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2023 DIGILAW 155 (UTT)

Mohammad Yusuf v. State of Uttarakhand

2023-01-24

RAVINDRA MAITHANI

body2023
JUDGMENT Ravindra Maithani, J. - Instant petition has been filed seeking the following reliefs:- (i) To issue a writ order or direction in the nature of mandamus directing the respondents no.1 to 6 not to permit the respondents no.7 to 12 to construct any building or road or drains on the lands bearing khasra 18 min, 23, min and 25 min total measuring about 0.226 hectare of village Lakshmipur Patti, Tehsil Kashipur District Udham Singh Nagar. (ii) To issue a writ order or direction in the nature of Mandamus commanding the respondents no.1 to 6 not to construct themselves or through contractor, any road or drains or any other development activity on the land bearing khasra 18 min, 23, min and 25 min total measuring about 0.226 hectare of village Lakshmipur Patti, Tehsil Kashipur District Udham Singh Nagar. (iii) To issue a writ order or direction in the nature of Mandamus commanding the respondents no.13 to 15 to provide proper protection to the petitioner and to comply with the directions which may be issued by this Hon'ble Court in the present writ petition. (iv) Any other relief which this Hon'ble Court may deem fit and proper, may kindly be awarded in favour of the petitioner and against the respondents. (v) Award the cost of the petition in favour of the petitioner and against the respondents.' 2. Heard learned counsel for the parties and perused the record. 3. It is a case of the petitioner that he is co-owner of the land in question ('the disputed land'). A partition suit is already pending. The shares of the parties are yet to be determined. But, the private respondents, in connivance with the Government Authorities, are raising construction on the disputed land and the State Authorities are constructing a road on the disputed land without adopting the due procedure. 4. At the very outset, the Court wanted to know as to how a writ could be entertained for ventilating private rights of the parties? 5. Learned Senior Counsel appearing for the petitioner would submit that the State had no authority to construct on the private land of the petitioner. It is violation of Article 300A of the Constitution of India. Learned Senior Counsel also raised the following points:- (i) The State has yet not acquired the land. (ii) The State could have acquired the land in accordance with law. It is violation of Article 300A of the Constitution of India. Learned Senior Counsel also raised the following points:- (i) The State has yet not acquired the land. (ii) The State could have acquired the land in accordance with law. (iii) The shares of the parties are yet to be determined in a partition suit. 6. In support of his contention, learned Senior Counsel for the petitioner has placed reliance on the principles of law, as laid down in the case of Radha Krishan Industries Vs. State of Himachal Pradesh and others, (2021) 6 SCC 771 , Delhi Airtech Services Private Limited, (2011) 9 SCC 354 , K.T. Plantation Private Limited and another Vs. State of Karnataka, (2011) 9 SCC 1 , and B.K. Ravichandra and others Vs. Union of India and others, 2020 SCC OnLine SC 950. 7. In the case of Radha Krishan Industries (supra), the Hon'ble Supreme Court in Para 27.1 observed that 'the power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.' 8. In the case of Delhi Airtech Services Private Limited (supra), the Hon'ble Supreme Court in para 79 discussed the impact of Article 300 A of the Constitution of India as hereunder:- '79. If I read, Section 17(3-A) as I must, consistently with the constitutional doctrine of due process as articulated in the expression 'authority of law' under Article 300-A which constitutionally protects deprivation of a right to property, save by authority of law, the conclusion in my judgment is inescapable that the requirement of Section 17(3-A) constitutes the authority of law within the meaning of Article 300-A. Therefore, in the context of aforesaid statutory dispensation and constitutional provision, the debate whether the provision of Section 17(3-A) is mandatory or directory does not present much difficulty for the reasons discussed above and also for the following reasons.' 9. In K.T. Plantation Private Limited (supra), the Hon'ble Supreme Court observed as hereunder: '168. Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. Article 300-A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that a person cannot be deprived of his property merely by an executive fiat, without any specific legal authority or without the support of law made by a competent legislature. The expression 'property' in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law. 201. This Court in Jilubhai Nanbhai Khachar case [1995 Supp (1) SCC 596] took the view that the principle of unfairness of procedure attracting Article 21 does not apply to the acquisition or deprivation of property under Article 300-A. 202. Acquisition of property for a public purpose may meet with a lot of contingencies, like deprivation of livelihood, leading to violation of Article 21, but that per se is not a ground to strike down a statute or its provisions. But at the same time, is it the law that a constitutional court is powerless when it confronts with a situation where a person is deprived of his property, by law, for a private purpose with or without providing compensation? For example, a political party in power with a massive mandate enact a law to acquire the property of the political party in opposition not for public purpose, with or without compensation, is it the law, that such a statute is immune from challenge in a constitutional court? Can such a challenge be rejected on the ground that statute does not violate the fundamental rights [due to deletion of Article 19(1)(f)] and that the legislation does not lack legislative competence? In such a situation, is non-availability of a third ground as propounded in State of A.P. v. McDowell & Co. [ (1996) 3 SCC 709 ] , an answer?' 10. In the case of B.K. Ravichandra (supra), the Hon'ble Supreme Court discussed the aspect of Article 300A of the Constitution of India and observed as hereunder:- '24. In such a situation, is non-availability of a third ground as propounded in State of A.P. v. McDowell & Co. [ (1996) 3 SCC 709 ] , an answer?' 10. In the case of B.K. Ravichandra (supra), the Hon'ble Supreme Court discussed the aspect of Article 300A of the Constitution of India and observed as hereunder:- '24. Other judgments of this court have also highlighted the importance of the right under Article 300-A, in the context of regulatory laws and enactments, which do not directly result in expropriation or acquisition, but rather, in an oblique and indirect fashion, block the right to enjoyment of properties, underlining that the essential theme of Article 300-A is unauthorized deprivation, which would result in an indefinite suspension of the right to property. The court stressed that the law (of development or town planning, of any other such enactment) should be explicit about the nature and effect of the deprivation, expressing the intention to do so............................................................................................................................................................................................................................. 15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. ....' 11. Undoubtedly, right to property is enshrined under Article 300 A of the Constitution of India. It is a constitutional right. Merely because it is a constitutional right, a writ is not maintainable. The petitioner, in fact, is ventilating his private rights, i.e. Right to Property. It is against State as well. 12. Learned Senior Counsel for the petitioner would submit that State's act is arbitrary against the provision of the Constitution. The State cannot take possession over the property of the petitioner. 13. If the State is encroaching upon the property of the petitioner, the petitioner can very well file a civil suit to redress its Right to Property. Even if action is taken against the State Government, in each and every case, writ is not maintainable. In order to maintain a writ against the State, the action should be in the domain of public law. 14. In the case of KK Saksena vs. International Commission on Irrigation and Drainage and Others, (2015) 4 SCC 670 The Hon'ble Supreme Court has made distinction between private law remedies and observed as hereunder:- '43. In order to maintain a writ against the State, the action should be in the domain of public law. 14. In the case of KK Saksena vs. International Commission on Irrigation and Drainage and Others, (2015) 4 SCC 670 The Hon'ble Supreme Court has made distinction between private law remedies and observed as hereunder:- '43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is 'State' within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is 'State' under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law.' 15. What the petitioner seeks by way of the instant petition is protection of his property from encroachment. The petitioner seeks to enforce his right to property. If State encroaches on somebody's property, there are provisions which entitle the litigants to file a civil suit. If there is some urgency, there are provisions under Section 80 of the Code of Civil Procedure, 1908, where without expiry of the notice period, with the leave of the court, a suit may be instituted. 16. In the instant petition, the petitioner is intending to enforce his private rights. Therefore, the Court does not find any reason to entertain this petition. Accordingly, the petition is dismissed at the stage of admission itself. 17. The petition is dismissed in limine.