JUDGMENT M. Katju, J.
1. The petitioner has prayed for a mandamus directing the respondents to pay compensation for the land bearing khasra No. 2362 situate at Budhana Road, Hanuman Tila, Shamli, district Muzaffarnagar having an area 1200 sq. meter.
2. In paragraph 3 of the writ petition it is alleged that the petitioners are bhumidhars of ten biswas of land numbering khasra plot No. 2362 of about 1260 sq. meters. In paragraph 4 of the writ petition it is alleged that Nagar Palika, Shamli usurped this land by constructing a public road on it connecting Hanuman Teela with Budhana Road. It is alleged that there was no notification under Sections 4 and 6 of the Land Acquisition Act and without taking recourse to the procedure under the Land Acquisition Act the possession of the aforesaid land was taken by the Nagar Palika, Shamli illegally.
3. The petitioner then filed a civil suit No. 683 of 1986 which was decreed on 31.5.1991. True copy of the judgment dated 31.5.1991 is Annexure-1 to the writ petition. No appeal was filed against this judgment. The finding of that judgment is that the plaintiff has proved his title. It is stated in the judgment that the Nagar Palika, Shamli has illegally made construction over the aforesaid land. The learned court which decreed the suit directed that the plaintiff should be given possession over the land in dispute. Despite this clear direction possession was not given to the appellant.
4. The aforesaid decree became final as no appeal was filed against it. Since Nagar Palika, Shamli did not vacate the property in dispute the petitioner had to file an execution application being execution case No. 8 of 1994 in the court below which is still pending.
5. Annexure-2 to the writ petition is the decree of the trial court which indicates that the land marked with letter 'ABCD' was usurped by the Nagar Palika, Shamli.
6. Thereafter the Administrator, Nagar Palika, Shamli sent a letter to the Secretary, Nagar Palika, Shamli seeking permission to give 2091.42 sq. meter of land out of plot No. 234 belonging to Nagar Palika, Shamli having same value of Rs. 16,10,400 according to the circle rate as that of the ten biswas land for which the decree for possession had been obtained. True copy of this letter is Annexure-3 to the writ petition. Thereafter the matter remained pending before the State Government for some time and ultimately the State Government wrote a letter to the District Magistrate stating that since a new Board has been constituted hence the new Board should pass a fresh resolution with regard to giving of 2091,42 sq. meters of land in lieu of plot No. 234 over which a road was constructed without acquiring the same and for which a decree of possession had been passed. True copy of the said letter is Annexure-4 to the writ petition. However, the Board of Nagar Palika did not pass any such resolution. Hence the District Magistrate wrote to the State Government recommending that the land should be acquired under the Land Acquisition Act vide Annexure-5 to the writ petition. However, the State Government wrote to the District Magistrate that since a considerable time has passed it was not advisable to issue a notification under the Land Acquisition Act. Hence the State Government advised the District Magistrate that the petitioner be given an alternative site or be paid compensation vide Annexure-6 to the writ petition.
7. It is alleged in paragraph 13 of the writ petition that despite this letter of the State Government dated 2.12.1996 Annexure-6 to the writ petition neither the petitioner has been given any land nor paid compensation and the petitioner has been only running from pillar to post but to no avail. The decree in petitioner's favour exists but it is not being implemented. Hence, the petitioner has been compelled to file this writ petition.
8. A counter-affidavit has been filed by the Nagar Palika, Shamli. It has not been denied that suit No. 683 of 1986 has been decree in the petitioner's favour by which it has been decreed that the possession should be restored to the petitioner. However, the Nagar Palika has not stated in the counter-affidavit that it will, either give compensation or alternative land to the petitioner.
9. In Civil Misc. Writ Petition No. 46187 of 2000, Awadh Narain and Anr. v. State of U.P., decided on 25.2.2004, a Division Bench of this Court held that 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. The petitioner's land was usurped by the Nagar Palika Shamli without acquiring it in accordance with the Land Acquisition Act or any other statute. This was a most high handed and illegal action on the part of the Nagar Palika, Shamli and other respondents. A person cannot be deprived of his property except in accordance with law.
11. Moreover, in this case even the suit for restoration of possession has been decreed but it has not been implemented on the pretext that some road has been constructed.
12. In S.R. Ejaj v. T.N. Handloom Weavers' Cooperative Society Limited, 2002 (2) AWC 1337 (SC) : (2002) 3 SCC 137, vide paragraph 8, the Supreme Court observed :
"In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor can the citizens 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 a go-by either by the authority or by rich and influential persons or by muselemen. Law of jungle will prevail and "might would be right" instead of "right being might"."
13. In Santosh Tiwari v. District Magistrate, 1999 (1) AWC 661, a Division Bench of this Court observed that right to property is guaranteed by Article 300A as a legal right. It can be taken away only under some enactment. In that case the Gaon Sabha had taken the petitioner's land and built a Sulabh Shauchalaya on it. This Court directed the respondents to remove the Sulabh Shauchalaya forthwith and restore the possession of the land forthwith.
14. Evidently the possession of the petitioner's land has been taken in 1986 without any authority of law. Even the suit was decreed in 1991 but the decree for restoring the possession has not been respected.
15. 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(1A) 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 month thereafter, i.e., within six months from today. In addition to the above the amounts, the Nagar Palika, Shamli will also pay an exemplary costs 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 D.M., Muzaffarnagar forthwith.