SHIV NATH SETH v. STATE OF UTTAR PRADESH — 1999 DIGILAW 1840 (ALL)

RAVI S. DHAVAN, J. ( 1 ) IN Uttar Pradesh, the Court has had several occasions noticing usurpation and illegal occupation of the properties of citizens in violation of the procedure established by law. This is another case. The Court will revert to other cases subsequently in this order. ( 2 ) THE petitioner, Shiv Nath Seth, resident of Kerakat, Post Office Sadar, district Jaunpur, had his Bhumidhari plots No. 12/164 area 32 decimal and plot No. 2 area 3 decimal walked into by the respondents without any authority and on the property of the petitioner, the U. P. Jal Nigam, established under the U. P. Water Supply and Sewerage Act, 1975, constructed a pumping set and sewerage drain under the Gomti Pollution Control Project. ( 3 ) THE petitioner complains that after the plot had been occupied and taken, ostensibly for establishing a public project, the acquisition should have been made under the procedure established by law so that the petitioner could object to the acquisition, which, if rejected, would have entitled him, as of right, to compensation. The contention, on behalf of the petitioner, is that this usurpation of his property has deprived him to object against the illegal occupation of his property and compensation both. The petitioner contends that 20 years have passed and he is getting on in years as he is 75 years old today and has been left with no choice except to accept the compensation which also is not forthcoming. The petitioner contends that his land had been possessed for a public project is not an Issue and as late as October 5, 1997 (Annexure-1 to the petition), the Tehsildar certified the occupation of the petitioners plots for the purposes of executing a public project. The petitioner also contends that of an occupation which was made 20 years ago, the records are being certified after two decades. Then, the petitioner contends that the District Magistrate, Jaunpur, has written to the General Manager, U. P. Jal Nigam, Lucknow, by his communication of April 2. 1998 (Annexure-2 to the writ petition) that the petitioner be paid compensation in accordance with law for the acquisition which has been made for executing the project under the Gomti Pollution Control Project. Then, the petitioner contends that the District Magistrate, Jaunpur, has written to the General Manager, U. P. Jal Nigam, Lucknow, by his communication of April 2. 1998 (Annexure-2 to the writ petition) that the petitioner be paid compensation in accordance with law for the acquisition which has been made for executing the project under the Gomti Pollution Control Project. The petitioner submits that the district Magistrate repeated his request to the General Manager, U. P. , Jal Nigam, Lucknow, by his communication of May 13, 1998 (Annexure-3 to the writ petition) that the compensation against the acquisition be processed without any further delay, yet, the petitioner has not received the compensation. The petitioner further pleads that the Chief Engineer (East ). U. P. Jal nigam, Allahabad, had even been advised by a member of the Legislative Assembly, the Honble mr. Reoti Raman Singh, that the delayed compensation ought to be paid to the petitioner. This aspect is to be found in a communication (Annexure-4 to the writ petition) written by the superintending Engineer (Ganga) to the Chief Engineer (East), U. P. Jal Nigam, Allahabad. The petitioner submits that no attention has been paid to this matter of payment of compensation to the petitioner. The petitioner further submits that irrelevant correspondence is being made and this is evidenced by the fact that the Executive Engineer, U. P. Jal Nigam, Jaunpur, is writing to the Executive Engineer, VII Region, Varanasi, and seeking clarification whether the petitioners plot had in fact been acquired for the public project and that a report be submitted on this aspect (Annexure-5 to the writ petition ). ( 4 ) ON behalf of the petitioner, it is contended that this is a frustrating exercise that once it is on record that even the project has been executed and complete on the petitioners land, there should be no question of seeking further reports whether the land had in fact been possessed by the State respondents. The State of Uttar Pradesh has not replied to the writ petition. Though, if an acquisition of land has been done under the procedure prescribed by law, the sovereign powers of the State could be utilised and that also by an acquisition under the Land Acquisition Act, 1894. The State of Uttar Pradesh has not replied to the writ petition. Though, if an acquisition of land has been done under the procedure prescribed by law, the sovereign powers of the State could be utilised and that also by an acquisition under the Land Acquisition Act, 1894. On behalf of the U. P. Jal Nigam, the petition has been answered by a counter-affidavit by a Noter and Drafter of the Construction Division, U. P. Jal Nigam. Jaunpur. This in Itself implies that the high officials are evading the responsibility to reply to the writ petition. ( 5 ) IN the counter-affidavit, which has been sworn by a Noter and Drafter, basically a clerk with the U. P. Jal Nigam, Jaunpur, it is estimated that the project was prepared at an estimated cost of rs. 18. 44 lakhs in 1970-71. The funds were provided by the State Government. The project was executed by the U. P. Jal Nigam, at the site which was made available by the Nagar Pallka, jaunpur. It is accepted that the land on which the project was executed, belongs to the petitioner, shiv Nath Seth. It is contended that the petitioner did not raise any claim or make any complaint about possession having been taken of his land nor any complaint about non-payment of compensation. The counter-affidavit submits that the Jal Nigam was under the impression that the matter of compensation may have been settled between the Nagar Palika, Jaunpur, and the petitioner and that the U. P. Jal Nigam merely executed the scheme under the project. It is also contended in its counter-affidavit that the petitioner is not entitled to claim compensation at the present market value. A technical plea is raised that the petitioner has not impleaded the Nagar pallka, Jaunpur. The counter-affidavit also mentions that as in accordance with the record available, the U. P. Jal Nigam did not acquire the land of the petitioner nor is there any liability to pay compensation to the petitioner by the U. P. Jal Nigam. Simultaneously, it is contended in the counter-affidavit that when the District Magistrate, Jaunpur, by his letter of April 2, 1998 wrote to the U. P. Jal Nigam "the matter was referred to respondent No. 3. " The respondent No. 3 happens to be the General Manager, Gomti Pollution Control Unit, U. P. Jal Nigam, Lucknow. Simultaneously, it is contended in the counter-affidavit that when the District Magistrate, Jaunpur, by his letter of April 2, 1998 wrote to the U. P. Jal Nigam "the matter was referred to respondent No. 3. " The respondent No. 3 happens to be the General Manager, Gomti Pollution Control Unit, U. P. Jal Nigam, Lucknow. A technical plea is raised that the petitioner has filed a case before the Consumer Protection forum, Jaunpur, and has not stated that he has withdrawn the case and that the petitioner has complained to the Additional District Magistrate (Finance and Revenue), Jaunpur, about not having received the compensation. The counter-affidavit which has been filed, and a clerk has been required to affirm it, is a bundle of contradictions. The only conclusion the Court can draw from this counter-affidavit is that the records are being shuttled inter office. There is no urgency to process the payment of compensation to the petitioner. It is accepted that the scheme was executed by the U. P. Jal Nigam and, simultaneously, this Corporation asserts that it has no liability or responsibility to arrange for compensation to the petitioner. ( 6 ) IN the rejoinder-affidavit, the petitioner asserts that he is a poor citizen and he expects that in a welfare State, the State and its constituents would function by the rule of law, so provided under the Constitution, and the compensation would be forthcoming, after his land has been acquired. The petitioner also mentions in his rejoinder-affidavit that at one stage the Executive Engineer. Construction Division, U. P. Jal Nigam, Jaunpur, had written to the General Manager. Gomti pollution Control Unit, by assessing the compensation at Rs. 4,85. 340 (Annexure-1 to the rejoinder-affidavit ). In answer to the technical pleas taken in the counter-affidavit of U. P. Jal nigam, the petitioner asserts that he may have filed a case before the Consumer Forum incorrectly as this may not be the competent authority to look into the matter of compensation. In arguments counsel for the petitioner has asserted that the land of the petitioner has not been acquired, but possessed illegally in violation of all procedures relating to acquisition. It is submitted that the rule of law has been violated. In arguments counsel for the petitioner has asserted that the land of the petitioner has not been acquired, but possessed illegally in violation of all procedures relating to acquisition. It is submitted that the rule of law has been violated. It is reiterated that the petitioner is being harassed by officials of U. P. Jal Nigam as well as the State in being denied compensation when his land was taken 20 years ago. Learned counsel for the petitioner vehemently pleaded before the Court that he would have sought the return of his land and that he ts entitled to this relief because there is no land acquisition proceedings. But, it was submitted that the petitioner is, 75 years old, today, and would rather see receipt of compensation in his hands calculated at the market rate and since it has not been paid, it should be deemed that his land has been possessed as a continuing wrong so that it is calculated at the market rate with all the consequences for awarding the compensation under the Land Acquisition Act, 1894. ( 7 ) IN this regard, the State respondents have evaded reply to the petition, though there was no lack of opportunity to answer the writ petition ; certain orders of the Court needs to be noticed. Despite an order of the High Court that the counter-affidavit should be affirmed by the Executive engineer, Construction Division, U. P. Jal Nigam, Jaunpur, or the Superintending Engineer, VII region, Varanasl, the counter-affidavit was not verified by these respondents. The Court required the counter-affidavit on behalf of the State to be filed by the District Magistrate. Jaunpur. The District Magistrate, Jaunpur, did not reply to the writ petition. The Court issued a rule of mandamus to the respondents that the claim of the petitioner for compensation be processed or cause be shown by the respondents, named in the order of the Court. Cause was not shown by any of the respondents. The record rests with the responsible officers not verifying the counter-affidavit and deputing a clerk to reply to the petition. The District Magistrate chose not to reply to the petition. Cause was not shown by any of the respondents. The record rests with the responsible officers not verifying the counter-affidavit and deputing a clerk to reply to the petition. The District Magistrate chose not to reply to the petition. ( 8 ) IN the circumstances, the three orders of the Court reflecting on the manner in which the officers have evaded responding to the petition are reproduced below : "september 30, 1999 honble Ravi S. Dhavan, J. Honble B. Dikshit, J. Standing counsel reports that he has no instructions as of date. Jal Nigam has had an affidavit filed, which affidavit has been affirmed by a Noter and Drafter whose position is not better than a Clerk. He has been deputed to file an affidavit on behalf of (1) Executive Engineer, constructions Division, U. P. Jal Nigam, Jaunpur, and (2) Superintending Engineer, 7th Region, u. P. Jal Nigam. Varanasl. As the affidavit fs without responsibility, both these respondents will be present in the Court when the matter is fixed next. They are to verify the affidavit which has been filed before the Court. They are put at caution on responsibility before they verify the affidavit that should it need a change in pleadings, then they must first seek permission of the Court. The Court has already recorded in its order dated March 24, 1999 that the standing counsel has notice of the petition since December 21, 1998. Standing counsel will ensure that a counter-affidavit is filed by the District Magistrate, Jaunpur, forthwith. Enough opportunities have been given to all the respondents to reply the petition. Let respondents be under a rule of interim mandamus to respond to the claim which the petitioner has prayed for payment of compensation or show cause as both the respondents have yet to file affidavits. The Jal Nigam has yet to file an affidavit of a responsible officer whereas the State has not filed any affidavit. Put up on October 6, 1999. October 7. 1999 honble Ravi S. Dhavan. J. Honble B. Dikshit, J. Present : mr. H. N. Singh, counsel for the petitioner. Mr, Ashok Mehta. Chief Standing Counsel, U. P. Mr. K. B. Mathur, counsel for the U. P. Jal Nigam. Unfortunately, despite the matter being pending for long as of date the State of Uttar Pradesh has not filed a counter-affidavit. 1999 honble Ravi S. Dhavan. J. Honble B. Dikshit, J. Present : mr. H. N. Singh, counsel for the petitioner. Mr, Ashok Mehta. Chief Standing Counsel, U. P. Mr. K. B. Mathur, counsel for the U. P. Jal Nigam. Unfortunately, despite the matter being pending for long as of date the State of Uttar Pradesh has not filed a counter-affidavit. The counter-affidavit which had been filed on behalf of the Jal nigam, the Court had noticed, had been affirmed by a Noter and Drafter. The Court did not accept this as an affidavit of responsibility, but permitted the same counter-affidavit to be verified by those who had been as respondents. The respondents concerned were also required to be present in Court today. The counter-affidavit has not been" verified by these respondents. In the circumstances, in so far as the State of U. P. Is concerned, it has chosen not to reply to the petition. In so far aa the U. P. Jal Nigam is concerned, it has not filed an affidavit of responsibility. This state of the record in itself is a very serious matter. The petitioner complains that bis land had been allegedly acquired 20 years ago. The petitioner had it submitted that there were no land acquisition proceedings. The petitioners counsel submitted that the petitioner did file a case before the consumer forum and this had been done on wrong advise of the counsel. The legal submission made on behalf of the petitioner is that there is no land acquisition proceedings and the very nature of usurpation which the respondents have done is unlawful as no provision has been made for the alleged occupation to be followed by consequential processing and payment of compensation. This, the petitioner submits in paragraph 9 of the writ petition. The petitioner contends the land which was acquired is his bhumidhari and was in his personal cultivation and was otherwise within the ceiling limits that is to say that the U. P. Imposition of Ceiling on Land holdings Act. 1960. The first question which has to be determined is whether the assertion of the petitioner that there were no land acquisition proceedings is correct or Incorrect. 1960. The first question which has to be determined is whether the assertion of the petitioner that there were no land acquisition proceedings is correct or Incorrect. On this no issue has been raised and it has been accepted both by learned counsel appearing on behalf of U. P. Jal Nigam for whose benefit It was claimed that the land had been acquired that there were no land acquisition proceedings. Learned Chief Standing Counsel. U. P. , has also made a statement that there are no land acquisition proceedings. As the solitary affidavit filed before the Court on behalf of the U. P. Jal Nigam is an affidavit without responsibility and the State of U. P. has not filed an affidavit, the Court has no option, but to presume that the respondents have nothing to submit in reply to the petition. The first submission which was made on behalf of the U. P. Jal Nigam by its counsel is that it was not its responsibility to arrange for compensation as this was the obligation of the State of U. P. On behalf of the State of U. P. , learned Chief Standing Counsel offered the following arguments : (a) It is correct that there were no land acquisition proceedings, (b) It is accepted that the land of the petitioner had been trespassed by the State of Uttar Pradesh, (c) It is acknowledged that compensation has not been paid to the petitioner ; and (d) That the State respondents would be advised to process the compensation. It was accepted that despite notice on the petition since December, 1998, learned Chief Standing counsel has received no instructions in this matter. Thus, the Court will confine the arguments as have been given against (a), (b) and (c ). The last argument submitted by learned Chief standing Counsel, U. P. , Is that notwithstanding that there were no land acquisition proceedings and that the respondents have trespassed into the land of the petitioner, yet at best, the petitioner is only entitled to compensation and the situation cannot be restituted by returning the land to him. This submission is a cause for concern. This submission is a cause for concern. When the Chief Standing Counsel, U. P. , was required to explain and fortify the submission, he contended that the land had been trespassed for a public project fn the larger interest of the public and, therefore, the petitioner can only receive ex post facto compensation, at best, under the Land Acquisition Act, 1894, but no restitution. It was contended by learned Chief Standing Counsel. U. P. , that the State is entitled to exercise its sovereign powers for a public project in the public interest, though land acquisition proceedings may not take place. What the learned Chief Standing Counsel, U. P. , has contended is that the state may utilise its sovereign powers sans the procedure prescribed by law. This may be a dangerous argument which will need to be fortified by learned Chief Standing Counsel, who was otherwise busy during the post lunch session. The case was adjourned to tomorrow. The Court was obliged to record these submissions, regard being had to the seriousness of the circumstance that a citizen has been guaranteed his rights to possess a property which will not be acquired except by the procedure established by law. Simply put land acquisition proceedings may be set in motion and the State may use its sovereign powers strictly under the rule of law. "put up tomorrow. October 14. 1999 honble Ravi S. Dhavan. J. Honble B. Dikshit, J. This is a case where the State of Uttar Pradesh has elected not to file a counter-affidavit. It is sufficiently recorded in the proceedings that there was no lack of opportunity to reply to the petition. The Court gave Indulgences to the District Magistrate. Jaunpur, to reply to the petition. In this regard, the Chief Standing Counsel on behalf of the District Magistrate sought adjournments. The petition remains unreplied, as of date. In this matter as a counter-affidavit was not forthcoming the action was being justified as taken under the sovereign powers of the state. The Chief Standing Counsel after the order of October 7, 1999 had the matter adjourned because even If compensation is to be processed, then, the District Magistrate and Collector does come Into the picture. The case was adjourned on 8th October. 11th October, 12th October and 13th October. The Chief Standing Counsel after the order of October 7, 1999 had the matter adjourned because even If compensation is to be processed, then, the District Magistrate and Collector does come Into the picture. The case was adjourned on 8th October. 11th October, 12th October and 13th October. The Chief Standing Counsel reports to the Court that it is no record that he had a talk with the district Magistrate and Collector on October 10, 1999 that this matter may need his presence. Today, the Chief Standing Counsel reports that the District Magistrate and Collector having been advised, regard being had to the circumstances of this case, that her presence would be necessary, is now informed that the District Magistrate and Collector has gone on leave until 16th October. The Chief Standing Counsel also submits that whatever had to be ratified by the district Magistrate and Collector, cannot be done by the Additional District Magistrate (Finance ). The writ petition remains unreplied. First Intimating the Court that the District Magistrate and Collector will be available to the Court and then the official takes leave is an act of discourtesy. This leaves the Court with no option but to reserve the Judgment on this case. Order/judgment reserved. " ( 9 ) IN the net result, the approach of the State respondents is callous, arbitrary and disrespect to the laws of the nation. The word, acquisition, in reference to property, implies that it would be in accordance with the procedure established by law. To usurp the property of a citizen, retain Its possession and use it for State use without recourse to acquisition proceedings, as are prescribed by the law, is an anti-thesis to the rule of law. It is disrespect to the Constitution of India. Under article 300a, the right to property is recognised. This Article, as it appears under Chapter IV, is reproduced : "chapter IV right TO PROPERTY 300a. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law. " ( 10 ) A plain reading of Article 300a under the head right to Property leaves no doubt that the constitution of India recognises a persons right to hold property. The Constitution of India further stipulates that no person shall be deprived of his property, possession or title except under the procedure prescribed by law. " ( 10 ) A plain reading of Article 300a under the head right to Property leaves no doubt that the constitution of India recognises a persons right to hold property. The Constitution of India further stipulates that no person shall be deprived of his property, possession or title except under the procedure prescribed by law. The respondents have violated Article 300a of the constitution of India with impunity. They have deprived the petitioner of his property and have taken possession from him under a camouflage that it was being done as a State action for a public project. This cannot be done. The argument raised by the Chief Standing Counsel that the property of the petitioner had been taken under the sovereign powers of the State is without satisfying the High Court as to how these powers were utilised without recourse to the law, the rule of law. It can only be done in a dictatorship where the rule of law does not hold. Such an argument cannot be made in a democracy, which protects the liberty of a citizen including his right to property and protects its usurpation against an illegal State action. Only if an Act of parliament permits the State to take action for acquirement of a property for a public purpose, only then, the property of a citizen may be subjected to acquisition. Even under the law of acquisition, a declaration of intention has to be announced that a public scheme or project is to be executed and It is proposed to acquire certain specified properties. All this did not take place in the present case. ( 11 ) IN a recent case. Writ Petition No. 32729 of 1998 Durga, Prasad and another v. State of Uttar pradesh and others, decided on 14. 10. 1999, the Court found that there were large scale arbitrary acquirement of agricultural lands in east Uttar Pradesh for the purpose of executing public scheme like irrigation and canals. 2650 people were left without compensation. No land acquisition proceedings were initiated. The Court required the Central Bureau of Investigation to make a report. The C. B. I, reported to the Court that agriculturists had been deprived of their land without acquisition proceedings and about Rs. 775 lacs has yet to be paid as compensation to more than two thousand people. No land acquisition proceedings were initiated. The Court required the Central Bureau of Investigation to make a report. The C. B. I, reported to the Court that agriculturists had been deprived of their land without acquisition proceedings and about Rs. 775 lacs has yet to be paid as compensation to more than two thousand people. The Court has sent the report of the C. B. I, to the Comptroller and Auditor General of India. ( 12 ) IN the present case also, the finance for the public project for setting up a pump house and for anti-pollution measures for the Gomti River had been sanctioned as a public scheme. Acquisition proceedings had not been taken out. The Court would not know whether compensation had been deposited or not. The respondents do not reply to the petition. The petitioner has not received compensation, even though his land had been acquired more than 20 years ago. Thus, in the present case it would be appropriate that this matter is reported to the Accountant General, Uttar pradesh. Public moneys must be accounted for and must be used strictly in accordance with the procedure established under the law. If the money is sanctioned for a public scheme and such a scheme has been executed on the petitioners plot, then, the law expects and the Constitution of india obliges the respondents to take out acquisition proceedings. The petitioner, at every given time, had the protection of Article 300a that he would not be deprived of his property, except in accordance with law. The petitioner was deprived and dispossessed of his property in total violation of the law and the Constitution, both. The Court now is left with no option, but to require the District Magistrate. Jaunpur, to cause a statement of compensation to be filed before the District Judge, Jaunpur, within fifteen days from today. On this, the petitioner will be entitled to object. The District Judge, Jaunpur, will settle the claim and ensure that the compensation is compatible with the criteria prescribed in the Land Acquisition Act, 1894. It goes without saying that the compensation is to be paid to the petitioner in accordance with the current market rate, as of date, for the simple reason that it is acknowledged that there were no proceedings for the acquirement of the land of the petitioner in accordance with law. It goes without saying that the compensation is to be paid to the petitioner in accordance with the current market rate, as of date, for the simple reason that it is acknowledged that there were no proceedings for the acquirement of the land of the petitioner in accordance with law. Thereafter, it will be open to the District Judge, Jaunpur, to modulate the solatium and interest, if the law permits, on the compensation as prescribed under the Act, aforesaid. The matter will be settled by the District judge, Jaunpur, within to months of a certified copy of this order being received by him from the registrar, High Court. The Registrar, High Court, will ensure that this order and judgment reaches the District Judge. Jaunpur, forthwith. ( 13 ) THE respondents could not justify the acquisition proceedings under any procedure established by law and further violated Article 300a of the Constitution of India to deprive a person of his property nakedly in violation of the due process of the law. Further the respondents despite an order of the Court, did not file the counter-affidavit by a responsible officer, neither the U. P. Jal Nigam nor the State of U. P. which did not file a reply at all. In these circumstances, the Court considers it appropriate that each set of respondents, that is, the U. P. Jal Nigam as well as the State of Uttar Pradesh shall be subject to costs, to be deposited with the Registrar, high Court, within fifteen days from today. These costs will stand as Rs. 10,000 against the U. P. Jal Nigam, one set and Rs. 10,000 against the State of Uttar Pradesh second set to be paid by the district Magistrate. Jaunpur, who had knowledge of the acquisition proceedings, but would not file the counter-affidavit, despite an order of the Court. ( 14 ) A copy of this judgment will be sent by the Registrar, High Court, to the Accountant general. U. P. , for an audit on the public project on the manner of initiating it and its execution. ( 15 ) THE petition is allowed with costs, as above. .