Sureshwar Thakur JUDGMENT
Rajiv Sharma, J.
1. Petitioner is one of the joint owner(s)-in-possession of the land as entered in Khata No. 9, Khatauni No. 32, Khasra No. 279 measuring 0-13-17 situate at Mauja Majholi, Pargana Sihal, Tehsil Theog, District Shimla, H.P., as per Jamabandi for the year 2001-02. Administrative approval was given by the State Government vide letter dated 21.2.1997 for a sum of ` 1,41,50,000/- for the construction/widening of road from kms 0/0 to 17/045. The construction of the road commenced on 10.9.2004 and was completed in the year 2006-07. The land of the petitioner was also utilized for the purpose of construction of the road i.e. Shillaru-Reog road. The land was utilized for the purpose of widening of the road which was completed on 5.6.2006. Petitioner has not been paid any compensation by the respondent-State for utilizing his land for the purpose of construction/widening of road. The petitioner served a notice upon the respondents on 30.4.2007 followed by another representation on 22.9.2009. Petitioner has placed on record the copy of Jamabandi as Annexure P-1 and that of Tatima as Annexure P-2. A note is given on the Tatima by the Halka Patwari that the road has been constructed on Khasra No. 279.
2. The case set up by the respondent-State is that the villagers made repeated demands for the construction of the road in question. The construction of the road in question was started in the year 2005-06. According to them, the petitioner has given his implied consent for the construction of the road.
3. Respondent-State was directed to file a supplementary affidavit on 19.6.2014. The supplementary affidavit was filed by the Superintending Engineer, 4th Circle, PWD, Shimla-3 on 3.7.2014. According to him, affidavits were acquired from the beneficiaries of the Gram Panchayat Kiara and submitted to the authorities alongwith resolution dated 11.12.2003. A total of 31 affidavits pertaining to the beneficiaries of the area were obtained. However, there are only 30 affidavits on the record. According to the contents of the supplementary affidavit, one affidavit, which is not traceable in the official record, could be of the petitioner. How respondents have come to this conclusion is difficult to understand. Petitioner's land could not be utilized for the purpose of the construction of the road without his express consent.
4. No person can be deprived of his property without following due process of law. Respondents have utilized the land of the petitioner without paying him any compensation. There is no contemporaneous record placed on record by the respondent-State to show that the petitioner had consented for the construction of the road through his land. It is evident from the contents of Annexure P-1 that the nature of land in Khasra No. 279, as per Jamabandi for the year 2001-02, is Bagicha. A valuable piece of land of the petitioner has been utilized in an arbitrary manner by the respondent-State, for the purpose of construction/widening of the Shillaru-Reog road.
5. It is also argued by Mr. Anup Rattan, Additional Advocate General, that there is delay in filing the present petition, as construction of the road on the suit land was only undertaken on 5.6.2006. Immediately thereafter, the petitioner had served a notice upon the respondents on 30.4.2007. Some action ought to have been taken on notice dated 30.4.2007. Petitioner was constrained to serve another notice on 22.9.2009. Despite that no action has been taken by the respondent-State to redress the grievance of the petitioner.
6. Legitimate right of a citizen, that too pertaining to valuable property, can not be defeated merely on the technical objections. There ought to be difference in the approach of a private litigant vis-a-vis State. The State stands on a higher pedestal. It is the duty of the functionaries of the State to maintain the Rule of Law. There can not be any estoppel/waiver against the constitutional/fundamental/legal rights.
7. Accordingly, the petition is allowed. Respondents are directed to initiate process for acquisition........