Allahabad High Court
Krishna Gopal S/O Shiv Shanker Lal vs State Of U P Thr.Prin.Secy.Revenue & 4 ... on 4 October, 2013
Bench: Devi Prasad Singh, Ashok Pal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Lucknow Bench Lucknow ***********. [RESERVED] Reserved On:- 24-09-2013 [ A.F.R. ] Circulated On:- 30-09-2013 Delivered On:- 4-10-2013 Court No. - 27 Case :- MISC. BENCH No. - 2 of 2012 Petitioner :- Krishna Gopal S/O Shiv Shanker Lal Respondent :- State Of U P Thr.Prin.Secy.Revenue & 4 Ors. Counsel for Petitioner :- Pankaj Kumar Srivastava Counsel for Respondent :- C.S.C.,R N Gupta Hon'ble Devi Prasad Singh,J.
Hon'ble Ashok Pal Singh,J.
[Per Justice Devi Prasad Singh]
1. Instant writ petition is preferred to restrain respondents district authorities including the State of U.P. from dispossessing the petitioner from the land in question bearing Gata No.526/0.120 hectare and 529 Minjumla/0.317 hectare, situated at village Koriyani, Pargana Kukra, Tahsil Gola, Gokarannath district Lakhimpur Kheri. According to petitioner's counsel, the petitioner is recorded tenure holder of the plot in question.
2. The State Government formulated a scheme namely, Kashi Ram Avas Yojana for construction of houses/flats for the persons belonging to below poverty line and for allotment to them houses so constructed in terms of scheme with the aim and object in terms of Kashi Ram Avas Yojana in short the "scheme".
3. The construction in the vicinity of petitioner's plot was started by the district authorities. The petitioner objected for construction of flats over his plot and represented his cause to the S.D.M., Gola Gokarannath. The copy of the application submitted by the petitioner dated 16.12.2011 and 27.12.2011 have been filed as Annexure No.3 and 4 to the writ petition. While moving the application, the petitioner stated that he had purchased the land from one Ram Chandra and thereafter, his name has been recorded in the mutation proceeding by the Consolidation Court. While moving application, the petitioner has apprised the factual position to S.D.M., Gola, Kheri. It appears that as usual, the district authorities have not given heed to the petitioner's application and also not verified the facts with regard to petitioner's right and title with regard to land in question. Rather, the authorities proceeded with the construction of houses in terms of the scheme.
Feeling aggrieved with the high handedness on the part of the district authorities, the petitioner preferred instant writ petition with submission that State or its authorities have no right to interfere with the petitioner's property/land in question without due acquisition in accordance with law and payment of compensation.
By an interim order dated 4.1.2012, we have restrained the respondents from raising any construction over the land in dispute.
4. The petitioner had filed supplementary affidavit dated 2.2.2012 and brought on record different orders passed by various authorities with regard to land in dispute and mutation of petitioner's name over it in accordance with Rules which has been not denied.
5. While filing counter affidavit, Sri Shambhu Kumar, S.D.M., Kheri/Dy. Collector, Tahsil Gola, district Kheri/Joint Magistrate, Kheri has justified his action with regard to construction of houses under Kashi Ram Yojana asserting that the land in dispute is a Banjar land and belong to Gram Sabha. It was asserted that the transfer of land under sale deed, executed by Shri Ram Chandra was made of fragment because of which it was hit by the provisions of Section 168-A of U. P. Z. A. & L. R. Act. Hence treating the transfer by necessary implication being void the land vested in the State under Section 167 of U. P. Z. A. & L. R. Act. Thus, according to him, Ram Chandra, had no right or title left in the land in question. While filing affidavit, the S.D.M. Placed on record as Annexure No.CA-1 the order dated 31.1.2001 passed by the Deputy Collector. The operative portion of the order dated 31.1.2001 is reproduced as under:-
"अतः आदेश हुआ कि ग्राम मैलानी परगना कुकरा के गाटा सं०298/0-434 हे० से रामचन्द्र पुत्र बन्धा का नाम निरस्त करके अन्तरित किया गया क्षेत्र राज्य सरकार के नाम अंकित किया जाए। तद्नुसार परवाना अमलदरामद जारी हो। वाद आवश्यक कार्यवाही पत्रावली निक्षेप की जाय।"
6. The defence set up by the State is that in view of the order dated 31.1.2001 (supra), the State was having right to construct houses under the scheme and sale-deed executed by Ram Chandra in favour of the petitioner, is nullity and having no force of law. The defence set by the State while filing counter affidavit with regard to land in question, seems to be sham and based on unfounded facts. The Gata No.298, measuring 0.437 hectare and Gata No.333, measuring 0.591 hectare., situated in village Mailani, Pargana Kukra, Tahsil, Gola, was recorded in the name of Ram Chandra from whom, the petitioner purchased the land in dispute through registered sale-deed dated 3.6.2000.
7. It appears that after the execution of registered sale-deed dated 3.6.2000 a registered Titamma for correction of wrongly mentioned area in sale deed, was also executed by Ram Chandra in favour of the petitioner on 14.8.2008, (Annexure No.SA-1 to the supplementary affidavit), and the petitioner thereafter moved application under Section 34 of Land Revenue Act before the Tahsildar Gola. It further appears that on the basis of report of Tahsildar, the S.D.M., in a case under Section 167 of U.P. Z.A. & L.R. Act by his order dated 31.1.2001 took a decision of vesting the land in question in the State Government (supra).
8. Against the order dated 31.1.2001 passed by the S.D.M., Gola, the petitioner preferred an appeal which was allowed by the Additional Commissioner by an order dated 20.1.2005. A copy of which has been filed as Annexure No.SA-3 to the supplementary affidavit. The operative portion of the order passed by the Additional Commissioner (Admn.) Lucknow in Appeal No.780/2000-01 preferred under Section 331 of U.P.Z.A. & L.R. Act is reproduced as under:-
"4- उक्त विवेचना के प्रकाश में अपील स्वीकार की जाती है। अवर न्यायालय का आदेश दिनांक 31/01/2001 निरस्त किया जाता है तथा प्रकरण अवर न्यायलय को इस निर्देश के साथ प्रतिप्रेषित किया जाता है कि वह पक्षों को साक्ष्य व सुनवाई का अवसर देने के उपरान्त पुनः विधि सम्मत रूप से वाद का गुणदोष पर निस्तारण करें। पक्षगण अवर न्यायालय के समक्ष दिनांक 22/4/05 को उपस्थित हों। आवश्यक कार्यवाही उपरान्त पत्रावली दाखिल दफ्तर की जाये।"
9 On account of notification under Consolidation of Holding Act, the pending case before the S.D.M., were abated and after remand, the petitioner's application was heard afresh by the Consolidation Officer-I, Lakhimpur Kheri. The Consolidation Officer by an order dated 14.10.2011, had set aside the order dated 31.1.2001 passed by the S.D.M., as well as entry in the revenue record with regard to Navin Parti and directed to record the name of Ram Chandra from whom the petitioner purchased the land through registered sale-deed. The copy of the order passed by the consolidation Officer has been annexed to the supplementary affidavit as Annexure No.SA-4 to supplementary affidavit. The operative portion of the order dated 14.10.2011 is reproduced as under:-.
"अतः आदेश किया कि ग्राम मैलानी में गाटा सं०333/0-591, 298/0-437 से रामचन्द्र पुत्र बंधा का नाम निरस्त होकर बैनामा दिनांक 03-6-2000 के आधार पर कृष्ण गोपाल पुत्र शिवशंकर लाल निवासी मैलानी का नाम दर्ज हो तथा उपजिलाधिकारी गोला का आदेश वाद सं०23 धारा 167 Z.A.L.R. Act दिनांक 31.1.2001 अपर आयुक्त के अपील सं०780/20.1.2005 के आधार पर निरस्त होकर गाटा सं०298/0-437 नवीन परती से खारिज होकर रामचन्द्र पुत्र बंधा के नाम दर्ज हो। पत्रावली वाद अमलदरामद दाखिल दफ्तर हो।"
10. In pursuance of the aforesaid order passed by the Consolidation Officer, the A.C.O., by an order dated 25.11.2011 allowed the petitioner's application for mutation in a proceeding under Rule 109 of Consolidation of Holding Rules. The copy of the order passed by the A.C.O., is annexed to the supplementary affidavit as Annexure No.SA-5. In para 10 of the supplementary affidavit, the petitioner has stated that old number of Gata No.333/0.591 and 298/0.437 has been converted to new number i.e., Gata No.526/0.120 and 529 Minjumla/0.317. The averments contained in supplementary affidavit with regard to decision of the Consolidation Court and mutation made in consequence thereof has not been disputed by the respondents.
11. The representation filed by the petitioner (Annexure No.2 to the writ petition) categorically reveals that in pursuance of the sale-deed (supra) and through mutation proceeding, the land in question has been recorded in petitioner's name. In spite of verifying factual averments contained in the petitioner's representation submitted personally as well as through registered post, the S.D.M., and other district authorities proceeded with the construction of houses under the scheme which seems to be an instance of high handedness and arbitrary exercise of power. Such action on the part of the State authority in democratic polity is neither expected nor should have happened. Citizens have right to raise protest against unlawful action of State and State authorities are always obliged to give audience to citizens for their grievance. The construction under the scheme that too, without acquisition in accordance with law in any case, is not sustainable.
12. The S.D.M., has filed counter affidavit on the basis of record. There appears to be no justification on his part to conceal the material facts with regard to proceeding in Consolidation Court. While filing counter affidavit the S.D.M. has tried to conceal the material facts.
13. Hon'ble Supreme Court of India in (2012) 10 SCC 290: Micro Hotel (P) Ltd. v. Hotel Torrento Ltd., held as under:-
"20. ...Duty is cast on all the parties who appear in a court of law to place the correct facts so that the court can draw correct inferences which enable it reach a logical, reasonable and just conclusion. Wrong facts lead a Court to wrong reasoning and wrong conclusions. Duty is also cast on the Court to take note of the facts which are correctly placed. Wrong appreciation of facts leads to wrong reasoning and wrong conclusions and justice will be the casualty. Deciding disputes involves, according to Dias on Jurisprudence, knowing the facts, knowing the law applicable to those facts and knowing the just way of applying the law to them. If any of the above mentioned ingredients is not satisfied, one gets a wrong verdict."
14. Constitution Bench of Hon'ble Supreme court in AIR 1961 SC 1570, Bishan Das And Others vs The State Of Punjab and Others, had deprecated the State action to divest a citizen from his or her property without adopting due course of law, to quote:-
"13. ... It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executive orders. Those orders must be quashed and the respondents must now be restrained from interfering with the petitioners in the management of the dharmasala, temple and shops. A writ will now issue accordingly."
Their lordships further proceeded to add as under:-
"14. ... As pointed out by this Court in Wazir Chand v. The State of Himachal Pradesh, the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi v. The State of Bihar this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to quote what we said in Sahi's case (supra), remarkable for their disturbing implications."
15. Another Constitution Bench of Hon'ble Supreme Court in AIR 2011 SC 3430: K. T. Plantation Pvt. Ltd. and Anr. v. State of Karnataka, held that keeping in view the mandate of Article 300A, State may not deprive a citizen from his property except in accordance with law that too, for public purpose and payment of adequate compensation. Their lordships further held that the law for deprivation of property ought to be just, fair and reasonable. In case it is unjust, unfair, then it may be struck down by the Court, to quote relevant portion:-
"122. Article 300A would be equally violated if the provisions of law authorizing deprivation of property have not been complied with. While enacting Article 300A Parliament has only borrowed Article 31(1) [the "Rule of law" doctrine] and not Article 31(2) [which had embodied the doctrine of Eminent Domain]. Article 300A enables the State to put restrictions on the right to property by law. That law has to be reasonable. It must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive. The legislation providing for deprivation of property under Article 300A must be "just, fair and reasonable" as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above. At this stage, we may clarify that there is a difference between "no" compensation and "nil" compensation. A law seeking to acquire private property for public purpose cannot say that "no compensation shall be paid". However, there could be a law awarding "nil" compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the government to establish validity of such law. In the latter case, the court in exercise of judicial review will test such a law keeping in mind the above parameters.
123. Right to property no more remains an overarching guarantee in our Constitution, then is it the law, that such a legislation enacted under the authority of law as provided in Article 300A is immune from challenge before a Constitutional Court for violation of Articles 14, 21 or the overarching principle of Rule of Law, a basic feature of our Constitution, especially when such a right is not specifically incorporated in Article 300A, unlike Article 30(1A) and the 2nd proviso to Article 31A.
124. Article 31A was inserted by the 1st Amendment Act, 1951 to protect the abolition of Jamindari Abolition Laws and also the other types of social, welfare and regulatory legislations effecting private property. The right to challenge laws enacted in respect of subject matter enumerated under Article 31A(1)(a) to (g) on the ground of violation of Article 14 was also constitutionally excluded. Article 31B read with Ninth Schedule protects all laws even if they are violative of the fundamental rights, but in I.R. Coelho's case (supra), a Constitution Bench of this Court held that the laws added to the Ninth Schedule, by violating the constitutional amendments after 24.12.1973, if challenged, will be decided on the touchstone of right to freedom guaranteed by Part III of the Constitution and with reference to the basic structure doctrine, which includes reference under Article 21 read with Articles 14, 15 etc. Article 14 as a ground would also be available to challenge a law if made in contravention of Article 30(1)(A)."
16. Hon'ble Supreme Court in AIR 1975 SC 2299 Smt. Indira Nehru Gandhi vs Shri Raj Narain And Anr, while defining the Rule of law held as under:-
"205. ... Rule of law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable and such decision is the antithesis of a decision taken in accordance with the rule of law."
17 In K. T. Plantation Pvt. Ltd. (supra), Hon'ble Supreme Court has further considered the Rule of law as under:-
"136. Rule of law as a concept finds no place in our Constitution, but has been characterized as a basic feature of our Constitution which cannot be abrogated or destroyed even by the Parliament and in fact binds the Parliament. In Kesavanda Bharati's case (supra), this Court enunciated rule of law as one of the most important aspects of the doctrine of basic structure. Rule of law affirms parliament's supremacy while at the same time denying it sovereignty over the Constitution.
137. Rule of law can be traced back to Aristotle and has been championed by Roman jurists; medieval natural law thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu, Dicey etc. Rule of law has also been accepted as the basic principle of Canadian Constitution order. Rule of law has been considered to be as an implied limitation on Parliament's powers to legislate. In Reference Re Manitoba Language Rights (1985) 1 SCR 721, the Supreme Court of Canada described the constitutional status of the rule of law as follows:
"The Constitution Act, 1982 ... is explicit recognition that "the rule of law is a fundamental postulate of our constitutional structure." The rule of law has always been understood as the very basis of the English Constitution characterising the political institutions of England from the time of the Norman Conquest. It becomes a postulate of our own constitutional order by way of the preamble to the Constitution Act, 1982 and its implicit inclusion in the preamble to the Constitution Act, 1867 by virtue of the words "with a Constitution similar in principle to that of the United Kingdom."
Additional to the inclusion of the rule of law in the preamble of the Constitution Acts of 1867 and 1982, the principle is clearly implicit in the very nature of a Constitution. The Constitution, as the Supreme Law, must be understood as a purposive ordering of social relations providing a basis upon which an actual order of positive laws can be brought into existence. The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by the rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution."
18. In view of the above, unless authorities are authorised under law to divest a citizen from his property that too, after payment of compensation, they have no right to interfere with the citizen's peaceful possession and enjoyment of property. Any interference by the State authorities without any back up of law, shall be an instance of arbitrary exercise of power and be hit by Article 14 read with Article 21 of the constitution and for such action, Court may issue appropriate order or direction to make status quo ante and pay compensation.
19. It is further a well settled principle of law that a thing should be done in the manner provided by the Act or statute and not otherwise, vide; Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Versus State of Rajasthan, AIR 1961 SC 1527, Patna Improvement Trust Vs. Smt. Lakshmi Devi and others, AIR 1963 SC 1077; State of U.P. Vs. Singhara Singh and other, AIR 1964 SC 358; Barium Chemicals Ltd. Vs. Company Law Board AIR 1967 SC 295, (Para 34) Chandra Kishore Jha Vs. Mahavir Prasad and others, 1999 (8) SCC 266; Delhi Administration Vs. Gurdip Singh Uban and others, 2000 (7) SCC 296; Dhanajay Reddy Vs. State of Karnataka, AIR 2001 SC 1512, Commissioner Of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and others, 2002 (1) SCC 633; Prabha Shankar Dubey Vs. State of M.P., AIR 2004 SC 486 and Ramphal Kundu Vs. Kamal Sharma, AIR 2004 SC 1657.
Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nika Ram Vs. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke Vs. Govind Joti Chavare and others, AIR 1975 SC 915; Chettiam Veettil Ammad and another Vs. Taluk Land Board and others, AIR 1979 SC 1573; State of Bihar and others Vs. J.A.C. Saldanna and others, AIR 1980 SC 326, A.K.Roy and another Vs. State of Punjab and others; AIR 1986 SC 2160; State of Mizoram VS. Biakchhawna, 1995 (1) SCC 156.
20. Accordingly, in case there is no statutory mandate, empowering State authorities to divest a citizen from his property and pay compensation, then State and its authorities have no right to interfere with the citizen's property rights.
21. Since admittedly, to implement the Kashi Ram Avas Yojana, the district authorities had tried to dispossess the petitioner from the land in question which has been saved by the interim order of this court and certain constructions have been raised, writ petition deserves to be allowed not only to maintain Rule of Law but also to preserve and protect the fundamental rights available to the petitioner with regard to peaceful possession and enjoyment of his property.
22. Keeping in view the fact that district authorities have divested the petitioner from his property, without making scrutiny of factual facts with regard to his right and title of the land in question narrated in the writ petition and the petitioner suffered mental pain and agony and financial loss while approachig this court, it is a fit case where exemplary costs be awarded to the petitioner in view of law laid down by Hon'ble Supreme Court in (2005) 6 Supreme Court Cases 344, Salem Advocate Bar Association (II), Vs. Union of India.
23 Accordingly, the writ petition is allowed with following directions and orders:-
(a) A writ in the nature of mandamus is issued commanding the respondents State including the district authorities of the district Lakhimpur Kheri not to interfere with the petitioner's peaceful possession and enjoyment of land in question bearing Gata No.526/0.120 hectare and 529 Minjumla/0.317 hectare, situated at village Koriyani, Pargana Kukra, Tahsil Gola Gokarannath district Lakhimpur Kheri.
(b) A writ of mandamus is further issued directing the district authorities to maintain "status quo ante" and remove whatever structure has been raised over the petitioner's land from their own expenses within a period of two months from the date of receipt of a certified copy of the present order.
(c) Costs is quantified to Rs.2,00,000/- (rupees two lakhs) out of which, Rs.1,00,000/- (rupees one lakh) may be withdrawn by the petitioner and remaining Rs.1,00,000/- (rupees one lakh) shall be remitted to Mediation and Conciliation Centre, High Court, Lucknow Bench Lucknow.
(d) The Chief Secretary of Government of Uttar Pradesh is directed to hold an inquiry and find out as to who are responsible in dispossessing the petitioner from his land in dispute in an arbitrary manner and recover the costs from such person(s).
(e) Let costs be deposited within two months. In case costs is not deposited, it shall be recovered as arrears of land revenue. Registry to take follow up action.
Writ Petition is allowed accordingly.
[Justice Ashok Pal Singh] [Justice Devi Prasad Singh]
Order Date :- 4.10.2013
Rajneesh Dy. R-PS)