Rajeshwar Kumar Ojha Vs. State of U.P. and ors.

Rajeshwar Kumar Ojha vs State of U.P. and ors.

Type Court Judgment Court Allahabad Decided May 16, 2008

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https://sooperkanoon.com/case/487113

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Citation: sooperkanoon.com/487113
Court: Allahabad High Court
Judge: Pradeep Kant and ;Narayan Shukla, JJ.
Decided On: May 16, 2008
Subject: Property

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 168; [S.B. Sinha & H.S. Bedi, JJ ] Determination of compensation Meaning of income of victim Held, The term income has different connotations for different purposes. A court of law, having regard to the change in societal conditions must consider the question n...

Key legal issue: Property

Parties & Advocates

Appellant / Petitioner

Rajeshwar Kumar Ojha

Advocate Shri. Surya Kant Singh

Respondent

State of U.P. and ors.

Legal References

Reported In: 2008(4)AWC3489

Excerpt

.....not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - 7. in the instant case, learned counsel for the petitioner, however, submitted that the petitioner would be satisfied in case he is given adequate compensation at the prevalent market rate at the time of taking possession which can be calculated as per the provisions of land acquisition act alongwith the interest and solatium etc......the state government and all other concerned authorities.6. the consequence of taking such possession without following the procedure prescribed under law normally should be the restoration of possession to the owner of the land irrespective of the fact that whether any building has been constructed thereon or the nature of land/property has been changed by the authorities or not. in case any such construction is made, they are liable to be demolished and the possession of the owner is liable to be restored to the owner, with adequate compensation for the damage and agony suffered, but it so happens that the court seeing the larger interest of the public, wastage of money of public exchequer, usually awards the compensation for the mischievous act, of the authorities but it appears that because of the leniency of the courts, towards the illegal and arbitrary functioning of the state authorities. nagar nigam, awas vikas parishad and lucknow development authority etc., have forgotten that they must abide the law as it is usually seen that they take possession of the land without following the law deliberately. this position cannot be appreciated, and has to be checked.7. in the instant case, learned counsel for the petitioner, however, submitted that the petitioner would be satisfied in case he is given adequate compensation at the prevalent market rate at the time of taking possession which can be calculated as per the provisions of land acquisition act alongwith the interest and solatium etc., and would leave his claim for restoration of the possession.8. we therefore, dispose of this petition with the consent of the parties counsel directing the opposite parties that in case any land of the petitioner has been used by the nagar nigam or by any authority for construction of the road or laying down a kharanja or in any other manner adequate compensation as observed be given to the petitioner expeditiously.9. the state, its functionaries, lucknow development.....

Full Judgment

Pradeep Kant and Narayan Shukla, JJ.

1. Notice on behalf of the opposite parties Nos. 1 and 2 has been accepted by the chief standing counsel. Shri Jyotinjaya Verma has accepted notice on behalf of the opposite party Nos. 3 and 4. Despite notice, Shri Jyotinjaya Verma is not present.

2. Heard Shri Surya Kant Singh learned Counsel for the petitioner and the learned standing counsel.

3. Petitioner's grievance is that certain portion of his land has been used by constructing a road by the Nagar Nigam that too without taking any acquisition proceedings and without his consent in writing and without giving him any compensation.

4. Nagar Nigam is not at liberty to take possession of the land of any portion nor is authorised to take possession of the land or any portion thereof of any person unless the land is acquired or requisitioned under the provisions of the relevant Act or is taken by negotiation after obtaining consent in writing. The practice of taking possession and using the land of the individual or a group of persons, without following the prescribed procedure has become very common which cannot be appreciated and we take judicial notice of the same, as such cases are coming before the High Court very frequently.

5. Such an action unnecessarily harasses the owner or lawful occupant of the land and also put uncalled for burden upon the Courts, only because the Nagar Nigam, Lucknow Development Authority, Awas Evam Vikas Parishad, the State Government or any such acquiring authority, does not follow the procedure prescribed by law. It cannot be disputed that the propriety rights cannot be taken away otherwise than in accordance with law. The matter, therefore, requires, immediate consideration by the State Government and all other concerned authorities.

6. The consequence of taking such possession without following the procedure prescribed under law normally should be the restoration of possession to the owner of the land irrespective of the fact that whether any building has been constructed thereon or the nature of land/property has been changed by the authorities or not. In case any such construction is made, they are liable to be demolished and the possession of the owner is liable to be restored to the owner, with adequate compensation for the damage and agony suffered, but it so happens that the Court seeing the larger interest of the public, wastage of money of public exchequer, usually awards the compensation for the mischievous act, of the authorities but it appears that because of the leniency of the Courts, towards the illegal and arbitrary functioning of the State authorities. Nagar Nigam, Awas Vikas Parishad and Lucknow Development Authority etc., have forgotten that they must abide the law as it is usually seen that they take possession of the land without following the law deliberately. This position cannot be appreciated, and has to be checked.

7. In the instant case, learned Counsel for the petitioner, however, submitted that the petitioner would be satisfied in case he is given adequate compensation at the prevalent market rate at the time of taking possession which can be calculated as per the provisions of Land Acquisition Act alongwith the interest and solatium etc., and would leave his claim for restoration of the possession.

8. We therefore, dispose of this petition with the consent of the parties counsel directing the opposite parties that in case any land of the petitioner has been used by the Nagar Nigam or by any authority for construction of the road or laying down a kharanja or in any other manner adequate compensation as observed be given to the petitioner expeditiously.

9. The State, its functionaries, Lucknow Development Authority, Avas Vikas Parishad, Nagar Nigam etc. should restrain themselves from taking possession of the land of any person without following the procedure of law.

The compensation to the petitioner shall be paid within a maximum period of four months from the date of production of the certified copy of this order before the respondents.

10. Let copy of this order be sent to the Chief Secretary to the Government of U.P. and the L.R. for necessary follow up.

Same Court & Year Allahabad · 2008 Same Parties Rajeshwar Kumar Ojha vs State of U.P. and ors. Same Subject Property Same Judge Pradeep Kant and ;Narayan Shukla, JJ.

Property