Sa S'i Q B@6i|i^t3 / lo IN THE HIGH COURTOF CHHATTISGARH AT BILASPUR Writ Petition (0 No.'3>Q ^!of 200^8 PETITIONER: Narendra Kumar Upadhyay, S/o Ram Khilawan Upadhyay, Aged about 45 years, ^- Occupation Culfivator, ^^.-•"r^]^ R/o _° chha9an Lal Sharma, \'2';>-<"?'"'<fr :'-. Near Gattani School, Janjgir, '6~-^^ vr\ ^.v^r -"•••'"^^lj^?\ ..;""ft v^ ..A- District Janjgir-Champa, Chhattisgarh. - Versus - RESPONDENTS: <^<® v^"' •^ :^/ f, ? >>'\ \ «f- ^^••'^\ \^.!f.S-/^ '. \s(/-l^y3,' l.-^'State of Chhattisgarh, Through the Secretary, Water Resources Deptt., Mantralay, D.K.S. Bhawan Raipur, Chhattisgarh. 2. Collector, Janjgir-Champa, Chhattisgarh. 3. District Land Acquisition Officer, Janjgir, District Janjgir-Champa, Chhattisgarh. 4. Land Acquisition Officer, Hasdeo Bango Project, Janjgir, Chhattisgarh. 5. Executive Engineer, Hasdeo Bango Project, Water Resources Deptt., Janjgir, Chhhattisgarh. 6. Sub Divisional Officer, Hasdeo Left Bank Canal, Water Management, Sub Division No.7, Nariyara, District Janjgir-Champa, Chhattisgarh. ^ ^'•s ^ ^ WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA "i. ^''w •I —^^ HIGH COURT OF CHHATTISGARH : 81LASPUR WRIT PETITIQN fC) NQ.3Q@1 QF 2008 PEUTLQMER Narendra Kumar Upadhyay Versus RE8PONDENT8 State of Chhattisgarh & Others (Wrlt Petition underArticle 226/227 ofthe Constitution of India) Single Benoh : Hon'ble Shri Satish K. Agnihotri, J. PFesent:- Shri Malay Shrivastava, Advocate for the petitioner. Shri A.V. Srldhar, F'anel Lgwyer for the State. QWEH (QRAL) (F:'assed onthis16lhdayofAugust, 2010) 2. Heard le^rned counsel for the parties. By this petition, the petltioner seeks a direction to the respondent authorities fo make payment of compensation to the petitioner, as 0.54 acres land owned by the petitloner has been acquired without his consent and paymeht of compensation along with interest. The facts, in nutshell, for adjudlcation of the case, are that according to the petltioner, the land of the petitioner admeasuring 0.54 acres bearing Khasra No.334/9 situated at village-Mulmula, Patwari Halka No.5, R.l. Circle and Tahsil- Pamgarh, District-Janjgir-Champa, was acquired by the respondent authoritles in the year 1984-85 for construction of Banhill Branch Canal, which is evident from Annexure P/1, without paying compensation to the petitioner. Thus, this petltion. Accordlng to learned counsel appearing for the petitioner, the petitioner has been running from pillar to post approaching the -s. •s •, 1fl '^^•^^ 8. 7. authorities personally and making representations, but nothing has yielded till date. The petitioner has been deprived of his Gtinstitutlonal rights as enshrihed under Article 300-A of the Constitutlon of India. Shri Sridhar, learned Panel Lawyer appearing for the State/respondents, relying on its return, ^ubmits that due process was followed for acquisition of the land of the petltioner but admlttedly, no compensation was determlned and paid to the owner ofthe above-stated land. Indisputably, the land acquisitlQn proceedlng was initiated. However, the compensation was not determined and paid to the petltioner before taklng possession of the land in dlspute. The petltioner has been deprived of his fundamental right, as it was in the year 1984-85. The fundamental right to property was taken away from Part III of the Constitution and placed under Article 300-A as constltutional right in Chapter IV of Part XII of the Constitution by the Constitution (Forty-fourth Amendment) Act, 1978 w.e.f. 20/06/1979. Law is well settled on the point that a person cannot be c|eprlved of hls right to property without following due process of law, i.e. determination and payment of compensation before taking possession ofthe land. The Supreme Court, in Hindustan Petroleum Corpn. Ltd. v. Dar/us Shapur Chennai & Others , observed as under: "6, It is not in dispute that Section 5-A of the Act confers a valuable rlght in favour of a person whose lands are sought to be ' (3006) 7 SCC 627 '^' k^ fi'fia. acquired. Having regard to the proviglans contalned In Article 300-A of ths Constitutlan, the State in exercise of lt& power of 'erninent domaih' may interfere with the right of property of a person by acquiring thg same but the same must he for a publlc purpose and reasonable compensation therefor must be paid. 9. It is trite that hearing given to a person must b8 an effective one and not a mere formallty. Formation of oplnion as regards the public purpose as also suitabllity thereof must be precedecl by application of mind as regards consideration of relevant factors and rejection df Irrelevant ones. The State in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and havlng regard to the provisions contained in Article 300-A of the Constitution i1 has been h^ld to be akin to a fundamental right." 9. Furlher, the Supreme Court, in State of Kerala & another v. Peoples Union for Civil Liberties, Kerala State Unit & Others , observed as under: "88. When a person acquires an indefeasible right, he can be deprived therefrom only by taking recourse to the doctrine of eminent domain. If a person is sought to be deprived of an indefeasible right acquired by him, he should be paid an amount of compensation. In a case of this nature, therefore, where an amount of compensation has not actually been tendered, fhe vendees of the land could not be deprived of their right to be dispossessed. In that view of the matter, a distinction must be made between a case where an amount of compensation has been paid and in a case where it has not been." 10. Having regard to the facts sltuation of the case, wherein the petltloner has been waiting since 1984-85 to get relief of < (2009)88cc46 H •»• oompensation, It would bejust and proper and in ths interest of justloe to direct the State Government to determine the compensation of the land and make payment thereon to the petitioner, in accordance wlth the provisions of the Land Acquisitlon Act, 1894 (for short "the Act, 1894") after due verification and affording an opportunity of h'Saring to the land owner. 11. If the compensatlon Is determined as on the date of aoquisition, in accordance with the provisions oftheAct, 1894, the petitioner shall be entitled to compensationWith interest at the rate of 9% per annum. The respondents may alternatlvely consider determination of compensation in accordance with the provisions of the Act, 1894 of the date, this petitlon was filed. In that event, the petitioner shall be entitled to compensation with interest at the rate of 9% per annum from the date of filing of the wrlt petition till payment of compensation. 12. With the aforesaid observation and direction, the writ petitlon is allowed. No order asto costs. _ _^_^ ^ Sd/- Satish K. Agnihotri Judge fi Qowri