Hon'ble Arvind Kumar Tripathi (II),J.
[Per Justice Devi Prasad Singh] 1 Instant writ petition under Article 226 of the Constitution of India, has been preferred for issuance of a writ in the nature of mandamus to direct the respondents to pay compensation along with interest at the rate of 18% per annum in lieu of land acquired for construction of link service road parallel to the National Highway Lucknow-Faizabad. Submission of petitioners' counsel is that in spite of lengthy communications between the department and the State government and admitting the liability to pay compensation, the same has not been paid.
2 Plot No.903, measuring area 4 Biswa in village Abu Sarai is recorded in the petitioners' name. Out of 4 Biswa, an area of 16 Biswansi of land of plot No.903 was taken into possession by the respondents Public works Department for construction of link service road parallel to the National Highway Lucknow-Faizabad. Acquisition of petitioners' land measuring 16 Biaswansi, has been verified and affirmed for construction of link service road in pursuance of survey report dated 13.6.2001. The Executive Engineer, Public Works Department, Prantiya Khand, Faizabad, by his letter dated 30.1.2003 (Annexure No.1 to the writ petition), made a request to the District Magistrate, Faizabad to pay compensation. By another letter dated 25.5.2007 (Annexure No.2 to the writ petition) the Executive Engineer, Public Works Department, Prantiya Khand, Faizabad, made assessment and sent proposal dated 24.5.2007 along with the letter dated 25.5.2007 (supra) for payment of compensation with regard to 16 Biswansi of land which is Rs.3,13,658.00. The operative portion of the proposal dated 24.5.2007 enclosed with the letter dated 25.5.2007 (supra), is reproduced as under:-
"mDr i=ksa ds vuqikyu esa Hkwfe la0 903 {ks=Qy 101-18 oxZ eh0 ¼16 /kqj½ dk izfrdj /kujkf'k 313658-00 dk Hkqxrku dkLrdkj dks fn;k tkuk gS mDr izLrko esa yxk;h x;h nj ftykf/kdkjh dh iqujhf{kr lwph ¼Nk;kizfr layXu½ ds vuqlkj gS vr% #0 313658-00 ek= dk [email protected] rS;kj djds iz'kkldh; ,oa foRrh; Lohd`fr gsrq izsf"kr fd;k tk jgk gSaSA"
3 The letter dated 19.6.2008 filed as Annexure No.4 to the writ petition sent by the Chief Engineer to the Special Secretary, Lok Nirman Anubhag-2, U.P. Government, Lucknow and the letter dated 26.8.2009 sent by the Special Land Acquisition Officer, Faizabad to the Executive Engineer, Prantiya Khand, Lok Nirman Vibhag, Faizabad (Annexure No.5 to the writ petition) and other documents, establish with regard to liability of payment of compensation to the tune of Rs.3,13,658.00 to the petitioners in lieu of acquisition of 16 Biswansi of land (supra).
The record with regard to payment of compensation to the petitioners (Annexure No.9 to the writ petition) shows the petitioners' entitlement for payment of compensation. In pursuance of the letter dated 26.11.2007 (Annexure No.8 to the writ petition), the Superintending Engineer, Faizabad Circle, Lok Nirman Vibhag, Faizabad vide his letter dated 8.10.2012 (Annexure No.9 to the writ petition) informed that all necessary formalities have been completed with regard to payment of compensation. For convenience, letter dated 26.11.2007 sent by the Special Secretary, U.P. Government, (Annexure No.8 to the writ petition) is reproduced as under:-
"izs"kd] jktsUnz izlkn] fo'ks"k lfpo] mRrj izns'k 'kkluA lsok esa] eq[; vfHk;Urk ¼eq0½] yksd fuekZ.k foHkkx] y[kuÅA yksd fuekz.k vuqHkkx&2 y[kuÅ fnukWad%& 26 uoEcj] 2007 fo"k;%& QStkckn ckbZikl ds lekukUrj.k lsok ekxZ esa vf/kxzghr Hkwfe ds izfrdj Hkqxrku lEcU/khA &&& egksn;] mi;ZqDr fo"k;d vkids i=kad&530,y0,[email protected] fnukad&01-10-07 dh vksj vkidk /;ku vkd`"V djrs gq, eq>s ;g dgus dk funsZ'k gqvk gS fd d`i;k iz'uxr ekxZ vUrxZr vf/kxzghr Hkwfe xkVk la0&903 fe0 {ks0 16 ?kwj xzke vCcw ljk;] QStkckn ds izfrdj Hkqxrku ds lEcU/k esa fuEukafdr fcUnqvksa ij fLFkfr Li"V djkrs gq, lEiw.kZ fooj.k vfHkys[k vius Li"V vfHker lfgr miyC/k djkuk lqfuf'pr djsaA iz'uxr Hkwfe ftykf/kdkjh] dh vk[;k ds vuqlkj vtZu ds le; jktLr vfHkys[kksa esa jkLrk ntZ gksuk crk;k x;k gS rks vc fdl vfHkys[kksa ds vk/kkj ij izfrdj Hkqxrku dk vuqjks/k fd;k tk jgk gS fLFkfr Li"V djrs gq, okafNr vfHkys[k Hkh miyC/k djk;kA ¼2½ iz'uxr ekxZ [email protected] ds le; iz'uxr Hkwfe dk LokfeRo izfrdj Hkqxrku dh fLFkfr Li"V dh tk,A ¼3½ iz'uxr Hkwfe dk fu;ekuqlkj ns; izfrdj Hkqxrku gsrq ftyk vf/[email protected]'ks"k Hkwfe v/;kfIr vf/kdkjh dk [email protected] dh izekf.kr izfr miyC/k djkbZ tk,A Hkonh;] ¼jktsUnz izlkn½ fo'ks"k lfpoA la[;k&3116¼1½@23-2-07 rn~fnukad& izfrfyfi fuEufyf[kr dks mijksDrkuqlkj vko';d dk;Zokgh gsrq izsf"krA 1& izeq[k vfHk;Urk ¼fodkl½ yksd fuekZ.k foHkkx] y[kuÅA 2& eq[; vfHk;Urk QStkckn {ks=] yks0 fu0 fo0 QstkcknA vkKk ls] g0 v0 ¼jktsUnz izlkn½ fo'ks"k lfpoA i=kad& 18332 Qs0 '[email protected] 46 ----
izfrfyfi & vf/k0 vFhk0 izk0 [k.M yks0 fu0 fo0 QStkckn dks okafNr lwpuk rRdky miyC/k djkus gsrq izsf"kr& izfr v/kh0 vfHk0 & yks0 fu0 fo0 QStkckn dk okafNr lwpuk miyC/k djkus gsrq izsf"krA g0 v0 d`rs eq[; vfHk0 ---
lR; izfrfyfi"
4 While filing counter affidavit, factum with regard to payment of compensation has not been disputed. For convenience, para 12 and 13 of the counter affidavit are reproduced as under:-
"12. That in view of the written consent given by the Petitioners for receiving compensation of Rs.3,13,658/- (Rs.Three lacs Thirteen Thousand Six Hundred Fifty Eight) in lieu of their land utilized for construction of Service Road, a proposal was submitted to the State Government for sanctioning the requisite fund. Subsequently, the State Government vide letter dated 26.11.2007 raise certain objections.
True copy of the Letter dated 26.11.2007 is being filed herewith and marked as Annexure No.CA-1 to this Counter Affidavit.
13. That eventually the Executive Engineer submitted a report dated 08.10.2012 thereby clarifying the objections raised by the State Government and accordingly requested for sanction of an amount of Rs.3,13,658/- (Rs. Three Lacs Thirteen Thousand Six Hundred Fifty Eight) as compensation payable to the Petitioners in lieu of utilization of their land measuring 16 Dhur (101.18 Sq.mtr.).
True copy of the Report dated 08.10.2012 is being filed herewith and marked as Annexure No.CA-2 to this Counter Affidavit."
5 In view of the above, there appears to be no room of doubt that for one reason or the other, the respondents are delaying the payment of compensation to the petitioner. It is not understandable that why the compensation has not been paid in spite of admitted fact on record. When the State Government wrote letter dated 26.11.2007 (supra), reply was given informing that all necessary formalities have been completed and proposal has been sent to the Government to sanction the fund for the payment of compensation. It is also not understandable that how the State Government made query vide letter dated 26.11.2007 (supra) that too, without applying mind to the material on record though the entire formalities including proposal for payment of compensation was sent to the Government long back. The record reveals that proposal with all necessary formalities was sent on 24.5.2007 (supra). From the above facts, evidently, the petitioners have been deprived of the compensation without any reasonable cause.
6 It is trite law that citizens' land cannot be acquired without acquisition in accordance with law followed by payment of compensation. Further, unless the land is acquired in accordance with the provisions of Land Acquisition Act for any other law for the time being in force, State authorities have no right to dispossess the citizens from their lawful right to enjoy the property, vide [2013 (31) LCD 2048] Shree Narayan Singh Vs. State of U.P. and others.
7 In the present case, in spite of the fact that the proposal was sent in the year 2007, with estimated cost of land which comes to Rs.3,13,658.00 (supra), the compensation has not been paid. The Special Secretary to the Government had sent letter (supra) for certain clarification that too, seems to be based on unfounded ground and without application of mind. It appears that dealing clerk or the Special Secretary has not taken pain to go through the record while sending the letter dated 26.11.2007 (supra). There appears to be deliberate delay on the part of the Government and its authorities in making payment of compensation. Such action on the part of the Government and its authorities is deprecated.
8 In Shree Narayan Singh (supra), after considering earlier judgments of Hon'ble Supreme Court, the Division Bench of this Court (judgment delivered by one of us Justice Devi Prasad Singh), has held as under:-
33. In a case reported in (2010) 8 SCC 383 Meghmala and others Vs. G. Narasimha reddy and others, while referring earlier judgement 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)."
34. 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.
Law includes not only legislative enactments but also judicial precedents. An authoritative judgement of the courts including higher judiciary is also law.
It is a rule for the well governing of Civil Society to give to every man that which doth belong to him.
Blackstone 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."
Otherwise also, it is settled principles of law that things should be done in the manner provided by the Act and statutes and not othwewise 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.
Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nika Ram Vs. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke Vs. Govind Joti Chavare and others, AIR 1975 SC 915; Chettiam Veettil Ammad and another Vs. Taluk Land Board and others, AIR 1979 SC 1573; State of Bihar and others Vs. J.A.C. Saldanna and others, AIR 1980 SC 326, A.K.Roy and another Vs. State of Punjab and others; AIR 1986 SC 2160; State of Mizoram VS. Biakchhawna, 1995 (1) SCC 156; J.N.Ganatra Vs. Morvi Municipality Morvi, AIR 1996 SC 2520; Babu Verghese and others Vs. Bar Council of Kerala and others, AIR 1999 SC 1281; and Chandra Kishore Jha Vs. Mahavir Prasad (1998) 8 SCC 266.
Accordingly, the petitioners could not have been dispossessed and the land could have been acquired only in accordance with provisions contained in Land Acquisition Act or any other law for the time being in force.
9 In the present case, the petitioners have suffered from the high handedness on the part of the respondent State and its authorities in two folds, viz., forcible acquisition of petitioners' land without following due process of law (supra) and non-payment of compensation on one and other ground.
10 Whenever there is deliberate and intentional deprivation of basic rights, then while adjudicating controversy under writ jurisdiction, it shall be appropriate to award exemplary costs. The Division Bench in Shree Narayan Singh (supra) held as under:-
65. For deliberate or intentional deprivation of basic rights (supra), courts while allowing a petition should impose exemplary or compensatory costs in addition to citizen's right to approach appropriate forum or prefer a suit for payment of compensation, which may be recovered by the government from the salary or asset of the officer/employee who are responsible for citizen's plight.
66. Hon'ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353, has held as under:-
"so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force."
67. The aforesaid view has also been adopted by Hon'ble Supreme Court in a judgment rendered in the case of A. Shanmugam v. Ariya Kshetriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President and others, (2012) 6 SCC 430.
68. In South Eastern Coalfields Ltd (supra), Hon'ble Supreme Court while dealing with the question held as under:-
"28. ... Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."
69. Hon'ble Supreme Court in the case of Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 held as under:-
"17. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been field. The maxim actus curiae neminem gravabit, which means the the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court."
70. In the case of National Textile Corporation (Uttar Pradesh) Limited v. Bhim Sen Gupta and others, (2013) 7 SCC 416 Hon'ble Supreme Court took note of the fact that the Textile Corporation has not placed the correct facts before the Court hence the contempt petition was dismissed and the cost was quantified at Rs.50,000/- which was payable to the Supreme Court Legal Services Committee.
71. In the case of Centre For Public Interest Litigation and others v. Union of India and others, (2012) 3 SCC 1, Hon'ble Supreme Court considering the entire facts and circumstances and also the public interest, allowed the petition and directed the respondents no.2, 3 and 9 to pay a cost of Rs.5 crores each and further directed respondents no.4, 6, 7 and 10 to pay a cost of Rs.50 lakhs each, out of which 50% was payable to the Supreme Court Legal Services Committee for being used for providing legal aid to poor and indigent litigants and the remaining 50% was directed to be deposited in the funds created for Resettlement and Welfare Schemes of the Ministry of Defence."
11 Accordingly, we are of the view that exemplary costs should be awarded not only on account of mental pain and agony suffered by the petitioners on account of deprivation of property without following due course of law in the year 2001 but also because of non-payment of compensation which has been assessed and settled in the year 2007 and decision appears to be accepted by the petitioners. The writ petition deserves to be allowed.
12 Accordingly, the writ petition is allowed as under:-
(A) A writ in the nature of mandamus is issued directing the respondents State to pay compensation, as assessed, of Rs.3,13,658.00 expeditiously say, within two months from the date of receipt of a certified copy of the present judgment along with interest at the rate of 10% per annum with effect from November, 2007 till the entire compensation is paid to the petitioners.
(B) Costs is quantified to Rs.5,00,000/- (five lakhs) which shall be deposited by the respondent State within three months. Out of costs so deposited, the petitioners shall be entitled to withdraw an amount of Rs.4,00,000/- (four lakhs) and Rs.1,00,000/- (one lakh) shall be remitted to Mediation and Conciliation Centre, High Court, Lucknow Bench Lucknow. In case costs is not deposited, the Collector, Lucknow shall recover the same as arrears of land revenue from the State property and remit it to this Court within three months. Registry to take follow up action.
(C) It shall be open to State and its authorities to recover the costs from the persons who are accountable for not making payment of compensation to the petitioners and keeping the matter pending since 2007.
The writ petition is allowed accordingly.
[Justice Arvind Kumar Tripathi (II)] [Justice Devi Prasad Singh] Order Date :- 15-10-2014 Rajneesh Dy.R-PS)