Allahabad High Court
Saroj Patel vs State Of U.P. And 3 Others on 18 October, 2019
Bench: Bala Krishna Narayana, Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 33321 of 2019 Petitioner :- Saroj Patel Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjay Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Bala Krishna Narayana,J.
Hon'ble Prakash Padia,J.
1. Heard learned counsel for the petitioner and learned Standing Counsel for respondent nos. 1 to 5.
2. This writ petition has been filed by the petitioner with the following prayers:-
"(a) issue a writ, order or direction in the nature of mandamus commanding the respondent authorities not to take any coercive action against the petitioner and further restrain them from demolishing the construction of the petitioner;
(b) issue a writ, order or direction calling for the records pertaining to acquisition proceedings of the land contained in Araji no.1969 situated in village Chiurahan, Mau Pakad, Tehsil Sadar, District Maharajganj and to quash the same;
(c) issue any other writ, order or directions, as this Hon'ble Court deems fit and proper in the circumstances of the case.
(d) award the cost of writ petition in favour of the petitioner."
3. The facts in the case as emerging upon the perusal of the averments made in the writ petition are that the petitioner Smt. Saroj Patel purchase an area of 0.012 hectare of Arazi No. 1969 which abort National Highway No. 730 situated in village Chiurahan, Mau Pakad, Tehsil Sadar, District Maharajganj (hereinafter referred to as plot in question) from its recorded tenure holder Smt. Kamleshwari Devi vide its sale deed dated 23.11.2001, copy whereof has been brought on record as Annexure No. 3 to the writ petition. After the petitioner had purchased the plot in question her name was recorded in the revenue record as Bhumidhar of area 0.012 hectare of the plot in question. Thereafter he submitted a map for sanction of construction of house over the plot in question on 20.12.2001 before the authority concerned. Map submitted by the petitioner was sanctioned by the letter dated 04.01.2002, annexure no. 4 to the writ petition. Thereafter the petitioner constructed the house over the plot in question and started residing there and also running a shop therein for her livelihood.
4. The grievance of the petitioner is that 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 Hanuumangarhi to Kotwali.
5. It is contended by the learned counsel for the petitioner that the respondents are trying to forcibly utilized a measure portion of her house for the purpose of proposed widening of NH-730 without acquiring the same or awarding any compensation to the petitioner is perse illegal and in complete violation of Article 300-A of the Constitution of India. Unless the petitioner's land is duly acquired according to law and duly compensated, the petitioner 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 petitioner's house for the purpose of widening of NH-730.
6. Per contra learned Standing Counsel referring document appended thereto (Annexure-7 to the writ petition) submitted that there is no proposal for utilizing any portion of the petitioner's 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 petitioner invited our attention to certain photographs including a photograph of a signboard indicating that a land belonging to the residence having their houses aborted to 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 petitioner is without any basis. The petitioner has succeeded placing before us material brought on record indicating that the NH-730 is proposed to be widening and for that purposed land of the person having their house a land 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 petitioner to file a comprehensive representation before the respondent no. 4, raising all the grounds which have been taken by him in this writ petition along-with certified copy of this order. In case, such representation is file by the petitioner before respondent no. 4 within time stated herein-above he shall consider and decide the same strictly in accordance with law by speaking and reasoned order within a period of four weeks from the date of filing of such representation by the petitioner before him.
14. Needless to say for a period of 8 weeks from today or disposal of the petitioner's representation whichever is earlier petitioner's construction of the plot in question shall not be demolished.
Order Date :- 18.10.2019 Swati