Allahabad High Court
Shree Narayan Singh vs State Of U.P. Thru Home Secy. & 5 Ors. on 8 October, 2013
Bench: Devi Prasad Singh, Ashok Pal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH, LUCKNOW A.F.R. RESERVED ON 19.09.2013 CIRCULATED ON 4.10.2013 DELIVERED ON 8.10.2013 Case :- MISC. BENCH No. - 4909 of 2006 Petitioner :- Shree Narayan Singh Respondent :- State Of U.P. Thru Home Secy. & 5 Ors. Counsel for Petitioner :- M.K. Gupta Counsel for Respondent :- C.S.C. Hon'ble Devi Prasad Singh,J.
Hon'ble Ashok Pal Singh,J.
(Delivered by Justice Devi Prasad Singh)
1. Important question of public interest involved in this petition is as to whether State can divest its citizen from their property without acquisition and payment of compensation in accordance with law ? The mighty State exercising unbridled and unguided power had deprived the petitioner from his property that too under the teeth of judgment of this court. With the multiplicity of litigation and pendency thereon the petitioner is waiting for justice since 1977 (almost 36 years) and the long hand of law shortened to dispense justice expeditiously so as to original occupier could have enjoyed the property.
2. Lucknow Development Authority had leased out the property in question through a registered lease deed dated 15.1.1936 to one Dr. G.S.Thapar for the period of 90 years bearing an area of 46,762 sqf. (4,344.22 sqmt.). Shri G.S.Thapar had built a double storied building over the land in question situated in the city of Lucknow. Later on, by registered sale deed dated 17.8.1948 Dr. G.S.Thapar transferred the entire plot in dispute bearing Plot No.413 along with constructed portion to one Smt. Muneshwari Debi, who happens to be step mother of the petitioner. In pursuance to sale deed Smt. Muneshwari Debi came into premises in question giving name and title to it as "Om Niwas". A copy of registered sale deed dated 17.8.1948 is on record as Annexure-1 to the writ petition. An area of 2172.31 sqmt. of "Om Niwas" along with constructed building was acquired by the Home Department of the Government of U.P. in pursuance to notification issued under Land Acquisition Act in the year 1976. The acquisition was made for construction of infrastructure for the Intelligence Department Government of U.P. subject to payment of compensation of Rs. 1,95,228.70 to Smt. Muneshwari Debi. For the remaining area of "Om Niwas" comprising 2171.91 sqmt, a notice under Sub-Section 3 of the Urban Land (Ceiling and Regulation) Act, 1976 (in short hereinafter referred as Ceiling Act) was served on Smt. Muneshwari debi. An objection was filed thereof, but it was rejected by the competent authority by an order dated 15.10.1977 under Section 8(4) of the Ceiling Act followed by U.P. Gazette Notification dated 24.12.1977. Copy of the Gazette Notification dated 24.12.1977 published under Section 10(1) of the Ceiling Act has been filed as Anexure-3 to the writ petition.
3. Feeling aggrieved with the aforesaid order passed by ceiling authorities, late Smt. Muneshwari Debi filed a Civil Misc. Appeal No. 356 of 1977 under Section 33 of the Ceiling Act before District Judge Lucknow. Appeal filed by Smt. Muneshwari Debi was decided by judgement and order dated 4.11.1982 with the finding that Smt. Muneshwari Debi does not possess any excess vacant land which may be held surplus under the Ceiling Act. Judgment and order dated 4.11.1982 passed by the District Judge, Lucknow has been filed as Annexue-5 to the writ petition. The operative portion of the judgement of learned District Judge is reproduced as under:-
"Even so, the learned counsel for the appellant says that on the finding, that an area of 2765.35 sq.m. was not vacant land at all, in view of the above mentioned case of State of U.P. Vs. Someshwar Prasad , only 1594.78 sq.m. of land could be considered to be vacant because the area of the buildings standing on the land with land appurtenant and the additional appurtenant, have to be excluded. This contention seems to be correct. The total area in items1 and 2, referred to above, in addition to the area of 2765.35 sq.m. on which construction work is not permissible under the Building Regulations, has to be excluded from the total area in order to determine the vacant land. In such situation, the vacant land would be for less then the permissible ceiling of 1500 sq.m. It must, therefore, be held that the appellant does not possess the excess vacant land. ORDER.
The appeal is allowed and the order of the competent authority is set aside, it is held that the appellant does not possess any excess vacant land.
(Kamleshwar Nath) District Judge,
Lucknow.
Judgment signed, dated and pronounced in open court today.
Sd/Illegible
4.11.82"
4. It appears that during the pendency of appeal before learned District Judge, Lucknow certain constructions were raised over the land in dispute by the security branch of the police department without waiting the outcome of pending appeal.
5. Feeling aggrieved with the appellate order (supra), State Government had preferred a Writ Petition No. 2859 of 1983 before this Court and by judgment and order dated 17.11.2003 writ petition was dismissed with the following observation:-
"During the pendency of this writ petition the said Act has been repealed by the Urban Land (Ceiling and Regulation) Repeal Act, 1999, in which it was provided that the repealing Act shall come into force in any State which adopts the same under Clause (2) of the Article 252 of the Constitution on the date of such adoption by the said repealing Act. In section 4 the Urban Land (Ceiling and Regulation) Act, 1976 it has been provided that all proceedings relating to any order made or purported to be made under the principal Act pending immediately before the commencement of original Act, before any court, tribunal or other authority shall abate. It has been provided that section shall not be applicable relating to sections 11,12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorised by the State Government in this behalf or by the competent authority. It has also been provided that repealing Act shall not effect where any land is deemed to have been vested under Sub Section 3 of Section 10 of the Principal Act, but the possession of which has not been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the competent authority and any amount has been paid by the State Government with respect to such Land, then, such land shall not be restored unless the amount paid, if any, has been refunded to the State Government.
The above mentioned repealing Act has already been adopted by the State Government.
In view of the above, the writ petition is dismissed as abated.
17.11.2003 GSY"
6. It appears that instead of handing over the possession of the premises in question, the government had issued notification under Section 4 of the Land Acquisition Act on 20.6.2011 with regard to premises in question. However, no notification has been issued under Section 6 of the Land Acquisition Act till date.
7. Learned Standing counsel vehemently argued that in spite of judgment of appellate court and this court (supra) government has got right to retain the possession of land in question in view of notification issued under Section 4 of the Land Acquisition Act. However, argument advanced by learned Standing counsel seems to be misconceived in view of settled proposition of law that notification under section 6 of the Land Acquisition Act should have been issued within the statutory period of one year.
8. A Division bench of this court while deciding a case reported in 2011 Law Suit (All) 2247=2011 (29) LCD 1737, Har Karan Singh Vs. State of U.P. and others relying upon various pronouncements of Hon'ble Supreme Court held as under:-
"We further find, as observed by the Supreme Court in Devendra Kumar's case that the Sate cannot be permitted to issue fresh notification under Section 6(1) of the Act after hearing farmers, after the period prescribed under the Act for issuing notification under Section 6 has expired. A Constitution Bench of the Supreme Court in Padma Sundara Rao Vs. State of Tamil Nadu, 2002 3 SCC 533, held that purpose of providing limitation under the first proviso to Section 6(1) is to avoid inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of notification under Section 4(1) Section 11 also provides that valuation of the land has to be done on the date of publication of notification under Section 4 cannot be utilized after expiry of the period of one year under the first proviso to Section 6(1), for publishing notification under Section 6".
9. In view of above, now at this stage State lacks jurisdiction to issue notification under Section 6 of the Land Acquisition Act.
10. Petitioner pleaded that after death of his father Late Raghubar Narain Singh (died on 15.6.1995) and second wife Smt. Prem Lata Devi (died on 12.7.2002) petitioner inherited all the property of Muneshwari Debi, who died issue-less on 20.12.1998. Thus, in spite of finality of appellate court judgment under the Ceiling Act followed by judgment of this Court, Muneshwari Debi could not taste the fruit of justice in her own life.
11. Respondent-State while filing counter affidavit had not disputed aforesaid factual matrix with regard to litigation fought by Muneshwai Debi or the petitioner. While filing counter affidavit Deputy Superintendent of Police not disputed that the department is in possession of premises in question. Rather a defence has been setup that the police department is in its possession after acquisition in accordance to law. A vague reply has been given in the counter affidavit that in public interest for government work the possession of the premises in question has been taken over.
12. Nothing has been brought on record while filing counter affidavit that how and under what manner the Government retain the premises in question except in pursuance to proceeding under Ceiling Act (supra). Keeping in view the finality of judgment under Ceiling Act (supra) there appears to be no room of doubt that the petitioner became exclusive owner of the premises in question and entitled to repossess the land. Respondent-State is in unlawful possession of the premises and has got no right to retain the possession except to hand over the same.
13. Keeping in view the democratic norms and constitutional mandate, it was incumbent upon the State Government/Police department to handover the possession of land in question immediately after dismissal of writ petition by judgment and order dated 17.11.2003. State seems to be an unauthorized occupant of the land in question immediately after 17.11.2003.
14. Hon'ble Supreme Court long back while deciding a case reported in AIR 1954 SC 170 State of West Bengal Vs. Mrs. Bela Banerjee and others held that subject to modification with regard to payment of compensation citizens have fundamental right to retain the property under Article 31-A of the Constitution.
15. It has been consistent view of Hon'ble Supreme Court that right available to the State to acquire property is not unfettered but it is based on public policy subject to payment of adequate compensation vide (2007) 9 SCC 242, Numaligarh Refinery Ltd. Vs. Green View Tea and Industries and another;(1996) 7 SCC 347, State of U.P. and another Vs. Rajendra Singh; (1996) 9 SCC 640, Smt. Basavva and others Vs. Special Land Acquisition Officer and others and AIR 1996 SC 3207, Hookiyar Singh etc. Vs. Special Land Acquisition Officer, Moradabad and another.
16. It is well settled proposition of law that compensation should be adequate on prevailing rate but not illusory. The citizens must get adequate compensation whenever their lands are acquired in accordance to statutory provision as well as rate prevailing at the time of acquisition.
17. A Division Bench of this court in a case reported in 2009 (27) LCD 77, Ram Nayan Singh and others Vs. State of U.P. and others had deprecated the State action to acquire a land in violation of statutory mandate and directed to pay compensation.
18. In a case reported in (2005) 2 SCC 126, State of U.P. and others Vs. Manohar their Lordships held that deprivation of property of a citizen in a manner unknown to law is impermissible.
19. Dispossession of recorded tenure holder or acquisition of land by the State or by the authorities to meet out the requirement was frequent in the colonial rule.
20. Hon'ble Supreme Court was conscious of the fact and repeatedly held that executives have no right to decide private dispute with regard to title on administrative side. Their Lordships from time to time cautioned the government in legislating law with discriminatory treatment.
21. Constitution Bench of Hon'ble Supreme Court consisting seven Hon'ble Judges in the case reported in AIR 1978 SC 597, Smt. Maneka Gandhi Vs. Union of India and another had reaffirmed the common law with regard to right of Englishman with approval of what Blackstone had said, to quote:-
"Mukerji J., in Gopalan's case(supra)referred to the celebrated commentaries of Blackstone on the Laws of England. It is instructive to reproduce passages from there even though juristic reasoning may have travelled today beyond the stage reached by it when Blackstone wrote. Our basic concepts on such matters, stated there, have provided the foundations on which subsequent superstructures were raised. Some of these foundations, fortunately, remain intact. Blackstone said :
"This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times : no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original."
22. Their Lordships of Hon'ble Supreme Court further considered the basic right available to Englishman under common law and made it applicable to Indian context also. The observation made by the Hon'ble Supreme Court in Maneka Gandhi (supra) is reproduced as under:-
"The absolute rights of every Englishman,(which, taken in a political and extensive sense, are usually called their liberties), as they are founded on nature and reason, so they are coeval with our form of Government; though subject at times to fluctuate and change; their establishment (excellent as it is) being still human.
* * * And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property, because, as there is no other known method of compulsion, or abridging man's natural free will, but by an infringement or diminution of one or other of these important rights, the preservation of these, inviolate, may justly be said to include the preservation of our civil immunities in their largest and most extensive sense.
I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.
II.Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. Concerning which we may make the same observations as upon the preceding article, that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that, in his kingdom, it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws.
III. The third absolute right, inherent in every Englishman, is that of property; which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land, The original of private property is probably founded in nature, as will be more fully explained in the second book of the ensuing commentaries; but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from society; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty."
23. While summarizing basic rights of human being in Indian Context their Lordships of Hon'ble Supreme Court (supra) while relying upon earlier judgments observed as under:-
Para 19 page 608For this proposition, I relied, in A. D. M. Jabalpur v. S. S. Shukla (supra), and I do so again here, on a passage from Subba Rao C.J., speaking for five Judges of this Court in I. C. Golaknath v. State of Punjab(1) when he said (at p. 789) :
"Now, what are the fundamental rights ?The are embodied in Part III of the Constitution and they may be classified thus: (i) right to equality, (ii) right to freedom, (iii) right against exploitation, (iv) right to freedom of religion, (v) cultural and educational rights, (vi) right to property, and (vii) right to constitutional remedies. They are the rights of the people preserved by our Constitution, ''Fundamental rights' are the modem name for what have been traditionally known as 'natural rights'. As one author puts it: 'they are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradistinction with other beings, he is rational and moral'. They are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the Well-known fundamental rights, also included the rights of the minorities, untouchables and other backward communities, in such right".
24. Earlier to Maneka Gandhi (supra), in a case reported in 1953 (4) SCR 1129, Ram Prasad Narain Sahi and other Vs. State of Bihar where a private dispute between two individuals was liable to be adjudicated by the judicial tribunal or court in accordance to law was singled out by legislature, Supreme Court held it to be fundamental right of the the citizen to resolve dispute through judicial pronouncement. Their Lordships held that the meanest of citizens right of access to a court of law for the redress of his just grievance. While dealing with the statutory provision cropped up for adjudication their Lordships have reiterated that the presumption shall be in favour of constitutionality and nationality and it shall be presumed that the Legislature understands and correctly appreciates the needs of its own people. But on the face of a statute there is no classification at all, and no attempt is made to select any individual or group with reference to any differentiating attribute peculiar to individual or group and not possessed by others. The presumption is of little or no assistance to the State. Their Lordships held that to carry the presumption of constitutionality to the extent of holding that there must be undisclosed and unknown reason for subjecting certain individuals or corporations is a hostile and discriminatory legislation.
25. In (1968) 2 SCR 203, Lallu Yeshwant Singh Vs. Rao Jagdish Singh and others where Section 82 of the Qanoon Ryotiwari was subject matter of interpretation, Hon'ble Supreme Court held that though the right of tenant extinguished automatically in view of statutory mandate but the tenant must be dispossessed legally. No act can be done by the strength of one's own hands but help of the law should be taken and the procedure which is prescribed of that act must be acted upon. Hon'ble Supreme court relied upon earlier Privy Council judgement reported in 51 I A page 293, Midnapur Zamindary Company Limited v. Naresh Narayan Roy, and quoted with approval of observation made by Privy Council which is as under:-
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."
Hon'ble Supreme Court (supra) further held that even if a tenant ceased to be tenant but shall be protected by law. Tenant may not have right to continue in possession after period of tenancy but possession being juridical and that possession is protected by statute.
26 Full Bench of Allahabad High Court in a case reported in I.L.R. [1958] 2 All. 394, Yar Mohammad Vs. Lakshmi Das, held that restoration of possession in a suit is always subject to a regular title suit and the person who has real title or even the better titled cannot be prejudice in any way by a decree in such suit. It shall always be open to him to establish title in a regular suit and to recover back the possession.
The full Bench further held that while interpreting statutory provision law respects possession even if there is no title to support it. Law will not permit any person to take the law in his own hands and to dispossess a person who is in actual possession without having recourse to a court. No person can be Judge of his own cause.
27. In AIR 1961 SC 1570 (V 48 C 300), Bishan Das and others Vs. State of Punjab and others, Constitution Bench of Supreme Court deprecated the interference with fundamental right to property by executive officers without any authority of specific 'rule of law'. Their Lordship held that in a situation where State thought that construction should be removed or with the condition as to resumption of land invoked it is always open for the State to take appropriate legal action for the purpose.
Hon'ble Supreme Court ruled that Executive Officers have no right to take law in their own hands and remove the trustee by an executive order. With regard to dispossession from property, their Lordship observed as under:-
"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."
Hon'ble Supreme Court (supra) further proceed to observe as under:-
"As pointed out by this Court in Wazir Chand v. The State of Himachal Pradesh [1955] 1 S.C.R. 408.(AIR 1954 SC 415), 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 [1953] S.C.R. 1129 (AIR 1953 SC 214) 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 to quote what we said in Sahi's case (supra), remarkable for their disturbing implications."
28. In 1977(1)SCC 188, Ram Ratan and others Vs. State of Uttar Pradesh, question cropped up before Supreme Court with regard to right of private defence of trespasser against true owner. Their Lordships held that true owner has no right to dispossess the trespasser by use of force in case trespasser was in possession in full knowledge of the true owner. Observation made by Hon'ble Supreme Court is reproduced as under:-
"It is well settled that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under, the law."
29. In (2002) 3 SCC 137, S.R.Eiaz Vs. T.N.Handloom Weavers' Cooperative Society Ltd., Hon'ble Supreme Court upheld the citizen's right to protection of property conferred by Article 300-A read with Article 21 of the Constitution of India. Their Lordships held that only dispossession in due course of law can be accorded legitimacy by the courts. Forcible dispossession by influential persons and musclemen cannot be condoned. It shall be appropriate to reproduce the observation made by Hon'ble Supreme Court which is as under:-
"In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor the citizens can protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given go bye either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and 'might would be right' instead of 'right being might'. This Court in State of U.P. and others vs. Maharaja Dharmander Prasad Singh and others [(1989) 2 SCC 505] dealt with the provisions of Transfer of Property Act and observed that a lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of Government withdrawing or appropriating to it an extra judicial right of re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law."
30. In (2002) 4 SCC 134, State of W.B. and others Vs Vishnunarayan and associates (p) Ltd. And another, their Lordships reiterated aforesaid proposition of law and held that State and its executive officers cannot interfere with the rights of others except where their actions are authorized by specific provisions of law. Hon'ble Supreme Court had reiterated the earlier Constitution Bench Judgement in the case of Bishan Das (supra) followed by one other judgement reported in (1989) 2 SCC 505, State of U.P. Vs. Maharaja Dharmander Prasad Singh. Hon'ble Supreme Court held that possession can be resumed by the Government only in a manner known to or recognized by law and it cannot resume possession otherwise than in due course of law.
31. In (2004) 13 SCC 518, Lord Shiva Birajman in H.B. Yogalaya Vs. State of U.P. and others, their Lordships held that without any show cause notice or hearing neither demolition can take place nor a person may be dispossessed from the property, to quote relevant portion:-
"Admittedly, the appellants are in possession and enjoyment of the properties. In the earlier proceedings of 1976, the respondents had undertaken not to demolish the buildings or dispossess the appellants except in accordance with law. Otherwise also principles of natural justice demand that a show-cause notice and hearing be given before demolishing or dispossessing a person from the properties of which he is in possession. Counsel appearing for the respondents did not contest this proposition."
32. This court in a case reported in 2006 (24) LCD 733 State of U.P. (Nazul) Vs. 7th Additional District Judge, Lucknow and others delivered by one of us (Hon. Justice Devi Prasad Singh) after considering different pronouncement of Hon'ble Supreme Court held that even after expiry of period of lease a lessee has right to move application for extension of lease and where question of title is involved a person cannot be evicted in summary proceeding.
33. In a case reported in (2010) 8 SCC 383 Meghmala and others Vs. G. Narasimha reddy and others, while referring earlier judgement Supreme Court held as under:-
"Even a trespasser cannot be evicted forcibly. Thus, a person in illegal occupation of the land has to be evicted following the procedure prescribed under the law. (Vide Midnapur Zamindary Co. Ltd. Vs. Naresh Narayan Roy AIR 1924 PC 124; Lallu Yeshwant Singh Vs. Rao Jagdish Singh & Ors. AIR 1968 SC 620; Ram Ratan Vs. State of U.P. AIR 1977 SC 619; Express Newspapers Pvt. Ltd. & Ors. Vs. Union of India & Ors. AIR 1986 SC 872; and Krishna Ram Mahale Vs. Mrs. Shobha Vankat Rao AIR 1989 SC 2097) .
In Nagar Palika, Jind Vs. Jagat Singh AIR 1995 SC 1377, this Court observed that Section 6 of the Specific Relief Act 1963 is based on the principle that even a trespasser is entitled to protect his possession except against the true owner and purports to protect a person in possession from being dispossessed except in due process of law.
Even the State authorities cannot dispossess a person by an executive order. The authorities cannot become the law unto themselves. It would be in violation of the rule of law. Government can resume possession only in a manner known to or recognised by law and not otherwise. (Vide Bishan Das Vs. State of Punjab AIR 1961 SC 1570; Express Newspapers Pvt. Ltd. (supra); State of U.P. & Ors. Vs. Maharaja Dharmander Prasad Singh & Ors. AIR 1989 SC 997; and State of West Bengal & Ors. Vs. Vishnunarayan & Associates (P) Ltd. & Anr. (2002) 4 SCC 134)."
34. Apart from aforesaid proposition of law with regard to dispossession of citizen from his or her property it is the basic concept of law in a civilized society that the society must be governed by rule of law and not otherwise. Rule of law has twin limb, firstly; a thing should be done in the manner provided by the Act or statute and not otherwise secondly; a decision should be based on known principle of law.
Law includes not only legislative enactments but also judicial precedents. An authoritative judgement of the courts including higher judiciary is also law.
It is a rule for the well governing of Civil Society to give to every man that which doth belong to him.
Blackstone define law as a rule of action and it is applied indiscriminately to all kinds of action whether animate or inanimate, rational or irrational...And it is that rule of action which is prescribed by some superior and which the inferior is bound to obey. Laws in their more confined sense denote the rules not of action in general but of human action or conduct.
35. In our jurisprudence of law rule is prescribed by Society for the government of human conduct. A rule of action or of civil conduct prescribed by competent authority by the law making power of the State or by proper law making authority or by supreme authority by the Government of human action is also the law.
In the words of Blackstone a rule of civil conduct prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong is the law.
36. Black's Law Dictionary, Ninth Edition, defines the word 'law' as under:-
"law--1. The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system respect and obey the law. 2. The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp, the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them the law of the land.3. The set of rules of principles dealing with a specific area of a legal system 4. The judicial and administrative process; legal action and proceedings when settlement negotiations failed, they submitted their dispute to the law."
37. Supreme Court in number of cases held that law includes the act of legislature and the rules validly made thereunder as well as law pronounced by the courts possess binding nature vide AIR 1964 SC 1793 Raj Kumar Nursing Pratap Singh Deo Vs. State of Orissa; AIR 1958 SC 538 Shri Ram Krishna Dalmia Vs. Shri Justice S.R. Tendulkar; AIR 1990 SC 820 M/s Video Electronical (P) Ltd. Vs. State of Punjab; and AIR 1967 SC 669, Meghraj Vs. Delimitation Commission.
38. It is well settled proposition 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.
39. Hon'ble Supreme Court in the case reported in AIR 1967 SC 1427, Jaisinghani Vs. Union of India & ors, ruled that decision should be made by the application of known principles and rules and in general, such decision should be predictable and a citizen should know where he is.
40. In AIR 1975 SC 2260: Smt. Indira Nehru Gandhi. Vs. Raj Narain, their Lordships postulated the rule of law 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."
41. In AIR 1969 SC 33: Chief Settlement Commissioner, Punjab and others. Vs. Om Prakash and others, their Lordships of Hon'ble Supreme Court held that in our constitutional system, the central and most characteristic feature is the concept of rule of law which means in the present context, the authority of law courts to test all action of administration by the standards of legality. The Executive or administrative action that does not meet the standard will be set aside if the aggrieved person brings the appropriate action in competent court. Rule of law rejects the concept of dual state in which the governmental action is placed in privileged position of immunity from the control by law. Such a notion is foreign to our basic constitutional Concept.
42. In another case reported in 1969 (2) SCC 262, A.K. Karipak and others. Vs. Union of India, Hon'ble Supreme Court held that under our Constitution, the rule of law prevails over the entire field of administration and every organ of the State is regularized by the rule of law. In a welfare state it is inevitable that the jurisdiction of administrative bodies is increasing at a rapid rate. The Concept of rule of law would lose its vitality if the instrumentalities of the state are not charged with the duty of discharging their functions in a fair and just manner.
43. In AIR 1982 SC 1325, Bachan Singh. Vs. State of Punjab, their Lordships held that rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. The Rule of law excludes arbitrariness; its postulate is ''intelligence without passion ''and reason freed from desire'.
44. In JT 1996 Vol 9 SC 466 Chatar Singh. Vs. State of Rajasthan, their Lordships held that Rule of Law should establish a uniform pattern for harmonious existence in society where any individual should exercise his right to his best advantage to achieve excellence, subject to protective discrimination.
45. In (2002) 3 SCC 343, Arundhati Roy, In re.., while defining the Rule of law, their Lordships opined that "Rule of law is the basic rule of governance of any civilized democratic polity. Our constitutional scheme is based upon the concept of rule of law which we have adopted and given to ourselves. Everyone whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no one is above law notwithstanding how powerful and rich he or she may be. For achieving the establishment of the rule of law, the constitution has assigned special task to the judiciary in the country. It is only through court that rule of law unfold its contents and establishes its concept. For the judiciary to perform its function and duties affectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the court have to be respected and protected at all cost.
46. In (2000) 1 SCC 600, A.P. Aggarwal Vs. Government of NCT of Delhi and another, Hon'ble Supreme court held that it is well settled that every state action, in order to survive must be suspectible to the vice of arbitrariness which is the crux of article 14 of the Constitution and basic to the rule of law, the system which governs us (vide Shrilekha Vidyarthi Vs. State of U.P.).
47. In (2005) 3 SCC 284 Kalyan Chandra Sarkar Vs. Rajesh Ranjan, while deprecating the action of member of Parliament with regard to transfer of an accused from Patna Jail to Tihar Jail for causing repeated violation of Jail Manual, M.P. Demanding some of his privilege and immunities, their Lordships of Hon'ble Supreme Court held that authorities escorting respondents from transferor to transferee jail shall strictly follow rules applicable to transit prisoners and no special privilege should be shown. Member of Parliament are not above the rule of law.
48. In 2006 (1) SCC 1 T.N. Godavarman Thirumulpad vs. Union of India and others, Hon'ble Supreme Court held that rule of law serves as an aorta, in the anatomy in our democratic system. The ''law is supreme' in country or society professing the rule of law as its basic feature or characteristic does not distinguish between high or low, weak or mighty.
49. In (2010) 11 SCC 278 Indu Bhushan Dwivedi. Vs. State of Jharkhand and another, while reiterating the right of hearing in a case where a person's civil right was affected, their Lordships of Hon'ble Supreme Court held that one of the basic canon of justice is that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of concept of rule of law. This right has its roots in the notion of fair procedure.
50. In (2011) 9 SCC 1 K.T. Plantation Private Limited and another. Vs. State of Karnataka(Constitution Bench) while reiterating the concept of rule of law evolved by judiciary as basic feature of the Constitution, their Lordships held that importance of Rule of Law as constituent of basic structure of Constitution, re-emphasized. Though rule of law as a concept explicitly finds no place in the Constitution but has been characterized as a basic feature of Constitution which cannot be abrogated or destroyed even by parliament and in fact binds Parliament. Rule of law is one of the most important aspect of doctrine of basic structure. Rule of law affirms Parliament's supremacy while at the same time denying it sovereignty over the Constitution.
51. High court is flooded with the cases where citizens are dispossessed from their property by the State authorities for construction of road, bridges, 'chak-road' or government building showing exigencies of services. Exigencies, may be urgent, but it does not create a ground for the State authorities to proceed de-horse the rules or constitutional mandate. Action of the state authorities must be in pursuance to some statutory provision which confers right to take action to dispossess the citizen from his or her property that too with due compliance of principle of natural justice. In the absence of any statutory mandate action taken by the State authorities howsoever necessary shall be antithesis of rule of law.
52. Learned Standing counsel submits that State may be permitted to pay compensation for the land in question. However, learned counsel for the petitioner is not agreeable to it. He submits that since more than three decades the petitioner is fighting for the cause of justice and he is entitled for restoration of the possession of land in question with reasonable compensation.
53. Payment of compensation against the acquisition of property is a subject matter which should be adjudicated in accordance to statutory mandate, that too in case the citizen approaches for the purpose. Against the forcible acquisition of property citizens cannot be compelled to accept the compensation ignoring their right to repossess the property. Courts are custodian of law. Hence, it has no jurisdiction to direct for payment of compensation against the wishes of litigant for forcible acquisition of property. In case it is done, it will have disturbing implication and such order shall amount to sharing of unlawful action as observed by Constitution Bench of Hon'ble Supreme Court in the case of Bishan Das (supra).
54. It is well settled law that no mandamus can be issued in derogation of Rules, Laws, Regulations and Statutory provisions which should be enforced in its strict sense :2006 (4) SCC 1, Secretary State of Karnataka Vs. Umadevi; 2006 (5) SCC 493, National Fertilizer Limited Vs. Somvir Singh; 2006 (1) SCC 667, State of U.P. Vs. Neeraj Kumar; 2004 (7) SCC 112, A. Umarani Vs. Registrar Coop. Societies; 1992 (4) SCC 118, State of Haryana Vs. Piara Singh; 1997 (1) SCC 245, Union of India Vs. Mahendra Singh; (1997) 1 SCC 1 Ashwani Kumar Vs. State of Bihar; 1992 (4) SCC 99, Delhi Development Horticulture Employees Union Vs. Delhi Admn.; 1992 (4) SCC 33, Director Institute of Management Development Vs. Pushpa Srivastava; 2003 (3) SCC 374, Ramkrishna Kamat Vs. State of Karnataka; and, 1996 (7) SCC 499, Hindustan Shipyard ltd. Vs. Dr. P. Sambasiva Rao .
55. Payment of compensation by the State or its authorities is a subject matter that falls within the domain of statutory authorities that too in accordance to statutory provisions (like land acquisition act or alike statute) Power conferred by different statutes with regard to payment of compensation is subject to lawful acquisition of property in accordance with law. What is unlawful for statutory authorities shall always be unlawful for the courts. Unlawful action cannot be validated by the court on equitable grounds that too without the consent of parties.
56. There is one other reason as to why the action taken by the respondents, suffers from vice of arbitrariness. It is settled proposition of law that in case, the basis of the order is arbitrary without jurisdiction, the entire subsequent action falls. In a case reported in (2010) 9 SCC 437: Kalabharti Advertising Vs. Hemant Vimal Nath Narichania and others, their lordships held as under:-
"20. The aforesaid judgments are passed on the application of legal maxim sublato fundamento, candit opus, which means in case a foundation is removed, the superstructure falls.
21. In Badrinath v. State of T.N. this Court observed that once the basis of a proceeding is gone, all consequential acts, action, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to the administrative orders."
57. In the absence of consensus between the parties with regard to payment of compensation as observed (supra), this court cannot compel the petitioner to accept compensation in lieu of unlawful acquisition. The direction for payment of compensation of the property in question without lawful acquisition shall be substantially illegal. Keeping in view the constitutional mandate (supra) courts have to exercise extraordinary jurisdiction to maintain status-quo ante followed by delivery of possession that too with costs, where citizens are persecuted by the state authorities.
58. Right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational right, right to property, right to constitutional remedies and right to govern by rule of law (supra) are some of the basic and fundamental rights which citizens have right of peaceful enjoyment subject to constitutional limitations.
These rights (supra) are basic human rights constitutionally protected being part of dignity and quality of life (Article 21). These rights are not mere empty slogans but are vital and essential for human happiness, dignity and quality of life and part and parcel of a civilized society. State cannot deprive the citizens from such rights except having regulatory power to maintain law and order keeping in view the constitutional mandate. However, exception relates to right to property where citizen may be divested from the property by due acquisition in accordance to law and payment of compensation that too in public or national interest in view of Article 31 A of the Constitution as amended from time to time. In any case citizens may not be divested from their property without following the procedure prescribed by statute and judicial precedents.
59. In our system of governance it appears that Government (Rulers) sometime seems to behave like "NOBLEMAN" (medieval period in Europe), which has been inherited from colonial rulers of pre-independence India. Country still seems to possess the 'mind set' of feudal oligarchy. There appears to be no respect for the 'rule of law' which is the basic feature of our Constitution (supra).
60. Ian Ward, a Professor of Law at University of Newcastle Upon Tyne rightly said "We live in a world in which politics is rather more Hobbesian conceptions of power than it Aristotelian idylls of consensus". The receding distance between bureaucracy and legislature makes government more prone to frequent abuse of power which perpetuate because of political complacency with paranoial mindset. The paranoid offen repel the judicial interference.
61. It shall be appropriate for the State and Central Government to include a chapter "Rule of Law" in the training programme of bureaucracy or government employees, so that they may inculcate spirit and passion in due course of time to abide by 'Rule of law' while serving the country.
62. We take note of the fact that frequent petitions are filed in this court where property of citizens are acquired without initiating acquisition proceeding in accordance to law for construction of building, road including village road, chak road or other constructions to meet out the requirement in different scheme. In Writ Petition No. 2 of 2012, Krishna Gopal Vs. State of U.P. decided on 4.10.2013 while allowing the writ petition we have noted that for Kashi Ram Awas Yojana the land of the petitioner was forcibly acquired to construct houses.
While deciding Writ Petition No. 7650 (MB) of 2013 decided on 3.9.2013 and Writ Petition No. 8509 (MB) of 2013 decided on 19.9.2013 and other similar petitions, we have noted that bhumidhari land of recorded tenure holder was forcibly acquired for construction/expansion of chak road without taking any initiative or complying the procedure provided by United Provinces Rural Development (Requisitioning of Land) Act 1948.
In Writ Petition No. 8939 of 2013 decided on 27.9.2013 while granting interim order we have noted that district authorities had proceed to construct road from the petitioner's land of which he is recorded tenure holder possessing bhumidhari right without serving notice and its acquisition in accordance to law.
In such situation, it shall be appropriate that Chief Secretary, Government of U.P. should look into the matter and issue appropriate order or circular to ensure that district authorities must act in accordance to law and citizens are not deprived from their property without following the procedure prescribed by law.
63. The court is flooded with petitions filed by the citizens where the State interferes with the peaceful possession of their land including agricultural land without acquisition in accordance to law and payment of compensation. These instances show sorry state of affairs in the State of U.P. which seems to be prevailing since decades. Immediate action requires that State must ensure that district authorities should not interfere with the peaceful enjoyment of property of citizen except in accordance to law or statutory mandate. Such interference with the citizens' right is bad sign for Indian democracy and may in due course of time culminate into disastrous consequences eroding the peoples faith in governance as well as administration of justice.
64. FINDING (1) State shall always be obliged to follow the mandate of courts with regard to issue settled finally. After dismissal of writ petition by judgment and order dated 17.11.2003 (supra) filed against the appellate order the property in question vested in petitioner. In case, possession of property by the State is against the statutory or constitutional mandate then courts have got ample power to restore the possession at the expenses of State. Necessity does not create a ground for the State to dispossess the citizen from their property without following due course of law.
(2). Against the unlawful acquisition of property courts cannot compel the owner of the property to accept the compensation from the State in violation of statutory mandate and the fundamental right conferred by Part III of the Constitution. In the present case, since, petitioner is not inclined to accept compensation, no order may be passed by this Court except to restore the possession of property at the expenses of State.
(3). Rule of law requires that every state action or decision must be based on known principle and rules in general and decision should be predictable and citizens should know where they stand.
(4). The acquisition of property by the State for construction of road, bridges, chak road in the rural area or its official building to meet out the requirement without following procedure required by related statute suffers from vice of arbitrariness and jurisdictional error. Such acquisition may be set aside by the courts directing to make status quo ante on State expenses and pay compensatory costs or damages.
(5). There shall be disturbing implication in case, for any reason whatsoever State is permitted to acquire the land of citizen without following procedure prescribed by law followed by payment of compensation. It shall create uncertainty and chaos in the society and peoples faith in the administration of justice and governance shall erode.
65. For deliberate or intentional deprivation of basic rights (supra), courts while allowing a petition should impose exemplary or compensatory costs in addition to citizen's right to approach appropriate forum or prefer a suit for payment of compensation, which may be recovered by the government from the salary or asset of the officer/employee who are responsible for citizen's plight.
66. Hon'ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353, has held as under:-
"so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force."
67. The aforesaid view has also been adopted by Hon'ble Supreme Court in a judgment rendered in the case of A. Shanmugam v. Ariya Kshetriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others, (2012) 6 SCC 430.
68. In South Eastern Coalfields Ltd (supra), Hon'ble Supreme Court while dealing with the question held as under:-
"28. ... Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."
69. Hon'ble Supreme Court in the case of Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 held as under:-
"17. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been field. The maxim actus curiae neminem gravabit, which means the the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court."
70. In the case of National Textile Corporation (Uttar Pradesh) Limited v. Bhim Sen Gupta and others, (2013) 7 SCC 416 Hon'ble Supreme Court took note of the fact that the Textile Corporation has not placed the correct facts before the Court hence the contempt petition was dismissed and the cost was quantified at Rs.50,000/- which was payable to the Supreme Court Legal Services Committee.
71. In the case of Centre For Public Interest Litigation and others v. Union of India and others, (2012) 3 SCC 1, Hon'ble Supreme Court considering the entire facts and circumstances and also the public interest, allowed the petition and directed the respondents no.2, 3 and 9 to pay a cost of Rs.5 crores each and further directed respondents no.4, 6, 7 and 10 to pay a cost of Rs.50 lakhs each, out of which 50% was payable to the Supreme Court Legal Services Committee for being used for providing legal aid to poor and indigent litigants and the remaining 50% was directed to be deposited in the funds created for Resettlement and Welfare Schemes of the Ministry of Defence.
72. In the present case, in spite of the fact that appeal under ceiling Act was allowed and writ petition was dismissed (supra), petitioner's possession has not been restored intentionally causing deprivation from use of own property, mental pain and agony. Hence, it is a fit case for exemplary cost.
73. Accordingly, writ petition is allowed.
(i) A writ in the nature of mandamus is issued commanding the respondents to deliver the possession of property in question to the petitioner expeditiously, say within a period of three months from today.
Further, a writ in the nature of mandamus is issued directing the respondents while restoring the possession of property make status quo ante at State expenses within the aforesaid period of three months. In case, possession is not delivered within three months, District Magistrate and Senior Superintendent of Police Lucknow shall take necessary steps and enforce the judgement with regard to delivery of possession of property/land in question to the petitioner immediately after lapse of aforesaid period of three months and in further period of one month. Whatever structure has been constructed over the land in question shall be demolished at the expenses of State to make status quo ante.
(ii) Costs quantifying to Rs. 5,00000/-(five lacs) shall be deposited in this Court within a period of three months. In case, the same is not deposited, it shall be recovered as arrears of land revenue by District Magistrate Lucknow. Out of costs so deposited, petitioner shall be entitled to withdraw an amount of Rs. 3,00000/-(three lacs). Remaining Rs. 2,00000/-(two lacs) shall be remitted to Mediation and Conciliation Center, High Court, Lucknow Bench, Lucknow.
It shall be open to the petitioner to prefer regular suit or approach appropriate forum for payment of compensation or rent as claimed in the present writ petition in addition to aforesaid cost.
Registry to take follow up action. It shall be open to the Government to recover costs from the officers, who are responsible in perpetuating the illegality and retaining the petitioner's land in question.
(iii) Copy of the judgment shall be sent to Chief Secretary, Government of U.P. by the Registrar of the Court who shall issue appropriate order or circular keeping in view the observation made in the present judgment directing the District Magistrates and other authorities of the State of U.P. not to acquire and interfere with the property of citizens for construction of road, building, bridges or chak road or any other structure without due acquisition in accordance to law and make authorities accountable in case they interfere with the citizens property in violation of statutory mandate.
Let circular/order be issued within three months. Compliance report be submitted to this Court through affidavit.
(iv) Copy of the present judgment shall be sent to Principal Secretary Law and Secretary to Ministry of Law and Justice, Government of India to consider for inclusion of topic "Rule of law" in the subject/curriculum of the training programme of bureaucracy and all the government employee of the State and Central. Registry shall sent copy within two weeks.
Writ petition is allowed accordingly.
[Justice Ashok Pal Singh] [Justice Devi Prasad Singh]
Order Date:-October 8, 2013
Madhu