IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case Writ Petition No. 1737 of 2008 (M/S) Mahant Dayal Das. .......... Petitioner Versus Haridwar Development Authority & others. ........... Respondents Mr. Alok Singh, Senior Advocate with Mr. Davesh Ghildiyal, Advocate for the petitioner. Mr. U.K. Uniyal, Senior Advocate with Ms. Puja Banga, Advocate for respondents Nos. 1 & 2. Mr. J.P. Joshi, Chief Standing Counsel for respondent No.3. Mr. Rajendra Dobhal, Advocate for the Intervener. Date of Judgment: 23.12.2008 A.F.R. (Approved for Reporting) Date: 23.12.2008 Initials of Judge Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1737 of 2008 (M/S) Mahant Daya Das. .......... Petitioner Versus Haridwar Development Authority & others. ........... Respondents Mr. Alok Singh, Senior Advocate with Mr. Davesh Ghildiyal, Advocate for the petitioner. Mr. U.K. Uniyal, Senior Advocate with Ms. Puja Banga, Advocate for respondents Nos. 1 & 2. Mr. J.P. Joshi, Chief Standing Counsel for respondent No. 3. Mr. Rajendra Dobhal, Advocate for the Intervener. Hon’ble V.K. Gupta, C.J. A very short and simple but slightly interesting question is involved for consideration and adjudication in this case. The facts in brief: 2. The petitioner claims to be the owner in possession of property comprising in Khasra Nos. 4/27, 4/28 and 48/28M situated in Bhopatwala in Haridwar Town. The petitioner applied for sanction of a building plan for raising construction upon the aforesaid property comprised in the aforesaid three Khasra numbers. The respondents refused to sanction the building plan and when, vide his letter dated 4th August, 2008, the petitioner enquired about the reasons for refusal, the respondents communicated that the sanction was refused on the ground that whereas, with respect to Khasra Nos.4/27 and 4/28, the land comprised therein was reserved for ‘Kumbh Mela’, with respect to Khasra No. 48/28M, the land comprised therein was reserved for being used as a ‘Park and open space’. Because of the aforesaid two considerations, the land comprised in the aforesaid three Khasra numbers could not be used for commercial purpose. 3. In the counter affidavit filed, by referring to Section 7 of U.P. Urban Planning and Development Act, 1973 (‘1973 Act’ for short) as well as drawing Court’s attention to the Master Plan prevalent for the period 1985 to 2001, respondents Nos. 1 & 2 have taken a stand that because in the Master Plan the property in question has been reserved for the aforesaid two purposes, the sanction for raising a building cannot be granted. 4. Yes, indeed under Section 7 of the aforesaid 1973 Act, read with other relevant Sections relating to Master Plan including Sections 11 & 12, it is well within the jurisdiction of the Development Authority to prepare a Master Plan and to include, within its ambit, scope and purview, a particular property for a particular use, it is the undisputed case of the parties as well as it is a settled proposition of Constitutional Law that the State or any Authority or Instrumentality of the state cannot use the property unless the property has been acquired by it in accordance with procedure prescribed under law and the owner as well as the possessor of the property has been paid compensation again in accordance with the procedure prescribed under law. It is the undisputed case of the respondents in this Court that the property does not belong to the State. Therefore, before the respondents can use the property for any public purpose or for any purpose, either under the aforesaid 1973 Act or otherwise, they have to acquire the property after paying compensation to the owner and the possessor. Till that is done, it is not open to the respondents to refuse the grant of sanction because that would amount to depriving the legitimate owner of the property from its use by him. No person, who is the owner of the property, can be deprived from its use by him because that would amount to violation of Constitutional provisions. 5. In taking the aforesaid view, I am fortified by the following observations of their Lordships of the Supreme Court in the case of Raju S. Jethmalani & others Vs. State of Maharashtra & others reported in (2005) 11 S.C.C. 222: “3. ..................It is true that a development plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning Authority. It is not that the Planning Authority was ignorant of this fact. It acquired some land from Plot No. 437 for developing garden but the land from Plot No. 438 was not acquired for garden. Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land form using that land? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property............” 6. Similarly, in the case of Jilubhai Nanbhai Khachar & others Vs. state of Gujarat & another reported in 1995 Supp (1) S.C.C. 596, their Lordships of the Supreme Court, while dealing with the aforesaid question, propounded the following proposition of law: “34. The right of eminent domain is the right of the sovereign State, through its regular agencies, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the State including private property without its owner’s consent on account of public exigency and for the public good. Eminent domain is the highest and most exact idea of property remaining in the Government, or in the aggregate body of the people in their sovereign capacity. It gives the right to resume possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest requires it. The term ‘expropriation’ is practically synonymous with the term “eminent domain”.” 7. Dealing with the same issue, they further observed as under: “48. The word ‘property’ used in Article 300-A must be understood in the context in which the sovereign power of eminent domain is exercised by the State and property expropriated. No abstract principles could be laid. Each case must be considered in the light of its own facts and setting. The phrase “deprivation of the property of a person” must equally be considered in the fact situation of a case. Deprivation connotes different concepts. Article 300-A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by Parliament or a State Legislature, a rule or a statutory order having force of law. It is inherent in every sovereign State by exercising its power of eminent domain to expropriate private property without owner’s consent. Prima facie, State would be the judge to decide whether a purpose is a public purpose. But it is not the sole judge. This will be subject to judicial review and it is the duty of the court to determine whether a particular purpose is public purpose or not. Public interest has always been considered to be an essential ingredient of public purpose. But every public purpose does not fall under Article 300-A nor every exercise of eminent domain an acquisition or taking possession under Article 300-A. Generally speaking preservation of public health or prevention of damage to life and property are considered to be public purposes. Yet deprivation of property for any such purpose would not amount to acquisition or possession taken under Article 300-A. It would be by exercise of the police power of the State. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation. Acquisition of mines, minerals and quarries is deprivation under Article 300-A.” 8. In the case of Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke & Chemicals Ltd. & others reported in (2007) 8 S.C.C. 705, the following observations were made, which are very pertinent as well as apposite: “53. The right to property is now considered to be not only a constitutional right but also a human right. 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 along 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 multifaceted 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 a 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.” 9. I have, therefore, no hesitation in coming to the conclusion that in the facts and circumstances of this case, the respondents were totally unjustified in refusing to sanction the building plan simply because in the Master Plan the property in question has been earmarked for a particular use. Unless the property is actually acquired by the respondent State, neither they can sue the property for any purpose nor they can deprive the petitioner of its legitimate use. 10. For the foregoing reasons, this writ petition is allowed. The impugned action is set aside. By writ of mandamus, the respondents are hereby directed and commanded to sanction the building plan of the petitioner subject to the petitioner being the rightful owner of the property in question. The sanction of the building plans has to be based upon the Rules, Regulations and the Bye-laws. Of course, the respondents will be well within their rights in the meanwhile, if so advised, to acquire the property in question and, then, to proceed to use it in accordance with the Master Plan, but unless that happens, the respondents are not entitled in law to refuse the sanction of the building plan. 11. As far as the client of Mr. Rajendra Dobhal is concerned, who was allowed to intervene in this matter vide Court order dated 12th November, 2008, all that I can say at present, while disposing of this writ petition, is that Mr. Dobhal’s client shall be well advised to keep prosecuting the Civil Suit filed by him and to request the Civil Court for appropriate relief, if available to him under law. (V.K. Gupta, C.J.) 23.12.2008 G