Shri Kanshi Ram Sharma vs State of H.P. and Others

Dev Darshan Sud, J.—The petitioner seeks compensation for use of the land by the State purportedly encroached upon by the State for building of Water Tank on his land comprised in Khasra No. 1071, Khata Khatauni No. 52 min, measuring 1 biswa according to the revenue record for the year 2002-2003 (Annexure P-1).

The case of the petitioner is that the State, without his consent, has built a water tank in his land without compensating him. Petitioner relies upon a demarcation report carried out by the Patwari, which is contested by the State on the ground that no person from the Irrigation and Public Health Department or any other Department of the Government was present to authenticate the demarcation. The State also submit as a fact that the petitioner had consented for the use of his land and has voluntary given it up since the water tank would serve the entire village. It is also alleged that the petitioner is using water supplied by the State free of cost.

There is no contemporaneous evidence on the record to show that the petitioner had infact consented to the use of the land. Infact, what I find is that an award has been made for the lands of the other persons whose land had been acquired by the State for the purposes of the water tank. Notification u/s 4 of the Land Acquisition Act, (hereinafter referred to as the `Act�) has been reproduced in the award of Collector dated 28th June, 1993. Khasra No. 1071 owned by the petitioner has specifically been mentioned therein. However, when the award proceeds to consider a subsequent Notification under Sections 6 and 7 of the Act, this Khasra number is omitted.

Learned Counsel appearing for the petitioner submits that the fact that Notification u/s 4 of the Act was issued itself pointed to the fact that the land was intended to be acquired for the purpose of the Water Scheme for which the award Annexure R-1 was made. He submits that the omission of Khasra No. 1071 from the Notification under Sections 6 and 7 is only of a clerical nature.

I cannot accept the contention made on behalf of the State that the petitioner has consented for using his land gratis. There is no material on the record to justify this submission. The only contesting point is the demarcation and that too on the ground that no person from the State had been associated.

In these circumstances, this writ petition is disposed of with the directions that:

(a) It shall demarcate the land of the petitioner in Khasra No. 1071, Khata Khatauni No. 52 min as described by the petitioner in paragraph-5 of this writ petition and as indicated in Jamabandi Annexure P-1. Such demarcation will be carried out by Naib Tehsildar, Junga in the presence of the petitioner or his authorized representative and an officer of the Irrigation and Public Health Department. For this purpose he shall give prior notice to both the parties;

(b) He can take assistance from the demarcation report already filed on the record by the petitioner;

(c) If on such demarcation it is found that the land of the petitioner has been used/utilized/damaged by the State as pleaded by him, necessary proceedings for acquisition of the land under the provisions of Section 4 of the Land Acquisition Act shall be initiated. The demarcation shall be carried out on or before 30th June, 2010 and proceedings of acquisition shall be completed before 31st December, 2010. Needless to say that if it is found that the land has already been constructed, proceedings for calling for objections u/s 5 of the Act and notice requiring the taking over of possession of the land would be mere surplusage as the land of the petitioner, according to him, already stands constructed upon and his prayer is only for compensation to be given in accordance with law.

This writ petition is accordingly disposed of. There shall be no order as to costs. The respondents shall ensure due compliance of the directions issued by this Court. All interim orders shall stand vacated. All miscellaneous applications are disposed of.