JUDGMENT R.P. Misra and Krishna Murari, JJ.
1. Heard Sri A.K.Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.
2. This petition seeking a writ of mandamus to direct the respondents to pay compensation for depriving the petitioner of his land is a classic case of highhandedness and arbitrariness on the part of the State authorities. The petitioner has been dispossessed from his land illegally and forcibly without undertaking any proceedings either for acquisition or even requisition and that too, without any compensation.
3. The facts of the case are that the father of the petitioner (since deceased) was the owner and in possession of plot no.5.57 acre situate in village Bilauna, Pargana and Tahsil Bharthana District Etawah. A notice dated 28.1.1991 was issued by Assistant Engineer, Construction Division, Public Works Department (P.W.D.), Etawah intimating that an area of 0.24 acre of plot No. 91 was required for construction of approach road from National Highway to Muraitha Road. By this notice he was required to file objection, if any, within seven days failing which he shall loose all rights over the land and will have to execute a sale deed in favour of Public Works Department, Etawah. The said notice is on record of the case as annexure-2 to the writ petition. It has been alleged that father of the petitioner did not agree to the proposal nor did execute any sale deed. Still the possession of 0.24 acre of the said plot was forcibly taken by the respondents and was utilised for construction of approach road. Petitioner's father and after his death the petitioner has been running from pillar to post but no payment of compensation has been made.
4. A counter affidavit sworn by one Om Prakash Verma, Assistant Engineer, Construction Division, P.W.D, Etawah has been filed on behalf of the respondents. It has been admitted in the counter affidavit that notice dated 28.1.1991 was issued to the father of the petitioner and since he did not file any objection as such the land was utilised for construction of approach road. It has also been stated that the petitioner's father never claimed any compensation, thus it was not paid.
5. In effect the respondents had admitted in the counter affidavit that land of the petitioner was taken and utilized without taking recourse to any legal proceeding. However, attempt has been made to justify the illegal and arbitrary action in the name of public interest.
6. The manner in which the State authorities proceeded to deprive the petitioner of his property and have tried to justify their illegal action in the name of public interest shocks the conscience of the court.
7. After forty fourth amendment of the Constitution the right to property may not be a fundamental right guaranteed under part III but nevertheless it is a constitutional right guaranteed to a citizen of the country under Article 300A of the Constitution which reads as under :
"No person shall be deprived of his property saved by authority of law."
8. The authority of law means by due process of law. The action of the respondents in depriving the petitioner of his property cannot be justified in public interest. Howsoever noble and laudable cause may be, the State authorities cannot be permitted to act as land grabber and to deprive a citizen of the country of his property in an illegal and arbitrary manner without following the due process established by law. The State is very well empowered under the provision of Land Acquisition Act to acquire any land. However, without taking recourse to the provision of Land Acquisition Act or any other statute the land of the petitioner has been usurped by the State authorities.
9. Learned Standing Counsel has failed to point out any provision of law under which the notice dated 28.1.1991 could have been issued to the father of the petitioner forcing him to execute a sale deed and failing which the State authorities could have proceeded to dispossess him forcibly. The court can accord legitimacy and legality only to possession taken in due course of law and not otherwise. Since the petitioner was dispossessed without following the proceeding established by law, the action of the respondents authorities is violative of Article 300A of the Constitution of India and cannot be sustained.
10. In the facts and circumstances though the petitioner is entitled to be restored back the possession of the land from which he was illegally dispossessed but since the approach road has already been constructed long back and is being used by the public and the public interest at large forbids us from issuing such a direction. However, the petitioner is liable to be compensated not only for being deprived of his land but also for the illegal action of the State authorities. In case the respondents authorities would have acted in accordance with law and would have proceeded under the Land Acquisition Act the petitioner would have been entitled to payment of compensation and interest etc. as per the provision contained in the said Act.
11. Thus in the facts and circumstances, interest of justice would be best served by directing the respondents to pay full market value of the land as it was on the date of taking possession in the year 1991 as well as additional compensation under Section 23(1-A) and solatium @ 30% under Section 23(2) of the Land Acquisition Act as well as interest @ 12% per annum on the above amount from the date of taking possession till the date of payment. The Collector, Etawah respondent-2 is directed to determine the market value of the property as it existed on the date of taking possession in the year 1991 strictly in accordance with the provision of the Land Acquisition Act after hearing the parties within a period of three months from the date of production of a certified copy of this order before him. The entire amount must be paid to the petitioner within two months thereafter.
12. The writ petition stands allowed with exemplary cost of Rs.20,000/- which shall be paid by respondent No. l to the petitioner within two months from the date of production of a certified copy of this order before him.