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Nokhia and ors. Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberC.W.P. No. 566 of 1984
Judge
Reported inAIR1985HP88b
ActsLand Acquisition Act, 1894 - Sections 4, 6, 9, 10, 16 and 23; ;Contract Act, 1872 - Section 14
AppellantNokhia and ors.
RespondentState of Himachal Pradesh and ors.
Respondent Advocate P.N. Nag, Adv.
Cases ReferredTilak Raj Sud v. State of Himachal Pradesh
Excerpt:
- .....of the land and other property required to be acquired will be paid to them on completion of the land acquisition proceedings. no common paths, natural spring sources of water, etc., have been damaged..... the minor damages, where occurred, were repaired simultaneously.... a total area of land measuring 9 bigha 10 biswas of the various interest holders in village chhakdal is required for construction of road. notification under section 4 was issued on 17-12-82 and notification under sections 6 & 7 has been issued vide this office letter no. se-iv-r-100/83-6200-03 dt. 23-4-84. this notification has also appeared in the h. p. rajpatra on 19-5-84. a total number of 76 trees of various species of various land owners are involved in the land acquisition which are also being considered for.....
Judgment:

P.D. Desai, C.J.

1. A letter addressed to this Court through one of us (Chief Justice) by fourteen persons, all belonging to the schedule castes, has been registered as writ petition. The petitioners have averred in the petition that they are residents of village Chakrali, tehsil and district Shimla an area or region which is 'perhaps one of the poorest in Shimla district because there is hardly any perceptible source of livelihood'. According to the petitioners, they hold small pieces or parcels of land which are mostly of 'qhasni' variety and earn their livelihood by selling grass and working as agricultural labourers or labourers employed on projects such as construction of roads etc.

2. The main grievance of the petitioners is that the State Government took up the work of construction of a link road from Bhatla Kuffar to Koti in the year 1977 without payment of compensation as a result of which they have been deprived of their holdings or portions thereof since about seven years without due process of law. According to the petitioners, in the process or as a result of the construction/widening of the road, they have also suffered incidental damage such as loss of trees, common paths, natural water sources and injurious affection to their remaining property. The petitioners submit that they have made repeated requests for payment of compensation but to no avail. Another grievance of the petitioners is that on account of construction of the Dhalli-Shogi Road, near Sanjauli tunnel, a path leading to village Deoli and Chakrali was badly damaged and that it has still not been repaired in spite of repeated requests and that on that account the people of this area are suffering inconvenience and hardship. The petitioners have sought a just relief and redressal of their grievances.

3. Notice was ordered to issue on- the petition on Oct. 31, 1984. On behalf of the respondents, an affidavit-in-reply Dec. 1, 1984. has been filed by the Superintending Engineer. 4th Circle, HP PWD, Shimla. Rule was issued today after perusal of the affidavit.

4. The material part of the affidavit, in so far as it concerns the main grievance, reads as follows : --

'......the construction work of Bhatta KufferKoli Road was started by the P. W. D. during 1977 with due verba! consent of the landowners whose land has been/is being partially utilised for this work. That is why the landowners did not object to the construction of this road through their lands in the initial stage of the construction. At the time, the construction work of this road was taken in hand the landowners were verbally assured that due compensation of the land and other property required to be acquired will be paid to them on completion of the land acquisition proceedings. No common paths, natural spring sources of water, etc., have been damaged..... The minor damages, where occurred, were repaired simultaneously.... A total area of land measuring 9 Bigha 10 Biswas of the various interest holders in village Chhakdal is required for construction of road. Notification under Section 4 was issued on 17-12-82 and Notification under Sections 6 & 7 has been issued vide this office letter No. SE-IV-R-100/83-6200-03 dt. 23-4-84. This notification has also appeared in the H. P. Rajpatra on 19-5-84. A total number of 76 trees of various species of various land owners are involved in the land acquisition which are also being considered for awarding compensation to the interest holders. At no stage the interest holders have been dodged for their claim of compensation. The compensation case has been fixed for hearing the objections of the interest holders by the Land Acquisition Collector, under Sections 9 & 10 of the Land Acquisition Act. As soon as their objections are enquired into necessary award wilt be announced in the case. However, the Land Acquisition Collector has been requested to expedite land acquisition proceedings.'

As regards the incidental grievance pertaining to the damage caused to the path at the time of the construction of the Dhalli-Shogi road, version set out in the return is as follows :

'......admitted to the extent that the footpath existing at site beyond Bhatla Kuffer Koli Road, the length of which is about 700 metres, was in a damaged position has already been repaired by this department and is presently in use by the general public. However there is no foot path from Dhalli Tunnel side up to Dhalli Shogi road (Bhatta Kuffer point) in a length of about 300 metres, A private stone erusher of M/s. R. K. Stone Crushers is working above the Dhalli Shogi road which is regularly dumping the debris in this portion of this foot path. The P. W. D., therefore, cannotbe held responsible for the damages on this portion of this foot path.'

5. Now, the version set out in the affidavit that possession of the land of the petitioners and other landowners, which was and is being utilised for the construction of the Bhatta Kuffer Koti road, was taken 'with due verbal consent of the landowners' does not appear to us to be true or, at any rate, wholly true. The material particulars, such as, when precisely the consent was obtained whether the consent was given by all interested persons and, if so, whether it was free consent given after full knowledge of their rights and of the implications involved in surrendering the possession even before the acquisition proceedings were under active contemplation and initiated, who was the authority that obtained the consent and in what manner, etc., are not set out in the affidavit, A vague assertion that the landowners orally consented to the taking of possession on a verbal assurance held out to them that due compensation will be paid on completion of the acquisition proceedings cannot be accepted in view of the version set out in the petition and the subsequent conduct of the concerned authority in failing to initiate the acquisition proceedings by the issue of a notification under Section 4 for five years and that under Section 6 for seven years. Besides, there is internal indication in the affidavit itself which belies the version relating to the alleged oral consent. The deponent has stated that it is on account of such 'verbal consent' that the landowners did not object to the construction of the road through their lands in the 'initial stage'. Implicit in this assertion is a concession that the landowners remained passive spectators only in the initial stages of the construction of the road, presumably because they were unaware of their rights, which is the case of the petitioners, and that at subsequent stages the landowners had raised some protest or attempted to assert their legal rights. These facts emerging from the affidavit themselves are destructive of the theory of oral consent. Besides, if consent is the defence for by-passing the substantive and procedural requirements of law relating to the acquisition of property, what the authority has to show is that the consent was not only free but informed. Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake. Consent can beregarded as informed when it is an act of reason, accompanied with deliberation of a mind which knows the right and wrong, good and evil, and it postulates an active will on the part of the person giving consent to permit the doing of the act complained of with full knowledge of the nature of the act that is being done and the rights and obligations of the parties involved in the commission of the act. Even if the verbal consent, as alleged, was given by the landowners in the instant case, no material has been brought on record to show that it was free and informed consent in the sense explained above, In the absence of any such material and in light of the circumstances to be presently noticed, it would not be unreasonable to proceed on the basis that such consent, even if obtained, was no! free and informed, The consent was given on the strength of a representation with regard to the payment of compensation which has not been acted upon for an unreasonably long period and from the lackadaisical manner in which the authority has since acted shows that such representation, when made, was nol intended to be really acted upon. The consent, if any, was, therefore, obtained upon a misrepresentation. The class of society to which the petitioners, who are amongst the landowners, belong, is a factor which by itself is sufficient to sustain a legitimate inference that the consent could not have been informed. Indeed, the averments made in the petition --'we learn that no road can be constructed until and unless compensation is given lo the landowners' -- lends support to the view that the consent, if any, was not the deliberate act of persons who knew the true nature and character of the act and who were capable of taking a balanced decision with full awareness of their legal rights as well as statutory obligations of the authorities. We are, therefore, clearly of the view that the theory of oral consent is a clear afterthought and that, in any case, even if such consent was given or obtained, it cannot be set up as a valid defence, since it cannot be regarded as free and informed consent in the eye of law.

6. Once the theory of consent goes overboard, the conclusion is inevitable on the admitted facts that the landowners including the petitioners were deprived of their property as far back as 1977 save by authority of law and that on account of the apathy or negligence on the part of the concerned authority, suchunauthorised deprivation continued till the first step in the process of acquisition was taken five years later in 1982 by the issue of the notification under Section 4. The acquisition proceedings continued to drag on even thereafter because the notification under Section 6 was issued only in 1984, that is, about seven years after the possession was taken and about one and half years after the notification under Section 4 was issued. Although about seven months have elapsed since the date of issue of the notification under Section 6, the objections on the question of compensation have still not been heard and the proceedings for determination of the compensation have made no substantial progress. The landowners, including the petitioners, who belong to a socially and economically backward class, have still not received the payment of statutory compensation which is overdue, and they have been exposed to undue hardship and undeserved want, compelling them to seek the assistance of this Court to secure justice.

7. This is not the first case of its kind which has come to the notice of this Court. In Jau Ram v. State of Himachat Pradesh, 1LR (1984) Him Pra 351 : (AIR 1985 Him Pra 25) the Court was concerned with a case where possession was taken six years before the property was notified for acquisition and compensation was not paid for a period of nearly twelve years. In yet another case, Tilak Raj Sud v. State of Himachal Pradesh, Civil Writ Petn. No. 402 of 1984, the Court is concerned with a case where admittedly the possession of land falling within the limits of one village was taken and road was constructed thereon even before the issue of a notification under Section 6 and the possession of land falling within the limits of another village was taken and road was constructed thereon before the award was made. Those two and the present case appear to disclose a pattern and bring to light a scheme of things or course of action which is not only violative of the statutory provisions of the Land Acquisition Act and the constitutional mandate enshrined in Article 300A hut also fundamental rights. In Jau Rain's case, the Court has made the following pertinent observations in this connection :

'.......Every exercise of statutory power inour republic is subject to a paramount condition, namely, that such exercise is noi arbitrary, oppressive and fanciful but just, fairand reasonable. The power of compulsory acquisition of property is coupled with the duty to award compensation within a reasonable time. The compensation for the acquired property is adjudged on the basis of the market value as prevailing on the date of the publication of the notification under Section 4 of the Act. Once such notification is issued the property, for all practical purposes, loses its value to the owner and can be developed only at the risk and cost of the owner. In a case where possession is taken over before the award is made, the owner is deprived of all rights to the property including its user and/or usufruct. An authority, who deprives a person of his property under the compulsive force of law cannot, therfore, sit tight and neglect to perform its duty to award compensation within a reasonable time except at its own risk and cost.'

The Court is conscious of the fact that sometimes the execution of some public utility projects calls for prompt action if the urgency of the situation so requires. However, even in such cases, the authority cannot and will not act in defiance of the statutory and constitutional provisions by depriving the landowners of the possession of their property save in accordance with law. In the interim order Sept. 24,1984, passed in Tilak Raj Sud's case, this Court has made certain observations which being material are extracted hereinbelow :

'.... Such a course of action cannot and should not he adopted since it is not warranted by law. Section 17 of the Act gives special powers in case of urgency and resort can be had to the said provisions if there is need. Otherwise, the least that should be done is to obtain an agreement, in writing, of the owners of the land and take the possession of land under such agreement against a promise that the land acquisition proceedings would be initiated and completed and the compensation will he paid within a reasonable time from the date of taking over of possession and that interest will be paid from the date of taking over of possession.'

The Court observed that since such procedure in accordance with law was not followed in that case, the proceedings culminating into the taking over of the possession of land were apparently without the authority of law. Directions were issued in the course of thesaid order that in future the State Government should ensure that proceedings for acquisition of land are taken in accordance with law and in light of the observations made in the said order. A copy of the said order was directed to be forwarded to the Secretary to the Government in the P. W. D. (Roads and Buildings).

8. On this occasion, once again, the Court draws the attention of the State Government to the state of affairs which have come to light in this and similar cases and directs that :

(a) instructions be issued to all limbs and subordinates that no citizen should be deprived of his property save in accordance with law, that is, the law relating to the acquisitioning and requisitioning of property and that in rare and exceptional cases of emergent public utility projects, the execution whereof cannot brook any delay in the public interest and where the provisions of Section 17 of the Land Acquisition Act cannot be resorted for reasons such as the nature and character of land, possession of the land or any specified portion thereof may he taken with the consent, as explained above, of the person(s) interested in the land after the execution of an agreement, in writing, between the said person (s) and the competent authority, in accordance with law, incorporating the conditions, inter alia, that the land acquisition proceedings shall be initiated and completed and the compensation will be paid within a reasonable time to be specified in the agreement and that interest will be paid from the date of taking over of possession, and

(b) in order to avoid proliferation of litigation and to alleviate genuine hardship of persons similarly situate, all cases like the present, where there has been a deviation from law and persons have been deprived of the possession of their property save in accordance with law be taken up for regularisation by initiating/completing acquisition proceedings in accordance with law with the utmost expedition and within a time-limit which may be set up by the State Government bearing in mind the need of striking a just balance between the inevitable lapse of time which is reasonably likely to occur even if urgent action is taken in that direction and the duty of providing quick relief by emergent remedial measures to the aggrieved persons and. in all such cases, equitable compensation, on the basis on which the Court has so far awardedthe same in such and similar cases and proposes to award herein, be paid to such persons from the date of taking over of possession till the date of actual payment, in addition to the compensation, solatium and interest at the statutory rate which becomes payable under the law. The court has so far viewed cases where such unauthorised actions were taken in the past leniently but any future lapse will have to be strictly viewed if it is brought to its notice.

9, Coming now to the question of the grant of reliefs in the present case, so far as the question of payment of compensation is concerned, on the facts and in the circumstances of the present case, it is expedient and in the interest of justice to direct that the proceedings pending before the Land Acquisition Collector for the determination of compensation shall be completed within a period of eight weeks from today and compensation will be paid latest within a period of ten weeks from today. All the landowners, including the petitioners, will he paid interest at the rate of 12% per annum from the data of taking over of possession till the date of actual payment by way of equitable compensation for wrongful deprivation of their property and delayed payment of compensation due under the law. The equitable compensation to be paid accordingly will be in addition to the compensation and solatium and interest at the statutory rate which will be payable to the claimants under the law whether awarded by the Collector or enhanced by the court. Such equitable compensation will not be taken into consideration in any proceedings under the law while awarding the statutory compensation. As regards the grievance relating to the admitted closure of the path in the length of about 300 metres in the vicinity of Sanjauli tunnel and near the Dhalli-Shoghi road on account of alleged dumping of the debris on the said path by a private stone crusher, it is expedient and in the interest of justice to direct the first respondent to issue instructions to the competent authority to secure the removal of the debris, if any, lying on the said path and to take appropriate measures in the direction of ensuring that the debris ceases to he dumped on the said path in future and to take expedient measures within a period of three months from today to cause necessary repairs to be made so as to give easy access to their villagesto the members of public who use the said path for the said purpose.

10. Rule made absolute accordingly with no order as to costs.

11. A copy of this judgment be forwarded to the Chief Secretary to the State Government under the seal of the Court and signature of the Registrar for initiation of appropriate action and ensuring due observance of these orders and directions, A copy of the order be also forwarded to the first petitioner for the information of the petitioners.

12. Dasti copy on usual terms.


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