AFR
Court No. - 5
Case :- WRIT - C No. - 35610 of 2018 Petitioner :- Rai Ajay Kumar And 15 Others Respondent :- State Of U.P. And 4 Otheres Counsel for Petitioner :- Vinay Kumar Srivastava,Abhishek Srivastava,Tanu Roopanwal Counsel for Respondent :- C.S.C.,Mukesh Kumar Kushwaha
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Ved Prakash Vaish,J.
The petitioners are sixteen in number. They have instituted this writ petition under Article 226 of the Constitution for a direction upon the respondents restraining them from demolishing the construction raised by the petitioners in arazi Nos. 61, 62, 63, 982, 983 and 984, Lahartara, Phulwaria, Varanasi.
Briefly stated the facts are that the petitioner no. 1 is a retired Flying Squadron Leader from Air Force. His grandfather late Ravi Shiv Prasad was a zamindar in Lahartara, District Varanasi. The petitioner nos. 2 to 16 have purchased the land by a registered sale deed from grandfather of petitioner no. 1. Their residential houses have been constructed in the campus of D-65/462, (over Arazi Nos. 61, 62 & 63), Amla Nagar, Lahartara, District Varanasi.
It is stated that all the constructions in the said campus are about 60 to 80 years old. All the petitioners are paying house tax to Nagar Nigam. It is stated that sometimes in the year 1910, when there was expansion of G.T. Road a settlement was arrived at between the District Magistrate, Varanasi; the Executive Engineer, Public Works Department, and the then zamindars, namely, Rai Shiv Prasad and Rai Shambhu Prasad. Copy of the maps are on the record as annexure-1 to the writ petition.
It appears that in the year 1992 an encroachment removal drive was initiated in the area. In response to a representation made by the petitioners the Executive Engineer-respondent no. 3 vide his communication dated 26.10.1992 has informed the petitioners that he has made a spot inspection and has found that in terms of a compromise dated 10.10.1911, which has been duly singed by the then Collector, Varanasi, Executive Engineer, P.W.D., and zamindars Rai Shiv Prasad and Rai Shambhu Prasad, towards north side of the G.T. Road there is a boundary wall and there is no encroachment on the government land. A copy of the communication dated 26.10.1992 is on the record as annexure-2 to the writ petition.
It is stated that from G.T. Road, Lahartara Crossing to Railway Gate No. 4 Phulwaria (Cantonment) Chauraha, the length of the road situated at Plot No. 60 is 1475 feet and the width of the road is 80 feet eastern side from Lahartara Chauraha and from centre (mid of road) 25 feet towards east up to boundary of Plot Nos. 61, 62, 63, 982, 983 and 984 and 55 feet towards western side from centre of the road.
The petitioners had moved an application on 27.11.2003 before the Executive Engineer, P.W.D. with a request to furnish details of length and width of the road situated at Plot No. 60, G.T. Road Lahartara to Phulwaria (Cantonment) Railway Gate No. 4. In pursuance thereof, the respondent no. 3 had submitted a report dated 27/29.11.2003, which is on the record as annexure-3 to the writ petition. It also demonstrates that the petitioners have not made any further construction or encroachment and their construction is strictly in terms of the compromise dated 10.10.1911. Similar letter was issued by the Executive Engineer on 29.10.2005, which is on the record as annexure-4 to the writ petition. It is stated that a perusal of the communications dated 16.11.1982 and 29.10.2005 issued by the Executive Engineer clearly indicate that different boundary walls and width of the road is specified at different points and no encroachment has been made by the petitioners and they are maintaining their boundary wall which is in existence in terms of earlier compromise. The petitioners have brought on record the receipts of house tax, water tax and electricity dues in respect of their existing construction.
The grievance of the petitioners is that the District Administration of Varanasi, Public Works Department, Municipal Corporation and Varanasi Development Authority, Varanasi have initiated an anti- encroachment drive in the area of Rajghat and Lahartara in the city of Varanasi without giving any notice to the petitioners and other persons. A large scale demolition is being carried out by the aforesaid authorities and they are demolishing the permanent construction indiscriminately without taking into consideration the fact that the constructions raised are very old and no encroachment has been made on the G.T. Road or its pavements.
In the year 2008 the petitioner no. 1 had preferred Civil Misc. Writ Petition No. 2210 of 2008 against the illegal and arbitrary act and omissions of the respondents under the garb of the anti-encroachment drive. This Court has disposed of the said writ petition with a direction upon the respondents not to demolish the petitioners' disputed construction, except in accordance with law. The said order has become final.
The grievance of the petitioners is that the respondents by the use of police force are demolishing the construction in the area without acquiring their private land in accordance with law. They are also not providing any compensation for the acquisition of their land.
The petitioners have stated that they have not made any encroachment on the land of the respondents. Their construction is on land which they have purchased from the ancestor of the petitioner no. 1 through the valid sale deeds. As stated above, their names have been duly recorded in the Municipal records and they are paying municipal tax hence taking the land of the petitioners by the State with the use of brute police force and demolishing the structure is arbitrary, illegal and violative of Article 14 and Article 300A of the Constitution.
We have heard learned counsel for the petitioners, learned Standing Counsel, Sri Shiv Kumar Yadav, learned counsel appearing for respondent nos. 1 to 4 and Sri Pramod K. Gupta holding brief of Sri Mukesh Kumar Kushwaha, learned counsel for respondent no. 5. With the consent of parties the writ petition is taken on Board and the same is being disposed of in terms of the Rules of the Court.
Before we advert to the rival submissions advanced at the Bar, we think it appropriate to refer to the provisions of the two Acts, namely, the U.P. Municipal Corporation Act, 1959 and the U.P. Urban Planning and Development Act, 1973. First, we deal with the U.P. Municipal Corporation Act, 1959 (for short, “the Act, 1959”).
Chapter-XII of the Act, 1959 deals with the streets. Section 272 provides that all streets within the city shall vest in the Corporation and shall be under the control of Municipal Commissioner. Sub-section (2) of Section 272 of the Act, 1959 provides that the State Government may after consulting the Corporation can withdraw any such street from the control of the Corporation. Section 273 enumerates power of the Municipal Commissioner in respect of public streets. It provides that it shall be the duty of the Corporation to maintain roads, metalled or paved, channelled, and it can alter or repair them from time to time. It may also widen, extend or otherwise improve the street. The proviso to the said Section puts an embargo that if the cost of the widening, extension or other improvement of the street exceeds Rs. 5000/- or higher amount, it requires the sanction of the Corporation.
Section 274 of the Act, 1959 provides that Municipal Commissioner with the approval of the Corporation may lay out and make a new public street. A private person can also give his consent to use a street on his land for public use either entirely at the expense of such person or partly at the expense of the Corporation. Such road after completion vests in the Corporation. The said section also gives the power to construct tunnels, bridges, causeways and other works and divert or turn an existing public street or a portion thereof. Section 275 lays down norms regarding minimum width of new public street. It gives power to the Corporation to specify the minimum width of different classes of public streets according to the nature of traffic likely to be carried thereon. It prohibits that the width of new public street made under Section 274 shall not be less than that prescribed under sub-section (1) of Section 275 and without the written permission of the Municipal Corporation no projection shall project over or extend into any such streets. It further provides that Municipal Commissioner with the approval of the Executive Committee shall give a notice to the owner requiring him to remove any existing projection which is within the minimum width of the street specified under sub-section (1) of Section 275. It further provides that in any such case of the projection which was lawfully erected or set up, the compensation shall be paid to every person who sustained loss or damages by the removal or alteration thereof. For the sake of convenience Section 275 of the Act, 1959 is extracted below:
“275. Minimum width of new public street .-(1) The Corporation shall from time to time specify the minimum width for different classes of public streets according to the nature of the traffic likely to be carried thereon, the localities in which they are situated, the heights up to which buildings abutting thereon may be erected and other similar considerations.
(2) The width of a new public street made under Section 274 shall not be less than that prescribed under sub- section (1) for the class to which it belongs, and no steps and, except with the written permission of the [Municipal Commissioner] under Section 293 no other projections shall project over or extend into any such street.
(3) The [Municipal Commissioner] may, with the approval of the Executive Committee, by written notice require the owner or occupier of any premises to remove or to take such order as he may direct with any projection existing within the minimum width of any street specified under sub-section (1):
Provided that if in any such case the projection was lawfully erected or set up, compensation shall be paid by the [Municipal Commissioner] to every person who sustains loss or damage by the removal or alteration thereof.”
(emphasis supplied) Section 278 empowers the Municipal Commissioner to acquire premises for improvement of the public street. He has power to acquire any land required for the purposes of opening, widening, extending, diverting or otherwise improving any public bridge or sub-way, to acquire in addition to the said land and buildings in the public interest to acquire outside of regular line, or of the intended regular line, of such streets. Section 279 gives the power to the Municipal Commissioner to prescribe street lines on one or both the sides of the public street and it shall continue until a fresh line is prescribed by the Municipal Corporation under the said Section. It further provides that whenever it is proposed to prescribe a fresh line in substitution for any existing line, the previous approval of the Executive Committee shall be necessary. It prohibits that no person shall construct or reconstruct any boundary wall or a portion of boundary wall within the regular line of street except with the written permission of the Municipal Corporation. Section 280 provides for setting back buildings to the regular line of the street. If it is found that any building or any part of building abutting on a public street is within the regular line of the street, the Municipal Commissioner may ask the owner to remove, reconstruct or make any addition or structural alteration in any portion of the building, which is within the regular line of the street.
Section 281 provides that the Municipal Commissioner shall have the additional power to pass an order against any encroachment of regular line of street. But before putting down such encroachment, a written notice is required to be given to the owner of such building to show cause within a period to be specified as to why such building or any part thereof, which is within the regular line of the street, be not pulled down and the land within the said line acquired by the Municipal Commissioner and in case the owner fails to show sufficient cause to the satisfaction of the Municipal Commissioner, the Municipal Commissioner with the approval of the executive committee shall issue a notice to pull down the building or any part thereof which is within regular line of the street and in case within the period specified in the notice the owner fails to pull down the building, the Municipal Commissioner may pull down the same and recover all expenses incurred in so doing from the owner.
Section-285 of the Act, 1959 provides that the compensation shall be paid by the Municipal Commissioner to the owner of any building or land required for public street under Sections 280, 281, 282 or 283 or for any loss which the owner may sustain. At this stage it would be advantageous to refer Section 285 of the Act, 1959:
“285. Compensation to be paid and betterment charges to be levied. - (1) Compensation shall be paid by the [Municipal Commissioner] to the owner of any building or land required for a public street under Sections 280, 281, 282 or 283 or for any loss which such owner may sustain in consequence of his building or land being so acquired and for any expense incurred by such owner in consequence of the order made by the [Municipal Commissioner]:
Provided that -
(i) any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the setback to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation;
(ii) if any such increase in value exceeds the amount of loss sustained or expenses incurred by the said owner, the [Municipal Commissioner] may recover from such owner half the amount of such excess as a betterment charge.
(2) If in consequence of an order to set forward a building made by the [Municipal Commissioner] under Section 284, the owner of such building sustains any loss or damage, compensation shall be paid to him by the [Municipal Commissioner] for such loss or damage after taking into account any increase in value likely to accrue from the setforward.
(3) If the additional land which will be included in the premises of any person required or permitted under Section 284 to set-forward a building belongs to the Corporation, the order or permission of the [Municipal Commissioner] to set-forward the building shall be sufficient conveyance to the said owner of the said land and the price to be paid to the Corporation by the said owner for such additional land and the other terms and conditions of the conveyance shall be set forth in the said order or permission.
(4) If, when the [Municipal Commissioner] requires a building to be setforward, the owner of the building is dissatisfied with the price fixed to be paid to the Corporation or any of the other terms or conditions of the conveyance, the [Municipal Commissioner], shall, upon the application of the said owner at any time within fifteen days after the said terms and conditions are communicated to him, refer the case for the determination of the Judge.”
A combined reading of various Sections under Chapter-XII of the Act, 1959 clearly shows that in the public interest the property can be acquired for the road widening but the compensation shall be paid by the Municipal Corporation for the loss to the owner. These provisions in the Act, 1959 have been retained without any substantial amendment. Under the U.P. Urban Plannding and Development Act, 1973 the Development Authority has the power of demolition under Section 27 thereof only when it is found that the construction/ development has been made in contravention of the Master Plan or Zonal Development Plan or without permission, approval or sanction under Section 14. Thus, the Development Authority can demolish the construction made contrary to the Master Plan or Zonal Plan without its permission.
Chapter-XVIII of the Act, 1959 also deals with the compensation. Section 456 of the Act, 1959 gives the general power of Muncipal Corporation to pay the compensation. Section 456 of the Act, 1959 reads as follows:
“456. General Power of [Municipal Commissioner] to pay compensation. - In any case not otherwise expressly provided for in this Act, or in any rule or bye-law made thereunder, the [Municipal Commissioner] may, with the previous approval of the Executive Committee, pay compensation to any person who sustains damage by reason of the exercise of any of the powers vested by this Act or by any such rule or bye-laws in the [Municipal Commissioner], or in any Corporation officer or servant.”
Section 457 of the Act, 1959 provides that an owner shall be paid the compensation in case his immovable property has deteriorated in value owing to the exercise of power conferred under Sections 231, 232, 249, 250, 251 and 284 (which deals with demolition of part of the building), which will involve in removal or erection of such building which abuts on a public street in rear of the regular line of such street.
The aforesaid provision of the Act, 1959 clearly shows that in case due to the road widening the owner suffers loss to his building, he shall be paid compensation if the said damage was caused for setting to bring a building in a regular line of street which was acquired.
Now we will consider the relevant provisions of the Uttar Pradesh Urban Planning and Development Act, 1973 (President's Act 11 of 1973). In 1973 the Legislature with a view to provide for a development of certain area of Uttar Pradesh in a planned way enacted the Uttar Pradesh Urban Planning and Development Act, 1973 (President's Act 11 of 1973) as re-enacted amended by U.P. Act No. 13 of 1974 (for short, “the Act, 1974”). This Act, insofar as the planned development of the urban area is concerned, is a complete Code in itself. Some of the provisions of this Act are overlapping with the provisions of the Act, 1959 and the Municipalities Act, 1960 but both the Acts operate in their separate fields having regard to the objects of the Act.
Section 2(a) of the Act, 1973 defines 'amenity'. It includes road, water-supply, street lighting, drainage, sewerage, public works and such other convenience as the State Government may specify. Section 2(a) reads as under:
“2(a) “amenity” includes road, water supply, street lighting, drainage, sewerage, public works and such other convenience as the State Government may, by notification in the Gazette specify to be an amenity for the purposes of this Act.”
Chapter-II of the Act, 1973 deals with the Development Authority, its objects, its staff, creation of centralized services and Advisory Council which is not relevant for our purpose. Section-7 provides that the object of the Authority shall be to promote and secure the development of area according to plan and for that purpose the Authority has been conferred within the power to acquire, hold, manage and dispose of the land and other property, to carry out building and other operations, such as to execute work in connection with supply of water & electricity, disposal of sewage, and to provide and maintain other services and amenities.
Chapter-III of the Act, 1973 is relevant for the issue involved in this case. It deals with the Master Plan and Zonal Development Plan. Section-
8 of the Act, 1973 provides civil survey and master plan for the development. Clause (a) of sub-section (2) of Section 8 lays down that Master Plan shall indicate the manner in which the land in each zone is proposed to be used and the stages by which such development will be carried out. Sub-section (b) serves a basic pattern of framework then a zonal development plan may be prepared.
A careful reading of Clause (a) of sub-section (2) of Section 8 of the Act, 1973 clearly shows that the Master Plan is a proposal for the future development / expansion of the developed area. Section-9 provides that along with the Master Plan a Zonal Development Plan will also be prepared simultaneously or soon thereafter. Both the Sections are complementary to each other as the development area (City) shall be divided in different zones and each zone shall contain a site-plan for the development of the zone and show the approximate locations and extents of land uses proposed use of the zone, other public works and utilities such as roads, housing, recreation, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses. The zonal development plans also show the development of area into township or colony, alignment of building of any site, prohibition or restriction regarding the use of any site for the purpose other than erection of buildings. Section-8 and relevant part of Section 9(2)(a) of the Act, 1973 read thus:
“8. Civil survey of, and master plan for the development area .---(1) The Authority shall, as soon as may be, prepare a master plan for the development area.
(2) The master plan shall-
(a) define the various zones into which the development area may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and
(b) serve as a basic pattern of framework within which the zonal development plans of the various zones may be prepared.
(3) The master plan may provide for any other matter which may be necessary for the proper development of the development area.
*** *** *** 9. Zonal Development plans .-
(1) *** *** ***
(2) A zonal development plan may-
(a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses;”
Chapter III-A has been inserted in the Act, 1973 by an amendment by Section 3 of the U.P. Act No. 19 of 1976. Section 12-A casts a statutory duty on the owners of buildings which abut the main road in residential or non-residential area, to repair, whitewash or paint the facade of such building at his own cost and if they fail, the authority shall get it done and realise the cost from the owner. The explanation to such section defines the arterial road which shall have the meaning assigned to it in the bye- laws of the Authority.
Chapter-IV of the Act, 1973 deals with the amendment of the Master Plan and the Zonal Development Plan. These provisions are not relevant for our purposes. Chapter-V provides development of lands. This Chapter confers powers upon the Development Authority to act in consonance with the object of the Act. Section-14 provides that once an area is declared as development area under Section-3, no development (construction) shall be undertaken without permission of the Vice Chairman. A detailed procedure has been laid down under this section for obtaining the permission. Not only the person desirous to raise the construction but the Departments of the State Government, Central Government or Local Authority are also subjected to the procedures laid down under this section. Section-15 provides the mode of application and the grant of permission.
Chapter-VI confers the power upon the State Government for compulsory acquisition of the land for the purposes of the Act. Under Chapter-VIII, Section-26 gives the power to the Development Authority to punish a person, impose the fine against development which is undertaken without permission and in contravention of the Master Plan or Zonal Development Plan. Such action has been treated as an offence and a fine can be imposed which may extend to Rs. 50000/- and in case of continuing offence further fine which may extend to Rs. 2500/- every day during which such offence continues.
Section 26-A has been inserted in the Act, 1973 by Section 7 of U.P.
Act No. 3 of 1997. It provides that whoever makes any encroachment on any land not being private property, whether such land belongs to or vests in the Authority or not, shall be punishable with simple imprisonment for a term which may extend to one year and with fine which may extend to Rs. 20,000/- and the offence punishable under sub-section (1) is cognizable offence.
Sub-section (4) of Section 26 of the Act, 1973 provides that the authority may serve a show cause notice upon such person who has made encroachment. The said provision provides that encroachment by a person belonging to weaker section shall not be removed except alternative land or accomodation is offerred to rehabilitate him. Relevant part of Section 26-A of the Act, 1973 is extracted below:
“26-A. Encroachment or obstruction on public land.-
(1) Whoever makes any encroachment on any land not being private property, whether such land belongs to or vests in the Authority or not in a development area, except step over drain in any public street, shall be punishable with simple imprisonment for a term which may extend to one year and with fine which may extend to twenty thousand rupees.
(2) ... ... ...
(3) ... ... ...
(4) If there are grounds to believe that a person has made any encroachment or obstruction on a land in a development area which is not a private property, the Authority or an officer authorised by it in this behalf may serve upon the person making encroachment or obstruction, a notice requiring him to show cause why he shall not be required remove the encroachment or obstruction within such period not being less than fifteen days as may be specified in the notice, and after considering the cause, if any, shown by such person, may order removal of such encroachment or obstruction for reasons to be recorded in writing.”
Sub-section (5) of Section 26-A of the Act, 1973 confers the powers to seize or attach a property found on the land. The said provision gives a detailed procedure and the remedy to the aggrieved person. Section 26-B provides that a aggrieved person by removal of obstruction or encroachment may prefer a claim for compensation or restitution of both before the Tribunal against either the Authority or the Officer ordering the removal or against both, and such officer shall be personally liable for the loss caused to him by the officer. The District Judge is the appropriate authority under sub-section (2) of Section 26-B for redressal of the grievance of the aggrieved person. The relevant part of Section 26-B of the Act, 1973 is extracted below:
“26-B. Claim for compensation for removal under Section 26-A .---(1) Any person aggrieved by the removal of obstruction or encroachment under Sub- section (4) of Section 26-A may within thirty days from the date of such removal prefer a claim for compensation or restitution or both before the Tribunal against either the Anithority, or the Officer ordering the removal or against both, and for making such officer personally liable for the loss caused to him due to such removal.
(2) The District Judge having territorial jurisdiction over the area in which the removal of encroachment or obstruction as provided in sub-section (4) of Section 26- A has taken place shall be the Tribunal for the purposes of this section.
(3) Every order of the Tribunal for payment of any compensation for the restitution of any immovable property shall be deemed to be a decree of the Civil Court and shall be executable as such:
Provided that if the Tribunal awards any compensation against any officer personally, it shall be the duty of the Authority to realise the amount from the salary or other dues of the officer concerned and to pay it to the claimant.”
Section 26-C of the Act, 1973 empowers the Authority to remove any wall, fence or other structure whether fixed or movable for set up in or upon or over any street or upon or over any open channel, drain, well or tank. Section 26-D provides penalty against the official of the Authority who has been entrusted with the duty to stop or prevent encroachment but he wilfully or knowingly neglects or deliberately omits to stop or prevent such encroachment. The negligence is treated as offence punishable with simple imprisonment for a term which may extend to one month. Section 26-D of the Act, 1973 is quoted below:
“26-D. Penalty for not preventing encroachment .--- Whoever specially entrusted with the duty to stop or prevent the encroachment or obstruction under this Act or any other Act, rules or bye-laws wilfully or knowingly neglects or deliberately omits to stop or prevent such encroachment or obstruction shall be punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both.”
Section-27 of the Act, 1973 provides for demolition of such construction which has been commenced or carried out or has been completed in contravention of the Master Plan or Zonal Development Plan. Under Section 28-A the Authority has been authorized to seal the unauthorized development. The provision of the U.P. Urban Planning and Development Act, 1973 and the Act, 1959 show that some of the powers and duties of the Corporation and the Development Authority are overlapping. Both have been empowered to stop the encroachment. The Act, 1973 is a special Act and has been enacted at a later time hence in case of inconsistency between the provisions of these two Acts the provisions of the Special Act shall prevail. The object of the Act, 1973 clearly shows that the main responsibility for the planned development according to the Master Plan is upon the Development Authority.
Now, we shall consider the question as to whether a building/ structure on a private land can be demolished without its acquisition and compensation on the ground that it is within the area which is reserved for the road in the Master or Zonal Plan.
As discussed above, no map / plan can be sanctioned under Section 15 of the Act, 1973 over the land, which comes within the area which is shown in Master / Zonal Plan for public purpose such as park or road. Any construction raised without sanction on a public use or utility land such as park, road, housing, recreation, school, hospital and public and private open space is an unauthorized construction.
But, the private land which falls within the limit of width of the road shown in the Master Plan does not automatically vest with the development authority or the State. According to the future need, the width of the road can be increased keeping in view the growing population and increasing number of vehicles to avoid traffic congestion in future. Thus, if in amended Master Plan / Zonal Plan a private land/ building comes within the width of the road, it cannot be demolished treating it unauthorized construction or encroachment. The only course open to the development authority/ municipal corporation is to acquire the land/ building in accordance with law and pay compensation thereof to the owner.
An analysis of the scheme of both the Acts makes it abundently clear that provisions of both the Acts cast a duty upon both the authorities under the Acts to prevent the encroachments.
The statutory provisions of the Act, 1959 and the Act, 1973 clearly make distinction between private land and public land. Hence, if any construction is raised on a private land with the sanction of the Development Authority under Section 14 of the Act, 1973 it cannot be treated as encroachment if it comes within the area reserved for public purpose in amended Master Plan.
For example, if width of a road shown in the amended Master Plan / Zonal Plan is 40 feet to 60 feet then any private building/ land which comes within sixty feet cannot be said to be an encroachment. It is simply contrary to the plan and it can be removed/ demolished only in accordance with law. If for the road widening some area of the building is required, for that purpose the State has power under the doctrine of eminent domain to acquire the part which comes within the width of the road under the Master Plan and after giving compensation, the said portion can be demolished or removed in public interest. But the said part cannot be treated as encroachment and can not be demolished without giving any compensation. If a person has title over the private land and he has raised construction thereon in accordance with law, that cannot be demolished without giving opportunity and the compensation.
Use of the police force has been deprecated by the Supreme Court in the case of Wazir Chand and another v. The State of Himachal Pradesh and others, AIR 1954 SC 415, and it has been held that a State has no right to take the law in its own hand. Such action is destructive of the basic principle of law. Even in case of illegal construction over the a land, rule of law requires sufficient notice to the person before using force.
It is a solemn duty of the Development Authority and the Corporation to exercise their statutory power reasonably and in good faith. Both the Statutes i.e. Act, 1973 and Act, 1959 cast obligation upon them to strictly adhere to plan, regulation and bye-laws. Their duties are not only for road widening and its beautification but other equally important duties are cast upon them as electricity, water-supply, sewerage etc.
It is widely held belief that the Development Authority and Corporation/ local bodies demolish house and shops of the marginal section of society and the small shopkeepers but they look other way when it comes to illegal and unauthorized construction raised by rich and powerful perons. Such discrimination strikes at the very root of the rule of law. The discriminatory treatment violates wider concept of equality before law and equal protection of law. The rashes of frustration are showing up against the authorities. Recently the development authority and corporation have carried out ruthlessly the demolitions in which shops of small shopkeepers and houses of powerful persons have been demolished. Without acquisition of the property, in the light of the law discussed above, their act cannot be appreciated. The Supreme Court has taken judicial notice of such fact. In Paragraph-74 of the judgment in the case of Shanti Sports Club and another v. Union of India and others, (2009) 15 SCC 705 the Supreme Court has held as under:
“74. In last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air- conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1996 (6) SCC 464, Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733, M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208.”
The Supreme Court has quoted with approval the aforesaid observations in the case of Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and others, (2013) 5 SCC 336.
Article-300A of the Constitution of India has been inserted by the Constitution (Forty Fourth Amendment) Act, 1978. Article 31 was a fundamental right to hold the property. Sub-clause (1)(f) of Article 19 granted the fundamental right to acquire and hold the property. Article 31 was deleted by the said Amendment. 'Right to Property' was omitted by the Constitution (44th Amendment) Act, 1978, Section-5 w.e.f. 20.6.1979. Sub-clause (f) of Article 19 was omitted by the Constitution (Forty Fourth Amendment) Act, 1978, by Section 2 w.e.f. 20.6.1979.
By the same Amendment, Article 300A has been inserted in the Constitution by the Constitution (Forty Fourth Amendment) Act, 1978. It provides 'no person shall be deprived of his property save by authority of law'.
In the Constitution the provision for the right to property was amended from time to time. There were eight amendments in this respect:
(i) the First Amendment Act, 1951; (ii) the 4th Amendment Act, 1955; (iii) the 177th Amendment Act, 1964; (iv) 25th Amendment Act, 1971; (v) 39th Amendment Act, 1975; (vi) 40th Amendment Act, 1976; (vii) 42nd Amendment Act, 1976; and (viii) 44th Amendment Act, 1978.
It is apposite to notice that Article 300A of the Constitution is bodily lifted from clause (1) of Article 31 hence after the amendment the right to hold the property ceased to be a fundamental right but it has been shifted under a separate chapter being Chapter-IV in the title “Right to Property”, therefore, Right to Property is now a constitutional right and the State cannot deprive a person of his property without authority of law.
The Forty Fourth Amendment of the Constitution has brought far reaching changes in the matter of “right to property” Seerwai in his celebrated work, Constitution of Law, Fourth Edition (Silver Jubliee Edition) Vol.-II, while dealing with the legislative changes has severely criticized the hasty amendment brought without seeking public opinion and without sending the proposal / amendment to the Select Committee for its scrutiny – report, which is always followed by a debate in both Houses of Parliament.
The Forty Fourth Amendment deleted Article 19(1)(f) and Article 31 of the Constitution, consequently the right to hold property has ceased to be a fundamental right under the Constitution of India. By the same amendment Article 300A has been inserted under Chapter-IV of the Constitution. Article 300A of the Constitution reads thus:
“300A. No person shall be deprived of his property save by authority of law.”
A simple / plain reading of the aforesaid Article clearly brings out that no person can be deprived of his property without specific authority of law. The right of a person to receive compensation, when his property is acquired, continues to be available despite the repeal of Article 19(1)(f) and Article 31(1) and 31(2). Article 300A has increased the scope of judicial review. A person can be deprived of his property for public purpose only by law and not by executive orders/ government orders and circulars.
The Supreme Court has considered the right to property envisaged under Article 300A in a large number of cases. Reference may also be made to the judgment of the Supreme Court in the case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and others , (2007) 8 SCC 705.
In the case of Chairman, Indore Vikas Pradhikaran ( supra) for the first time the Supreme Court has held that right to property is now considered to be not only a constitutional right but also a human right. In the said case the interpretation of the provision of the Madhya Pradesh Gram Panchayat Act fell for consideration. Several provisions of the said Act are similar to Urban Planning and Development Act, 1973. The observations of the Supreme Court in paragraph nos. 54, 55 and 56 of the said judgment worth noticing:
“54. The Declaration of Human and Civic Rights of 26-8- 1789 enunciates under Article 17:
"17. Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
Further under Article 17 of the Universal Declaration of Human Rights, 1948 dated 10-12-1948, adopted in the United Nations General Assembly Resolution it is stated that: (i) Everyone has the right to own property alone as well as in association with others.
(ii) No one shall be arbitrarily deprived of his property.
55. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. As President John Adams (1797-1801) put it:
"Property is surely a right of mankind as real as liberty."
Adding, "The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence".
56. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law.”
In the case of Bhosawal Municipal Council v. Nivrutti Ramchandra Phalak and others, ( 2015) 14 SCC 327, the Supreme Court has the occasion to deal with somewhat similar facts. Under the Bhusawal Municipal Maharashtra Regional and Town Planning Act, 1966 (some of the provisions of the said Act are similar to our Act 1973 and the Land Acquisition Act) the Municipal Corporation had acquired land for establishing primary school. The Municipal Corporation was not in a position to pay compensation to the owners. The matter went to the High Court and an interim order was passed by the High Court to pay entire compensation. Being dissatisfied with the order of the High Court, the Municipal Corporation challenged the interim order in a S.L.P. before the Supreme Court on the ground that it had acquired the land for public purpose to meet its constitutional obligation to impart primary education to children as required by Article 21A of the Constitution and the Municipal Corporation does not have sufficient funds to pay the enhanced compensation even though the High Court had directed to pay only fifty per cent of enhanced compensation. The Supreme Court rejected the plea of public purpose and constitutional obligation and held thus:
“8. We see no justification to accept the submissions so advanced on behalf of the appellant-council. Undoubtedly, the appellant might be willing to meet its Constitutional or legal obligation to open a primary school for imparting education to children below 14 years of age but the question does arise as to whether the appellant council has a right to meet a public purpose or a Constitutional obligation at the cost of individual citizens by depriving them of their Constitutional rights under Article 300A of the Constitution?
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11. This Court is faced with similar problems every day whereby land owners are being deprived of their valuable rights without complying with the statutory provisions of the Act 1894 or possessions is taken without paying any amount of compensation.
12. In Manohar Joshi v. State of Maharashtra, AIR 2012 SC 2043, this Court has held that if the municipality does not have sufficient fund to meet its requirement to pay the compensation for the land acquired, it may call upon the citizens to contribute for the project as there may be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. A similar view has been reiterated by this Court in Raju S. Jethmalani & Ors. v. State of Maharashtra , (2005) 11 SCC 222.
13. In Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation, AIR 2013 SC 565, this Court held that right to property is not only a Constitutional or a statutory right but also a human right and human rights are considered to be in realm of individual rights which are gaining an even greater multifaceted dimension and, therefore, in case the person aggrieved is deprived of the land without making the payment of compensation as determined by the Collector/court, it would tantamount to forcing the said uprooted persons to become vagabond or to indulge in anti-social activities as such sentiments would be born in them on account of such ill treatment. Therefore, it is not permissible for any State/authority to uproot a person and deprive him of his human rights, without ensuring compliance of the statutory requirement under the garb of development.”
In the case of Mahandi Coalfields Limited and another v. Mathias Oram and others, ( 2010) 11 SCC 269, the Supreme Court was confronted with the problem of development in terms of 'law'; the principle of eminent domain or sovereign power and on the other hand, the millions of Indian over whom the word 'development' is a dreadful and hasteful that deny them even the source of their livelihood. It is apt to quote following paragraph of the judgment:
“11. This is not to say that the relevant laws are perfect and very sympathetic towards the dispossessed. There are various studies that detail the impact of dispossession from their lands on tribal people. It is pointed out that even when laws relating to land acquisition and resettlement are implemented perfectly and comprehensively (and that happens rarely!), uncomfortable questions remain. For a people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic.”
In the case of State of U.P. and others v. Manohar, (2005) 2 SCC 126, a person's land was forcefully taken without following any process of law and without payment of any compensation. The stand of the State of U.P. was that land was taken for the public purpose; for construction of a developed block, in 1955. The aggrieved person approached the Court after more than 40 years in the year 1992. The Allahabad High Court ignoring the delay in approaching the Court directed the State to pay the compensation. Aggrieved by the said order the State went in appeal. The Supreme Court dismissed the appeal with exemplary costs. The observation of the Supreme Court is worth noticing.
7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution.Although Article 19(1)(f) was deleted by the 44th Amendment to the Constitution, Article 300A has been placed in the Constitution, which reads as follows:
"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."
8. This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us.
9. In the result, we dismiss the appeal with exemplary costs of Rs.25,000/-. The compensation payable as directed by the High Court, together with the costs directed by us, shall be paid within a period of 3 months from today. The respondent shall also be paid interest on the compensation amount from 22.2.1999 till date of payment @ 9% per annum.
Now it brings us to the last submission of learned counsel for the respondent that the State authorities have exercised its power of eminent domain for the public purpose. A Constitution Bench of the Supreme Court in the case of K.T. Plantation Private Limited and another v. State of Karnataka, ( 2011) 9 SCC 1 , went elaborately into all implications of power of eminent domain, rule of law, scope of Article 300A, distinction between “Nil Compensation” relative scope of meaning of 'deprived', 'deprivation' 'acquisition' and 'requisition'. Relevant paragraphs of the judgment read thus:
“168. Article 300A 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 Art.300A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.
169. This Court in State of W. B. & Others v. Vishnunarayan & Associates (P) Ltd & Another (2002) 4 SCC 134, while examining the provisions of the West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in the context of Article 300A that the State or executive offices cannot interfere with the right of others unless they can point out the specific provisions of law which authorises their rights.
1. 190. Article 300A would be equally violated if the provisions of law authorizing deprivation of property have not been complied with. While enacting Article 300A Parliament has only borrowed Article 31(1) (The "Rule of law" doctrine) and not Article 31(2) (which had embodied the doctrine of Eminent Domain). Article 300A enables the State to put restrictions on the right to property by law. That law has to be reasonable. It must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive.
219. One of the fundamental principles of a democratic society inherent in all the provisions of the Constitution is that any interference with the peaceful enjoyment of possession should be lawful. Let the message, therefore, be loud and clear, that rule of law exists in this country even when we interpret a statute, which has the blessings of Article 300A.
(emphasis supplied)”
Regard may be had to the fact that in the above case the property in question was taken by a special Act, which was passed by the State Assembly of Legislative Council, and with the aid of a notification issued in exercise of power conferred by the provisions of the Land Reforms Act.
The next question arises what is true import of the words “by authority of law” and where it can be said that the State or its instrumentalities or local bodies have taken the land of a citizen for public purpose by 'authority of law', the words used also in Article 300A of the Constitution. The Supreme Court has answered the question in the case of M/s. Bishamber Dayal Chandra Mohan etc. etc. v. State of U.P. and others etc. etc., AIR 1982 (1) SC 33 . The Court has ruled thus:
“41. ...300A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Art. 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Art. 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Art. 300A. The word 'law' in the context of Art. 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law.”
Same view has been taken by the Supreme Court in the case of Hindustan Times and others v. State of U.P. and another, ( 2003) 1 SCC 591 , wherein it has held that the expression 'law' within the meaning of Article 300A would mean a Parliamentary Act or an Act of the State Legislature or a statutory order, having the force of law. Paragraph-23 of the judgment reads thus:
“23. The expression “law”, within the meaning Article 300-A, would mean a Parliamentary Act or an Act of the State Legislature or a statutory order having the force of law. ”
The Supreme Court in K.T. Plantation Private Limited ( supra) has also dwelt upon the concept of the rule of law after referring the views of several eminent Phylosphers as under:
“211. Rule of law as a concept finds no place in our Constitution, but has been characterized as a basic feature of our Constitution which cannot be abrogated or destroyed even by the Parliament and in fact binds Parliament. In Kesavanda Bharati v. State of Kerala, (1973) 4 SCC 225, this Court enunciated rule of law as one of the most important aspects of the doctrine of basic structure. Rule of law affirms parliament's supremacy while at the same time denying it sovereignty over the Constitution.”
The Court has concluded and answered the reference by holding that without authority of law enacted by the competent legislation and not by Government orders, the State cannot interfere in the peaceful enjoyment of the property of a person.
In the case of State of West Bengal and others v. Prafulla Churan Law (supra) , the Supreme Court has held that Article 300A of the Constitution broadly reproduces Clause-1 of Article 31, therefore, the judicial interpretation of the cases will be applicable and all cases under the said clause will be applicable under Article 300A.
(emphasis supplied) In Dipak Kumar Mukherjee (supra) the Supreme Court has taken judical notice of the fact that in last four decades the menace of illegal and unauthorized construction of buildings in different parts of the country has acquired monstrous proportion. The Court has emphasized the importance of planned development of cities.
From the analysis of the abovementioned statutory provisions of the Act, 1959 and the Act, 1973 as well as the judgments of the Supreme Court mentioned above following principles emerge:
(i) A citizen cannot be deprived of his/ her property without following the law. His/ her property can be acquired only in accordance with law but not by the Government Order (See: Hindustan Times and others ( supra ) .
(ii) The authorities shall publish a notice in two leading newspapers, one in vernacular newspaper having wide circulation in the locality, mentioning the house numbers which they intend to demolish. The person who has raised the illegal construction shall be given time to file his objections along with the documents to demonstrate that his construction is on his private land and he is owner thereof. If it is found that it is a private property, it shall be acquired in accordance with law and the compensation shall be paid.
(iii) The authorities shall make separate categories of the construction viz. (i) illegal construction on the State land; and (ii) the constructions raised on the private property, which is required for the road widening according to Master Plan. Both the constructions cannot be treated at par as the owners of the private property, whose construction is not illegal but is required for road widening, constitutes a separate class and their case is required to be treated in terms of Article 300A of the Constitution.
In view of the above, we dispose of this writ petition with a direction to the respondents to give an opportunity to the petitioners to demonstrate that the land in question is a private property and no encroachment has been made thereon, and after consideirng their representations, a detailed reasoned order be passed by the authority concerned. Regard being had to the fact that this Court in its earlier order passed in the writ petition filed by the petitoners has permitted the respondent authorities to remove the encroachment in accordance with law but no action has been taken by the authority concerned for removal of their construction.
No order as to costs.
Order Date :- 26.10.2018 Digamber