Allahabad High Court
Deepak Saran Srivastava And Another vs State Of U.P. And 3 Others on 21 October, 2019
Bench: Bala Krishna Narayana, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 32003 of 2019 Petitioner :- Deepak Saran Srivastava And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sumit Kumar Srivastava,Vibhu Rai Counsel for Respondent :- C.S.C.,Raghvendra Dwivedi 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 and 4 and Sri R. Dwivedi, learned counsel for respondent nos. 2 and 3.
2. This writ petition has been filed by the petitioners with the following prayers:-
"(I) Issue an appropriate writ order or direction prohibiting the respondent authorities from demolishing the construction of the petitioner (II) Issue an appropriate writ order and direction calling for the records a pertaining to acquisition proceeding of the land contain in Gata no. 98 situate at Mohalla Veer Bahadur Nagar, Gorakhpur Maharajganj Marg, Maharajganj and to quash the same.
(III) Issue Any suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(IV) To award cost of the writ petition to the petitioner."
3. The facts in the case as emerging upon the perusal of the averments made in the writ petition are that the petitioners are joint owners of the land no. 1998 situated at Maharajganj Gorakhpur Marg under Nagar Palika Parishad Maharajganj mohalla Veer Bahadur Nagar. Petitioner no. 1 namely Deepak Saran Srivastava applied for the permission to construct the house over an area of 299 Sq. meter on 06.10.2006. The map was sanctioned by the concerned Competent Authority on 20.11.2006. Similarly petitioner no. 2 also got sanctioned a map in the year 2014 to construct a shop over 153.350 sq feet of land. It is contended that after the map was sanctioned in favour of the petitioners, they constructed their house and shop over the land in question. It is further contended that the petitioners are regularly depositing their house rent and electricity bill.
4. In paragraph 13 of the writ petition it is stated that suddenly it has been informed to the petitioners that the red mark has been leveled against the boundary and the main construction of the petitioners denoting that the same will be demolished. The aforesaid red mark was made by the Offices of the Public Work Department, regional office, Maharajganj.
4. The grievance of the petitioners is that the respondents are threatening to utilize the some portion of the house constructed by the petitioner on the plot in question for the purposes of widening of NH. no. 730 without either acquiring the same or pay any compensation for the proposed widening from Police Chowki, Tiraha corssing to Balli Nala at Gorakhpur, Maharajganj.
5. It is contended by the learned counsel for the petitioners that the respondents are trying to forcibly utilize a major portion of their house for the purpose of proposed widening of NH-730 without acquiring the same or awarding any compensation to the petitioners hence their act is per-se- illegal and in complete violation of Article 300-A of the Constitution of India. Unless the petitioners' land is duly acquired according to law and duly compensated, the petitioners cannot be forcibly utilized any portion of the land for the purpose of any road widening and hence the writ of mandamus be issued to the respondents to restrain them from using any portion of the petitioners' house for the purpose of widening of NH-730.
6. Per contra learned Standing Counsel referring document appended thereto (Annexure-8 to the writ petition) submitted that there is no proposal for utilizing any portion of the petitioners' land for the purpose of widening NH-730 and hence the petition is premature and is liable to be dismissed.
7. In the rejoinder affidavit, learned counsel for the petitioners invited our attention to certain photographs including a photograph of a signboard indicating that a land belonging to the residents having their houses abutting NH-730 is going to be utilized for the purpose of widening of NH-730 and submitted that the contention raised by the learned Standing Counsel is without understanding.
8. Heard learned counsel for the parties and perused the material brought on record, we are of the view that apprehension of the petitioners is not without any basis. The petitioners have succeeded placing before us material indicating that the NH-730 is proposed to be widened and for that purpose land of the person having their house abutting NH-730 is likely to be utilized. However controversy involved in this writ petition requires remedies.
9. 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."
10. 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.
11. 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, so many cases are being come before this Court where the State Authorities for the purpose of road widening are 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.
12. The Supreme Court in the Case of Darshan Lal Nagpal (Dead) By Lrs. vs. Government of NCT of Delhi and others, (2012) 2 SCC 327, after having retrospection of some of authorities on the subject, Court in para 28 of the judgment, stated as under:-
"What needs to be emphasized is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his Constitutional right of not being deprived of his property without the sanction of law - Article 300A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing. "
13. Without entering into the merits, we dispose of this writ petition with liberty to the petitioners to file a comprehensive representation before the respondent no. 4, raising all the grounds which have been taken by them in this writ petition along-with certified copy of this order within a period of four weeks. In case, such representation is filed by the petitioners before respondent no. 4 within time stated herein-above he shall consider and decide the same strictly in accordance with law by a speaking and reasoned order within a period of six weeks from the date of filing of such representation by the petitioners before him.
14. Needless to say for a period of 10 weeks from today or disposal of the petitioners' representation whichever is earlier petitioners' construction of the plot in question shall not be demolished.
Order Date :- 21.10.2019 Swati