Allahabad High Court
Tarachand Gupta And 2 Others vs State Of U.P. And 3 Others on 13 September, 2019
Bench: Bala Krishna Narayana, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 19218 of 2019 Petitioner :- Tarachand Gupta And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Raghvendra Pratap Singh,Rajesh Tripathi Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay Hon'ble Bala Krishna Narayana,J.
Hon'ble Prakash Padia,J.
1. Heard learned counsel for the petitioners, learned Standing Counsel for respondent nos.1, 2 and 3 and Sri R.C. Upadhyay, learned counsel for respondent no.4.
2. Despite time being granted to learned counsel for the respondents, no counter affidavit has been filed.
3. This writ petition has been filed by the petitioners with the following prayer:-
"i. Issue a writ, order or direction in the nature of mandamus commanding and directing to the respondents may restrain from taking possession of petitioner's sahan land and constructing road without acquisition/compensation and not to dispossess the petitioners from plot nos. 57 area 0.2590 Hec. situated in Village Baharampur, Pargana Natthupur, Tehsil Ghosi, District Mau.
ii. Issue such other further writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the present case.
iii. Award the costs of the petition to the petitioner."
4. It is contended by learned counsel for the petitioners that although the petitioners are recorded owners of plot no.57 area 0.2590 Hec. situated in village Baharampur, Pargana Natthupur, Tehsil Ghosi, District Mau (hereinafter referred to as "plot in question"), but the respondents without either acquiring the same or paying any compensation, are threatening to construct road over the petitioners' plot. He next contended that since the aforesaid act of the respondents is clearly violative under Article 300-A of the Constitution of India, a writ of Mandamus be issued to the respondents restraining them from taking possession of petitioners' plot in question and constructing road thereon without acquiring the same and paying compensation.
5. Per contra, learned Standing Counsel submitted that the petitioners shall not be deprived of his plot in question without the compensation.
6. The Forty Fourth Amendment deleted Article 19(1)(f) and Article 31 of the Constitution, consequently the right to hold property has ceased to be a fundamental right under the Constitution of India. By the same amendment Article 300A has been inserted under Chapter-IV of the Constitution. Article 300A of the Constitution reads thus:
"300A. No person shall be deprived of his property save by authority of law."
7. A simple/plain reading of the aforesaid Article clearly brings out that no person can be deprived of his property without specific authority of law. The right of a person to receive compensation, when his property is acquired, continues to be available despite the repeal of Article 19(1)(f) and Article 31(1) and 31(2). Article 300A has increased the scope of judicial review. A person can be deprived of his property for public purpose only by law and not by executive orders/ government orders and circulars.
8. The Supreme Court has considered the right to property envisaged under Article 300A in a large number of cases. The Supreme Court in the case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and others, (2007) 8 SCC 705 was pleased to hold that right to property is not only a constitutional right but also a human right. Nowadays, in so many cases are coming before this Court where the State Authorities for the purpose of road widening taking the possession of private land without acquisition or without giving any fair compensation as provided under law. After taking possession, compensation as provided under the relevant statutes has to be paid by the authorities.
9. Having heard learned counsel for the parties and perused the material brought on record, we dispose of the writ petition with the direction to the respondents that the petitioners shall not be dispossessed by them from plot no. 57 area 0.2590 Hec. except with the procedure prescribed in law.
Order Date :- 13.09.2019 saqlain