JUDGMENT By the Court.—The petitioners have come up before this Court for wrongful act of the respondents in taking away their land against the provisions of law. They have claimed compensation and damages for their dispossession from the land. 2. We have heard Sri G.K. Singh, learned Counsel for the petitioners and learned Standing Counsel for the respondents. 3. The facts disclosed in the writ petition show that the petitioners were owners of plots mentioned in para 4 to 8 of the writ petition separately and different portion of different plots were taken away by the respondents for the construction of Lalganj by-pass Road on Azamgarh-Varanasi highway. No legal procedure was adopted by the respondents in taking away the land of the petitioners. The compensation awarded was also nominal. The land of the petitioners was taken in the year 1986 as disclosed in para 20 of the writ petition, but the compensation has not been paid so far. The Executive Engineer, PWD, Azamgarh had proposed compensation at the rate of Rs. 1,000 per sq. meter to the petitioners which was not accepted by the Special Land Acquisition Officer. Similar land of other persons were also taken by the respondents, for which the compensation at the rate of Rs. 1,400 per sq. meter was paid but the petitioners were offered compensation at the rate of Rs. 234 per sq. meter. By way of the writ petition, the petitioners want payment of compensation at the enhanced rate along with interest and damages and in alternative, they have sought for recovery of possession. 4. In the counter affidavit filed by Mr. Satya Prakash Bharti, Assistant Engineer, PWD, Azamgarh, this fact has been admitted that the land of the petitioners was taken by the respondents for construction of Lalganj bye-pass Road in Azamgarh-Varanasi highway. The compensation at the rate of Rs. 6,63,265.30 per acre was fixed for the land situate in village Maseerpur and Rs. 3,78,181.82 per acre for the land situate in village Retwa Chandrabhanpur and a number of tenure-holders received compensation on the said rate and executed sale deeds in favour of respondents but the petitioners refused to receive compensation. The land for which compensation at the rate of Rs. 1,400 per sq. meter was awarded to some tenure-holders was situate by the side of main highway. The land for which compensation at the rate of Rs. 1,400 per sq. meter was awarded to some tenure-holders was situate by the side of main highway. Due to construction of bye-pass road, remaining portion of land of the petitioners have become more valuable. In the supplementary counter affidavit, filed by Mr. Sultan Ahmad, Assistant Engineer, PWD, Azamgarh, it has been mentioned that by mutual understanding a number of tenure holders have executed sale deeds in favour of respondents and have received compensation. The land of the petitioners was totally unfit for agriculture and the respondents are ready to pay compensation to the petitioners at the rate of Rs. 3,78,181.82 per acres. They are not entitled for more compensation. 5. From the contents of writ petition and counter affidavit referred to above, it is clear that land of the petitioners was taken by the respondents for construction of Lalganj bye-pass road in the year 1986 and road has already been constructed thereon and is being used by the public but nowhere it has been disclosed in the counter affidavit that land of the petitioners was taken by the respondents with their consent or there was any mutual understanding or agreement between them. In the supplementary counter affidavit, only this much has been said that a number of tenure holders have executed sale deeds and received compensation fixed by the respondents by mutual understanding. Nowhere it has been alleged that the petitioners had also given consent for transfer of land or were ready to receive compensation fixed by the respondents. Annexure-CA-1 clearly shows that the meeting was called by the Executive Engineer PWD and some other officers of district Azamgarh, in which a number of tenure holder had participated but contents of minutes of meeting show that the parties could not reach to any conclusion and no mutual understanding could be formed. There is nothing on record to show that how the compensation amount was determined. Annexure-3 to the writ petition only shows that the Collector, Azamgarh had fixed rates for the land of different villages but on what basis rate was fixed is not clear. 6. No doubt, right to property is not a fundamental right but nonetheless the Constitution of India under Article 300A guarantees its citizens that this legal right can be taken away only by some enactment. 6. No doubt, right to property is not a fundamental right but nonetheless the Constitution of India under Article 300A guarantees its citizens that this legal right can be taken away only by some enactment. For ready reference Article 300A of Constitution of India is quoted below : “Article 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”. 7. The property of any citizen can be taken by the State only in accordance with law. The Land Acquisition Act has been enacted for said purpose. If any acquisition is not made within the provisions of said Act, the land can be taken by consent or mutual agreement also. The consent or mutual agreement should be on record. It cannot be oral. The land can also be purchased from the owners by registered sale deeds by giving its price acceptable to them. But in no case, the property of a citizen can be taken away by the State without following the procedure of law and without consent or agreement between the parties. 8. In the present case before us, this is admitted position that the land of the petitioners was taken by the State for construction of road without their consent and without following the procedure prescribed under Land Acquisition Act. Admittedly road had already been constructed and the petitioners have been dispossessed from their land and no compensation has yet been given to them. Nowhere it is on the record that the petitioners’ land was taken by the State with their consent or with their agreement. In the counter affidavit, it has been mentioned that District Level Committee convened a meeting on 8.10.2002, in which several tenure holders had also participated and the matter for payment of compensation was discussed and the rate for the land situate in village Maseerpur was fixed as Rs. 6,63,265.30 per acre and that of village Retwa Chandrabhanpur Rs. 3,78,181.82 per acres. It has also been mentioned in the affidavit that the respondents are ready to pay compensation to the petitioners on the above rate. The petitioners have alleged that said rates are too low whereas respondents had already paid to some tenure holders at the rate of Rs. 1,400 per sq. meter and not only this, the Executive Engineer, PWD, Azamgarh had suggested rate of Rs. The petitioners have alleged that said rates are too low whereas respondents had already paid to some tenure holders at the rate of Rs. 1,400 per sq. meter and not only this, the Executive Engineer, PWD, Azamgarh had suggested rate of Rs. 1,000 per sq. meter which was not accepted by Special Land Acquisition Officer. 9. In the case of Santosh Kumar Tiwari v. District Magistrate, Deoria and others, 1999(1) AWC 661 , Division Bench of this Court adversely criticised the manner in which the petitioner of that case was dispossessed from his Sehan land for construction of Sulabh Sauchalaya. In that case, the Sehan land of the petitioner was forcibly occupied by the Gaon Sabha and Sulabh Sauchalaya was constructed thereon. No procedure of acquisition was followed and no consent was taken. The compensation was also not paid. The High Court ordered for removal of Sulabh Sauchalaya constructed on the land. In the case of R.L. Jain v. DDA and others, 2004(4) SCC 79 , the Apex Court has also observed that generally the acquisition of property of a citizen is made by following provisions of the Act. The property can also be taken by voluntarily agreement. If the property is taken by force and without following the procedure prescribed, that is not permissible under law. In the case of State of U.P. and others v. Manohar, 2005(2) SCC 126 , the Apex Court awarded exemplary cost of Rs. 25,000 on the State who had taken land of respondents without following the procedure of law. In that case, the land of respondents was taken by the State for construction of building without process of law and without consent of the owner and no compensation was paid. In the case of Luxmi Narain and others v. Nagar Palika, Shamli, distt. Muzaffarnagar and others, 2004 (2) UPLBEC 1820, the Division Bench of this Court referring the case of Awadh Narain v. State of U.P. (Civil Misc. Writ Petition No. 46187 of 2000 decided on 25.2.2004) made following observations : “This country is governed by the rule of law. Nobody’s land can be acquired except in accordance with the provisions of some statute, otherwise Article 300A of the Constitution will be violated." 10. Writ Petition No. 46187 of 2000 decided on 25.2.2004) made following observations : “This country is governed by the rule of law. Nobody’s land can be acquired except in accordance with the provisions of some statute, otherwise Article 300A of the Constitution will be violated." 10. In that case, land of the petitioner was forcibly occupied by Nagar Palika Shamli for construction of road without following procedure prescribed under Land Acquisition Act and no compensation was paid. The Court directed the State either to restore possession of the property to the owner or to pay compensation on the market value with other benefits provided under Land Acquisition Act. Same view was taken by another Division Bench of this Court in Civil Misc. Writ Petition No. 5766 of 2004, Ram Pyare and others v. State of U.P. and others, decided on 28.10.2004. In the case of Binu Sinha and others v. State of U.P. and others, 2008(2) ADJ 476 , another Division Bench of this Court also took the matter very seriously where the land was occupied by the State without following any of the legal mode. During the pendency of that writ petition, the part payment of compensation was made which was totally inadequate. The case of R.N. Gupta and others v. State of U.P. and others, (Writ Petition No. 48 (L/A) of 1997 decided on 6.4.2004 was referred in which following observations was made : “Before parting, we express our concern in the manner the State and the L.D.A. has dealt with the issue involved in the present case. Land of the petitioner was taken without acquiring under the provisions of law in February, 1986. L.D.A. made several requests and also sent proposal to the State Government for acquiring the said land as per law and on 1.8.1996 also made certain payment to the Additional District Magistrate, as demanded by him but despite the correspondence made by the L.D.A. the land was not notified under the provisions of Land Acquisition Act and though the possession was taken in February, 1986 but compensation was not awarded nor paid. The result is that a huge liability of money along with interest has accrued on the State Government or the L.D.A. or the HAL as the case may be. The result is that a huge liability of money along with interest has accrued on the State Government or the L.D.A. or the HAL as the case may be. The payment of interest for indefinitely long period without there being just case would be acting in a manner which does not protect the interest of public exchequer. Indifferent and casual attitude on the part of the respondents in not awarding compensation immediately when the possession was taken and not taking proceedings for acquisition even though L.D.A. approached the State Government in this regard and allowing increasing liability of interest cannot be appreciated. It is a matter which has to be considered by the State Government and therefore, it is desirable that all such cases be looked into by the State Government where possession has been taken without following the provisions of Land Acquisition Act or any other such Act. The compensation should be awarded at the earliest so that liability of interest is not multiplied by leaps and bounds. The State would be at liberty to fasten the liability upon the erring officers, who may be found responsible for accrual of such a large amount of interest and for recovering the same either wholly or partly if the State so desires”. 11. In the present case before us, same story has been repeated. Since land of the petitioners has not been acquired under Land Acquisition Act, therefore, no method is prescribed for fixing compensation except agreement between the parties. As we have discussed earlier, there was no agreement between the parties about compensation. This plea of the respondents is not acceptable that since a large number of tenure holders have received compensation fixed by the Collector, Azamgarh and have executed sale deeds in favour of the State, therefore, the petitioners should also raise no objection and execute sale deed on the same rate. In the case of State of U.P. v. Manohar (supra), the Apex Court awarded interest @ 9% per annum on the compensation amount. Since assessment of compensation has been given under Land Acquisition Act and in the present case land has not been acquired under said Act, therefore, it is not clear that what should be method of assessment of compensation. Some light has been thrown by the Division Bench of this Court in the case of Luxmi Narain and others referred to earlier. Some light has been thrown by the Division Bench of this Court in the case of Luxmi Narain and others referred to earlier. In that case, following directions were given : “In the circumstances, we direct the respondents to either restore possession of the property in dispute forthwith to the petitioner or to pay the full market value of the land as well as additional compensation under section 23(1-A) and solatium of 30% under section 23(2) of the Land Acquisition Act as well as interest at 12% per annum on the above amounts from 1986 (when possession was taken by the respondents) till the date of payment. The payment of the entire amount mentioned above must be made within six months from today. The District Judge, Muzaffarnagar shall fix the market value of the property in accordance with the Land Acquisition Act after hearing the parties within four months from today and the entire payment must be made to the petitioners within two months thereafter i.e. within six months from today. In addition to the above the amounts, the Nagar Palika Shamli will also pay an exemplary cost of Rs. Two lacs within two months from today to the petitioner for their wholly illegal and high handed action. Petition is allowed. The petitioner shall communicate this order to the DM Muzaffarnagar forthwith”. 12. In the case of Binu Sinha also referred to above, some relevant observations have been made. It is pertinent to mention here that if property of a citizen is acquired under Land Acquisition Act, he can get market value plus solatium and interest but if same land is taken away by the State without following process of law, the amount of compensation is fixed arbitrarily. If there is agreement between the parties, then nothing is wrong but if there is no agreement, the owner is put to loss because his land has not been acquired under the provisions of any Act. Therefore, this view taken by earlier Division’ Benches of this Court referred to above is quite reasonable that whenever property of a citizen is taken by the State without following the procedure prescribed by law, it is open for the owner of the property to claim back possession or compensation on the market value along with solatium and interest. 13. Therefore, this view taken by earlier Division’ Benches of this Court referred to above is quite reasonable that whenever property of a citizen is taken by the State without following the procedure prescribed by law, it is open for the owner of the property to claim back possession or compensation on the market value along with solatium and interest. 13. In view of our above discussions, we allow the writ petition and direct the Collector, Azamgarh to pay compensation to the petitioners for their land on which road has been constructed within a period of four months from the date, a certified copy of this order is produced before him. While assessing the compensation, the Collector will give opportunity to the petitioners to produce evidence and then decide the market value of the land on the date of taking possession. The petitioners will also be given solatium on the market value at the rate of 30% and interest @ 12% per annum from the date of taking possession till the date of payment. If the compensation is not paid within the said period, the petitioners will be given back possession of their land by dismantling the road. 14. Before parting, we express our deep concern regarding practice prevailing in these days by the State authorities in taking property of the citizens without following the procedure prescribed by law, which is clear violation of Article 300A of Constitution of India. Such act of the officers of the State cannot be justified in any way. Therefore, it is necessary to give clear direction to the officers and acquiring bodies. 15. Let a copy of this order be sent to Chief Secretary, Government of U.P. Lucknow for issuing clear direction to all the Collectors or acquiring bodies of the State that in future when they need any property of citizens for public purpose, they should acquire or requisition the same by following the procedure prescribed by law or with the mutual consent of the parties in writing. If the property is taken by the State beyond the scope of Land Acquisition Act, the compensation should be determined either on mutual agreement or in the way prescribed under the said Act. In case of deviation, the public accountability of the erring officers or officials should also be fixed and departmental action be taken against them. ————