# Ram Nayan Singh and another v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-27
- **Case number:** Civil Misc. Writ Petition No. 45321 of 2004
- **Bench:** V.M. Sahai, R.N. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nayan-singh-and-another-v-state-of-u-p-and-others-41187
- **Pages:** 6

## Headnote

Constitution
of
India,
Art.
300-AConstruction of Road-over private land
of citizen-without adopting recourse of
law without consent of recorded tenure
holder-held-illegal-unconstitutional
collector either to pay full compensation
at the market rate within 4 months with
30% solatium and interest @ 12% or to
give back the possession by dismasting
the road-court expressed deep concern
regarding
illegal
approach
of
the
authorities.

Held: Para 13

In view of our above discussions, we
allow the writ petition and direct the
Collector,
Azamgarh
to
pay
compensation to the petitioners for their
land on which road has been constructed
within a period of four months from the
date, a certified copy of this order is
produced before him. While assessing
the compensation, the Collector will give
opportunity to the petitioners to produce
evidence and then decide the market
value of the land on the date of taking
possession. The petitioners will also be
given solatium on the market value at
the rate of 30% and interest @ 12 % per
annum
from
the
date
of
taking
possession till the date of payment. If
the compensation is not paid within the
said period, the petitioners will be given
back
possession
of
their
land
by
dismantling the road.
Case law discussed:
1999(1) AWC 661, 2004(4) SCC 79, 2005(2)
SCC 126, 2004( 2) UPLBEC 1820, (Civil Misc.
Writ Petition No. 46187 of 2000 decided on
25.2.2004), 2008(2) ADJ 476

## Text

2 All] Ram Nayan Singh and another V. State of U.P. and others
383
interest and solatium shall be paid at the
rates awarded in the impugned judgment.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 45321 of 2004

Ram Nayan Singh & others ...Petitioners
Versus.
State of U.P and others ...Respondents

Counsel for the Petitioners:
Sri V.K. Singh
Sri G.K. Singh

Counsel for the Respondents:
S.C.

Constitution
of
India,
Art.
300-AConstruction of Road-over private land
of citizen-without adopting recourse of
law without consent of recorded tenure
holder-held-illegal-unconstitutional
collector either to pay full compensation
at the market rate within 4 months with
30% solatium and interest @ 12% or to
give back the possession by dismasting
the road-court expressed deep concern
regarding
illegal
approach
of
the
authorities.

Held: Para 13

In view of our above discussions, we
allow the writ petition and direct the
Collector,
Azamgarh
to
pay
compensation to the petitioners for their
land on which road has been constructed
within a period of four months from the
date, a certified copy of this order is
produced before him. While assessing
the compensation, the Collector will give
opportunity to the petitioners to produce
evidence and then decide the market
value of the land on the date of taking
possession. The petitioners will also be
given solatium on the market value at
the rate of 30% and interest @ 12 % per
annum
from
the
date
of
taking
possession till the date of payment. If
the compensation is not paid within the
said period, the petitioners will be given
back
possession
of
their
land
by
dismantling the road.
Case law discussed:
1999(1) AWC 661, 2004(4) SCC 79, 2005(2)
SCC 126, 2004( 2) UPLBEC 1820, (Civil Misc.
Writ Petition No. 46187 of 2000 decided on
25.2.2004), 2008(2) ADJ 476

(Delivered by Hon'ble V.M. Sahai, J.)

1. The petitioners have come up
before this Court for wrongful act of the
respondents in taking away their land
against the provisions of law. They have
claimed compensation and damages for
their dispossession from the land.

2. We have heard Sri G.K. Singh,
learned counsel for the petitioners and
learned
Standing
Counsel
for
the
respondents.

3. The facts disclosed in the writ
petition show that the petitioners were
owners of plots mentioned in para 4 to 8
of the writ petition separately and
different portion of different plots were
taken away by the respondents for the
construction of Lalganj by-pass Road on
Azamgarh-Varanasi highway. No legal
procedure was adopted by the respondents
in taking away the land of the petitioners.
The compensation awarded was also
nominal. The land of the petitioners was
taken in the year 1986 as disclosed in para
20
of
the
writ
petition,
but
the
compensation has not been paid so far.
The
Executive
Engineer,
PWD,
Azamgarh had proposed compensation at
384 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the rate of Rs.1000/ per sq. meter to the
petitioners which was not accepted by the
Special Land Acquisition Officer. Similar
land of other persons were also taken by
the
respondents,
for
which
the
compensation at the rate of Rs.1400/ per
sq. meter was paid but the petitioners
were offered compensation at the rate of
Rs.234/ per sq. meter. By way of the writ
petition, the petitioners want payment of
compensation at the enhanced rate along
with interest and damages and in
alternative, they have sought for recovery
of possession.

4. In the counter affidavit filed by
Mr. Satya Prakash Bharti, Assistant
Engineer, PWD, Azamgarh, this fact has
been admitted that the land of the
petitioners was taken by the respondents
for construction of Lalganj bye-pass Road
in Azamgarh-Varanasi highway. The
compensation
at
the
rate
of
Rs.6,63,265.30 per acre was fixed for the
land situate in village Maseerpur and
Rs.3,78,181.82 per acre for the land
situate in village Retwa Chandrabhanpur
and a number of tenure-holders received
compensation on the said rate and
executed
sale
deeds
in
favour
of
respondents but the petitioners refused to
receive compensation. The land for which
compensation at the rate of Rs.1400/ per
sq. meter was awarded to some tenureholders was situate by the side of main
highway. Due to construction of bye-pass
road, remaining portion of land of the
petitioners have become more valuable. In
the supplementary counter affidavit, filed
by Mr. Sultan Ahmad, Assistant Engineer,
PWD, Azamgarh, it has been mentioned
that by mutual understanding a number of
tenure holders have executed sale deeds in
favour of respondents and have received
compensation. The land of the petitioners
was totally unfit for agriculture and the
respondents
are
ready
to
pay
compensation to the petitioners at the rate
of Rs.3,78,181.82 per acres. They are not
entitled for more compensation.

5. From the contents of writ petition
and counter affidavit referred to above, it
is clear that land of the petitioners was
taken by the respondents for construction
of Lalganj bye-pass road in the year 1986
and road has already been constructed
thereon and is being used by the public
but no where it has been disclosed in the
counter
affidavit
that
land
of
the
petitioners was taken by the respondents
with their consent or there was any
mutual
understanding
or
agreement
between them. In the supplementary
counter affidavit, only this much has been
said that a number of tenure holders have
executed
sale
deeds
and
received
compensation fixed by the respondents by
mutual understanding. No where it has
been alleged that the petitioners had also
given consent for transfer of land or were
ready to receive compensation fixed by
the respondents. Annexure- CA-1 clearly
shows that the meeting was called by the
Executive Engineer PWD and some other
officers of district Azamgarh, in which a
number of tenure holder had participated
but contents of minutes of meeting show
that the parties could not reach to any
conclusion and no mutual understanding
could be formed. There is nothing on
record to show that how the compensation
amount was determined. Annexure-3 to
the writ petition only shows that the
Collector, Azamgarh had fixed rates for
the land of different villages but on what
basis rate was fixed is not clear.

6. No doubt, right to property is not
a fundamental right but nonetheless the
2 All] Ram Nayan Singh and another V. State of U.P. and others
385
Constitution of India under Article 300A
guarantees its citizens that this legal right
can be taken away only by some
enactment. For ready reference Article
300A of Constitution of India is quoted
below:

"Article 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".

7. The property of any citizen can be
taken by the State only in accordance with
law. The Land Acquisition Act has been
enacted
for
said
purpose.
If
any
acquisition is not made within the
provisions of said Act, the land can be
taken by consent or mutual agreement
also. The consent or mutual agreement
should be on record. It cannot be oral. The
land can also be purchased from the
owners by registered sale deeds by giving
its price acceptable to them. But in no
case, the property of a citizen can be
taken away by the State without following
the procedure of law and without consent
or agreement between the parties.

8. In the present case before us, this
is admitted position that the land of the
petitioners was taken by the State for
construction of road without their consent
and without following the procedure
prescribed under Land Acquisition Act.
Admittedly
road
had
already
been
constructed and the petitioners have been
dispossessed from their land and no
compensation has yet been given to them.
No where it is on the record that the
petitioners' land was taken by the State
with
their
consent
or
with
their
agreement. In the counter affidavit, it has
been mentioned that District Level
Committee convened a meeting on
8.10.2002, in which several tenure holders
had also participated and the matter for
payment of compensation was discussed
and the rate for the land situate in village
Maseerpur was fixed as Rs.6,63,265.30
per acre and that of village Retwa
Chandrabhanpur
Rs.3,78,181.82
per
acres. It has also been mentioned in the
affidavit that the respondents are ready to
pay compensation to the petitioners on the
above rate. The petitioners have alleged
that said rates are too low whereas
respondents had already paid to some
tenure holders at the rate of Rs.1400/ per
sq. meter and not only this, the Executive
Engineer, PWD, Azamgarh had suggested
rate of Rs.1000/ per sq. meter which was
not accepted by Special Land Acquisition
officer.

9. In the case of Santosh Kumar
Tiwari Vs. District Magistrate, Deoria
and others 1999(1) AWC 661, Division
Bench of this Court adversely criticised
the manner in which the petitioner of that
case was dispossessed from his Sehan
land
for
construction
of
Sulabh
Sauchalaya. In that case, the Sehan Land
of the petitioner was forcibly occupied by
the Goan Sabha and Sulabh Sauchalaya
was constructed thereon. No procedure of
acquisition was followed and no consent
was taken. The compensation was also
not paid. The High Court ordered for
removal
of
Sulabh
Sauchalaya
constructed on the land. In the case of
R.L. Jain Vs. DDA and others 2004(4)
SCC 79, the Apex Court has also
observed that generally the acquisition of
property of a citizen is made by following
provisions of the Act. The property can
also be taken by voluntarily agreement. If
the property is taken by force and without
following the procedure prescribed, that is
not permissible under law. In the case of
386 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
State of U.P. and others Vs. Manohar
2005(2) SCC 126, the Apex Court
awarded exemplary cost of Rs.25,000/ on
the State who had taken land of
respondents
without
following
the
procedure of law. In that case, the land of
respondents was taken by the State for
construction of building without process
of law and without consent of the owner
and no compensation was paid. In the
case of Luxmi Narain and others Vs.
Nagar
Palika,
Shamli,
distt.
Muzaffarnagar and others 2004 (2)
UPLBEC 1820, the Division Bench of
this court referring the case of Awadh
Narain Vs. State of U.P. (Civil Misc.
Writ Petition No. 46187 of 2000 decided
on
25.2.2004)
made
following
observations :

"This country is governed by the rule
of law. Nobody's land can be acquired
except in accordance with the provisions
of some statute, otherwise Article 300A
of the Constitution will be violated.

10. In that case, land of the
petitioner was forcibly occupied by Nagar
Palika Shamli for construction of road
without following procedure prescribed
under Land Acquisition Act and no
compensation
was
paid.
The
court
directed the State either to restore
possession of the property to the owner or
to pay compensation on the market value
with other benefits provided under Land
Acquisition Act. Same view was taken by
another Division Bench of this court in
Civil Misc. Writ Petition No. 5766 of
2004 Ram Pyare and others Vs. State of
U.P. and others decided on 28.10.2004. In
the case of Binu Sinha and others Vs.
State of UP and others 2008(2) ADJ
476, another Division Bench of this court
also took the matter very seriously where
the land was occupied by the State
without following any of the legal mode.
During the pendency of that writ petition,
the part payment of compensation was
made which was totally inadequate. The
case of R.N. Gupta and others Vs. State of
U.P. and other (Writ Petition No. 48
(L/A) of 1997 decided on 6.4.2004 was
referred in which following observations
was made:

"Before parting, we express our
concern in the manner the State and the
L.D.A has dealt with the issue involved in
the present case. Land of the petitioner
was taken without acquiring under the
provisions of law in February, 1986.
L.D.A made several requests and also sent
proposal to the State Government for
acquiring the said land as per law and on
1.8.1996 also made certain payment to the
Additional
District
Magistrate,
as
demanded by him but despite the
correspondence made by the L.D.A the
land was not notified under the provisions
of Land Acquisition Act and though the
possession was taken in February, 1986
but compensation was not awarded nor
paid. The result is that a huge liability of
money along with interest has accrued on
the State Government or the L.D.A or the
HAL as the case may be. The payment of
interest for indefinitely long period
without there being just case would be
acting in a manner which does not protect
the
interest
of
public
exchequer.
Indifferent and casual attitude on the part
of the respondents in not awarding
compensation immediately when the
possession was taken and not taking
proceedings for acquisition even though
L.D.A approached the State Government
in this regard and allowing increasing
liability of interest cannot be appreciated.
It is a matter which has to be considered
2 All] Ram Nayan Singh and another V. State of U.P. and others
387
by the State Government and therefore, it
is desirable hat all such cases be looked
into by the State Government where
possession
has
been
taken
without
following
the
provisions
of
Land
Acquisition Act or any other such Act.
The compensation should be awarded at
the earliest so that liability of interest is
not multiplied by leaps and bounds. The
state would be at liberty to fasten the
liability upon the erring officers, who may
be found responsible for accrual of such a
large
amount
of
interest
and
for
recovering the same either wholly or
partly if the State so desires".

11. In the present case before us,
same story has been repeated. Since land
of the petitioners has not been acquired
under Land Acquisition Act, therefore, no
method
is
prescribed
for
fixing
compensation except agreement between
the parties. As we have discussed earlier,
there was no agreement between the
parties about compensation. This plea of
the respondents is not acceptable that
since a large number of tenure holders
have received compensation fixed by the
Collector, Azamgarh and have executed
sale deeds in favour of the State,
therefore, the petitioners should also raise
no objection and execute sale deed on the
same rate. In the case of State of U.P. Vs.
Manohar (supra), the Apex Court awarded
interest @ 9% per annum on the
compensation amount. Since assessment
of compensation has been given under
Land Acquisition Act and in the present
case land has not been acquired under
said Act, therefore, it is not clear that
what should be method of assessment of
compensation. Some light has been
thrown by the Division Bench of this
court in the case of Luxmi Narain and
others referred to earlier. In that case,
following directions were given:

"In the circumstances, we direct the
respondents to either restore possession of
the property in dispute forthwith to the
petitioner or to pay the full market value
of the land as well as additional
compensation under section 23(1-A) and
solatium of 30% under section 23(2) of
the Land Acquisition Act as ell as interest
at 12 % per annum on the above amounts
from 1986 (when possession was taken by
the respondents) till the date of payment.
The payment of the entire amount
mentioned above must be made within six
months from today. The District Judge,
Muzaffarnagar shall fix the market value
of the property in accordance with the
Land Acquisition Act after hearing the
parties within four months from today and
the entire payment must be made to the
petitioners within two months thereafter
i.e. within six months from today. In
addition to the above the amounts, the
Nagar Palika Shamli will also pay an
exemplary cost of Rs. Two lacs within
two months from today to the petitioner
for their wholly illegal and high handed
action. Petition is allowed. The petitioner
shall communicate this order to the DM
Muzaffarnagar forthwith".

12. In the case of Binu Sinha also
referred
to
above,
some
relevant
observations have been made. It is
pertinent to mention here that if property
of a citizen is acquired under Land
Acquisition Act, he can get market value
plus solatium and interest but if same land
is taken away by the State without
following process of law, the amount of
compensation is fixed arbitrarily. If there
is agreement between the parties, then
nothing is wrong but if there is no
388 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
agreement, the owner is put to loss
because his land has not been acquired
under
the
provisions
of
any
Act.
Therefore, this view taken by earlier
Division Benches of this Court referred to
above is quite reasonable that whenever
property of a citizen is taken by the State
without
following
the
procedure
prescribed by law, it is open for the owner
of the property to claim back possession
or compensation on the market value
along with solatium and interest.

13.

In
view
of
our
above
discussions, we allow the writ petition
and direct the Collector, Azamgarh to pay
compensation to the petitioners for their
land on which road has been constructed
within a period of four months from the
date, a certified copy of this order is
produced before him. While assessing the
compensation, the Collector will give
opportunity to the petitioners to produce
evidence and then decide the market value
of the land on the date of taking
possession. The petitioners will also be
given solatium on the market value at the
rate of 30% and interest @ 12 % per
annum from the date of taking possession
till
the
date
of
payment.
If
the
compensation is not paid within the said
period, the petitioners will be given back
possession of their land by dismantling
the road.

14. Before parting, we express our
deep
concern
regarding
practice
prevailing in these days by the State
authorities in taking property of the
citizens without following the procedure
prescribed by law, which is clear violation
of Article 300A of Constitution of India.
Such act of the officers of the State cannot
be justified in any way. Therefore, it is
necessary to give clear direction to the
officers and acquiring bodies.

15. Let a copy of this order be sent
to Chief Secretary, Government of U.P.
Lucknow for issuing clear direction to all
the Collectors or acquiring bodies of the
State that in future when they need any
property of citizens for public purpose,
they should acquire or requisition the
same
by
following
the
procedure
prescribed by law or with the mutual
consent of the parties in writing. If the
property is taken by the State beyond the
scope of Land Acquisition Act, the
compensation should be determined either
on mutual agreement or in the way
prescribed under the said Act. In case of
deviation, the public accountability of the
erring officers or officials should also be
fixed and departmental action be taken
against them. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2008

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No. 13476 of 2006

Suraj Narain Bhatt

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri D.K. Srivastava
Samiksha Bhatt

Counsel for the Respondents:
Sri C.P. Mishra
Sri S.K. Garg
S.C.

Civil
Services
Regulation-361Retirement benefits-petitioner initially