acquisition where not only the provisions of the Land Acquisition Act
would be invoked but even the cost of acquisition and publication will
be paid by some other third agency would in fact mean depriving the
respondent No. 5 of his property save and except by authority of law,
which would be contrary to the letter and spirit of Article 300 A of
Constitution of India.
CWP No. 11334 of 2011.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Date of decision: 17.4.2015.
Prakash chand
Vs.
State of H.P. & ors.
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Citation; AIR 2015 HP42
By medium of this writ petition, the petitioner has prayed
the following substantive reliefs:
(i)
That the respondents may be directed to immediately
construct/ repair the road from Bhathmana Bus Stand to
Dharvidhar road.
(ii)
That the respondents may be directed to take all the
necessary steps to make the road usable for at least the
small vehicles like Ambulance and utility vehicles.
The grievance set out in the petition is that respondents
2.
have failed to construct and maintain the road from Bhathmana Bus
Stand to Dharvidhar, as a result whereof, the petitioner as well as the
other residents of Gram Panchayat are facing great difficulty in
rt
approaching the main road “Bhathmana to Shimla”. The demand for
construction of link road was raised by the residents, but the
government did not take any steps for the construction of the road.
Vide resolution dated 8.12.2009, the Gram Panchayat resolved that a
grant of Rs.5,00,000/- may be provided for construction of the road.
The Gram Panchayat started construction of the road by contributing
money as also providing labour and resultantly the road became
jeepable in the year 2009 which provides connectivity to about 300
residents of the Gram Panchayat.
3.
It is alleged that since the link road was constructed by
the residents, it required further leveling by the expert agency of the
government and at few places retaining wall and breast walls were
also required to be constructed. The residents of the area repeatedly
represented to the government and finally the government sanctioned
an amount of Rs.3,60,000/- for the construction of the road, but the
said amount is not being used for the construction of the road.
4.
The official respondents in their reply have raised
preliminary objection regarding the maintainability of the petition and
it is submitted that the villagers had started the construction of
Ambulance road out of their personal funds. The respondent No. 2
had sanctioned a sum of Rs.1,00,000/- for the construction of the
road on 15.1.2010. The respondent No. 3 further released funds to
the Gram Panchayat on 24.11.2010 to construct the said road after
completing all codal formalities mandatory for its execution. However,
a complaint was received in the office of respondent No.3 Sub
Divisional Magistrate, Shimla, where one of the land owners whose
land falls adjacent to the public path had requested to stop
construction of the road till the construction of the breast wall for
protection of his house. Two kilometers of road was constructed by
the local residents themselves but then the same was damaged and
It was further
washed away due to heavy rains in many places.
reported that road from RD 0/000 to 0/075 is quite narrow and there
were houses towards the hilly side, which required additional funds
for their protection.
5.
This court vide various interim orders had directed the
official respondents to look into the feasibility of construction of the
road, pursuant to which various amounts were also sanctioned by
the official respondents. However, the State expressed its inability to
acquire the private lands including the land belonging to respondent
No.3 on account of its policy decision not to acquire any private land
for the construction of rural link road as it would lead to multiplicity of
litigation in other similarly situated cases throughout the State. Later,
when the petitioner offered to bear the entire cost of the acquisition as
also the construction, the official respondents were not averse to such
proposal as would be clear from the detailed order passed by this
court on 18.12.2014, which reads thus:-
“In compliance to the directions passed by this Court on
12.12.2014, Engineer-in-Chief, HPPWD, Shimla is present. On
15.9.2014, this Court passed the following order:
“It is represented by the learned counsel for the
petitioner that the petitioner and the co-villagers
are ready to bear the cost of acquisition of the
land belonging to respondents No. 5 and 9, in
case the State is willing to acquire the same in
accordance with law, let the State obtain
instructions in this regard.”
When the matter was listed subsequently, it was pointed
out by learned Additional Advocate General that the
respondent-State is unable to acquire the land belonging to
respondents No. 5 to 9 being its policy decision not to acquire
any private land for the construction of rural link road as it shall
lead to multiplicity of litigation in other similar situated cases
throughout the State. It has been brought to the notice of
Engineer-in-Chief, HPPWD, Shimla that the entire cost towards
acquisition and construction of five mtrs. wide road on land
comprised in Khasra No.773, including override charges thereof
advertisement etc.etc. shall also be borne by the petitioner and
the co-villagers. He has also been apprised of the fact that the
acquisition of this land on behalf of the State would not in any
manner mean that it is for the HPPWD to construct the road
over this khasra number or beyond this point.
Learned Advocate General, on instructions from
the Engineer-in-Chief, HPPWD, has stated that they are not
averse to the proposal that in case the entire cost of acquisition
and construction of the road is borne by the petitioner, then it
will have no objection in issuing necessary notification under the
Right to Fair Compensation and Transparency in Land
Acquisition, Re-habilitation and Re-settlement Act, 2013 (for
short ‘Act’). Accordingly, let the Land Acquisition Collector,
HPPWD, Winter Field, Shimla make a tentative assessment of
the value of the land for construction of five mtrs. wide road over
Khasra No. 773 including the structure(s), if any, over the same
in accordance with the Act, within a period of eight weeks.
In the meanwhile, learned counsel for the
petitioner shall also seek instructions in this regard from the
petitioner because before passing any final order regarding
acquisition, the petitioner will have to file an undertaking before
this Court undertaking therein that it will be the petitioner who
shall bear all the costs of acquisition and construction of the
road and no amount whatsoever shall be paid from the State
Exchequer for the construction of the road and the mere fact
that the State will issue the necessary notification under the Act
would not in any manner be construed to mean that the road
would be constructed by the State Government. It further be
undertaken that the land having width of only five mtrs would
be acquired. The presence of Engineer-in-Chief, HPPWD,
Shimla, is dispensed with.
List on 27.2.2015.
Copy dasti.”
6.
However, the respondent No. 5 has now raised a
preliminary objection regarding the very maintainability of the petition
by arguing that direction to acquire the land of the respondent and
other private land owners by the State at the expense and cost of the
petitioner or the other beneficiaries of the road is in violation of letter
and spirit of Article 300-A of Constitution of India and therefore, the
petition ought to be dismissed on this ground alone.
The learned
counsel for the petitioner on the other hand would argue that petition
of the present nature is still maintainable.
I have heard the learned counsel for the parties and
7.
have also gone through the records of the case.
The learned counsel for the petitioner has vehemently
argued that taking into the peculiar facts and circumstances of the
case where the construction of the road is for the general public, the
same cannot be obstructed by a single individual and if that be so a
writ in the nature of mandamus can always be issued directing the
respondents to acquire the land since the petitioner and the other
beneficiaries, who were always ready and willing and are still ready
and willing to bear the cost not only of the acquisition but also of the
construction of the road. He in support of his contention has placed
reliance upon a three Judges Bench judgement of Hon’ble Supreme
Court in Union of India and another vs. S.B.Vohra and others
(2004) 2 SCC 150, more particularly the following observations:-
“28.
The broad principles of judicial review as has been stated in
the speech of Lord Diplock in Council of Civil Services Unions v.
Minister for the Civil Service [(1985) A.C. 374], i.e., illegality,
irrationality
and
procedural
impropriety,
have
greatly
been
overtaken by other developments as for example, generally not only
in relation to proportionality and human rights but also in the
direction of principles of legal certainty, notably legitimate
30.
expectations.
Judicial review is a highly complex and developing subject.
It has its roots long back and its scope and extent varies from case
to case. It is considered to be the basic feature of the Constitution.
The Court in exercise of its power of judicial review would jealously
guard the human rights, fundamental rights and the citizens' rights
of life and liberty as also many noon-statutory powers of
governmental bodies as regards their control over property and
assets of various kinds which could be expended on building
hospitals, roads and the like, or overseas aid, or compensating
victims of crime (See for example, R. v. Secretary of State for the
Home Department ex parte Fire Brigades Union [1995] 2 WLR 1.
31.
The Court, however, exercises its power of restraint in
relation to interference of policy. In his recent book `Constitutional
Reform in the UK' at page 105, Dawn Oliver commented thus :
"However, this concept of democracy as rights-
based with limited governmental power, and in particular of
the role of the courts in a democracy, carries high risk for
the judges - and for the public. Courts may interfere
inadvisedly in public administration. The case of Bromley
London Borough Council v. Greater London Council ([1983]
1 AC 768, HL) is a classic example. The House of Lords
quashed the GLC cheap fares policy as being based on a
misreading of the statutory provisions but were accused of
themselves misunderstanding transport policy in so doing.
The courts are not experts in policy and public
administration - hence Jowell's point that the courts should
not step beyond their institutional capacity (Jowell, 2000).
Acceptance of this approach is reflected in the judgments of
Laws LJ in International transport Roth GmbH v. Secretary
of State for the Home Department ([2002] EWCA Civil 158,
[2002] 3 WLR 344) and of Lord Nimmo Smith in Adams v.
Lord Advocate (Court of Sessions, Times, 8 August 2002) in
which a distinction was drawn between areas where the
subject matter lies within the expertise of the courts (for
instance, criminal justice, including sentencing and
detention of individuals) and those which were more
appropriate for decision by democratically elected and
accountable bodies. If the courts step outside the area of
their institutional competence, government may react by
getting Parliament to legislate to oust the jurisdiction of the
courts altogether. Such a step would undermine the rule of
law. Government and public opinion may come to question
the legitimacy of the judges exercising judicial review
against Ministers and thus undermine the authority of the
courts and the rule of law."
8.
The learned Senior counsel for respondent No. 5 on the
other hand has vehemently argued that his client cannot be deprived
of his property only because some moneyed persons are willing to
offer the price of his land while the State of its own is admittedly not
interested in acquiring the land.
I have weighed the rival contentions of the parties and of
9.
the considered view that this court is not vested with the jurisdiction to
issue direction to the State to acquire third party’s land only because
the petitioner and other beneficiaries are willing to pay the price of the
same, particularly when admittedly, the State of its own is not willing
10.
to acquire the land.
No doubt, the right to hold property has ceased to a
fundamental right under the Constitution of India but then it has been
left to the legislature to deprive a person of his property but in
accordance with law.
This right cannot be exercised by an
individual(s) because Article 300-A provides that a person cannot be
deprived of his property by executive feat and it can only be done in
accordance with law.
No law, no deprivation of property is the
principle underlying under Article 300 A of Constitution of India, an
executive order depriving of his property without being backed by law
is not constitutionally valid. Under this Article right to property is not a
human, but also a constitutional right and hence it cannot be taken
away except in accordance with law.
11.
Taking possession
or acquisition should be in the
connotation of acquisition or requisition of property for public purpose.
The word “law” used in Article 300-A of Constitution of India must be
an act of Parliament or of State Legislature, a rule or statutory order
having force of law. The deprivation of property as observed earlier
shall be only by authority of law, be it an Act of Parliament or State
Deprivation of
Legislature, but not by executive feat or an order.
property is by acquisition or requisition or taking possession of for
public purpose. It is more than settled that in case the owner of the
immovable property is interdicted to deal with his property as he likes
it would be violative of Article 300-A of Constitution of India.
The deprivation of property by a statute within the
12.
meaning of Article 300-A generally speaking must take place for
public purpose or public interest. The concept of eminent domain,
which applies when a person is deprived of his p
roperty postulates
that the purpose must be primarily public and not primarily of private
interest and merely incidentally beneficial to the public. An act or law,
which deprives of a person of his private property for private interest
will be unlawful and unfair and undermines the rule of law and can be
subjected to judicial review.
13.
The concept “public purpose” has been given fairly
expansive meaning, which has to be justified upon the purpose and
object of the Land Acquisition Act as also the policy of the legislation,
if any.
The public purpose is therefore a condition precedent for
deprivation of a person from his property under Article 300-A. Article
300-A would be violated if the provisions of the law
authorizing
deprivation of property have not been complied with in letter and
spirit. The law has to be reasonable and must comply with other
provisions of the Constitution.
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14.
It is now well established that if the cost of acquisition is
borne either wholly or partly by the government, the acquisition can
be said to be for a public purpose within the meaning of Land
Acquisition Act, but if the cost is entire borne by an individual, group
of individual(s), or a company etc., then the same cannot be treated
Acquisition Act.
to be an acquisition for a public purpose within the meaning of Land
No doubt, even if a trifling sum or even token or
rt
nominal contribution is made by the government, the same is held to
be sufficient compliance with the second proviso to section 6 of Land
Acquisition Act. In ultimate analysis, an acquisition can only be held
to be for public purpose, if only the government comes forward to
sanction the payment of a nominal sum towards compensation.
Indisputably acquisition of land is an act falling within
15.
the purview of eminent domain of the State and it essentially relates
to the concept of compulsory acquisition as opposed to voluntary
sale. But then the decision to acquire the property has to be of the
State and not individual(s).
16.
The acquisition of property of respondent No. 5 by proxy
acquisition where not only the provisions of the Land Acquisition Act
would be invoked but even the cost of acquisition and publication will
be paid by some other third agency would in fact mean depriving the
respondent No. 5 of his property save and except by authority of law,
which would be contrary to the letter and spirit of Article 300 A of
Constitution of India.
17.
Article 300 A imposes a duty and an obligation that no
person can be deprived of his property save by the authority of law.
In case such a course is permitted then the same would also be
against the very object for which the Land Acquisition Act was
enacted. All business, houses individuals etc. would then on their
sheer financial strength be able to acquire prime properties. This
obviously cannot be permitted as nobody can be permitted to buy
others property without his consent.
18.
The government while exercising the power as eminent
rt
domain may of its own chose and come to the rescue of the
petitioner, but then this court in teeth of Article 300 A is not competent
to issue directions to the State to compulsory acquire the land of 5th
even despite the fact that petitioner and other
respondent
beneficiaries are not only willing but are ready to bear not only the
This
cost of acquisition but also the cost of construction of the road.
would mean proxy acquisition, which is prohibited by law.
19.
In view of the aforesaid discussion, the preliminary
objection raised by the respondents is accepted and the petition is
dismissed as being not maintainable, so also all the pending
application, if any.
April 17, 2015.
(Hem)
( Tarlok Singh Chauhan ),
Judge.
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