2002 Supreme(MP) 445

Rajendra Menon, J.
Ram Bharose Soni v. State of M.P.
W.P. No. 792 of 1998 (G); Decided on 16.4.2002.

Headnote:(1) Constitution of India -- Art. 300A -- property of a citizen -cannot be undertaken even for public purpose without following law.

       

        (2) Landlord and Tenant --landlord even if it is Government cannot forecefully dispossess tenant -- tenants possession is protected even after termination of tenancy -- it is known as juridical possession.

       

        ¼1½ Hkkjr dk lafo/kku & vuq- 300d&ukxfjd dh laifRr & fof/k dk vuqlj.k fd, fcuk yksd iz;kstu ds fy, Hkh ugha dh tk ldrhA

       

        ¼2½ Hkw&Lokeh vkSj vfHk/kkjh&Hkw&Lokeh Hkys gh ljdkj gks] og vfHk/kkjh dks cyiwoZd csdCtk ugha dj ldrk&vfHk/kkjh dk dCtk vfHk?k`fr ds volku ds i‘pkr Hkh lqjf{kr fd;k x;k gS & ;g fof/kd dCts ds :i esa tkuk tkrk gSA

        The petitioner by this petition has challenged the action of the respondents in constructing a road through his property known as Sone Ki Bagiya (Sona Ka Bada) situated in Lohiya Bazar, Lashkar, Gwalior. It is the case of the petitioner that the entire property as mentioned in the petition is owned and possessed exclusively by the petitioner and he is entitled to enjoy the property as he has exclusive ownership rights over the said property. It is putforth by him that the respondents in the garb of public interest and public duty cannot construct public roads or drainage on the property of the petitioner without following the procedure contemplated under law for doing so.

        It is the case of the petitioner that he is in possession of the said property being its owner but without initiating any proceedings for acquisition or otherwise the respondents are trying to transposes into the property of the petitioner and the Respondent No. 4 has publicly conducted some pooja for constructing a public road through the private property of the petitioner without following the procedure contemplated under the law. It is the case of the petitioner that the action of the respondents amounts to dispossessing him from the property without following the due process of law.

       

        On notice being issued, except Respondent No. 2 and 3 nobody has filed the reply. The Respondent No.2 and 3 have simply stated that on the basis of the decision taken by the Zila Yojna Board, the construction was undertaken. However, the respondents 2 and 3 do not dispute that the property in question belongs to the petitioner and it is not a public property nor is the property being acquired or taken over as per procedure precribed in law.

        Shri Bhardwaj Submits that illegal means are being used for the purpose of dispossessing the petitioner from the property in question. In support thereof, he places reliance on the judgment of the Supreme Court in the case of S.R. EJAZ v. T.N. Handloom Weavers Cooperative Society Ltd. (2002) 3 Supreme Court cases 137 and invites attention to para 8 of the said judgment which reads as under: -

       

       "In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor can the citizens protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given a go-by either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and "might would be right" instead of "right being might". This Court in State of U.P. v. Maharaja Dharmander Prasad Singh dealt with the provisions of the Transfer of property Act and observed that a lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a leassee, even after the expiry of earlier termination of the lease by foreiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of the Government withdrawing or appropriating to it an extrajudicial right of re-entry and the possession of the property can be resumed by the Government, only in a manner known to or recognized by law."

        I have heard Shri Bhardwaj for the petitioner and Shri K.N. Gupta for the Respondents. The records does not indicate that there is any dispute with regard to the fact that the property in question, through which the road is proposed to be constructed, belongs to the petitioner. There is nothing on record to indicate that the said property has been acquired or taken over in accordance with law for the purpose of any public requirement.

       

        In the absence of the same and in view of the fact the property in question is the exclusive property of the petitioner, the respondents cannot transpass into the same and dispossess the petitioner without initiating due procedure contemplated under law. It is, therefore, directed that the respondents shall not disturb the peaceful possession and ownership of the property in question except in accordance with the procedure framed for the same under the law.

       

        The petition is, therefore, allowed with the aforesaid direction. 3

        Parties to bear their own cost.