Allahabad High Court
Ram Prit And 7 Others vs State Of U.P. And 7 Others on 6 February, 2020
Author: Ravi Nath Tilhari
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 A.F.R. Case :- WRIT - C No. - 4336 of 2020 Petitioner :- Ram Prit And 7 Others Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Juned Alam Counsel for Respondent :- C.S.C. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
(Per Ravi Nath Tilhari, J.)
1. We have heard Sri Juned Alam, learned counsel for the petitioners and learned Standing Counsel for the State-respondents and with their consent this writ petition is being decided at this stage.
2. The petitioners claim themselves to be recorded tenure holders of Revenue Plot No.1/17, 1/18, 1/9(New numbers 46, 47 and 48) situated in village Bharwalia, Tappa Pakari Gangarani, pargana Sudhwa Jobani, at present in district Kaushambi (earlier in the undivided district Deoria). Being aggrieved from the proceeding relating to acquisition of aforesaid land, which was made vide notification issued under Section 4 of Land Acquisition Act, 1894(for short 'the Act 1894') dated 10.3.1978 for the public purpose to establish Government Industrial Institute(for short 'the Institute') have filed present writ petition seeking the relief that they may not be dispossessed and the respondent-authorities be directed to pay compensation in lieu of the acquired land as per the Act, 1894 along with the interest from the date of notification till the date of taking possession on the prevalent market value within a specified period. The prayers made in the writ petition are reproduced as under:
"i) issue, a writ, order or direction in the nature of mandamus directing/restraining the respondents not to dispossess the petitioners from their land i.e. Old Plot No.1/19/1, 1/18, 1/17, New Plot No.46, 47 and 48 Hect. situated in Village Bharwaliya, Tappa Pakari Gangarani, Pargana Sidhuwa Jobjna, Tehsil Padrauna, District Kushi Nagar.
ii) issue, a writ, order or direction in the nature of mandamus commanding the respondents to pay the compensation of the land so acquired being Old Plot No.1/19/1, 1/18, 1/17, New Plot No.46, 47 and 48 Hect. situated in Village Bharwaliya, Tappa Pakari Gangarani, Pargana Sidhuwa Jobna, Tehsil Padrauna, District Kushi Nagar as per provision of the Land Acquisition Act, 1894 along with the interest from the date of notification ill date of taking possession at the prevalent market within the period so stipulated by this Hon'ble Court.
iii) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(iv) Award cost of the writ petition to the petitioners."
3. The learned counsel for the petitioners has submitted that after the issuance of notification under Section 4 of the Act, 1894, a notice on Form-II was published by the Collector, Deoria relying upon the notice of Special Land Acquisition Officer, Deoria( for short 'SLAO') in Case No.2 of 1984, stating that the possession of acquired land had been taken on 06.01.1984 and hence the said land was to be mutated in the records in the name of Government Industrial Institute(for short 'the Institute'). The tenure holders whose land was acquired were also required by the SLAO, by notice dated 9.12.1999 to complete all the requisite formalities to receive compensation of their acquired land by appearing in person before concerned authority.
4. The petitioners have further stated that in the meantime the village came under the consolidation operations under the provisions of U.P. Consolidation of Holdings Act 1953 ( for short 'the Act 1953'). The consolidation operation was finalized and the Consolidation Officer issued notification under Section 52 of the Act 1953. The Consolidation Officer, issued notice dated 6.8.2018 requiring the petitioners to appear on 10.8.2019 for making reference to the Deputy Director of Consolidation (DDC) for mutation of the name of the Institute in place of the name of the petitioners as the acquisition of the land had taken place under the Act 1894. In response, the petitioners filed their objection and thereafter reference was made to Deputy Director of Consolidation, which was allowed by order dated 29.8.1998 directing to record the name of Government Industrial Institute over the acquired land. The petitioners have further submitted that the award of the acquired land was made under Section 11 of the Act, 1894 but they are still in physical possession over the acquired land and till date no physical possession had been taken nor any building was constructed over the acquired land.
5. From the record it is evident that earlier, the petitioners filed Writ C No.40507 of 2018 (Ram Preet Vs. State of U.P. and 3 others), decided on 10.12.2018 for direction to the respondent-authorities to return the land of the petitioners or to direct them to pay compensation to the petitioners, as per the provisions of the "Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013". (for short "the Act 2013). This writ petition No.40507 of 2018 was dismissed by this Court with liberty to the petitioners to challenge the order 29.08.2018 passed by the Deputy Director of Consolidation, Kushinagar.
6. This Court held that the writ petition for direction to the respondent-authorities to return the land of the petitioners is misconceived. Likewise, if the acquisition had taken place long time back as it appeared from the reports submitted in connection with the consolidation proceedings, how could compensation be awarded under the Act, 2013. The appropriate course for the petitioners was to challenge the order passed in consolidation proceeding. This Court noticed that the petitioners had not challenged the notification, in respect of acquisition of the land. The order dated 10.12.2018 passed in Writ C No.40507 of 2018 is reproduced below:-
"The instant petition has been filed for a direction upon the respondent authorities to return the land of the petitioner or to direct the respondent authorities to pay compensation to the petitioners as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
From the record it appears that during the consolidation operations, a report was submitted by the Consolidation Officer by way of reference to the Deputy Director of Consolidation, Kushinagar to correct the records to make it in conformity with some earlier land acquisition notification. Pursuant to the report, the Deputy Director of Consolidation, Kushingar, by order dated 29.08.2018, accepted the reference and directed correction in the records accordingly.
The order of the Deputy Director of Consolidation, Kushingar has not been challenged by the petitioner. The petitioner has also not challenged any notification in respect of acquisition of the land.
Under the circumstances, the writ petition for a direction upon the respondent authorities to return the land of the petitioner is misconceived. Likewise, if the acquisition had taken place long time back as it appears from the reports submitted in connection with consolidation proceedings, how could compensation be awarded under the Act, 2013. The appropriate course for the petitioner is to challenge order passed in consolidation proceeding. The petition is, accordingly, dismissed with liberty to the petitioner to challenge the order dated 29.08.2018 passed by the Deputy Director of Consolidation, Kushinagar..."
7. Thereafter, the petitioners filed Writ B No.1180 of 2019 (Shrikant And Another vs State Of U.P. And 5 Others) challenging the order dated 10.8.2018 passed by Consolidation Officer, Padrauna, Kushinagar and the order dated 29.8.2018 passed by Deputy Director of Consolidation, Kushinagar, as well as the notification dated 10.3.1978 by the Government of Uttar Pradesh. This writ petition was also dismissed on merits, holding that in Writ C No.40495 of 2018, no liberty was given to the petitioners to challenge the notification issued under the Land Acquisition Act, and even otherwise the notification issued under Section 4 of Land Acquisition Act, which was issued in the year 1978 could not be challenged in the writ petition and the petitioners have to challenge the said notification explaining laches by way of separate writ petition, which is cognizable by the Division Bench. This Court did not find any illegality or infirmity in the order dated 29.8.2018 passed by Deputy Deputy Director of Consolidation, accepting the reference, which was a consequential order, pursuant to the proceedings held under the Land Acquisition Act. The Writ petition was dismissed. However, petitioners were granted liberty to challenge the notification dated 10.3.1978 issued under Sections 4 and 6 of the Act, 1894 before the appropriate forum.
8. The judgment passed in Writ B No.1180 of 2019 dated 10.5.2019 is being reproduced as under:-
"Heard Sri Bisham Tiwari, learned counsel for the petitioners and learned Standing Counsel for the State.
Present writ petition has been filed challenging the order dated 10.8.2018 passed by Consolidation Officer, Padrauna, Kushinagar and the order dated 29.8.2018 passed by Deputy Director of Consolidation, Kushinagar as well as the notification dated 10.3.1978 issued by Government of Uttar Pradesh.
It reflects from the record that vide notification dated 10.3.1978 issued by the State Government, land of petitioners were acquired, during the consolidation operation, report was submitted by the Consolidation Officer on 10.8.2018 by way of reference to Deputy Director of Consolidation, Kushinagar to correct the record and make it inconformity with the notifications issued under Section 4 and 6 of the Land Acquisition Act.
Pursuant to the report of Consolidation Officer, reference was accepted vide impugned order dated 29.8.2018 and accordingly, the record was directed to be corrected. It is also on the record that petitioner filed Writ C No. 40495 of 2018 for issuance of writ of mandamus commanding the respondent authorities to return the land of petitioners or to direct the respondent authorities to pay compensation to the petitioners as per provisions of Right to Fair Compensation and Transparency and Resettlement Act, 2013. The said writ petition was dismissed with liberty to the petitioners to challenge the order dated 29.8.2018 passed by Deputy Director of Consolidation, Kushinagar. Thereafter, present writ petition has been filed by the petitioners challenging the order dated 10.8.2018 passed by the Consolidation Officer and order dated 29.8.2018 passed by Deputy Director of Consolidation as well as the notification dated 10.3.1978 Contention of learned counsel for the petitioner is that petitioners have no knowledge about the acquisition and therefore, reference has wrongly been accepted by Deputy Director of Consolidation vide impugned order dated 29.8.2018.
I have considered the submissions as raised by learned counsel for the petitioners and perused the record.
Record reveals that pursuant to the notification issued under Section 4 and 6 of the Land Acquisition Act in the year 1978, a report was submitted by the Consolidation Officer on 10.8.2018 to correct the record inconformity with the earlier land acquisition notification. Pursuant to the report, reference was accepted by Deputy Director of Consolidation vide impugned order dated 29.8.2018.
In Writ C No. 40495 of 2018, no liberty was given to the petitioner to challenge the notification issued under Land Acquisition Act, even otherwise the notification issued under Section 4 of Land Acquisition Act in the year 1978 cannot be challenged in the present writ petition. Petitioners have to challenge the said notification explaining laches by way of separate writ petition, which is cognizable by the Division Bench.
I do not find any illegality or infirmity in the order impugned herein dated 29.8.2018 passed by Deputy Deputy Director of Consolidation accepting the reference, which is a consequential order pursuant to the proceeding held under the Land Acquisition Act.
Writ petition lacks merit and is, accordingly, dismissed.
However, liberty is given to petitioners to challenge the notification dated 10.3.1978 issued under Section 4 and 6 of Land Acquisition Act before appropriate forum after explaining laches."
9. The petitioners in the present writ petition have stated in paragraph 22, that the notification issued under Section 4 of the Act 1894 cannot be challenged. They have also not challenged the said notification.
10. Now we proceed to consider the submission of the petitioners' counsel that the possession was not taken from the petitioners and as no physical possession was taken, the title of the petitioners did not extinguish over the acquired land. We are not inclined to accept the petitioners' this contention that possession was not taken as the same is contrary to the record i.e. Form-II which is Annexure-2 to the writ petition, and which specifically mentions that the possession of the acquired land was taken by he State and was delivered to the State Industrial Department on 6.1.1984. Only mutation in the name of Government property was required in the revenue record.
11. Once the award has been made under the Land Acquisition Act, 1894 and the possession taken by the Government, present writ petition for direction to the respondents not to dispossess the petitioners from the acquired land, is misconceived. Besides, for this prayer no.i) the present writ petition would not be maintainable as the petitioners in the earlier writ petition, Writ C No.40507 of 2018 had prayed for return of the land but writ petition was dismissed by this Court.
12. So far as the prayer for payment of compensation of the acquired land is concerned, the petitioners' Writ C No.40507 of 2018 was dismissed by this Court holding that the acquisition had taken long back and as such compensation could not be awarded under the Act 2013. In Writ C No.40507 of 2018 the prayer was for grant of compensation of the acquired land under the Act 2013. In view of the judgment dated 10.12.2018, the petitioners' second prayer to grant compensation of the acquired land, "at the prevalent market value", is nothing but the same prayer in substance, as was rejected in Writ C No.40507 of 2018. The present writ petition for the same prayer cannot be entertained. The petitioners cannot be granted compensation under the Act 2013.
13. We, however, find that the petitioners' land was acquired way back in 1978 under the Land Acquisition Act, 1894 and under Section 11 of the said Act, compensation was awarded. Possession was also taken from the petitioners, which was delivered to State Industrial Department on 6.1.1984. Even notice dated 9.2.1999 was issued to the petitioners to receive compensation (Annexure-3) after completing the formalities, from Special Land Acquisition Officer, Deoria. The petitioners have stated that they have yet not been paid any compensation of their acquired land in pursuance of the award made under Section 11 of the Land Acquisition Act 1894.
14. If the petitioners have not been paid compensation yet, they are entitled for payment of compensation as no one can be deprived of his property save by the authority of law which is a right guaranteed under Article 300A of the Constitution of India. The Land Acquisition Act,1894, which deprives a person from his land makes provision for payment of compensation. The person whose land is acquired is entitled for grant of compensation. The State cannot acquire the property and refuse to make payment of compensation. Recently, in Vidya Devi v. State of H.P., Civil Appeal No.3674 o 2009, decided on 4.12.2019, Hon'ble Supreme Court has held that to hold property is a Constitutional right under Article 300-A of the Constitution of India. It is also a human right. The Right to hold property, therefore, cannot be taken away except under the provisions of the Statute. Paragraph 12 to 13 of Vidya Devi's case (supra) read as follows:-
"12. We have heard learned Counsel for the parties and perused the record.
12.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution. Article 31 guaranteed the right to private property1, which could not be deprived without due process of law and upon just and fair compensation.
12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right2 in a welfare State, and a Constitutional right Under Article 300A of the Constitution. Article 300A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article.
12.3 To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right Under Article 300A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai (2005) 7 SCC 627, wherein this Court held that:
6. ... Having regard to the provisions contained in Article 300-A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.
(emphasis supplied) 12.4 In N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517, this Court held that:
21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed.
(emphasis supplied) 12.5. In Delhi Airtech Services Pvt. Ltd. and Ors. v. State of U.P. and Ors., (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words:
30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property. "Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.
(emphasis supplied) 12.6 In Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. 1 SCC 596 this Court held as follows:
48. ...In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession Under Article 300-A. In other words, if there is no law, there is no deprivation.
(emphasis supplied) 12.7. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
12.8. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.
12.09. In a democratic polity governed by the Rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors. (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the Rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
12.10 This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.
12.11. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to "adverse" possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.
12.12. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
12.13. In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it.4 12.14. In Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors. (2013) 1 SCC 353, this Court while dealing with a similar fact situation, held as follows(SCC p.359, para 11) "11.There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, Under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."
(emphasis supplied)
13. In the present case, the Appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law. The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction Under Articles 136 and 142 of the Constitution, and direct the State to pay compensation to the Appellant.
15. We are, therefore, of the considered view that the petitioners are entitled for payment of compensation of their acquired land in terms of the award made under Section 11 of the Land Acquisition Act, 1894 and for payment of which notice dated 9.12.1999 was issued to the petitioners.
16. We make it clear that the petitioners are not entitled for payment of compensation as per prevalent market value of the acquired land under the provisions of the Act 2013 as Writ C No.40507 of 2018 for such prayer, was dismissed. However, dismissal of Writ C No.40507 of 2018 would not come in the way of grant of compensation to the petitioners under the Act 1894, under which award has been made inasmuch as in that writ petition this much was held that petitioners cannot be granted compensation under the Act 2013 as acquisition had taken place long time back. The petitioners are entitled for compensation under the Act 1894 and they cannot be deprived of payment of compensation, at all, although their land had been acquired. To uphold and enforce the petitioners' constitutional right to property guaranteed by Article 300-A of the Constitution of India, we provide and direct the respondents-1 to 5 that the petitioners shall be paid compensation of their acquired land under the Land Acquisition Act, 1894, for which award had been made and notice dated 9.12.1999 had also been issued to petitioners to receive compensation, if the same has yet not been made, within a period of three months from the date of production of certified copy of this judgment by the petitioners before respondents-1 to 5.
17. The writ petition is disposed of with the observations/directions made in this order/judgment.
18. No order as to costs.
Dated:06.02.2020.
mt