Disposed

Rajeev Kumar v. State of Hp and Ors.

Himachal Pradesh HC1 Oct 2024CWP/2541/2021

Case brief

AI extract

What is this about?

The court held that the State must pay compensation for land utilized for road construction even without formal acquisition. Relying on established precedent, the court dismissed objections based on delay and laches, directing the State to initiate proceedings and pay the highest market value compensation available under relevant awards.

What did the court decide?

Direction to respondents to demarcate disputed land within four weeks, initiate acquisition proceedings within eight weeks, and pay the highest compensation amount within one year if utilization is co

Rajeev Kumar Vs State of Hp and Ors. — Land Acquisition | Himachal Pradesh HC (2024)

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2024:HHC:9444-DB

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.2541 of 2021 Decided on: 1^st October, 2024

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------------------------------------------------------------------------------------- Rajeev Kumar …..Petitioner

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Versus

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State of H.P. and others .....Respondents

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-------------------------------------------------------------------------------------

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Coram

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Ms. Justice Jyotsna Rewal Dua

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Whether approved for reporting?

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For the Petitioner: Mr. B.S. Chauhan, Senior Advocate with Mr. Abhishek Thakur, Advocate. For the Respondents: Mr. Y.P.S. Dhaulta and Mr. L.N. Sharma, Additional Advocates General. -----------------------------------------------------------------------------------Jyotsna Rewal Dua, Judge

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Petitioner’s case is that his land had been

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utilized by the respondents for construction of ThanaPremnagar road via Turan, Tehsil Jubbal, District Shimla, however, neither the land, which is subject matter of the writ petition, has been acquired by the respondents nor any compensation in lieu thereof has been paid to the petitioner.

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2. From the pleadings and submissions made by

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the parties, following facts emerge:-

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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2(i). The respondents started construction of Thana-

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Premnagar road via Turan, Tehsil Jubbal, District Shimla in the year 1990. The construction of road was completed in the year 2001.

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2(ii). It is the case of the petitioner that for the construction of the afore-described road, the respondents utilized his land comprised in Khasra Nos.103, 104, 77/1, 79/1, 80/1 and 81/1, situated at Up-mohal Premnagar, Tehsil Jubbal, District Shimla.

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2(iii). Out of the afore-described six khasra numbers, the respondents acquired four khasra numbers, i.e. 77/1, 79/1, 80/1 and 81/1. It is not in dispute that the land acquisition proceedings in respect of these four khasra numbers were initiated and the petitioner was duly compensated for the same.

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2(iv). The dispute in the instant petition pertains to non-payment of compensation to the petitioner for the alleged utilization of his land comprised in Khasra Nos.103 and 104, situated at Up-mohal Premnagar, Tehsil Jubbal, District Shimla for the construction of road. The petitioner has placed on record revenue documents reflecting his ownership over Khasra Nos.103 and 104.

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3. Respondent-State in its reply, has admitted acquiring the land of the petitioner comprised in Khasra

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Nos.77/1, 79/1, 80/1 and 81/1, measuring 0-02-66 hectares in Up-mohal Premnagar, Tehsil Jubbal, District Shimla and also the fact that compensation for the same has been paid to the petitioner, however, according to the respondents, “it cannot be said without legal demarcation that Khasra Nos.103 and 104 was utilized for the construction of road, because at the time of demarcation, the petitioner and the revenue department has not intimated the respondent department to remain present at site”. Further objection taken by the respondent-State to the prayer made in the petition is on the grounds of delay & laches in filing the writ petition and also in respect of alleged oral consent given by the petitioner for surrendering his land for the construction of the road in question. In view of these objections, prayer has been made for dismissing the writ petition.

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4. Having heard learned counsel on both sides, I am of the considered view that the petitioner has made out a case in his favour. This is on account of following

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reasons :-

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4(i). It would be appropriate to refer to a recent judgment passed by the Division Bench of this Court in Labdhu Ram Vs. State of H.P. & Ors.¹ . The petitioner

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1 CWP No.6581/2021, decided on 28.06.2023

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therein had raised a factual plea that though certain others, whose lands were utilized for the road, were paid the compensation, but he was denied the same even though his land was also utilized for construction of same road. Road in that case was laid in the year 1995-96. Taking note of various pronouncements, viz. State of Himachal Pradesh Vs Umeed Ram Sharma² , Swaraj Abhiyan (I) vs. Union of India and ors.³ , Hari Krishna Mandir Trust vs. State of Maharashtra & Ors.⁴ , D.B. Basnett Vs. Collector East District, Gangtok, Sikkim and Anr.⁵ , B.K. Ravichandra and Ors Vs. Union of India & Ors.⁶ and Sukh Dutt Ratra & Anr. Vs. State of Himachal Pradesh & Ors.⁷ , the contention of delay and laches raised by the respondents-State was turned down. The observations of the Hon’ble Apex Court that the State cannot evade its legal responsibility towards those from whom private property has been expropriated, were reiterated. It will be appropriate to extract following paragraphs from Labdhu Ram’s case¹ :-

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“18. In Sukh Dutt Ratra, supra, the appellant’s 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

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2 (1986) 2 SCC 68

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3 (2016) 7 SCC 498

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4 (2020) 9 SCC 356

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5 (2020) 4 SCC 572

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6 (2021) 14 SCC 503

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7 (2022) 7 SCC 508

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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.

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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.

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

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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.

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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.

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It also rejected the plea 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.

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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.

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19. 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 petitioner’s 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.

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20. Therefore, 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 petitioner utilized for the purpose of the road in question within four weeks, treat it as having been acquired for the said purpose and pay him the highest amount towards compensation among compensation under the awards Annexures P-3 and P-4 with all statutory benefits under the Land Acquisition Act,1894 within eight weeks.”

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The ratio of the aforesaid judgment squarely

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applies to the facts of the instant case as well.

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4(ii). The respondents have not denied utilization of the land of the petitioner comprised in Khasra Nos.77/1, 79/1, 80/1 and 81/1, measuring 0-02-66 hectares in Up-mohal Premnagar, Tehsil Jubbal, District Shimla for the construction of Thana-Premnagar road via Turan. It is the case set up by the respondents that in lieu of utilization of the afore-described four khasra numbers belonging to the petitioner, the land acquisition proceedings were initiated and compensation in accordance with law had been released in favour of the petitioner. If that be so, it is difficult to digest the plea of oral consent allegedly given by the petitioner for surrendering his land for the construction of the road in question. In any case, the respondents have not been able to demonstrate the plea of consent allegedly given by the petitioner for surrendering his land or for not accepting any compensation in lieu of his land utilized for construction of the road. Had there been any veracity in the

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plea taken by the respondents about the petitioner having consented for construction of the road without paying any compensation for him, there would have been no occasion for the respondents to have acquired the land of the petitioner in the above-described four khasra numbers. Reference can also be made to Annexure P-2 placed on record by the petitioner, which has not been denied by the respondents, wherein it has been mentioned that several parcels of land had been inadvertently left out from the acquisition process.

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4(iii). The question for consideration is as to whether

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Khasra Nos.103 and 104 belonging to the petitioner had been utilized by the respondents for the construction of the road or not. The petitioner has placed on record spot report dated 01.03.2021 prepared by the Patwari, Patwar Circle Sub-Tehsil Saraswati Nagar, Shimla, which reads as

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under:-

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“Spot Report

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Vide order dated 16-2-2021, I visited the spot at Up Mohal PremNagar regarding the Khasra No.103, 104, 92 and 93 and after demarcating the land I found that out of khasra No.103 and 104 land has been used for construction of road which is from Turan to Thana and report is prepared on the spot and same is presented for consideration.”

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(English translation as supplied by the petitioner)

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In terms of the above spot report, the revenue

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officials after demarcating the land had found that Khasra

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Nos.103 and 104 had been utilized for construction of

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Thana-Premnagar road via Turan. Petitioner has specifically pleaded about utilization of his aforesaid two khasra numbers alongwith his four other khasra numbers (detailed above) by the respondents for construction of the road. In reply, the stand taken by the respondents is as under:-

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“3. ……………. It cannot be said without legal demarcation that khasra Nos.103 and 104 was utilized for the construction of road, because at the time of demarcation, the petitioner and the revenue department has not intimated the respondent department to remain present at site…………….

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5. ……………….. No assurance was given by the respondents department to the petitioner regarding acquisition of land comprising khasra numbers 103 and 104. It is submitted not correct that the petitioner has no knowledge of the procedure and law, petitioner is well educated and big orchardist is having every knowledge about the matters. It is further submitted that during the demarcation of land, the petitioner has not intimated the respondents to remain present at site. No demarcation was conducted in the presence of respondents and plea of the petitioner in such circumstances cannot be accepted.”

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5. In the given facts and circumstances of the case,

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since there is some dispute raised by the respondents about the spot report dated 01.03.2021 prepared by the Patwari, Patwar Circle Sub-Tehsil Saraswati Nagar, Shimla in their absence, hence, it would be appropriate to direct the respondents to carry out the demarcation of Khasra Nos.103 and 104, Up-mohal Premnagar, Tehsil Jubbal, District Shimla in accordance with law after associating the

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petitioner, within a period of four weeks from today. Ordered accordingly. In case the land of the petitioner comprised in the aforesaid khasra numbers is found to have been utilized for construction of the road in question, the respondents in that situation shall initiate the land acquisition proceedings in respect of the land found to have been utilized for construction of the road in accordance with law within a period of eight weeks thereafter and take the same to its logical conclusion within a period of one year.

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The writ petition stands disposed of in the above

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terms, so also the pending miscellaneous application(s), if any.

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Jyotsna Rewal Dua October 01, 2024 Judge Mukesh

Rajeev Kumar v. State of Hp and Ors.

Case brief

What is this about?

What did the court decide?

Rajeev Kumar v. State of Hp and Ors.

Case brief

What is this about?

What did the court decide?

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