Hon'ble Arvind Kumar Tripathi (II),J.
(Delivered by Hon'ble Arvind Kumar Tripathi-II, J.) Petitioners Dr. Virendra Kumar Dixit and Smt. Alka Dixit purchased two plot Nos. 11 and 12, which fall in Khasrea Nos. 348, 349, 350 and 351 of village Faizullaganj, District Lucknow through registered sale deeds. After execution of sale deeds, the petitioners got possession and they constructed boundary wall covering these plots. The boundary of village Faizullaganj abuts the boundary of village Mohibullapur, District Lucknow. Certain land of village Mohibullapur was acquired in favour of Lucknow Development Authority for constructing Sector 'B' of Priyadarshani Colony. As per layout plan of Sector 'B', Priyadarshani Yojana, Sitapur Road, Lucknow (Annexure-1 to the Writ Petition), 6 meter wide road is situated in between the plots of petitioners' and the chunk of land acquired in favour of Lucknow Development Authority.
2. The petitioners have pleaded that the personnel of Lucknow Development Authority were harassing the inhabitants of Village Faizullaganj on the pretext that the land acquired in favour of Lucknow Development Authority is part of Priyadarshani Nagar Yojana, Mohibullapur. Thus, the Society, 'Jan Kalyan Lucknow Sahkari Grih Nirman Samiti, Ltd. Lucknow' from whom the petitioners had purchased the land of aforesaid plots, moved an application for demarcation under section 41 of the U.P. Land Revenue Act. The land was demarcated and Khasra Nos.349, 350, 351 of Village Faizullaganj were demarcated, and it was found that there is a road towards east of plot Nos. 349, 350 and 351 of Village Faizullaganj. Village Mohibullapur is located towards east of the above road. Without denying the correctness of the demarcation report and order dated 1.1.2008 passed by the Assistant Collector, one fine morning in the month of March 2005, the officials of Lucknow Development Authority in the garb of digging a 'Nala' and also on the pretext of demolishing illegal encroachments, demolished the boundary wall of the petitioners, and that too, without any information or notice to the petitioners.
3. Aggrieved by the action of the Lucknow Development Authority, the petitioners have filed the present petition praying for the following substantive relief:-
(i) to issue a writ order or direction in the nature of Mandamus directing the opposite parties not to interfere in the peaceful possession of the petitioners in plot no. 11 and 12 purchased through registered sale deed dated 19.8.97 from Jan Kalyan Cooperative Housing Society, Lucknow contained in Annexure no. 2 and 3 to this writ petition without acquisition and notification under Land Acquisition Act.
(ii) ...
(iii) ...
4. By filing a counter affidavit, it was not denied that the petitioners are the owners of plot Nos.11 and 12 comprising of Khasra Nos.348, 349, 350 and 351 situated in Village Faizullaganj. It was also not denied that an application was moved for demarcating the land under section 41 of the U.P. Land Revenue Act. It was also specifically admitted that land falling in Khasra Nos. 349, 350 and 351 of Village Faizullaganj is situated in such a way that boundaries of Village Mohibullapur meet the limits of Village Faizullaganj. It was also specifically admitted in para 9 of the counter affidavit that Khasra Nos.348, 349, 350 and 351 of Village Faizullaganj are situated on the boundaries of Village Mohibullapur and towards east of the petitioners plots, there is a road. On the east of the road, land of Village Mohibullapur is situated and the land of Village Faizullaganj is on the west side of the road. It was also admitted that the demarcation was approved by the District Collector on 1.1.2008 on the basis of the demarcation report dated 12.12.2007. Apart from that, it was stated in the counter affidavit that the Lucknow Development Authority is entitled to retain possession over its acquired land and is also entitled to remove illegal encroachments from the land. It was further submitted that the Lucknow Development Authority has started development of land acquired in its favour in Village Mohibullapur and a Nala was being constructed over the land of Khasra Nos.388 and 394, to which the petitioners had no concerned.
5. Heard Sri Vijyant Nigam, learned counsel for the petitioners and learned Standing Counsel appearing for the Lucknow Development Authority.
6. It was submitted by learned counsel for the peitioners that from a perusal of the statement made in the counter affidavit it is abundantly clear that there is a road between the land of Village Mohibullapur and Village Faizullaganj. To the east of the road is Village Mohibullapur and to the west of the road is Village Faizullaganj. Hence, there was no chance of encroachment by the petitioners over the land of Village Mohibullapur as there was an intervening road. It was further argued that since the Lucknow Development Authority has admitted that it has no concern with the land of Village Faizullaganj, hence the boundary wall which was constructed by the petitioners around their plots, by no stretch of imagination, can be considered to be an encroachment on the land of Village Mohibullapur which has been acquired in favour of Lucknow Development Authority.
7. Further submission of learned counsel for the petitioners is that even though for the sake of arguments, it be treated that the boundary wall were constructed on the land of Village Mohibullapur which was acquired in favour of Lucknow Development Authority then, too, the Lucknow Development Authority ought to have given a notice for removal of alleged encroachment and only thereafter should have proceeded in accordance with law. In any case, the Lucknow Development Authority does not have any right to demolish the boundary wall without adopting the due process of law.
8. Per contra, it was submitted by learned counsel for Lucknow Development Authority that since the boundaries of two villages are adjacent, hence the boundary wall which was constructed by the petitioners was an encroachment over the land acquired in favour of Lucknow Development Authority. It was futher submitted that by developing the acquired land of Village Mohibullapur, a Nala was being constructed, and in that eventuality, boundary wall might have been demolished as the Lucknow Development Authority, who is entitled to retain the possession over its acquired land and also entitled to removed the illegal encroachments over such land.
9. In the case of Ram Ratan and others Vs. State of Uttar Pradesh, reported in 1977(1)SCC 188, 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 the 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."
10. In the case of S.R.Eiaz Vs. T.N.Handloom Weavers' Cooperative Society Ltd., reported in (2002)3 SCC137 Hon'ble the 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 the 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."
11. In State of W.B. and others Vs Vishnunarayan and associates (P) Ltd. and another, reported in (2002) 4 SCC 134, 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 the Supreme Court had reiterated the earlier Constitution Bench Judgment in the case of Bishan Das A.I.R 1961 SC 1570 followed by one other judgment reported in (1989) 2 SCC 505, State of U.P. Vs. Maharaja Dharmander Prasad Singh, Hon'ble the 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.
12. 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."
13. In a case reported in (2010) 8 SCC 383 Meghmala and others Vs. G. Narasimha reddy and others, while referring earlier judgment, Hon'ble the 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)."
14. 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.
15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the courts including higher judiciary is also law.
16. It is a rule for the well governing of Civil Society to give to every man that which doth belong to him.
17. Blackstones 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.
18. 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.
19. Even if for argument sake it be taken to be granted that petitioners had encroached upon the acquired land of Village Mohibullapur and had constructed boundary wall, then too the Lucknow Development Authority had no right to demolish the boundary wall without adopting due procedure of law.
20. As per the factual matrix stated in the body of the writ petition, and admitted in the counter affidavit filed by the Lucknow Development Authority, it is clear that there is a road between the acquired land of Village Mohibullapur and land of Village Faizullaganj. The plots purchased by the petitioners fall within the limits of village Faizullaganj. Admittedly, the land of Village Faizullaganj had not been acquired. The opposite parties have not challenged the title of the petitioners over the land of Plot Nos. 11 and 12, which the petitioners had purchased from Jan Kalyan Lucknow Sahkari Grih Nirman Samiti, which comprised of Khasra Nos. 348, 349, 350 and 351. Thus, the case of the Lucknow Development Authority that boundary wall was an encroachment over the acquired land of Village Mohibullapur, is not based on any fact, and is liable to be thrown out, and the petitioners are entitle to damages on account of pecuniary loss or injury; harassment; mental agony or oppression meted to them by the illegal action of the Lucknow Development Authority, and also are entitled to a writ in the nature of Mandamus directing opposite parties not to interfere in the peaceful possession of the petitioners over plot Nos. 11 and 12 purchased through sale deed dated 19.8.1997 from Jan Kalyan Cooperative Housing Society, Lucknow, situated in Village Faizullaganj.
21. In the case reported in (2005) 6 SCC. 344, Salem Advocate Bar Association (II), vs. Union of India, wherein Hon'ble the Supreme Court held that where there is abuse of process of law, or litigants suffer for no fault on their part, then the Court must impose costs. In a subsequent judgment reported in 2011 (8) SCC 249, Rameshwari Devi and others vs. Nirmala Devi and others, Hon'ble the Supreme Court held that with regard to imposition of costs, courts have to take into consideration the pragmatic realities and should be realistic with regard to plight of litigants in contesting the litigation before different courts. Courts have to broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses and factors under which a party has been compelled to contest a case in different courts. In the case of Rameshwari Devi (supra), the litigant had contested for about four decades the cases filed in different courts. Their Lordships awarded costs of rupees two lacs in addition to rupees seventy five thousand awarded by the High Court, while dismissing the appeal with costs. The relevant paras 54, 55 and 56 are reproduced as under:
"54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55.The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation. The appellants are directed to pay the costs imposed by this court along with the costs imposed by the High Court to the respondents within six weeks from today."
22. Reverting to the facts of the present case, we may notice that the petitioners are pursuing their case, and fighting for their rights, since more than nine years, and during this protracted period, they have suffered not only financial loss, but also mental pain and agony on account of illegal action of the Lucknow Development Authority. Hence, the petitioners also seem to be entitled for interest.
23. The writ petition is accordingly allowed in the following manner:-
(a) A Writ in the nature of Mandamus is issued directing the opposite parties not to interfere with the peaceful possession of the petitioners over plot Nos. 11 and 12 comprising of Khasra Nos.348, 349, 350 and 351 situated in Village Faizullaganj, purchased by the petitioners from Jan Kalyan Cooperative Housing Society Ltd., Lucknow.
(b) The Lucknow Development Authority is saddled with consequential compensatory costs, quantified to rupees one lacs, and interest @ eight percent from the date of filing of the present Writ Petition till actual payment is made by the Lucknow Development Authority. The costs and interest shall be payable to the petitioners.
(c) The damages and interest shall be deposited by the Lucknow Development Authority in this Court within three months. The petitioners may withdraw the aforesaid amount.
(d) In the event damages and costs, as aforesaid, are not deposited by the Lucknow Development Authority within the period stipulated hereinabove, the District Magistrate/Collector, Lucknow shall proceed to recover the same as arrears of land revenue expeditiously, say, within next two months, and shall remit the same to the petitioners forthwith.
24. Senior Registrar of this High Court Lucknow Bench, Lucknow shall take follow up action.
25. No orders as to costs.