment of compensation for utilization of his land comprised in Khasra No. 1, 65, 66, 67 and 68, Khata-Khatauni No. 21 and 30 situated at Chak Basmol, Tehsil Theog, District Shimla, H.P., for construction of link road from village Kiimah to Chailla-Mahori in the year 2007-2008, petitioner has preferred present petition with prayer for direction to respondents to pay compensation to petitioner for loss of his aforesaid agriculture land.
2. Petitioner has placed on record photographs of construction Annexure P-1, and notices dated 28.03.2007 and 17.02.2009 Annexure P-2 & Annexure P-3 served upon respondents for payment of compensation by acquiring of his land utilized for construction of road. Petitioner has also placed on record representation dated 17.03.2008 submitted to the Executive Engineer, H.P.P.W.D. Theog Division Shimla for protection of his house from damage caused on account of construction of road in question.
3. Respondent No. 1 in his reply has stated that petitioner did not object construction of road and Jeep-able road constructed by Gram Panchayat was already there and the respondents-State has constructed road only on old road on large public demand raised through number of representation of the inhabitants of area for construction of road in question with assurance to provide land, free of cost, for construction of road. It is further claimed that the road has been constructed by spending public exchequer amounting to Rs. 1.54 Crore under PMGSY/WORLD Bank Scheme for connecting villages with road. It is also submitted in case of non availability of free of cost land the road was not to be constructed as it was pre-condition of scheme to provide land without cost and at the time of construction of road petitioner had agreed and extended full cooperation to the department and the department has also constructed 50 mtrs. long breast wall by spending 4.00 Lacs to protect house and agriculture land of petitioner from any damage. Lastly, it has been stated that after lapse of 2 years, petitioner is not entitled to raise demand of compensation.
4. Respondent No. 1 has also placed on record detailed project report of road under PMGSY as Annexure P-1 and affidavits of villagers giving consent for utilization of their land free of cost for construction of road.
5. Respondents No. 2 and 3 have filed separate reply to the petition and have stated that there role was confined only to the extent that petitioner had applied for demarcation of land in dispute and in the demarcation was given to the best satisfaction of the present petitioner.
6. In rejoinder, petitioner has stated that petitioner had stopped Gram Panchayat from carrying on any construction with respect to the road in question and the Gram Panchayat did not ventured to interfere on the land of petitioner thereafter. Petitioner has stated that persons who were interested in construction of road had given their personal affidavits and as petitioner had objected, he had never given his consent for construction of road in issue and no affidavit or consent letter was ever given by petitioner to respondents and respondents had constructed road over his property without his consent.
7. On behalf of petitioner it is submitted that petitioner was agitating matter since beginning which is evident from notices Annexure P-2 and Annexure P-3 and therefore, there was no delay on the part of petitioner in raising demand for compensation.
8. Petitioner has relied upon judgment passed by Hon'ble Supreme Court in case tilted as K.B. Ramachandra Raje Urs versus State of Karnataka and others reported in MANU/SC/1457/2015 : 2016(3) Supreme Court Cases 422 in which it has been held as under:--
"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".
9. It is settled law that justice should not be denied on technical objections especially when State has taken property of citizen without following due process of law. The State is guardian of citizens and is supposed to be protector of their life and property. Therefore, in a case of depriving a citizen from his property, plea of respondents to reject the claim of petitioner on account of delay is not acceptable.
10. Respondents have placed on record large number of affidavits for establishing consent given by villagers to construct the road in question by utilizing their land free of cost. However, none of these affidavits has been filed by petitioner. There is no material on record to establish consent given by petitioner to utilize his land free of cost rather there are legal notices Annexure P-2 and Annexure P-3 placed on record by petitioner vide which petitioner had been asking for adequate compensation for utilization of his land by respondents for construction of the road.
11. In a similar case, this Court vide judgment passed in case titled as Jai Ram versus State of Himachal Pradesh and others reported in MANU/HP/3222/2011 : 2011 (3) Shim. L.C. 91 has held as under:--
"5. It is not the case of the respondents that petitioner had offered his land for being utilized for construction of road, under the aforesaid PGSMY Scheme. Their plea is that the petitioner did not object to the construction of the road on the site. Non-raising of objection by a landowner, when his land is being encroached upon, either by the State or its Agencies or even by a private person, does not disentitle him to seek his legal remedy. Neither the scheme of PGMSY authorities the State or its Agencies to utilize private lands, without payment of compensation to the land owners nor could have a provision like that been made in the scheme as the same would have been contrary to the mandate of Article 300-A of the Constitution of India".
12. Petitioner has cited judgment of this Court passed in case titled as Jeet Ram versus State of Himachal Pradesh and others reported in Latest MANU/HP/0649/2014 : HLJ 2016(HP) 615 in which it has been 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 respondent-State to show that the petitioner had consented for the construction of the road through his land. It is evident from the contents of Annexure P-1 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 respondent-State, for the purpose of construction/widening of the Shillaru-Reog road".
13. Reliance has been put by petitioner upon judgments passed by coordinate bench in CWP No. 2386 of 2009 titled as Bhoop Ram versus State of Himachal Pradesh & others, decided on 24.06.2016 and CWP No. 659 of 2009 titled as Dalip Singh versus State of Himachal Pradesh & others, decided on 03.06.2016 in which in identical facts and circumstances, direction for acquisition of land has been issued to respondents.
14. Petitioner has also relied upon judgment passed by Hon'ble Supreme Court of India in Civil Appeal No. 9105 of 2015 titled as Raj Kumar versus State of Himachal Pradesh & others, decided on 29.10.2015 in which respondents have been directed to pay compensation to petitioner whose land was utilized for construction of road under PMGSY without his consent and without paying compensation.
15. In view of above discussion, the present petition is disposed of in the following terms:--
"(i) Respondents are directed to initiate process for acquisition of the land of petitioner utilized for construction of road in accordance with law within 3 months from today and complete entire process within a period of one year thereafter.
(ii) Respondents may avoid acquisition of the land of petitioner either by vacating his land by constructing road from alternative route without utilizing land of the petitioner or adopting any other mode for restoring his land. In such eventuality respondents-State shall have to pay compensation, duly assessed from experts, to petitioner for utilization of his land till vacation.
(iii) Needless to say that on dissatisfaction with valuation of compensation of damages assessed by the authorities concerned, petitioner may avail remedy available to him for enhancement of compensation/damages in accordance with law."
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