Allahabad High Court
Smt. Rajan Yadav & Others vs State Of U.P. & Others on 8 March, 2013
Bench: Sunil Ambwani, Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 14.02.2013 Judgment delivered on 08.03.2013 Civil Misc. Writ Petition No.70786 of 2011 Smt. Rajan Yadav & Ors. v. State of U.P. & Ors. Hon. Sunil Ambwani, J.
Hon. Bharat Bhushan, J.
We have heard Rakesh Pande, learned counsel for the petitioner. Learned Standing Counsel appears for the State respondents.
The petitioner is owner of 600 sq. yard of land in Khata No.124 Khasra No.120 in Village Parthala Kanjarpur, Pargana and Tehsil Dadari, Distt. Gautam Budh Nagar. He had purchased the land from its previous tenure holder Shri Ratiram by sale deed dated 15.4.2011. The petitioner nos.2 and 3 are recorded tenure holders with transferable rights of Plot No.322 Ka, 325 and 328 in the same village. The agricultural plots owned by the petitioners are near the embankment constructed by the Irrigation Department at a distance of about 400 meters from the river flowing through District Gautam Budh Nagar.
By this writ petition the petitioners have prayed to set aside the order dated 20.5.2011 passed by the District Magistrate Gautam Budh Nagar, restraining the transfer of the land of an area less than 1000 sq. yards in the flood area of river Hindan and river Yamuna, with directions to all the Deputy Registrars and the Asstt. Commissioner (Stamps), Gautam Budh Nagar, restraining them to register any agreements or sale deeds of the land in the said area. He has passed the orders in purported exercise of powers under the U.P. Flood Emergency Powers (Acquisition and Requisition) Act, 1951 (in short the Act of 1951) and the Government Orders dated 3.2.1992.
The District Magistrate passed the order dated 20.5.2011 on the request of Executive Engineer, Irrigation Department, Ghaziabad dated 30.4.2010 by which he had informed him that the Irrigation Department has constructed several embankments on the length of rivers Hindan and Yamuna for safety from floods. The area between the river and these embankments has been classified as flood area, in which land is owned by the farmers. The area ordinarily gets filled up with flood waters during rainy season. The pressure of urbanization in the National Capital Region, has resulted into purchase of the land by the local builders in the area for development of colonies. In the rainy season due to floods, these unauthorised constructions, create obstruction in the free flow of water, and become the cause of apprehension of loss of life, on the constructions falling down due to rains and floods. The Executive Engineer also informed the District Magistrate that some people have lodged reports with the police authorities informing them that during floods these unauthorized constructions cause severe loss to property and life. The irrigation department has put several warning boards and has made publications in newspapers not to raise any constructions in the area, to save their properties from destruction. He requested the District Magistrate under the Act of 1951 to take necessary steps to stop the unauthorized constructions.
It is submitted by Shri Rakesh Pandey that the plots owned by the petitioners are at a height of 18 feet from the level of the Hindan river and that the area has not been flooded in the area for last about 36 years. These plots are at a distance of 400 meters and far away from the highest flood point achieved by the rivers since 1978. The area has not witnessed flood since 1979. The river has been reduced to small stream of water, which does not raise any apprehension of the constructions causing obstruction in the free flow of water. The Ghaziabad Development Authority has approved multi-storied residential complex of Antariksh Builders 100 mtrs. away from River Hindan. They have also sanctioned construction of Gaur City Extension in Village Haibatpur, which is at a distance of 200 mtrs. from the river, whereas the petitioner's land is situate at a distance of 500 mtrs. from the river.
Shri Rakesh Pandey submits that the Act of 1951 does not give power to the District Magistrate to stop the sale of the land. The Act was enacted to make certain provisions for the purposes of protecting life and property from danger or threat by floods. It seeks to give power to the District Magistrate for evacuation of the areas, which are affected by floods and to make such orders as he think fit for diverting the flow of such water or for the removal of any wall, embankment or object, as the case may be, and for execution of the orders by such agency as the District Magistrate may specify in the order. The Act also provide for accommodation of evacuated persons requisition of boats, entry and inspection and compensation for premises. The District Magistrate may requisition any premise or boat or determine compensation for them. He, however, cannot restrict the transfer, in violation of Art.300A of the Constitution of India, which gives right of property including sale of property by any person.
It is submitted that the District Magistrate has no powers to restrict the transfers. The Municipal Boards, Municipal Corporations or Development Authorities established under the U.P. Municipalities Act, 1916, U.P. Nagar Mahapalika Act or U.P. Urban Building and Regulation Act, 1973 may provide for restrictions on constructions in accordance with the bye-laws. The sale, however, cannot be stopped on the ground that the constructions raised by purchasers may cause apprehension of diversion or obstruction of the water during floods and the loss to property and life. In any case Shri Pandey submits that the power has been exercised without taking into consideration that River Hindan has not been flooded since 1979 and that with the passage of time and urbanization, the river has virtually vanished, instead a stream of water flows at the place, where the river used to flow and which does not gets flooded.
Learned Standing Counsel appearing for the State respondents submits that as per data of the Irrigation Department the flood in the river Hindan is natural calamity, which may be repeated at any time. In order to provide protection to the flood affected areas a Hindan Bandh (embankment) has been constructed on the right side of the river. The area in the middle of the river in the Bandh is flood prone area on which there are restrictions on making any permanent construction vide Government Order dated 3.2.1992. The constructions raised by Antariksh Builders, Raksha Vigyan at that place are protected by Ghaziabad Bandh constructed by Irrigation Department for which necessary approval and sanction has also been received from the department. The plots owned by the petitioner fall within Hindan river and Hindan Bandh on which no permanent constructions can be raised. He relies upon the provisions of the Act of 1951, which gives ample power to the District Magistrate to pass any orders to save the life and property in case of floods.
In order to appreciate the contention of learned Standing Counsel, paragraphs 5 to 9 of the counter affidavit of Banwari Lal, Junior Engineer (Gazetted), Irrigation Construction Division, Distt. Ghaziabad is quoted as below:-
"5. That the contents of paragraph-5 of the writ petition are not admitted. In reply it is submitted that as per date of the Irrigation Department, the flood in river is a natural calamity which may be repeated even after 25 years, 50 years and 100 years or at any time. Further, in order to provide protection to the Flood Effected Area, a Hindan Bandh has been constructed in right side of Hindan river. The middle area of river and bandh comes under food area upon which Packka construction is restricted in view of the restriction imposed by the Government Order dated 3.2.1992. Copy of Government Order dated 3.2.1992 is being filed herewith and marked as Annexure-CA-1 to this counter affidavit. It is relevant to mention here that the construction which is being raised by the Antriksh Builders Raksha Vighyan, at that place the Ghaziabad Bandh has to be constructed by the Irrigation Department and necessary approval of the said sanction has also been received to the department. Copy of approval received by the department are being filed herewith and marked as Annexure-CA-2 & CA-3 respectively to this counter affidavit. It is further submitted that construction of Gaur City Construction is being made in Gram Habitpur, at that place construction of Amnabad Bandh is proposed for which necessary sanction has been given by the State Government. The alleged plot of the petitioners falls within Hindan river and Hindan Bandh upon which no Packka Construction can be raised as per Government Order dated 3.2.1992. Copy of Uttar Pradesh Flood Emergency Powers (Evacuation and Requisition) Act, 1951 is being filed herewith and marked as Annexure-CA-4 to this counter affidavit. It is further submitted that the land in question is in between Hindan River and Hindan Bandh which comes within the flood zone area and as such the petitioner is not entitled to get any relief from this Hon'ble Court.
6. That the contents of paragraphs 6,7,8,9,10,11,12,13 and 14 of the writ petition need no reply in view of the reply already given in the proceeding paragraphs of this counter affidavit.
7. That in reply to the contents of paragraph 15 of the writ petition, it is submitted that illegal business of sale and purchase of flood zone area falling in between Hindan River and Hindan Bandh is being done since long and over the said land no agricultural work is being done rather on the said land residential construction is being made and since the said land is Flood Zone Area and as such during the rainy season, Flood, Water is logged out in that area and on account of which there is every chance of likelihood of loss of life and property and as such on account of restriction imposed by the Government now no Packka construction can be made on that area.
8. That the contents of Paragraphs 16, 17, 18 and 19 of the writ petition need no further reply in view of the reply already given in the proceeding paragraphs.
9. That the contents of paragraph 20 of the writ petition are not admitted and in reply it is submitted that since the land in question being flood zone area comes under the purview of aforesaid Government Order dated 3.2.1992 and as such in view of the aforesaid Government Order a ban has rightly been imposed for raising packka construction over such land which is perfectly just and legal and the same cannot be said to be illegal, unjustified and unreasonable in any manner."
We have examined the provisions of the Act of 1951, which has been quoted as source of the authority of the District Magistrate to pass orders restricting registration of agreement and sale of the properties falling between river Hindan and embankment constructed by the Irrigation Department. The Act of 1951 as stated in the preamble was enacted to make certain provisions for the purposes of protecting life and property from the danger caused or threatened by floods. Section 3 gives power to the District Magistrate of the district for protecting life and property from the danger caused or threatened by floods. He may by order direct that subject to any exemptions made by general or special permission, all persons or any class of persons in any area to be specified shall remove themselves or be removed from it or any specified part therein and made do any other act, which is necessary for that purpose. Sub-section (2) authorizes him to specify the routes or routes by which such persons are to remove themselves and the time and place within which they have to remove themselves. The District Magistrate can also specify under sub-section (2) (c) the place or places to which they are to proceed or to be taken for removing themselves from the specified area and may make such other incidental or supplemental provisions as may appear necessary or expedient for the purposes of said order. Section 3A inserted by U.P. Act No.XX of 1964 authorises the District Magistrate, if he is of the opinion that for the purposes of preventing an eminent danger to life or serious damage to property, caused or threatened by floods in any area to divert the flow of the flood water or to remove wholly or in part any wall, embankment or any other object causing obstruction to the flow of such water in any direction. He may make any order for diverting flow of such water or for removal of such constructions and for execution of the order.
Section 4 provides for accommodation of evacuated persons and for that purpose the District Magistrate may take possession of any premises other than premises used for the purpose of religious worship or private dwelling house in use as such. The District Magistrate may under Section 5 requisition boats and provide for compensation under Section 6 for premises, when they are required under Section 4 or for boats under Section 5. Where owner does not accept the amount of compensation the matter has to be referred to Civil Judge to determine the amount of compensation with finality attached with decisions and the Code of Civil Procedure applied to such proceedings.
The District Magistrate under Section 7 of the Act can issue directions to the boat owners, cause entry and inspection under Section 8, seeks such information under Section 9 and prevent the injury or reduction of usefulness of the boat under Section 10. Release from requisition is provided under Section 11. The Act also provides for protection of any action taken in good faith under Section 12 and penalties, where any person directed by the District Magistrate does not comply with the orders under Section 13, power to arrest under Section 14 and the power to make Rules by the State Government under Section 16.
The Act, addresses to the need of an emergency for which powers have been given to the District Magistrate, in the case where any danger is caused or threatened by floods for evacuation, removal of obstruction, and requisition of boats. The Act in the special contingency of danger of floods gives special powers to the District Magistrate to meet such a situation, which requires immediate action in public interest.
In the counter affidavit the State respondents including Executive Engineer, Irrigation Department or the District Magistrate, have not placed any such facts, which may support their opinion of the danger, or threat by floods. In the counter affidavit no incident of floods in the recent past has been given. It is stated that the flood in river is natural calamity, which may be repeated even after 25 years, 50 years or 100 years at any time. The Irrigation Department has, however, has not placed any data about the extent of area which was or is likely to be affected by floods, the breadth of the river at the big rainy season and whether any flood has been caused in the river in the recent past. They have also not given the details as to whether the river gets swollen in rainy season and the extent to which such waters floods the area to cause any apprehension.
The area in question falls within the development area of Ghaziabad Development Authority, which has framed bylaws laying down conditions for raising constructions. In case any constructions are raised in the area, which violate the bylaws, the Ghaziabad Development Authority has powers under the U.P. Act of 1973 to demolish such construction. The respondents have not placed on record nor have stated that the Ghaziabad Development Authority has put any condition or placed any restriction on raising constructions in the area. On the contrary it is admitted in para 5 that the constructions are being raised by Antriksh Builders, Raksha Vighyan and that Gaur City Constructions in the area for which permission has been granted by the State Government.
Any restriction placed on right to property, which violates Art.300A must be based upon valid and reasonable law. The Act of 1951 does not give any such power to the District Magistrate. If he did not have any objections for the builders raising constructions in the area, it is not open to him to restrict the transfer of properties in the area.
The Government Order dated 3.2.1992 directs all the District Magistrates to carry out flood prone zone regulations. All the District Magistrates were required in a meeting presided by the Chief Secretary, Government of U.P. on 11.10.1991 to prepare the details of flood prone zone, and to restrict the constructions and for that purpose use the provisions of Act of 1951, and to regulate constructions to the effect that no building work should be allowed to be carried out without the sanction of the Flood Zoning Authority to be set up by the State Government. The order of the Secretary and Addl. Commissioner (Awas) dated 10.1.2009, was addressed to the Superintending Engineer, 7th Circle, U.P. Awas and Vikas Parishad, Ghaziabad, providing for sanction of 50% share for construction of embankments in Delhi-Bulandshahar Bypass Scheme of the U.P. Awas and Vikas Parishad and Pratap Vihar Scheme of Ghaziabad Development Authority. The Superintending Engineer, U.P. Awas Evam Vikas Parishad in his letter dated 11.11.2009, written to the Executive Engineer, Irrigation Construction Division, Ghaziabad, had intimated sanction of 50% of the amount of Rs.2517 lacs to be spent in the project. These letters do not provide for any restriction on sale of land. The Government Order dated 3rd February, 1992 provides for restriction of construction in the flood prone zone except by approval of the flood zoning authority and the letters dated 10.11.2009 and 11.11.2009, relate to the sanction of construction of embankment in which 50% cost was agreed to be borne by the U.P. Awas Evam Vikas Parishad.
The respondents have not relied upon the provisions of any other law for restrictions on the transfer of properties even if they fall in the area, which is likely to be affected by floods. The material placed by the State Government and its reliance on the Act of 1951, and the Government Orders restricting raising of construction in the area, which may affect the free flow of water in case of floods and the restriction on such constructions except in accordance with the approvals given by the competent municipal authorities. These restrictions on raising permanent constructions do not extend to orders for restricting the transfer of properties.
Art.300-A of the Constitution of India provides that no person shall be deprived of his property saved by authority of law. The right to hold property, which include right to sale the property, ceased to be a fundamental right, when it was transposed from Part-III to Part-XII and inserted as Chapter-IV by Constitution (44th Amendment) Act, 1978, w.e.f. 20.6.1979. It is now a constitutional right vide Zilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp. (1) SCC 596, subject to restrain and regulations by the State vide State of Bihar v. Project Uchcha Vidya Shikshak Sangh, (2006) 2 SCC 545. The restrain and regulations, however, it was held must be fair and reasonable and should not violate the fundamental rights guaranteed in Part-III of the Constitution of India.
In T. Vijayalakshmi & Ors. v. Town Planning Member & Anr., (2006) 8 SCC 502 it was held by the Apex Court that the right to property would include right to construct a building. Such a right, however, can be restricted by legislation, which must stand test of reasonableness. The right to property has also been included as human right and is part of right to development, which is in turn has been held to be right to life guaranteed under Art.21 of the Constitution of India.
On the aforesaid discussion, we are of the view that the Act of 1951 or the Government Order dated 3.2.1992, do not give legal authority in the District Magistrate to put restriction on the transfer of property in the subject area between River Hindan and its embankments. The District Magistrate may in order to save and control the loss of property or life in case of floods or apprehension of water levels rising in the area put restrictions for raising of construction in accordance with the building bye-laws made by local authorities including the Municipal Corporation or the Ghaziabad Development Authority. If the building bylaws did not restrict the private builders from raising multistory constructions in the area, it will be arbitrary and discriminatory to place restrictions on sale and purchase of land on farmers for smaller areas. Further the restrictions on registering documents of sale or purchase on plots of land less than one thousand square meters for the reasons stated in the counter affidavit, if contradictory and causes hostile discrimination with no statable purpose or object to be achieved.
For the aforesaid reasons, the writ petition is allowed. The order of the District Magistrate dated 20.5.2011 placing restriction on transfer of property by the owners of the land in the area between River Hindan and the embankments constructed by the Irrigation Department, is set aside. The petitioners will be free to execute the agreement or transfer deeds, which will be registered by the registration authorities in accordance with law. The petitioners or the purchasers will, however, not raise any constructions, except after obtaining approval from the concerned local bodies or development authorities. Costs are made easy.
Dt.08.03.2013 SP/