Smt. Ram Kanya vs State Of U.P. And 2 Others
2022 Latest Caselaw 3685 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 40
 

 
Case :- WRIT - C No. - 14023 of 2022
 

 
Petitioner :- Smt. Ram Kanya
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Akhilesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vivek Kumar Birla,J.

Hon'ble Vikas Budhwar,J.

Heard Sri Akhilesh Kumar Mishra, learned counsel for the petitioner and Sri Sharad Srivastava, learned Standing Counsel who appears for respondent nos. 1, 2 and 3.

This is a petition under Article 226 of the Constitution of India seeking following reliefs:-

"I. Issue a writ order or direction in the nature of mandamus commanding and directing the respondents authorities not to make any road/path in the land of the petitioner bearing arazi No.271 area 1.1190 hectare situated in village-Terahara, Pargana-Kada, Tethsil-Sirathu, District- Kaushambi as the same is in cultivatory possession and bhumidhari land of the petitioner.

II. Issue a writ order or direction in the nature of mandamus commanding and directing the respondents authorities to take appropriate decision upon the applications/ representations made by the petitioner towards redressal of the grievances of the petitioner and during this period respondents authorities may be restrained from make any construction of road upon the bhumidhari land of the petitioner.

III. Issue a writ order or direction in the nature of mandamus commanding and directing the respondents authorities to remove the illegal and arbitrary extension of chak-road in the bhumidhari land arazi No.271 area 1.1190 hectare situated in village-Terahara, Pargana-Kada, Tethsil-Sirathu, District Kaushambi as the same has been made without acquiring and paying any compensation and without taking petitioner any consent of and the petitioner.

IV. Issue a writ, order or direction which this Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case.

V. A award cost of petition to the petitioner."

Essentially, the principle relief sought by the petitioner is with regard to a direction be issued to the respondents not to make any road/path in the land of the petitioner bearing arazi no. 271 area 1.1190 hectare situated village-Terahara, Pargana- Kada, Tehsil-Sirathu, District Kaushambi and to further decide the representations and to remove illegal obstructions over the bhumidari land of the petitioner.

Learned counsel for the petitioner on the basis of the pleadings set forth in the writ petition has argued that he is the original tenure holder of arazi no. 271 admeasuring 1.1190 hectare situate in village-Terahara, Pargana- Kada, Tehsil-Sirathu, District Kaushambi and about 30 years back a chak-road was constructed over arazi no. 270, however, now its expansion is being done whereby now the land of the petitioner being arazi no. 271 has also been put to use for widening of the road. Learned counsel for the petitioner has further argued that on 15.03.2022 certain persons came in JCB and started excavation just in order to get the road widened and the petitioner in this regard, preferred representation/application on 15.03.2022 followed on 19.04.2022 before respondent no. 2/District Magistrate, Kaushambi. Learned counsel for the petitioner has invited attention towards paragraph no. 9 of the writ petition so as to further contend that neither any notification for acquisition nor any consent has been taken from the petitioner and further the petitioner has also not been paid any compensation.

Sri Sharad Srivastava, learned Standing Counsel who appears for all the respondents has argued that the factual controversy so sought to be raised by the petitioner cannot be decided in the present proceedings under Article 226 of the Constitution of India as already a Government Order has been issued on 12.05.2016 providing for redressal of the grievances in the matter pertaining to allegation of use of private land without consent of the owner of the land as well as ancillary and incidental issues of compensation. In nutshell, the argument of Sri Srivastava is to the extent that the petitioner may approach the respondent no. 2/District Magistrate, Kaushambi in terms of the Government Order dated 12.05.2016 and the respondent no. 2/District Magistrate, Kaushambi shall decide the same. Sri Srivastava has further produced the copy of the order dated 13.05.2022 passed in Writ-C No. 8484/2022 (Sangam Lal Singh Vs. State of U.P. & Others) wherein the similar controversy has already been decided by this Court. Order whereof in extenso is quoted hereinunder:-

"Heard Sri Ajendra Kumar, learned counsel for the petitioner as well as Sri Dalbir Singh, learned Standing counsel who appears for all the respondents.

This is a petition under Article 226 of the Constitution of India seeking following reliefs:-

"(i) Issue a writ, order or direction in nature of mandamus directing the state respondents to vacate land of petitioner or to pay compensation to petitioner for it regarding Gata No.87/0.588 Hectare.

(ii) Issue a writ, order or direction in nature of mandamus directing respondents to decide and consider the claim of the petitioner pending representation dated 09.09.2019 and 11.11.2021 before District Magistrate Kaushambi.

(iii) Pass such other and further order which this Hon'ble Court deem fit and proper under the facts and circumstances of the case.

(iv) Award the cost of the petition in favour of the petitioner."

Perusal of the relief as sought in the present writ petition reveals that a writ order or direction in the nature of mandamus be issued directing the State Respondents to vacate the land of the petitioner or to pay compensation to the petitioner regarding Gate No. 87/0.588 hectare situated at Village Chanderai Pargna Atharwan Tehsil Manjhanpur, District Kaushambi. Further the relief has also sought directing the respondents to consider the claim of the petitioner pending before it in the shape of representation dated 09.09.2019 and 11.11.2021 which is pending before the respondent no. 2, District Magistrate, Kaushambi.

Learned counsel for the petitioner has argued that the erstwhile Arazi no. 96 now new no. 87 is a minzumla number admeasuring 0.834 hectare which was recorded in the name of the father of the petitioner Ramadhar Singh however during the consolidation proceedings, it has been recorded as Gata No. 87mi/0.588 hectare in the name of the father of the petitioner and Gate No. 87mi/0.246 hectare in the name of Forest Department. Learned counsel for the petitioner has further argued that a Civil Suit No. 485 of 2005 was instituted by Gram Sabha before the Civil Judge (Junior Division), Kaushambi being Land Management Committee vs. Prabhu Dayal and Others arraying the present petitioner as a party seeking permanent injunction which came to be rejected on 23.09.2011 by the Court of Civil Judge (Junior Division), Kaushambi. Learned counsel for the petitioner has further drawn the attention towards page no. 36 of the writ petition so as to contend that the petitioner has instituted Writ- C No. 54719/2013 (Sangam Lal Singh Vs. State of U.P. and Ors) seeking relief of restoring the demarcation stone which came to be decided on 03.10.2013 while passing the following orders:-

"Grievance of the petitioner is that in the past demarcation proceedings have been undertaken and thereafter, stones in question have also been fixed, but thereafter said stones have been removed. Petitioner submits that for restoring back the aforementioned demarcation stones, he has already moved an application before the District Magistrate concerned and on the said application, cognizance has been taken, but till date proceedings have not been finalized.

Consequently, District Magistrate, Kaushambi is directed to see and ensure that said proceedings are finalized in accordance with law, preferably within period of next three months from the date of production of certified copy of this order.

With these observations, writ petition is disposed of."

Learned counsel for the petitioner has further sought to argue that now the State Respondents without acquiring the land in question and without even paying compensation have constructed a road and nala. He further argued that no consent what so ever was obtained from the petitioner and the petitioner at no point of time gave any consent for construction of road and nala. In nutshell the relief so sought by the petitioner is that he may be paid compensation for the land which has been compulsory used for the construction of road and nala or to vacate the land in question.

Sri Dalbir Singh, learned Standing Counsel has argued that the State Government in exercise of the powers as conferred therein, has issued a Government Order dated 12.05.2016 in pursuance whereof a committee has been constituted headed by Additional District Magistrate (Finance and Revenue) which is authorized to examine the matter and submit its report to District Magistrate with regard to the issue of payment of compensation as well as the prime issue regarding the fact as to whether any acquisition proceeding has been undertaken or not. Sri Dalbir Singh, learned Standing counsel has produced before this Court the order dated 09.05.2019 passed in Writ- C No. 14473of 2019 (Gayatri Devi And 2 Others Vs. Gayatri Devi And 2 Others) wherein the following order was passed:-

"1. This writ petition, inter alia, has been filed for the following relief:

"i) issue, a writ, order or direction in the nature of (sic) commanding the respondents not to constuct (link Road) from village Shitalpur (Tikari) to Gorapur (Bakseda) Sikandra, without providing (sic) to the petitioners as it posses through the Bhumidhari No. 752, 760, 762 and 772 respectively."

2. Heard learned counsel for petitioner, learned Standing Counsel and perused the record.

3. The grievance of the petitioner is that without acquiring the land lawfully, the respondent authorities are constructing public road over the land of the petitioners.

4. In pursuance of the order dated 25.4.2019 learned Standing Counsel has sought instructions in the matter. Learned Standing Counsel, on the basis of instructions received, has stated that the land in question has been acquired by the State, admittedly no compensation has yet been given to the petitioner.

5. Learned Standing Counsel has drawn our attention to the Government Order dated 12.5.2016 wherein it has been provided that when the land is being acquired without giving any compensation, the matter shall be considered by the Committee as constituted under the said Government Order and the committee after examining the matter, would submit its report within a period of two months before the concerned District Magistrate, who will act upon that report within one month thereafter.

6. Considering the facts and circumstances of the case, we direct the petitioner to file a representation in terms of the Government Order dated 12.5.2016 before the Committee, as constituted under the said Government Order, headed by the Additional District Magistrate (Finance & Revenue), who will examine the matter and submit its report to the District Magistrate concerned within a period of two months as provided in the aforesaid Government Order, who will proceed in the accordance with Government Order dated 12.5.2016 and pass final orders within a period of 30 days thereafter.

7. Before parting with the case, we are constrained to record our strong displeasure on the trend of taking possession of the private land of the citizens without acquisition or giving any compensation to them. Such practice is unsound and should be deprecated in no uncertain language. State authorities for the purpose of widening the road are taking the possession of the private land without acquisition or giving any fair compensation as provided under the relevant law. Before taking the possession, compensation as provided under the relevant statute has to be paid by the authorities. Under no circumstances the State should either acquire the land or take possession in contravention of the Right to Fair Compensation Act or any other relevant statute or prescribed procedure under the law. The act of the authorities concerned is in violation of the Article 14 and Article 300A of the Constitution of India. Under Section 300A of the Constitution of India, no person can be deprived of his property except by authority of law. Article 300A proclaims that a person cannot be deprived of his property merely by executive fiat without any specific legal authority or without support of law made by a competent legislature.

8. Compulsory acquisition without acquiring the land or making any payment of the property belonging to a private individual is a serious matter having grave repercussions on his constitutional right of not being deprived of his property without sanction of law. The State must exercise its power with great care and circumspection. Although right to property is no longer the fundamental right but still it is a constitutional right. It will be borne in mind that right to property no longer be a fundamental right but it is not only a constitutional right but also a human right and no one can be deprived of his or her property arbitrarily.

9. In view the above, Chief Secretary, Government of Uttar Pradesh, Lucknow is directed to ensure that action be taken against the erring officials who take the possession of the land from the owners illegally without adhering to the statutory provisions. We may emphasize that before taking possession of the land from its owner, the relevant provisions of law and rules made there under must be strictly adhered to.

10. With this observation, the writ petition stands finally disposed of.

11. Let a copy of this order be sent to the Chief Secretary, Government of Uttar Pradesh, Lucknow for strict compliance. Registrar General of this Court is also directed to circulate this order to all the Commissioners, District Magistrates as well as Vice Chairmans of the development authorities in the State."

Sri Dalbir Singh, learned Standing Counsel has further relied upon the judgment in the case of Writ- C No. 38044 of 2019 (Dayaram And 3 Others vs. State Of U.P. And 3 Others) dated 22.11.2019 which reads as under:-

"Heard learned counsel for the petitioners, Sri Akhilesh Kumar Singh appears for the Nagar Nigam, Sri Arun Kumar, learned counsel for the respondent no.4, learned standing counsel for the State and perused the material on record.

By means of this petition, the petitioners claims that they are the owner and title holders over the land of Arazi No.49/ 5014.93 situate at village Baswar Tehsil Karchana District Allahabad.

It is submitted that the said land was under the urban ceiling proceeding but in view of the Repeal Act, the same was released from the ceiling proceedings in the year 2008. In 2010, a notification has been issued for acquiring various land but in that notification the land of the petitioners have not been shown probably because the said land was under the ceiling proceedings. It is submitted that the land of the petitioners have been utilized/acquired by the Nagar Nigam, Allahabad without any acquisition proceeding being initiated or without payment of any compensation to the petitioners.

Learned counsel appearing for the Nagar Nigam however, submits that in case the petitioner has acquired title over the land and the same has been utilized, the appropriate authority is the District Magistrate as has been provided in Government Order dated 12.5.2016, in our considered opinion no useful purpose would be served in keeping the petition pending and direction issued to the District Magistrate, Allahabad to consider the claim of the petitioners and pass appropriate orders in accordance with law without unnecessary delay from the date of production of a certified copy of this order before him.

The writ petition is disposed off accordingly."

Sri Ajendra Singh, learned counsel for the petitioner as well as Sri Sri Dalbir Singh, learned Standing Counsel have consented that the present writ petition be decided in terms of the decisions in the case of Gayatri Devi (Supra) and Dayaram (Supra).

We have carefully considering the submission of the rival parties and also perused the record thus, without seeking any response from the respondents, the present writ petition is being disposed of with a direction that the claim so set up by the petitioner with respect to the issue of use of his land viz a viz the issue of acquisition and compensation, be decided in terms of the Government Order Dated 12.05.2016 in accordance with law preferably within the period of three months from the date of production of certified copy of this order.

With the aforesaid observation, the present petition stands disposed of."

Accordingly, the present petition is also disposed of in the light and terms of the order dated 13.05.2022 passed in Writ-C No. 8484/2022 (Sangam Lal Singh Vs. State of U.P. & Others) which is quoted above.

Order Date :- 23.5.2022

Nisha