Allahabad High Court
Uma Kant And 2 Others vs State Of U.P. And 7 Others on 7 April, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 Reserved Court No. - 39 Case :- WRIT - C No. - 13435 of 2019 Petitioner :- Uma Kant And 2 Others Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Shoar Mohammad Khan,Quazi Mohammad Akaram,Tahira Kazmi Counsel for Respondent :- C.S.C.,Rudra Pratap Singh Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Vikas Budhwar,J.
(Per: Hon'ble Vikas Budhwar,J.) Heard Ms.Tahira Kazmi and Quazi Mohammad Akram learned counsels for the petitioners and Sri Suresh Singh learned Standing counsel for the respondents 1 to 7.
The case of the learned counsel for the petitioners, who are three in number, as worded in the writ petition is that they are recorded tenure holders of the land situate in Tehsil Meja, District Prayagraj. In paragraph ''3' of the writ petition it is averred that the petitioner no.1 is the tenure holder of the land being Gata No. 34 measuring 0.137 hectares and Gata No.37 measuring 0.068 hectares situated at Gram Khaur, Tehsil Meja, District Prayagraj. Further averments have been made that the petitioner no.2 is also the tenure holder of the land being Gata No.524/2 measuring area 0.132 hectare situated at Gram Lutar, Tehsil Meja, District Prayagraj. Similarly in paragraph 4 of the writ petition it has further been averred that the petitioner no.3 is also the tenure holder of the land, Gata No. 97 Ga ( Wrongly typed as 37Ga) measuring 0.1830 hectares situated at Gram Tigja, Tappa Kohdar, Tehsil Meja, District Prayagraj.
It is further the case of the writ petitioners that since their plots are adjacent and abeting the road so in order to execute the project for construction of road from S.M.K. Marg to Lutar Khaur Bhaiya Laxman Ka Pura, Meja,-Bhatauti Marg District Prayagraj, the respondent authorities in an unauthorised and illegal manner started digging their land and also excavated the soil which not only was detrimental to the interest of the petitioners but the crops which were standing over their land also got destroyed.
In paragraph ''6' and ''7' of the writ petition, further averments have been made that the respondents have widened the road in question up to 13 meters and had also made two meter trench after digging it on both sides of the roads in an authorised manner, the photographs substantiating the digging, excavation of the soil and construction have been appended as annexure-'3A' at page ''31A' onward, of the paper book.
It is further the case of the petitioners that neither under the provisions contained under the Land Acquisition Act, 1894 any proceedings for acquisition of land in question was undertaken by the respondents nor their consent was obtained before utilising the land of the petitioners. As per the writ petitioners they being confronted with the said situation represented the matter before the Tehsildar Meja, Prayagraj on 10.4.2017. On the representation of the writ petitioners the Tehsildar Meja, Prayagraj directed the Lekhpal concerned to conduct spot inspection.
In para ''8' of the writ petition it has further been averred that on 23.5.2017 the Lekhpal conducted inspection and submitted his report. It is further the case of the writ petitioner that since no remedial action was being taken by the respondents so the writ petitioners approached the fourth respondent, Collector, District Prayagraj on 18.7.2017 for ventilation of their grievances. On the representation preferred by the petitioners before the fourth respondent, the Collector Prayagraj, Prayagraj directed the second respondent, Executive Engineer, Prantiya Khand,Public Works Department, Prayagraj to look into the matter and to proceed in accordance with law.
In para ''10' of the writ petition it has been pleaded that the second respondent, Executive Engineer, Prantiya Khand,Public Works Department, Prayagraj submitted his report before the Superintendent Engineer, Prayagraj Circle, Public Works Department, Prayagraj referring to the fact that the road was being constructed under the Central Road Funds Scheme and it was to be placed in the category "Other District Road." Aggrieved against the non ventilation of the grievances by the respondents herein, the petitioners preferred Writ-C No.48703 of 2017, Umakant and 8 others Vs. State of U.P. and 6 others which came to be disposed off on 23.10.2017 granting liberty to the writ petitioners to file their separate representation for payment of compensation before the fourth respondent, Collector, District Prayagraj in terms of the Government Order dated 30.1.2015 which was to be further directed to be decided within six weeks from the date of the presentation of the order.
Alleging non compliance of the order of the writ court, a Contempt Application (Civil) No.2136 of 2018, Uma Kant and others Vs. Sri Suhan L.Y. was filed in which on 3.5.2018, liberty was accorded to the petitioners herein to approach the concerned A.D.M. (F & R) along with the detail representation within a period of two weeks for redressal of the grievances and the concerned A.D.M. (F & R) was directed to ensure that the same is placed before the concerned committee and orders were directed to be passed in accordance with law. The writ petitioners further claim to have represented the matter before the fifth respondent, A.D.M. (F&R) District Prayagraj on 15.5.2018. The representation of the writ petitioners came to be rejected by the fifth respondent, Additional District Magistrate (F&R) District Prayagraj on 6.11.2018.
Challenging the order dated 6.11.2018 the writ petitioners have approached this Court under Article 226 of the Constitution of India, with the further relief for a direction to the Competent Authority to grant compensation to the petitioners for illegal and unauthorised utilization of the land in question for the purposes of construction and widening of the road.
This Court, on the presentation of the present writ petition directed the learned Standing Counsel who appeared for respondents no. 1 to 7 to file their response. Notices were issued to the eighth respondent by R.P.A.D. returnable on 22.7.2019.
Office report reveals that the steps had been taken by the writ petitioners for service upon the eighth respondent and notices were issued fixing 22.7.2019 but till the dictation of the present order neither any Vakalatnama has been filed on behalf of the eighth respondent nor anybody has appeared to make submissions on behalf of the eighth respondents. Since considerable time has elapsed and eighth respondents from the description of the array of the parties appears to be a contractor of the State respondents, thus, this Court is proceeding to decide the matter in absence of any representation of the eighth respondent. On affidavits of the State-respondent sworn on 22.10.2019 by the Assistant Engineer, Prantiya Khand,Public Works Department, Prayagraj.
Ms.Tahira Kazmi, who appears for the petitioners has submitted that the order dated 6.11.2018 passed by the fifth respondent, Additional District Magistrate, (F & R), District Prayagraj negating the claim of the writ petitioner is unsustainable in the eyes of law, inasmuch as, the said order, on one hand, endorses the fact that the land of the writ petitioner had been utilized for the purposes of construction and widening of the road but, on the other hand, a frivolous stand has been taken that since the road had been constructed way back in the year 1982-83 and its widening have been done in the year 1994-95, the claim of the writ petitioner for the award of compensation cannot be entertained after a long lapse of time that too after several decades.
Elaborating the said submission, Ms. Tahira Kazmi who appears for the writ petitioners has sought to argue that once the order impugned records that out of total holding of the petitioner no.1 in Gata No.37 ad-measuring 0.068 hectares 0.038 hectares has been utilized for the purposes of construction and widening of road, followed by the holding of the petitioner no. 2 and 3 in their respective Gata Nos. 524/2 and 97Ga totalling to 0.132 hectares and 0.1830, hectares out of which 0.036 hectares and 0.023 hectares have been used for public purpose, then the petitioners are entitled to be paid fair compensation. It has also been sought to be submitted that since the respondents have forcibly dispossessed the writ petitioners and utilized their private land for public purpose then the objections raised by them are totally untenable in the eyes of law.
It has been further argued that the question of delay and latches will not be a hurdle in the way of the petitioners to claim compensation as their constitutional right had been violated, as Article 300A of the Constitution of India guarantees that a person shall not be deprived of property save by authority of law. In nutshell the submission of the learned counsel for the writ petitioners is that the respondents being the State have to act in accordance with law either by drawing acquisition proceeding under the Land Acquisition Act, 1894 or obtain consent from land owners.
Learned counsel for the petitioners in order to buttress his submission have relied upon the judgement of the Hon'ble Apex Court in the case of Vidya Devi Vs. State of Himachal Pradesh and others (2020) 2 SCC 569, Sukh Dutt Ratra and another Vs. State of Himachal Pradesh and others (2022) 7 SCC 508 and a Division Bench judgement of this court in Writ-C No.11390 of 2022, Shagun Bansal Vs. State of U.P. and three others decided on 13.1.2023.
Learned counsel for the petitioners have also relied upon the Government Order dated 12.5.2016 so as to further contend that once the land has been compulsorily and without any authority of law utilized for any public purpose by the State or their instrumentalist then in that event consequent to the report of the committee constituted as per the Government Order, fair compensation is to be paid in accordance with the relevant statutes governing the field.
Learned Standing Counsel while countering the submission of the petitioners have submitted that the writ petition is not liable to be entertained on any count as the road in question had been constructed way back in the year 1982-83 and its widening was done in the year 1994-95 and the writ petitioners for the very first time have agitated their claim for grant of compensation in the year 2017 thus, the present writ petition is barred by enormous delay and latches and in view of the law laid down in the case of Syed Maqbool Ali Vs. State of U.P., Civil Appeal No.2913-2914/2011 the petitioners are not entitled to relief. It has been further argued on behalf of the State that the land in question has been used for public purpose and, even otherwise, on merits the writ petitioners are not entitled for any compensation. .
We have heard learned counsel for the parties and perused the record carefully.
It is not in dispute that the writ petitioners are the owners of the land being Gata No.34, 524/2 and 97Ga situate in Tehsil Meja, District Prayagraj. The parties before us have also not disputed the fact that the road in question had been constructed way back in the year 1982-83 widening whereof was done in the year 1994-95.
In the order impugned dated 6.11.2018 of the fifth respondent, a specific finding has been recorded that out of the total land holding of the petitioner no.1, Gata No.37 ad-measuring 0.068 hectares, 0.038 hectares has been utilized for construction and widening of the road. So much so with regard to the petitioner no.2, it has also been accepted in the order impugned that out of the total area of Gata No.524/2 Rakba 0.132 hectares, 0.036 hectares has been utilized for construction and widening of the road. Likewise the Gata No.97Ga which is the tenure holding of the petitioner no.3 out of 0.183 hectares, 0.023 hectares has been used for construction and widening of road.
Once the said fact stands admitted to the respondents, then it becomes evident that the part of the holding of the writ petitioners have been used for constructions and widening of road. Now a question arises as to whether delay can be a factor to throttle the claim of the writ petitioners for award of compensation or not. The said question is directly co-related to the procedure adopted by the State for putting the land for use for public purpose.
The legislature was quiet conscious about the contingency wherein the land was required for public purpose and that is why in pre-constitution era the Land Acquisition Act, 1894 came into existence providing for acquisition of land for public purpose. Post independence, the legislature has recently enacted the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
There are two options available with the State for using the land of a private individual for public purpose, firstly by resorting to acquisition proceedings and secondly through negotiations.
In the present case, at hand, it has not been disputed by the respondents that neither acquisition proceedings were drawn nor any consent of the writ petitioners or their predecessors was obtained for using the land for public purpose. The stand of the respondents as apparent from the order impugned in the writ petition as well as the averments in the counter affidavit is that since the writ petitioners are claiming compensation after enormous delay and lapse of time, thus, they are not entitled to any compensation in the light of the judgement in the case of Syed Maqbool Ali (Supra).
The issue of deprivation of property without authority of law at the instance of the State and entitlement of compensation is no more res integra as the Hon'ble Apex Court while interpreting the provisions contained under Article 300A and Article 21 of the Constitution of India in the case of Vidya Devi (Supra) has observed as under:-
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 300-A of the Constitution. Reliance is placed on the judgment in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, wherein this Court held that: (SCC p. 634, para 6) "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 Reddy³, this Court held that: (SCC p. 526, para 21) "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 (P) Ltd. v. State of U.P.⁹, this Court e recognised the right to property as a basic human right in the following words: (SCC p. 379, para 30) "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 10, this Court held as g follows: (SCC p. 627, para 48) "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."
Recently the Hon'ble Apex Court in the case of Sukh Dutt Ratra (Supra) in paras 18, 19, 20, 21 and 25 have held as under:-
18. There is a welter of precedents on delay and laches which conclude either way as contended by both sides in the present dispute-however, the d specific factual matrix compels this Court to weigh in favour of the appellant landowners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a "limitation" to doing justice. This Court in a much earlier case - Maharashtra SRTC v. Balwant Regular Motor Service20, held: (AIR pp. 335-36, para 11) "11. ... 'Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.
But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy"."
19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This Court, in Manohar⁹-a similar case where the name of the aggrieved had been deleted from revenue records leading to his dispossession from the land without payment of compensation held: (SCC pp. 128-29, paras 6-8) "6. Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.
7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows: 0 300-A. Persons not to be deprived of property save by authority of law. No person shall be deprived of his property save by authority of law.'
88. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution."
20. Again, in Tukaram Kana Joshi¹0 while dealing with a similar fact situation, this Court 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 9 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. The 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."
21. Having considered the pleadings filed, this Court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.
25. Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative 23 of both their human right, and constitutional right under Article 300-A, this Court allowed the appeal. We find that the approach taken by this Court in Vidya Devi¹2 is squarely applicable to the nearly identical facts before us in the present case.
A Division Bench of this Court in the case of Shagun Bansal (Supra) while following the judgement of the Hon'ble Apex Court as noted above had held that delay cannot be a factor to negate the claim of land owner for compensation who have been forcibly dispossessed against the provisions of law. The State Government was itself conscious about the fact that there was certain cases wherein there was utilization of the private land for public purposes without resorting to either acquisition proceeding or negotiation, thus, on 12.5.2016 a Government Order had been issued providing for constitution of a committee requiring it to submit its report before the District Magistrate of the concerned district recommending the case of land owner for payment of compensation.
Since in the order impugned of the fifth respondent, it has come on record that the part of the holding of the writ petitioners, who are three in numbers, has been utilized for the purposes of construction and widening of the road coupled with the fact that the delay cannot be a factor to negate the claim of the writ petitioner once it was a forceful dispossession and use of private land for public purpose, then in the circumstances, we have no option but to allow the writ petition. While setting aside the order dated 6.11.2018 of the fifth respondent, Additional District Magistrate, (F & R), Prayagra,. we issue a direction to the fifth respondent to compute and pay the compensation of the land actually utilised for the construction of the road in accordance with the provisions contained in the Right to Fair. Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, computing the market value of the land in question as on 1.1.2014, the date of enforcement of the said Act, within a period of three months from the date of production of the certified copy of this order.
Accordingly, the writ petition is allowed.
Order Date :- 7.4.2023 piyush