# Bhurangi & Anr v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 672
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** Writ-C No. 19079 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhurangi-anr-v-state-of-u-p-ors-49504
- **Pages:** 10

## Headnote

Civil Law--The
Constitution of
India,
1950-Article 19(1) (e), 21 & 226 - The
Uttar Pradesh Zamindari Abolition and
Land Reform Rules, 1952-Rule 115L---
Writ petition instituted for writ of mandamus
commanding the respondents to restore the
petitioners' possession of plot of which they are
the lawful allottees vide an awasiya patta
granted
in
favour
of
the
petitioners'
predecessors-in-interest--- This is a case where,
admittedly,
the
petitioners
have
been
dispossessed by acknowledged blunder, if not
downright remissness and negligence by the
respondent-Authorities in the exercise of their
public
functions
have
employed
powers
available to them and the might of the St. to
unlawfully deprive the petitioners of their roof
and shelter, which they now admit before the
Court was on account of not noting earlier
orders passed by the Additional Collector and
the Additional Commissioner---The respondents
acknowledge that they constructed public toilets
over a part of the land in dispute, to which they
had no right, whatsoever, under the law. They
have also acknowledged that the petitioners'
right under the awasiya patta is a subsisting
right--- Petitioners entitled to restoration of their
residential plots after immediate demolition of
the public toilets and boundary walls put up on
their land--- Respondent Nos. 2, 4, 5 and 6 shall
pay costs in the sum of ₹2,00,000/-each to the
two petitioners.

Petition allowed. (E-15)

List of Cases cited:

## Text

672 INDIAN LAW REPORTS ALLAHABAD SERIES
Presiding Officer prior to passing the order
directing for recounting of votes, thus,
impugned order cannot be sustained and is
hereby quashed. The election petition is
directed to be decided expeditiously,
preferably, within a period of three months
from the date of production of a certified
copy of this order.

31. The writ petition stands allowed
accordingly.

32. No order as to costs.
----------
(2023) 12 ILRA 672
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-C No. 19079 of 2022

Bhurangi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vineet Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Avinash Chandra Srivastava, Sri
Pranjal Singh, Sri Rishabh Srivastava, Sri
Abhishek Shukla, Sri Ramendra Kumar
Yadav

Civil Law--The
Constitution of
India,
1950-Article 19(1) (e), 21 & 226 - The
Uttar Pradesh Zamindari Abolition and
Land Reform Rules, 1952-Rule 115L---
Writ petition instituted for writ of mandamus
commanding the respondents to restore the
petitioners' possession of plot of which they are
the lawful allottees vide an awasiya patta
granted
in
favour
of
the
petitioners'
predecessors-in-interest--- This is a case where,
admittedly,
the
petitioners
have
been
dispossessed by acknowledged blunder, if not
downright remissness and negligence by the
respondent-Authorities in the exercise of their
public
functions
have
employed
powers
available to them and the might of the St. to
unlawfully deprive the petitioners of their roof
and shelter, which they now admit before the
Court was on account of not noting earlier
orders passed by the Additional Collector and
the Additional Commissioner---The respondents
acknowledge that they constructed public toilets
over a part of the land in dispute, to which they
had no right, whatsoever, under the law. They
have also acknowledged that the petitioners'
right under the awasiya patta is a subsisting
right--- Petitioners entitled to restoration of their
residential plots after immediate demolition of
the public toilets and boundary walls put up on
their land--- Respondent Nos. 2, 4, 5 and 6 shall
pay costs in the sum of ₹2,00,000/-each to the
two petitioners.

Petition allowed. (E-15)

List of Cases cited:

1. Chameli Singh & ors.Vs St. of U.P. & anr.
(1996) 2 SCC 459

2. New Reviera Coop. Housing Society & anr. Vs
Special Land Acquisition Officer & ors.: (1996) 1
SCC 731

(Delivered by Hon'ble J.J. Munir, J.)

Heard Mr. Vineet Kumar Singh,
learned Counsel for the petitioners and Mr.
Abhishek
Shukla,
learned
Counsel
appearing on behalf of respondent Nos. 1 to
5. No one appears on behalf of respondent
No. 6. Mr. Ramendra Kumar Yadav,
Advocate holding brief of Mr. Rishabh
Srivastava, learned Counsel for respondent
No. 7, is present.

2. This writ petition has been
instituted, praying that a writ of mandamus
be issued, commanding the respondents to
restore the petitioners' possession in Plot
No. 53, admeasuring 100 square yards
12 All. Bhurangi & Anr. Vs. State of U.P. & Ors.
673
each, being two plots of the same size
situate at Village Alinagar Kenjra, Tehsil
Sadar, District Firozabad, of which they are
the lawful allottees vide an awasiya patta
dated 04.02.1976 granted in favour of the
petitioners' predecessors-in-interest.

3. It is common ground between
parties that the first petitioner's father,
Ramji Lal and the second petitioner's
father, Keshav Dayal, were both granted an
awasiya
patta
each
by
the
Land
Management Committee, Gram Panchayat
Alinagar Kenjra, District Firozabad on
04.02.1976, both residential plots being
located in Plot No. 53. Each plot measured
100 square yards. A photostat copy each of
the two awasiya patta in Z.A. Form 49-D
drawn up in accordance with Rule 115L of
the Uttar Pradesh Zamindari Abolition and
Land Reform Rules, 19521 are annexed as
part of Annexure-1 to the writ petition.

4. Apart from the petitioners'
predecessors-in-interest,
136
other
residents of the village were also granted
residential patta of an identical area, all
comprised in Plot No. 53. All the patta
numbering a total of 138, including that
granted to the petitioners' predecessors,
came to be approved by the competent
authority. The petitioners predecessors
were put in possession of their respective
residential plots. The validity of the
awasiya patta granted in favour of the
petitioners' predecessors as well as the
other 136 similarly circumstanced patta
holders
was
questioned
through
proceedings initiated under Rule 115P of
the Rules of 1952 at the instance of the
State. The case was registered as Case No.
26 of 1982-83. Show-cause notices were
issued to the petitioners' predecessors under
Rule 115P aforesaid, and 84 allottees
entered
appearance
to
contest
those
proceedings. The petitioners' predecessors,
like the others who contested, put in their
objections and defended the allotments.
After hearing parties and going through the
record,
the
Additional
Collector
(Administration) Firozabad passed an order
dated 25.07.1985, discharging the notices
issued to the petitioners' predecessors as
also all other similarly circumstanced
allottees, who were granted a residential
patta on 04.02.1976. The Additional
Collector recorded a finding to the effect
that the allottees have deposited a sum of
money equal to 40 times the land revenue
payable and raised constructions on the
land allotted to each of them. He declined
to disturb the allotment, including those
made
in
favour
of
the
petitioners'
predecessors.

5. Aggrieved by orders of the
Additional Collector dated 27.05.1985, the
State of U.P. preferred Revision No. 425 of
1984-85 under Section 333A of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 19502 to the Commissioner,
Agra Division, Agra. The Additional
Commissioner, before whom the revision
came up, made a reference to the Board of
Revenue that the order dated 25.07.1985
passed by the Additional Collector be set
aside. This order was made by the
Additional Commissioner on 30.07.1986.
The reference was numbered as Reference
No. 66 of 1986-87 on the file of the Board
of Revenue, U.P. at Allahabad. The
Member, Board of Revenue vide judgment
and order dated 19.09.1985, rejected the
reference
made
by
the
Additional
Commissioner, set aside his order dated
06.07.1986 and remanded the revision to
the Additional Commissioner for decision
afresh. Revision No. 425 of 1984-85 came
up before the Additional Commissioner,
Agra Division, Agra, who held it to be not
674 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable and rejected the same vide
order
dated
05.03.1998.
Therefore,
according to the petitioners, the orders of
the Additional Collector dated 25.07.1985,
and that of the Additional Commissioner
dated 05.03.1998 attained finality, since
these were not put to any further challenge
at the instance of the respondents before
any other higher court of competent
jurisdiction. The order of the Board also
seems not to have been challenged. The
petitioners say that they came to be
dispossessed from the plots in dispute
without following the due process of law
by the respondent-Authorities, which is an
ultra vires act.

6. The petitioners represented their
grievance to the Additional Collector,
Firozabad on 20.11.2017, with a prayer to
restrain the Authorities from interfering
with their possession and restore it back to
them, bearing in mind the orders dated
25.07.1985 and 05.03.1998. A similar
representation dated 09.06.2021 was made
by the petitioners to the Additional District
Magistrate
(Finance
&
Revenue),
Firozabad, with a prayer to restore them
back to possession, and further, restrain the
other
respondents
from
raising
any
constructions
over
the
petitioners'
residential plots. The Additional District
Magistrate (Finance & Revenue) passed an
order dated 11.06.2021, directing the
Tehsildar/Naib Tehsildar, Sadar Chauri
Chaura, Raja Talab to demarcate the
petitioners'
land,
in
the
event
the
petitioners' allotment has not been set aside,
and further, to remove illegal occupant, if
any, therefrom.

7. A representation was also made on
behalf of the Manager, Committee of
Management,
Sri
Hubb
Lal
Balika
Vidyalaya, Alinagar Kenjra, Firozabad to
the Sub-Divisional Officer, Tehsil Sadar,
Firozabad on 22.07.2021, apprising him of
the fact that the plots of land allotted to the
petitioners
and
other
similarly
circumstanced natives for their abadi have
been unlawfully taken away and requested
him to restrain the other Authorities
concerned from unlawfully exercising
powers to the prejudice of the allottees. It
was further prayed that in the alternative,
the land that belonged to the Institution,
and subsequently, reserved for abadi, be
returned to them. It is the petitioners' case
that Plot No. 53 admeasuring 13 biswa was
earlier
allotted
to
the
Janta
Balika
Vidyalaya, Alinagar Kenjra, Firozabad
(now known as Sri Hubb Lal Balia
Vidyalaya). It was directed to be reserved
for the purpose of abadi by an order of the
Sub-Divisional Officer dated 29.01.1976
passed in Case No. 3 of 1975-96, Roshan
Lal v. Bhumi Prabandh Samiti, Alinagar,
Kenjra. The Sub-Divisional Officer, Sadar,
Firozabad issued a notice dated 16.08.2021
to the predecessors of the petitioner, the
Manager of the Institution last mentioned,
the Pradhan of Gram Panchayat, Alinagar
Kenjra and the Gram Panchayat Secretary,
Alinagar, Kenjra to appear before him on
19.07.2021 along with evidence, so that the
dispute can be resolved. The petitioners
went on to place their grievance before the
District Magistrate, Firozabad with a prayer
to protect lawful possession of their
respective residential plots.

8. The grievance of the petitioners
further is that despite all these proceedings
and their settled rights, which show that
their awasiya patta have not been cancelled,
and rather, their rights enlarged, with
deposit of 40 times the land revenue, their
possession has not been restored. They
continue to be illegally deprived of their
roof and shelter by the respondents. It is
12 All. Bhurangi & Anr. Vs. State of U.P. & Ors.
675
further said that the constructions raised
over
the
petitioners'
plots
by
their
predecessors have been demolished by the
respondent-Authorities,
acting
in
connivance
with
the
Pradhan,
Gram
Panchayat, Alinagar Kenjra, utilizing brute
force of the State available at their
command, in utter derogation of the
petitioners' rights.

9. When this petition came up before
this Court, by a detailed order dated
22.07.2022, after noticing all relevant facts,
it was admitted to hearing and notice issued
to respondent Nos. 1 to 5, all Authorities of
the State, amongst whom, the District
Magistrate, Firozabad, the Sub-Divisional
Officer, Tehsil Sadar, Firozabad and the
Tehsildar, Sadar, Firozabad were ordered to
file their personal affidavits, explaining the
circumstances under which the petitioners
were dispossessed and their constructions
demolished. Vide an interim order passed
on the stay application, the respondents
were restrained from raising constructions
over the plots in dispute, or changing the
character and nature of the property.

10. In response to the Rule issued,
three personal affidavits were filed, one
on behalf of the Collector, Firozabad,
respondent No. 2, the second, on behalf
of the Sub-Divisional Officer, Tehsil
Sadar, Firozabad, respondent No. 4 and
the third, on behalf of respondent No. 5,
that is to say, the Tehsildar, Tehsil
Sadar, District Firozabad. To each of
these affidavits, the petitioners have
filed three replies, all dated 24.09.2022.
All the three personal affidavits are
dated 29.08.2022. All these affidavits
take an identical stand, and therefore, it
would suffice to refer to one of these
and
reply
thereto
to
the
extent
necessary.

11. This Court has looked into the
personal
affidavit
of
Ravi
Ranjan,
District
Magistrate,
Firozabad.
In
paragraph Nos. 3, 4, 5 & 6 of the said
affidavit, it is averred :

3.
That
it
is
respectfully
submitted that over the land in dispute
the
Community
Toilet
had
been
constructed in the year 2017. However,
the boundary wall has been constructed
in the month of August, 2021 over the
land in dispute by the Gram Panchayat
of the concerned Village.

4. That after passing the order
dated 22.07.2022 passed by this Hon'ble
Court, the deponent along with the
respondent no. 4 and 5 inquired about
the matter and as such it has been found
that the residential patta granted in
favour of the petitioners on 04.02.1976
has been maintained by order dated
25.07.1985 passed by (then) Additional
District Magistrate, Firozabad which
became
final
between
the
parties
concerned.

5. That it appears that the
aforesaid construction of the community
toilet and the boundary wall, over the
land in dispute, was done without taking
notice of the order dated 25.07.1985
passed by (then) Additional District
Magistrate, District Firozabad in a
proceeding under section 115P of the
U.P. ZA&LR Act and Rules which
became
final
between
the
parties
concerned.

6. That, now, in such a situation,
as stated above, the deponent respectfully
submits with his folded hand that he will
comply the order passed by this Hon'ble
Court, if any, in respect of the possession
676 INDIAN LAW REPORTS ALLAHABAD SERIES
of the petitioners, however, the previous
action taken by the authorities concerned
against the petitioners is highly regretted.

12. In paragraph Nos. 4, 5, 6 and 7 of
the petitioners' reply to paragraph Nos. 3, 4,
5 and 6 of the personal affidavit filed by the
District Magistrate, it is averred :

4. That in reply to the averments
made in paragraph No.3 of the affidavit, it
is submitted that the boundary wall and
community toilet have been illegally
constructed over the land in dispute upon
forcibly
dispossessing
the
petitioners
therefrom, particularly when, the rights of
the petitioners over the land in dispute
stand perfected by virtue of the orders of
the Additional Collector (Administration)
Firozabad dated 25.07.1985 and that of the
Additional Commissioner, Agra Division,
Agra dated 05.09.1998 which have already
attained finality.

5. That in reply to the averments
made in paragraph No.4 of the affidavit, it
is submitted that the petitioners have been
prejudiced due to the arbitrary and illegal
exercise of the power by the respondent
No.6 at whose instance, the petitioners
came to be forcibly dispossessed of the
property in dispute in connivance with the
respondent authorities concerned. It is a
settled proposition of law that a person
must not be dispossessed of his property
without following the due process of law
but in the instant case, the act of the
respondents
concerned
in
forcibly
dispossessing the petitioners of the disputed
plot is clearly violative of Article 300-A of
the Constitution of India.

6. That in reply to the averments
made in paragraph No.5 of the affidavit, it
is submitted that the petitioners have
sustained hardship and there has been a
complete failure of justice in forcibly
divesting the petitioners of the property in
dispute despite the orders of the Revenue
Authorities
dated
25.07.1985
and
05.03.1998 operating in their favour and, as
such, the possession of the petitioners over
the land in dispute is liable to be restored
forthwith on the strength of the Avasiya
Patta dated 04.02.1976 granted in favour of
their predecessors-in-interest which is still
subsisting.

7. That in reply to the averments
made in paragraph Nos.6 and 7 of the
affidavit, it is submitted that a suitable
direction may be issued by this Hon'ble
Court upon the respondent authorities to
restore the possession of the petitioners
over the disputed plot forthwith considering
the orders dated 25.07.1985 and 05.03.1998
passed
by
the
Additional
Collector
(Administration), Firozabad and Additional
Commissioner,
Agra
Division,
Agra
respectively which have attained finality
with respect to the subject matter of dispute
as also the Avasiya Patta dated 04.02.1976
which is still operative.

13. From a bare perusal of the stand
taken by the respondent-Authorities, it is
evident that respondent Nos. 2, 4 and 5
admit the fact that a community toilet has
been constructed over the plots in dispute
belonging to the petitioners in the year
2017 and a boundary wall constructed in
August, 2021 by the Gram Panchayat. It is
also admitted that the residential patta
granted in favour of the petitioners on
04.02.1976 has been affirmed by the then
Additional Collector, Firozabad vide order
dated 25.07.1985. It has been wholesomely
acknowledged that the construction of the
community toilet and the boundary wall
over the land in dispute was done without
12 All. Bhurangi & Anr. Vs. State of U.P. & Ors.
677
taking notice of the order dated 25.07.1985
passed
by
the
Additional
Collector,
Firozabad in proceedings under Section
115P of the Rules of 1952, that had become
final inter partes. The respondents have
undertaken to comply with orders, if any,
that this Court may make with regard to
possession of the petitioners' land and have
regretted action taken by the Authorities
concerned in the past relating to the land in
dispute. This is the stand which the District
Magistrate, the Sub-Divisional Officer and
the Tehsildar have unanimously taken.

14. The petitioners, on the other hand,
in their reply, have said that their
dispossession was done without following
the due process of law and in violation of
their crystallized rights, which is a blatant
transgression of their fundamental rights.
We think that it is undoubtedly so. The act
of the respondents in forcibly dispossessing
the petitioners of the land in dispute,
lawfully held under awasiya patta granted
in favour of their predecessors, and as
respondent Nos. 2, 4 and 5 unanimously
say, without taking note of the earlier
orders
upholding
the
said
patta,
is
decidedly a brazen abuse of authority by
the respondents in derogation of the
petitioners' right not only under Article
300-A of the Constitution, but also their
Right to Shelter protected under Article
19(1)(e) and 21 of the Constitution. To take
away a man's roof and shelter otherwise
than by procedure established by law is an
act that cannot be lightly noticed by this
Court and passed over.

15. Right to Shelter was well
acknowledged as a fundamental right in
Chameli Singh and others v. State of
U.P. and another3. It was observed by
their Lordships of the Supreme Court in
Chameli Devi (supra) :

8. In any organised society, right
to live as a human being is not ensured by
meeting only the animal needs of man. It is
secured only when he is assured of all
facilities to develop himself and is freed
from restrictions which inhibit his growth.
All human rights are designed to achieve
this object. Right to live guaranteed in any
civilised society implies the right to food,
water, decent environment, education,
medical care and shelter. These are basic
human rights known to any civilised
society. All civil, political, social and
cultural rights enshrined in the Universal
Declaration
of
Human
Rights
and
Convention or under the Constitution of
India cannot be exercised without these
basic human rights. Shelter for a human
being, therefore, is not a mere protection of
his life and limb. It is home where he has
opportunities to grow physically, mentally,
intellectually and spiritually. Right to
shelter, therefore, includes adequate living
space, safe and decent structure, clean and
decent surroundings, sufficient light, pure
air and water, electricity, sanitation and
other civic amenities like roads etc. so as to
have easy access to his daily avocation.
The right to shelter, therefore, does not
mean a mere right to a roof over one's head
but right to all the infrastructure necessary
to enable them to live and develop as a
human being. Right to shelter when used as
an essential requisite to the right to live
should be deemed to have been guaranteed
as a fundamental right. As is enjoined in
the Directive Principles, the State should be
deemed to be under an obligation to secure
it for its citizens, of course subject to its
economic budgeting. In a democratic
society as a member of the organised civic
community one should have permanent
shelter so as to physically, mentally and
intellectually equip oneself to improve his
excellence as a useful citizen as enjoined in
678 INDIAN LAW REPORTS ALLAHABAD SERIES
the Fundamental Duties and to be a useful
citizen and equal participant in democracy.
The ultimate object of making a man
equipped with a right to dignity of person
and equality of status is to enable him to
develop himself into a cultured being. Want
of decent residence, therefore, frustrates the
very object of the constitutional animation
of right to equality, economic justice,
fundamental right to residence, dignity of
person and right to live itself. To bring the
Dalits and Tribes into the mainstream of
national life, providing these facilities and
opportunities to them is the duty of the
State as fundamental to their basic human
and constitutional rights.

9. In Kurra Subba Rao v. Distt.
Collector [(1984) 3 APLJ 249] , Andhra
Pradesh
High
Court
considering
the
obligation of the State to provide shelter to
the weaker sections of the society by
acquiring lands for public purpose and
distribution thereof had held that in all
stages of social development a man must
have some property or capacity for
acquiring property. There could be no
individual liberty without a minimum of
property. People who cannot buy bread
cannot follow the suggestion that they can
eat cake. People bowed under the weight of
poverty are unlikely to stand up for their
constitutional rights. Welfare State exists
not only to enable the people to eke out
their livelihood but also to make it possible
for them to lead a good life. .....

10. The need to provide right to
shelter is not peculiar to India alone but is a
global problem being faced by all the
developing and developed nations. In 1980 the
United Nations General Assembly in its
Resolution No. 35/76 expressed the view that
an international year devoted to the problems
of homeless people in urban and rural areas of
the developing countries could be an
appropriate occasion to focus attention of the
international community on those problems. In
Resolution
No.
37/221
of
1987
the
International Year of Shelter for the Homeless
was adopted and request was made to member
States to sustain the momentum generated
during the programme for the year and to
continue
implementing
concrete
and
innovative activities aimed at improving the
shelter and neighbourhoods of the poor and
the disadvantaged and requested the SecretaryGeneral of the UNO to keep it informed
periodically of the progress achieved. At the
close of the international year the General
Assembly received and noted in Resolution
No. 42/191 the reports of the Executive
Director of the U.N. Centre for Human
Settlement entitled "Shelter and services for
the poor - a call to action". It recognised that
adequate and secure shelter is a basic human
right and is vital for the fulfilment of human
aspirations and that a squalid residential
environment is a constant threat to health and
to life itself, thereby constituting a drain on
human resources, a nation's most valuable
asset. The General Assembly expressed deep
concern about the existing situation in which,
in spite of efforts of Government at the
national and local levels and of international
organisations, more than one billion people
find themselves either completely without
shelter or living in homes unfit for human
habitation; and that owing to prevailing
demographic trends, the already formidable
problems will escalate in the coming years
unless concerted and determined efforts are
taken immediately. .....

.............

12. In Encyclopaedia of Social
Work in India (Vol. 2) at p. 82 it is stated
that supply of housing in India does not
fully meet the present needs of the
12 All. Bhurangi & Anr. Vs. State of U.P. & Ors.
679
population whether in terms of location,
size, tenure, type or facilitation. The share
of housing sector in India's economy is
fluctuating from year to year. Of the total
housing stock of 7.44 crore dwelling units
available in 1971 in rural areas, 0.80 crore
were unserviceable kutcha, 2.44 crores
were serviceable kutcha, 2.79 crores were
semi-pucca and only 1.41 crore units were
pucca. The housing accommodation as a
whole in the rural areas as dwelling units is
inadequate. With ever-growing population
and migration of poor to urban areas for
livelihood, slums are getting escalated and
resultantly with the passage of time
housing problem is becoming increasingly
acute. Under Minimum Needs Programme
provision of house sites and construction of
houses
for
rural
landless
poor
was
envisaged in the Sixth Plan 1980-85 which
continued in the Seventh Plan. Finances are
provided for construction of the houses
under the planned expenditure. ......

16. The same thought was echoed
once again by the Supreme Court in New
Reviera Coop. Housing Society and
another v. Special Land Acquisition
Officer and others4 where it was observed
:

7. The appellant herein filed a
writ
petition
contending
that
the
acquisition is violative of Article 21 of
the Constitution violating his dignity of
person, and deprives his right to shelter
and also makes him shelterless. He
referred to various steps taken by him to
have his title to the flat established. It is
not necessary to dilate upon all the details
in that behalf. Suffice it to state that as on
the date of the notification, he was the
owner of Flat No. 27. The question is
whether the acquisition offends Article
21. .....

8. Three decisions of this Court
have been cited by the learned counsel for
the appellant to which reference is
unnecessary for the reason that in none of
the cases the question of validity of
acquisition by the State exercising its
power of eminent domain was put in issue
on the anvil of Article 21. All those cases
relate to providing alternative sites. Right
to shelter is undoubtedly a fundamental
right.
A
person
may
be
rendered
shelterless, but it may be to serve a larger
public purpose. Far from saying that he will
be rendered shelterless this Court did not
circumscribe the State's power of eminent
domain, even though a person whose land
is being acquired compulsorily for the
public purpose is rendered shelterless. If
that contention is given credence no land
can be acquired under the Act for any
public purpose since in all such cases the
owner/interested person would be deprived
of his property. He is deprived of it
according to law. Since the owner is
unwilling for the acquisition of his property
for public purpose, Section 23(2) provides
solatium for compulsory acquisition against
his wishes. Under those circumstances, it
cannot be held that the acquisition for
public purpose violates Article 21 of the
Constitution or the right to livelihood or
right to shelter or dignity of person.

(emphasis by Court)

17. Since the decisions rendered by
the Supreme Court in Chameli Singh and
New Reviera Coop. Housing Society
(supra), much events have gone by in the
march of history, and the country has seen
unprecedented action by the State to
provide housing to the poor and the
marginalised
section
of
the
society,
particularly, in the rural areas. Homes have
been provided to the homeless under
680 INDIAN LAW REPORTS ALLAHABAD SERIES
schemes such as the Pradhanmantri Awas
Yojna - Urban (for the urban poor) since
the year 2015 and the Pradhanmantri Awas
Yojna - Gramin (for the rural poor), since
the year 2016.

18. In the above conspectus, to
deprive the petitioners of their roof and
shelter, who, apparently, belong to the
marginalised sections of the rural populace
is certainly a violation of their fundamental
right to shelter. It is not a case, where, their
shelter has been taken away by a lawful act
of the State, in furtherance of a larger
public interest.

19. In the decisions aforementioned,
the Right to Shelter, as a facet of the
fundamental
rights
guaranteed
under
Articles
19(1)(e)
and
21
of
the
Constitution, was acknowledged, but the
Court was judging the validity of action by
the State to acquire land for a public
purpose, in exercise of its power of eminent
domain. Therefore, the remarks in the
decisions of their Lordships that uphold
deprivation of possession, and, a fortiori,
shelter in those cases came in the wake of
action taken in lawful exercise of power by
the State, protected by the Statute to
accomplish a wider public purpose. This is
a case where, admittedly, the petitioners
have been dispossessed by acknowledged
blunder, if not downright remissness and
negligence by the respondent-Authorities in
the exercise of their public functions. They
have employed powers available to them
and the might of the State to unlawfully
deprive the petitioners of their roof and
shelter, which they now admit before this
Court was on account of not noting earlier
orders passed by the Additional Collector and
the
Additional
Commissioner.
The
respondents also acknowledge that they have
constructed public toilets over a part of the
land in dispute, to which they had no right,
whatsoever, under the law. They have also
acknowledged that the petitioners' right
under the awasiya patta is a subsisting right.

20. In the circumstances, the petitioners
are entitled to restoration of their residential
plots, after immediate demolition of the
public toilets and boundary walls put up on
their land by the Gram Sabha. They are also
entitled to award of exemplary costs to serve
as recompense for the brazen violation of
their rights that we have found.

21. In the circumstances, this writ
petition succeeds and shall stand allowed.
The respondents, that is to say, the
Collector/District Magistrate, Firozabad, the
Sub-Divisional Officer, Tehsil Sadar, District
Firozabad, the Tehsildar, Tehsil Sadar,
District Firozabad and the Land Management
Committee, Gram Panchayat, Alinagar,
Kenjra, Block and District Firozabad,
represented by its Pradhan, are commanded
by a mandamus to ensure removal of all
constructions, be it public toilets or
boundary walls or any other construction
standing on the petitioners' residential
plots and deliver vacant possession of the
same to the petitioners, on or before
30.12.2023. Respondent Nos. 2, 4, 5 and
6 shall pay costs in the sum of
₹2,00,000/- (Rupees Two Lacs Only)
each to the two petitioners by depositing
the said sum of money in the Court of the
learned Civil Judge (Senior Division)
Firozabad, on or before, 30.12.2023.
Upon deposit of costs, the learned Civil
Judge shall immediately remit the same
in account to the two petitioners. It will
be open to the State Government to
recover the costs personally from the
officials concerned, who may be found
responsible for the petitioners' unlawful
dispossession.
12 All. Pradeep Kumar Shukla Vs. State of U.P. & Ors.
681

22. The Registrar (Compliance) is
directed to communicate this order to the
Collector
and
District
Magistrate,
Firozabad, the Sub-Divisional Officer,
Tehsil Sadar, District Firozabad, the
Tehsildar, Tehsil Sadar, District Firozabad
and
the
Pradhan,
Gram
Panchayat,
Alinagar, Kenjra, Block and District
Firozabad, through the learned Civil Judge
(Senior Division), Firozabad and to the
learned Civil Judge (Senior Division)
Firozabad.
----------
(2023) 12 ILRA 681
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 24167 of 2021

Pradeep Kumar Shukla ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Birendra Singh

Counsel for the Respondents:
C.S.C.

The Uttar Pradesh Minerals (Prevention of
Illegal
Mining,
Transportation
and
Storage) Rules, 2018-order cancelling the
licence and imposing penalty - appeal -
dismissed -the instant writ petition-before the
order was passed by the District Magistrate-it
was not preceded by any personal hearing as
compulsorily required u/R 10 of the 2018 Rules-
Rule 13 provides for the imposition of a
maximum penalty of Rs. five lacs- no reason
given for the imposition of the maximum
penalty-no loss to the exchequer of the St.
Government -imposition of penalty erroneouscalculation of price as had been done by
multiplying the royalty by five was not
justifiable-no reason assigned-impugned order
set aside.

W.P. allowed. (E-9)

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Arun Kumar Singh Deshwal, J.)

1. The petitioner was granted a
licence for storage of sand under The Uttar
Pradesh Minerals (Prevention of Illegal
Mining, Transportation and Storage) Rules,
2018, (hereinafter referred to as the 2018
Rules) on 21.5.2020 for the period starting
on 21.5.2020 and ending on 20.5.2021.
During the subsistence of the licence on
25.8.2020 a show cause notice was issued
to the petitioner on the ground that he had
stored the sand (minerals) not on his own
land but on another plot no. 362 which
belonged to some other tenure holders and,
therefore, it was alleged that he had
violated the conditions of the lease. It was
also alleged that the mineral found during
inspection
was
beyond
the
capacity
allocated to the petitioner under the licence.

2. The petitioner replied to the show
cause notice/charges on 7.9.2020 and
denied the charges leveled against him.
When an order cancelling the licence and
imposing penalty was passed on 30.9.2020,
the petitioner filed an appeal and when the
appeal was also dismissed on 17.8.2021,
the instant writ petition has been filed.

3. Learned counsel for the petitioner
assailed the two orders primarily on the
following grounds:

I.
Learned
counsel
for
the
petitioner has submitted that as per the Rule
10 of the 2018 Rules after the show cause