Kahan Singh vs State of Himachal Pradesh and Others

Kurian Joseph, C.J.—This is a Petition for appropriate clarification of the direction issued by this Court in judgment dated 20th July, 2009 in CWP No. 2058 of 2009. It was a case where the Writ Petitioner approached this Court praying for compensation in respect of land utilized for construction of road. This Court took the notice of the fact that the State had not acquired the land under the provisions of the Land Acquisition Act, 1894 and that there has been no valid relinquishment of the land by the owner concerned in accordance with law. The Writ Petition was allowed on the basis of submissions made on behalf of the State that the land of the Writ Petition would be duly acquired and compensation paid in accordance with law.

While dealing with the case, it is seen that this Court has also issued general directions for future guidance for the purpose of construction of roads. It has been held by this Court that unless there is a valid gift deed executed by the owner concerned in favour of the State and the consequential steps are taken for mutation etc. no construction of road should be undertaken. It was also directed that no construction of the road shall be undertaken by any developmental agency in the State of Himachal Pradesh without the owner''s express permission/ valid gift deed made in favour of the State Government. Still further, there was a direction that the State Government shall undertake construction of the roads only after initiating the process of acquisition under the Land Acquisition Act, 1894.

Learned Advocate General referring to the detailed affidavit filed on behalf of the State points out that the general directions issued by this Court stand in the way of development works being undertaken on priority basis particularly in respect of centrally sponsored schemes which are to be executed in a time bound manner and if not, the State will lose the subsidy apart from impeding the development of rural areas. In the peculiar facts and circumstances of this case, as stated in the affidavit and taking note of the undeveloped if not underdeveloped access of roads to the rural areas, it will not be practically possible for the State to have the process of acquisition completed in accordance with law under the Land Acquisition Act, even if initiated, for the purpose of construction of a time bound projects in the matter of construction of roads. The owners executing the gift deeds and effecting mutation thereon is also a time consuming process. Once the people of rural area make a request to the Government that they are prepared to surrender their land for the purpose of construction of a road, voluntarily, we do not think that the State should wait for completion of the required formality when they are faced of the situation of executing a time bound project. The expression ''by way of affidavit'' would definitely suffice the purpose since the rest is only a procedural formality. Needless to say that the formality should be completed but it cannot be said in general terms that only after completing formality of mutation etc. that development work can be initiated. To that extent, we clarify that once people express their consent to surrender their land for the purpose of construction of road by way of appropriate affidavit, it will be open to the State to take up the development work, however, following up the matter for completion of the legal formalities of recording the relinquishment. We also make it clear that it is not invariably necessary that construction of roads be made only after initiating the process of acquisition of land under the provisions of Land Acquisition Act, in case the owners of the lands have no objection in that regard.

CMP is disposed of with the above clarification.