Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., disposed off a writ petition while allowing it which was filed seeking to issue a writ in the nature of mandamus directing the respondent 3 to forthwith release the salary of the petitioner for the month of July, 2017 to December, 2017 and onwards, along with the interest on the delayed payment.

The petitioner was appointed as Clerk in the respondent department and was given promotion from time to time. It was contended that due to ill health, he proceeded on medical leave with effect from 22-06-2017. Thereafter, the petitioner had submitted his application for earned leave from 15-07-2017 to 08-10-2017. The petitioner resumed his duties on 09-10-2017 in the office respondent department-respondent. Thereafter, the petitioner had appeared before the Medical Board on 16-10-2017 and submitted all the medical documents to the concerned Medical Board. The petitioner stated that respondent department had not released the salary of the petitioner for the month of July to December, 2017. The respondent 3 stated that the petitioner remained absent from duties for which he availed medical leave but the medical board with regard to the application of medical leave of the petitioner, he was directed to remain present before the Medical Board, initially he did not appear before the Medical Board but subsequently, when he appeared before the Board on 16-10-2017, it was found that the disease which is mentioned in the medical certificate, no medical tests relating to the same had been done. The petitioner however denied the averments made in the counter affidavit.

The Court perused the records and found that due to illness petitioner applied for medical leave w.e.f. 22-06-2017 to 14-07-2017 but as he could not recover from such illness and could not join his duties on 15-07-2017, he applied for earned leave for 15-07-2017 to 08-10-2017. He resumed his duties on 09-10-2017 and thereafter he submitted a representation before the District Magistrate, whereby he had requested that the medical leave taken by him be also treated as earned leave and prayed to grant him earned leave of 109 days. Such request was not accepted and the salary of the petitioner for the said period was withheld.

The Court while allowing the petition explained that “It may be time that the petitioner has acted as per his own whims and fancies and as has been alleged by the respondent authority but the fact remains that salary is a property under Article 300-A of the Constitution of India which cannot be taken away except by authority of law.”

It further directed to treat the leave taken by the petitioner July, 2017 to December, 2017 as earned leave and to pay the salary for the aforesaid period to the petitioner within a period of two months.[Harish Rautela v. State of Uttarakhand, 2020 SCC OnLine Utt 902, decided on 22-12-2020]


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Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar, J., quashing the impugned letter, held, “The respondent 5 being an administrative/revenue Officer is supposed to know the basic law and he can not be permitted to act without jurisdiction so as to infringe the right to property of the petitioners in an arbitrary fashion.”

Background

The factual background of the case as stated in the writ petition is that the petitioners purchased the said land by virtue of three separate sale deeds and they came in peaceful possession of their respective land. Thereafter, they decided to construct a residential apartment over the same, however, some miscreants started threatening and making demand of ransom from them. Two individuals filed a petition under Section 144 Code of Criminal Procedure, 1973, before the Sub Divisional Officer, Sadar Ranchi, which was registered as Case No. M-2073 of 2019, and, thereafter, the petitioners were restrained by the respondents 5 and 6 from initiating construction work. Ultimately, the Sub-Divisional Officer, Sadar, Ranchi dismissed the aforesaid case vide order dated 22-01-2020. The petitioners then filed a representation dated 31-05-2020 requesting the respondent 6 to maintain law and order situation as the petitioners were apprehending interference of local goons once the construction work was started. However, when the petitioners started construction work in the month of May, 2020, the husband of the petitioner 2 was attacked and threatened by local goons and an amount of 10 lac was demanded as ransom from him which was duly reported to the police, resultantly an FIR was registered. The respondent 5 vide letter no.37/(ii) dated 08-06-2020 directed the respondent no.6 to take steps for stopping the construction work taking place over the said land, as Original Suit No.18 of 2020 was pending in the court of Civil Judge Senior Division-I, Ranchi. The said letter was subsequently handed over to the petitioners by the respondent no.6. Thereafter, the respondent no.6 issued notice dated 09-06-2020 to the petitioners, directing them to stop construction work over the said land till the disposal of the aforesaid suit in the light of the direction issued by the respondent 5 vide letter no.37/(ii) dated 08-06-2020. The present petition is moved to question the authority of the said notices and further for setting aside the same.

Contentions

Counsel for the petitioner, Amritansh Vats, referred to a catena of judgments by the Supreme Court, to emphasize that Right to Property is a Constitutional Right under Article 300-A of the Constitution and the Respondent authority does not possess any power or jurisdiction to arbitrarily restrain the petitioners from enjoying such right. Reliance was placed on;

  • Hari Krishna Mandir Trust v. State of Maharashtra, 2020 SCC OnLine SC 631, In this case, the Supreme Court held that the right to property may not be a fundamental right any longer but it is still a constitutional right under Article 300-A as well as a human right and no person can be deprived of his property save by the authority of law. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in nature thereof, but are duty-bound to exercise such power where the government or public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the government or has exercised such discretion with malafide, or on irrelevant consideration.
  • M.C. Mehta v. Union of India, 2020 SCC OnLine SC 648, With respect to the enforceability of Article 300-A, the Court observed, “The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away.”
  • State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, In the present case, the Court categorically held, “In absence of any substantive provision contained in a parliamentary or legislative enactment, a person cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one’s right to property as envisaged under Article 300-A of the Constitution.”
  • State of U.P. v. Manohar, (2005) 2 SCC 126, Supreme Court remarked, in the words,
    “Para 7. Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:
    300-A. 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.
    Para 8. This is a case where we find utter lack of legal authority for deprivation of the respondent’s property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution. In our view, the High Court was somewhat liberal in not imposing exemplary costs on the appellants. We would have perhaps followed suit, but for the intransigence displayed before us.”
  • Delhi Airtech Services v. State of U.P., (2011) 9 SCC 354, A synonymity was drawn between the word ‘law’ as used under Article 21 and under Article 300-A by the Supreme Court, stating, “ Para 83. The expression law which figures both in Article 21 and Article 300-A must be given the same meaning. In both cases, the law would mean a validly enacted law. In order to be valid law it must be just, fair and reasonable having regard to the requirement of Articles 14 and 21 as explained in Maneka Gandhi, (1978) 1 SCC 248. This is especially so, as “law” in both the Articles 21 and 300-A is meant to prevent deprivation of rights. Insofar as Article 21 is concerned, it is a fundamental right whereas in Article 300-A it is a constitutional right which has been given a status of a basic human right.”

Observation

With respect to the alleged arbitrary exercise of power by the Administrative/Revenue Officer “If a suit is filed in any civil court, it is the court concerned which may grant an injunction on an application of the aggrieved person, if it is established that there exists a prima facie case, balance of convenience lies in his favour and if such order is not passed, he would suffer irreparable loss and injury. It is a settled law that mere filing of a suit does not entitle the plaintiff to presume an order of status quo unless the court by a specific order grants the same having taken into consideration the facts, applicable law and judicial pronouncement. The Circle officer has no power or jurisdiction to grant status quo on the mere filing of a civil suit. The respondent 5 being an administrative/revenue Officer is supposed to know the basic law and he can not be permitted to act without jurisdiction so as to infringe the right to property of the petitioners in an arbitrary fashion.”

Decision

Allowing the present petition, the Court quashed the impugned letter no. 37(ii) dated 08-06-2020 issued by the Circle Officer, as well as the letter dated 09-06-2020 issued by the Police Inspector cum officer in charge of the Kanke Police Station, Ranchi.[Sandip Khanna v. State of Jharkhand, 2020 SCC OnLine Jhar 1020, decided on 14-12-2020]


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Case BriefsHigh Courts

Karnataka High Court: The Bench of Krishna S. Dixit, J., allowed petition filed by a senior citizen challenging wrongful usurpation of his property.

Respondent herein had unauthorizedly appropriated petitioner’s land measuring 63,162 square feet without any acquisition process, for the formation of roads, parks. Petitioner was given no compensation for his land even after 16 years of acquisition. Aggrieved thereby, he filed the instant petition seeking restoration of his land and compensation of Rs 5 crores for illegal utilization of his land.

Petitioner’s contention was that respondent’s act was a gross violation of his constitutional right to property guaranteed under Article 300-A of the Constitution of India.

The Court took note of respondent’s resolution proposing to give 50 percent of the site area to petitioner and observed that instead of taking steps for implementation thereof, respondent passed another resolution stating that in view of one government order, petitioner would be granted 50 percent of the developed area, which was unconscionable. The second resolution was also not given effect.

It was opined that the institution of private property is the focal point of constitutional jurisprudence. Forcible or non-consensual taking away of property by the State or its instrumentalities, sans lawful acquisition process offends the pith and substance of Article 300-A which guarantees protection to private property from State interference. It was held that State and its instrumentalities cannot justify usurpation of private property without legal process on the ground that the same was for public use.

In view of the above, the respondent was directed to give ownership and possession of the developed area of subject land to the petitioner and pay Rs 1 lakh as damages.[P.G. Beliappa v. Bangalore Development Authority, 2019 SCC OnLine Kar 187, Order dated 01-03-2019]