Himachal Pradesh High Court
Jawahar Lal Negi vs The Executive Engineer And Others on 9 March, 2021
Bench: L. Narayana Swamy, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 254 of 2020 along-
with connected matters.
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Decided on: 09.03.2021
CWP No. 254 of 2020
Jawahar Lal Negi .......Petitioner
Versus
The Executive Engineer and others ......Respondents
CWP No. 255 of 2020
Pradeep Mehta and another .......Petitioners
Versus
The Executive Engineer and others ......Respondents
CWP No. 296 of 2020
Ram Swaroop Sharma .......Petitioner
Versus
The Executive Engineer and others ......Respondents
CWP No. 318 of 2020
Joginder Kumar .......Petitioner
Versus
The Executive Engineer and others ......Respondents
CWP No. 320 of 2020
Prem Dass .......Petitioner
Versus
The Executive Engineer and others ......Respondents
CWP No. 322 of 2020
Balak Ram Mehta .......Petitioner
Versus
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The Executive Engineer and others ......Respondents
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CWP No. 323 of 2020
Prem Dass .......Petitioner
Versus
The Executive Engineer and others ......Respondents
CWP No. 324 of 2020
Pratap Singh Kanwar .......Petitioner
r Versus
The Executive Engineer and others ......Respondents
CWP No. 325 of 2020
Devender Singh and others .......Petitioners
Versus
The Executive Engineer and others ......Respondents
CWP No. 326 of 2020
Rajinder Kaur .......Petitioner
Versus
The Executive Engineer and others ......Respondents
CWP No. 327 of 2020
Anil Gupta .......Petitioner
Versus
The Executive Engineer and others ......Respondents
CWP No. 328 of 2020
Sanjay Kumar and others .......Petitioners
Versus
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The Executive Engineer and others ......Respondents
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Coram
The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1
For the petitioner(s): Mr. Anand Sharma, Senior
Advocate with Mr. Karan
Sharma, Advocate.
For the respondents: Mr. Ashok Sharma, A.G with
Ms. Ritta Goswami, Addl. A.G
and Mr. Adarsh Sharma, Addl.
A.G. for the respondent-State.
r Mr. T.S. Chauhan, Advocate for
respondent-HPSEBL.
Mr. K.D. Shreedhar, Sr.
Advocate with Ms. Shreya
Chauhan, Advocate for
respondent-NHAI.
Mr. Sudhir Thakur, Senior
Advocate with Mr. Karun Negi,
Advocate for respondent
No.4/Municipal Corporation
Solan.
L. Narayana Swamy, Chief Justice (Oral)
Since common questions of law and facts are
involved in all these writ petitions, therefore, they are being
disposed of by this common judgment. As identical prayers are
made in all the petitions, hence the facts of leading case are
discussed hereinbelow.
Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
2. The respondent-Central Government has issued
Notification No. S.O. 2351 (E) dated 29.09.2010 and S.O 714 (E)
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dated 15.032013 under sub Section (1) of Section 3(A) of the
National Highways Act, 1956 for acquisition of land belonging to
the private owners of village Basal Patti Kathed, Tehsil Solan for
building (widening/four laning), maintenance and operation of
National Highway No. 22 on the stretch of land from Km. 106.700
(Parwanoo to Solan) in District Solan. Pursuant to the notice of
acquisition issued by the respondents, learned counsel for the
petitioner in para 8 of the petition has stated that vide award at
Serial No. 31 of Mauza Basal Patti Kathed, Hadbast No. 48 of the
land of the petitioner comprised in Khasra Nos. 2521/1310/973,
measuring 143 square meters, situated in Mauza Basal Patti
Kathed, Tehsil and District Solan has been acquired and the
Khasra Nos. 2521/1310/973/1 measuring 13 square meters for
which the petitioner was awarded a sum of Rs. 2,42,000/- and
vide award No. 31/1 dated 15.12.2016 of the revenue village
Mauza Basal Kathed, hadbast No. 48 for the compensation of
structure in the revenue village Basal Patti Kathed, the petitioner
has been awarded a sum of `1,24,40,000/- for the built up
structure in Khasra No. 2521/1310/973.
3. It is submitted by learned counsel for the petitioner
that what was acquired the respondent has taken possession
thereof. The petitioner is in remaining portion for which he is
entitled for the compensation as owner of the property, hence
the respondents do not have any sort of right for interfering or
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disconnecting the water and electricity connections through
CALA. Hence, the impugned action of the respondents in
interfering through CALA for disconnecting the water and
electricity connections is arbitrary and in violation of Article 21 of
the Constitution of India. To substantiate his submissions,
learned counsel for the petitioner has placed reliance on the
judgment in Madan Lal Vs. State of Himachal Pradesh and
others, reported
r in 2019(Suppl.) HLR page 2962 and
submitted that the water and electricity though not a
fundamental right is the Constitutional right under Article 300A
of the Constitution of India. Hence, the impugned action of the
respondents in interfering with the water and electricity
connection is arbitrary and in violation of all canons of law,
including Article 300A of the Constitution of India. Before
attempting to disconnect the electricity and water connections,
the petitioner should have been issued notice by respondent
No.1. Hence, the impugned action of disconnecting the water
and electricity connections without issuing a notice is arbitrary
and in violation of principles of natural justice and also in
violation of fundamental right.
4. Learned Senior counsel appearing for respondent-
NHAI has submitted that the property which belongs to the
petitioner as rightly stated in para 8 of the petition, has been
acquired and the compensation has been paid and it has been
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accepted by the petitioner. It is submitted that though the entire
structure has been acquired it is to be demolished by respondent
No.2. Petitioner no-where in the petition states that what is the
total extent of land and what has been acquired and what has
not been acquired. Under these circumstances, the case of the
petitioner deserves to be rejected.
5. Learned Additional Advocate General submits that it
is between the NHAI and the CALA and the respondent-State
does not interfere in the possession of the petitioner over the
property.
6. We have heard learned counsel for the parties.
7. Earlier, one Sunil Kumar has approached this Court
by way of filing CWP No. 560 of 2020, which was disposed of on
11.11.2020 with the following observations:-
"14. A perusal of the entire facts disclose that the
petitioner took advantage of the situation because the
NHAI slept over the matter. Were they prompt in
demolishing the structure for which they had duly paid
the compensation, then the petitioner would not have
got any opportunity to continue in possession,
frustrating the very purpose of the acquisition. If the
NHAI was prompt in accomplishing its project and the
project was not lackadaisical, then the petitioner would
not have got any chance to continue in possession.
Thus, the NHAI is squarely to be blamed for not taking
acquisition to its logical end, of which the petitioner took
full advantage. In response to the question of this Court
that why did NHAI delay such demolitions, Mr. K.D.
Shreedhar assures us that NHAI will speed up the
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demolition process of all similar structures in the entire
State of Himachal Pradesh.
15. In the present case, despite the Award passed in the
year 2016 and payment of compensation made way
back in the year 2018, the NHAI did not demolish the
entire structure for which they had already paid the
compensation amount. For this reason, the petitioner
took advantage of the situation and continued to stay in
possession thereof. Although the petitioner's conduct is
inappropriate, even there are lapses on the part of the
NHAI for delaying the demolishing of the structure,
which led to the filing of the present petition."
8. In another writ petition, bearing CWP No. 687 of 2020
in which an application, CMP No. 1991 of 2020 was filed for
vacation of stay order. While disposing of the CMP No. 1991 of
2020, this Court has made the following observations:-
9. Another grudge of the petitioner is mentioned in
paragraph 18(i), which shows his heartburning, and
appears to be genuine. In this paragraph, the petitioner
has mentioned the grievance against the respondents
and has also named other encroachers to protect whom
the NHAI and other respondents are purposely widening
the road over the property of the petitioner. Relevant
extract of paragraph 18 (i) reads as follows:
"(i) Because the Notice dated 03.02.2020 issued
by Respondent No.6 is actuated by mala fides as
the action on the part of the concerned
Respondent especially Respondent No.6 is aimed
at helping the valley side residents. Though the
total width of land as per status Report
dated 15.7.2017, filed by Respondent No.6 in
CWP No. 1357 of 2016 before this Hon'ble
Court was 28.5 meters (including the land of
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the petitioner measuring to be 2 biswas
acquired vide Awrd No.28) and as such after
further acquisition of 1 biswa land of the
petitioner vide Award No.28/B, dated
29.09.2018 at present on papers the NHAI is
having 30.5 meters of the available land but
on the spot the road has been constructed
merely upon 21-22 meters (including the
land of the Petitioner which has been
acquired by the concerned Respondent) due
to the unauthorized occupations/
encroachments upon the National Highway
by some of the Valley side residents namely
Proprietor of K.K. Blossom High School, Smt.
Sharda W/o Shri Naseem Ahmed, Shri Madan
and Shri T.R.Thakur- who are in possession
of 16-00 biswas, 06-00 biswas, 03-00 biswas
and 08-00 Biswas of land respectively on the
spot whereas they are the owners of 09-00
biswas, 02-00 biswas, 01-00 biswa and 00-04-
13 biswansi land respectively as per the
revenue record of Tehsil Solan. The entire
exercise is to provide undue benefits to the
valley side residents who are having
unauthorized occupation/encroachment at
the spot on the NH-22 at Village Rabon,
Solan which is required to be vacated so as
to provide service lane on both sides of the
four lane."
10. The bigger grudge has a smaller answer. Simply
because some people are in encroachment over the
Government land and some of the respondents are
sleeping over the matter, either they are in hands and
gloves with them or because of sheer lethargy on their
part, or the encroachers are so powerful that even law
cannot touch them, would not confer any right upon the
petitioner to continue in possession over the property
for which he had already received the compensation.
Needless to say, that once the names of the
encroachers along with the extent of encroachment,
now is within the knowledge of the respondents, if they
continue to sleep over the matter, it would establish
their connivance with such encroachers and
demonstrate their involvement for extraneous reasons.
It would be for their superior officer not only to take
strict disciplinary action against such the erring
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officers/officials, but also to ensure that such
encroachments are removed from the entire National
Highway-22, and also from the land appurtenant to it,
wherever such encroachments exist, without any
further delay.
11. The writ petition was filed during the winter
vacation and vide order dated 12.2.2020, learned
Vacation Judge, had directed the respondents not to
remove the structure of the petitioner from the land
comprised in Khasra No.514/193/45/2/2 on the
averments that it was never acquired. However,
learned Singh Judge had clarified that it shall not debar
the respondents from carrying out activities necessary
for construction of road in the land already acquired for
the said purpose.
12. Now, after hearing the parties and going through
the record, and the analysis mentioned above, we do
not think that the petitioner has made out any case for
stay or interim relief.
9. The 1st prayer made by the petitioner(s) is for
appropriate writ, order restraining the arbitrary action of the
respondents/officials whereby the respondents are threatening
the petitioner(s) by the visits of officials sent by the HPSEBL
Division and (M.C.) IPH Division Solan and directing the
respondent authorities not to disconnect any of the essential
supplies, including the electricity and water supply to the
petitioner's house. The 2nd prayer of the petitioner(s) is for a
direction to the respondents to consider the offer of the
petitioner(s) for refunding of compensation qua the left out
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portion as acceptable and tenable in the eyes of law of the
acquired land and consequently directing the respondent
authorities not to disconnect any essential supplies including the
electricity and water supply provided to the petitioner's house.
10. It is submitted by learned counsel for the
petitioner(s) that for refunding of the compensation awarded for
the acquired portion, representations have been made and the
same have not yet been considered by the respondents.
11. The case of the petitioner(s) as stated in the petition
and also the submissions is that the property as referred to
above has been acquired by the respondents and the
compensation has been awarded to the petitioner(s). The
acquired portion has been demolished by the respondents,
however, the petitioner(s) is residing in the portion which is not
acquired for which they have got ownership as they are owner of
the property. If that being the case, an attempt has been made
by the respondents to interfere in the possession of the property.
12. Here the question would be, as rightly stated in para
No.8, that some portion of the property has been acquired and
compensation has been paid. If that is the case, the remaining
extent of the property in case petitioner(s) is in possession of the
property, no such description of the property has been furnished,
i.e., the extent of the acquired land and its ownership. To
substantiate the same, petitioner(s) could have produced some
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revenue record, but no such revenue record is available before
this Court. It is stated by the respondent-NHAI that the
petitioner(s) has been paid the compensation which has been
received by him and the structure which was acquired is not
completely demolished by the respondents and the acquired
portion has been demolished and the remaining is yet to be
demolished. In the meanwhile, the petitioners have entered into
the un-demolished portion and claimed that this remaining
portion has not been acquired, cannot be accepted when there is
no cogent and reliable material placed before this Court. It is
always open for the petitioner(s) to approach the competent
authority with all requisite and cogent material to prove
ownership in respect of the property in question. Needless to
say that once the compensation stands awarded for the entire
structure for which Notification has been made, it vests with the
respondent-NHAI as they become the owner from that day
onwards. If anybody enters into the possession is only
unauthorized trespasser into the property in question.
13. It is the submission of the learned counsel for the
petitioners that before disconnecting the water and electricity,
no notice was issued to the petitioner(s), cannot be accepted in
view of the fact that the 1st respondent has filed the reply in
which it is specifically stated that notice has been issued to the
petitioner(s) not to remain in the portion of land which was
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acquired. After receipt of such notice, instead of approaching
the 1st respondent, they have preferred these petitions and the
submission of learned counsel for the petitioners that they have
not been issued notice, cannot be accepted.
14. For all the reasons discussed hereinabove, we do not
find any merit in these petitions and the same are accordingly
dismissed. Pending application(s), if any, shall also stand
disposed of.
( L. Narayana Swamy )
Chief Justice
March 09, 2021 ( Anoop Chitkara )
(naveen) Judge
