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1984 Supreme(HP) 30
High Court Of Himachal Pradesh
P.D.DESAI,R.S.THAKUR
NOKHIA - Appellant
Versus
STATE OF H.P. - Respondent
C. W. P. No. 566 of 1984
Decided On : 05/12/1984
P.N. Nag, Advocate General, for Respondents.
The power of compulsory acquisition of property is coupled with the duty to award compensation within a reasonable time. In cases where there has been a deviation from law and persons have been deprived of the possession of their property save in accordance with law, the State Government should take up such cases for regularisation by initiating/completing acquisition proceedings in accordance with law with the utmost expedition and within a time-limit. In all such cases, equitable compensation, on the basis on which the Court has so far awarded the 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.
Headnote:
LAND ACQUISITION - COMPENSATION - DELAY IN PAYMENT - INTEREST - EQUITABLE COMPENSATION - UNAUTHORISED DEPRIVATION OF PROPERTY - CONSENT - FREE AND INFORMED CONSENT - PUBLIC UTILITY PROJECTS - URGENCY - S.17 OF THE LAND ACQUISITION ACT - INSTRUCTIONS TO AUTHORITIES - REGULARISATION OF CASES - TIME-LIMIT - PATH CLOSURE - REMOVAL OF DEBRIS - REPAIRS.
Fact of the Case:
Petitioners, belonging to the schedule castes, alleged that the State Government took up the construction of a link road without payment of compensation, depriving them of their holdings for seven years without due process of law. They also complained of incidental damage, such as loss of trees, common paths, natural water sources, and injurious affection to their remaining property. The State Government claimed that the landowners had given verbal consent to the construction and that the acquisition proceedings were underway.
Finding of the Court:
The court found that the theory of oral consent was a clear afterthought and that, even if such consent was given, it could not be regarded as free and informed consent in the eye of law. The court also found that the acquisition proceedings had been delayed for an unreasonably long period, causing undue hardship to the landowners.
Issues: 1. Whether the landowners had given free and informed consent to the construction of the road. 2. Whether the acquisition proceedings had been delayed for an unreasonably long period. 3. Whether the landowners were entitled to compensation for the unauthorised deprivation of their property and the delayed payment of compensation.
Ratio Decidendi: 1. Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake. Consent can be regarded 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. 2. The power of compulsory acquisition of property is coupled with the duty to award compensation within a reasonable time. 3. In cases where there has been a deviation from law and persons have been deprived of the possession of their property save in accordance with law, the State Government should take up such cases for regularisation by initiating/completing acquisition proceedings in accordance with law with the utmost expedition and within a time-limit. In all such cases, equitable compensation, on the basis on which the Court has so far awarded the 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.
Final Decision: 1. The court directed the State Government to complete the acquisition proceedings within eight weeks and pay compensation within ten weeks. 2. The landowners were awarded interest at the rate of 12% per annum from the date of taking over of possession till the date of actual payment as equitable compensation for wrongful deprivation of their property and delayed payment of compensation. 3. The court also directed the State Government to remove the debris from the path near the Dhalli-Shoghi road and to take necessary measures to ensure that the debris ceases to be dumped on the said path in future. The court further directed the State Government to cause necessary repairs to be made to the path within three months.
P. D. Desai, C.J.:- 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 Bhatta 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 Kuffer Koti Road was started by the P. W. D. during 1977 with due verbal 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 S.4 was issued on 17-12-1982 and Notification under Ss.6 and 7 has been issued vide this office letter No. SE-IV-R-100/83-6200-03 dt. 23-4-1984. This notification has also appeared in the H. P. Rajpatra on 19-5-1984. 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 Ss.9 and 10 of the Land Acquisition Act. As soon as their objections are enquired into necessary award will 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 t
