Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.328 of 2009 Dated of Decision : June 25, 2009. --------------------------------------------------------------------------------------------------- Hari Nand and others. ……… Petitioners. Versus State of H.P. and others. …….. Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?No. For the Petitioners : Mr. B.C. Negi, Advocate. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General & Mr. Rajesh Mandhotra, Deputy Advocate General. : Mr. R.R. Rahi, Advocate, for the Caveators. Surinder Singh, J (oral): By means of the present writ petition, the petitioners have sought mainly the following reliefs:- (i) Issue a writ of certiorari to quash letter dated 20.11.2008, the inescapability certificate dated 09.11.2008 and on going/ further proceedings being got done by the respondent authorities with respect to the acquisition of private lands for construction of Phayal to Dhaunti via Shamleeg road; and - 2 - (ii) Issue a writ of mandamus directing the respondent authorities not to further proceed with the acquisition of private lands for construction of the Phayal to Dhaunti via Shamleeg road. We have heard the learned counsel for the parties and have examined the record. In brief, the facts giving rise to the present petition are that in the year 2004, the respondent authorities intended to construct the road from Phayal to Dhaunti via Shamleeg. In this respect, appropriate administrative approval was accorded on 5.11.2004, subject to the fulfillment of two conditions, firstly that the said road is new rural/arterial road, therefore the same could be constructed only if the concerned village community give the lands free of cost; and secondly, said road would be constructed only after the land in question would be transferred in the name of the State Government and these riders were put pursuant to the policy decision taken in the year 1998-99, which was being continuously followed. But the construction of the said road via Shamleeg remained in limbo, for the reason that the concerned village community was not ready and willing to transfer their lands free of cost in the name of the State Government. - 3 - However, with the efforts made by the concerned village community, the said road was constructed via Dhanool and not via Shamleeg, for which the Government had provided the budget. It catered to the need of the villages Phayal, Shageen, Bijli, Dhanool, Kharog, Dharati, Hayaun and Dhaunti. According to the petitioners, from the existing road via Dhanool, the links could be provided to villages Shamleeg, Jordha and Jadhyal. The petitioners, who are the residents of village Phayal and other individuals of village Jadhyal refused to provide the land for the construction of new road via Shamleeg as they have already donated the land for the road via Dhanool. It is alleged that in the month of October, 2008, they came to know that the State and its authorities were in the process of acquiring the land for the construction of said road from Phayal to Dhaunti via Shamleeg and this road was required to be completed by 31st March, 2009, the State Government had also expressed their intention to initiate the acquisition proceedings, which also included their land comprised of Khasra No.312. The petitioners had also filed a civil suit against the State Government for - 4 - restraining the respondents-authorities from constructing the new rural/arterial road from Phayal to Dhaunti via Shamleeg, with respect to khasra No.312, which was decreed and the Court ordered that without acquiring the land of the plaintiffs in accordance with law, no road should be constructed. According to the petitioners, as per the policy of the Government, there was no provision for acquisition of the land for the construction of rural/arterial roads. Whereas, other persons were not ready and willing to transfer the land free of cost to the State Government for the said purpose and the proposed road would stop at Shamleeg itself as no further survey was conducted beyond that. Thus, prayed for the above reliefs. In response, the respondents admitted the fact that the department had been following the policy of constructing only those rural roads wherein the community has transferred the land free of cost in the name of the department, but however the Government in ‘public interest’ under the provision of Land Acquisition Act is not debarred to acquire the land where connectivity being a policy decision of the Government. - 5 - It is also the case of the respondents that the road from Phayal to Dhaunti via Dhanool has been constructed by the Panchayat under local area development scheme in Mashobra Block and this road was not as per the PWD specification and DPR from Phayal to Dhaunti via Dhanool was prepared under RNS 2008-09, whereas the said road via Shamleeg would connect other villages namely Pajuti, Grain, Thalag School, Nagog, Jadhiyal, Shamleeg and Jeweda and whereas the existing road via Dhanool covers different villages Phayal, Shageen, Bijli, Dhanool, Kharog, Dharthi, Hayaun and Dhaunti. Thus, both these alignments would cater to the needs of different habitations, therefore, the department had started the acquisition proceeding for the construction of the road via Shamleeg, where the donations were not made. Since the land of the petitioners fell in the alignment of the construction of the said road and they did not transfer/donate the land, therefore, the acquisition proceedings were initiated the complete alignment stood finalized upto village Shamleeg via Jeweda. It is pertinent to note that in the Civil Suit No.42/1 of 2005, filed by the petitioners - 6 - in the court of Civil Judge (Junior Division), Court No.5, Shimla, the prayer of the petitioners was to restrain the respondents permanently from constructing the proposed Phayal-Dhanool road via Shamleeg through Khasra No.312 owned by the petitioners without resorting to the provision of law for acquisition and the learned Civil Judge decreed the suit, as prayed for restraining the respondents permanently unless acquired in accordance with law. Thus, we failed to understand when the respondents started the acquisition proceedings why and how the petitioners felt aggrieved and which of their fundamental right got infringed or was jeopardized. As per the case of the respondents, only 16 biswas of land belong to the petitioners which would come under the construction of the road via Shamleeg. This road was being constructed for the public purpose and the other owners have already donated and transferred about 14.17 bighas of land in the name of the respondents. The houses of the petitioners are situated at the start of the road as stated by the respondents and they were - 7 - already having the usufruct of the connectivity of the road. Considering the above facts, we are of the opinion that when the majority of land owners had already donated the land free of cost to the respondents, for the construction of the road via Shamleeg, a few more khasra numbers which comes under the survey are not donated by the villagers community, the State Government is fully competent to resort to the acquiring of the land in accordance with law to fulfill the promise to provide the motorable connectivity to other beneficiary villages in public interest. Therefore, in our opinion, the relief prayed for by the petitioners is devoid of any merit, as such, the writ petition is dismissed. The parties to bear their own costs. C.M.P.No.570 of 2009. In view of the dismissal of the writ petition, this application is also dismissed. (Deepak Gupta) Judge (Surinder Singh) Judge June 25, 2009. (Pds)