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Judgment
K.S. Tiwana, J. (Oral)
The facts leading to this petition under Articles 226 and 227 of the Constitution of India are that the petitioners who are residents of village Bhushera, Tehsil Sunam, District Sangrur were allotted land during the consolidation of holdings. A pathway connecting village Hamirgarh with village Mandvi, cutting through the plots of the petitioners almost diagonally was provided during the consolidation proceedings. They agitated the matter with the consolidation authorities and the Additional Director, Consolidation of Holdings, vide his order dated May 4, 1965 (Annexure `A''), shifted the pathway to the boundaries of the plots of the petitioners, which has been shown as A B C in red ink, while the old pathway is shown as A C in blue ink in the copy of shajra kisht war (Annexure `B'').
The contention of the petitioners is that the respondents, along with Sarpanch of the village without any authority started doing brick work on the pathway A C, which, after the order of the Additional Director of Consolidation of Holdings, ceased to exist at the site. They further contended that even no order under the Land Acquisition Act for acquiring the land for constructing the road had been passed. They have filed this petition for a writ of prohibition against the respondents for restraining them from their act of constructing the road.
In the written statement, the Collector, Sangrur admitted the contentions of the petitioners that the pathway had been shifted to A B C by the Additional Director of Consolidation of Holdings, but tried to justify his action by stating that the order had not been implemented at the spot. He and the Executive Engineer, in the return, took the plea that the road was being constructed under the "village roads crash programme" and that for construction of those roads, no acquisition of the land under the Land Acquisition Act was necessary, as the land was donated by the villagers from the common pool and the construction work was being done by the village voluntarily.
Similar is the return filed on behalf of Lal Singh, Sarpanch of Gram Panchayat Mandvi. According to his return, the pathway A C in annexure `B'' existed at the spot since times immemorial and that is why road was being constructed on it under the "village roads crash programme" on the basis of voluntary labour. The Panchayat had also deposited Rs. 17,000/ for the construction of the road.
The object of building village roads is very laudable, but it has to be done in a legal and appropriate manner. The road under the "village roads crash programme" cannot be made on one''s property unless he is willing to part with its possession in favour of the village community, for its onward transmission to the Government for the construction of road on it. It is proved beyond any doubt and has been so admitted by the Collector that the pathway A C has been shifted to A B C on the boundaries of the plot of the petitioners, by the Additional Director of Consolidation of Holdings vide his order Annexure `A'' passed on May 4, 1965. After the passing of those orders, the pathway A C, where the road was intended to be constructed, ceased to exist. It will continue to be there so long as no change in the order (Annexure `A'') affecting the pathway is brought about. It is immaterial if the order was implemented at the spot or not. The appropriate course, for the authorities should have been in this case, either to persuade the petitioners to permit the construction of the road voluntarily or by acquiring a strip of that land under the Land Acquisition Act. Without recourse to these alternatives, the respondents cannot claim justification to construct the road at that site, even if it was for the convenience of the village community or for any other beneficial object in view of the uplift of that part of the country where the road is to be constructed. The action of the respondents, therefore, is not in consonance with the law and cannot be accepted.
In view of what has been discussed above, the writ petition is accepted and the respondents are restrained from continuing with their efforts of constructing the road on the stip of land shown A C in blue ink in the shajra kisht war (Annexure `B) to the petition. No order as to costs.