Government Takeover of Property Without Compensation Violates Article 300 A
The Law of the Land mandates that the State cannot forcibly dispossess a
Person from his Property without Payment of Compensation and without the due
process of law. In spite of the Constitutional protection, it is sometimes seen
that the State authorities act as 'goons' & dispossess a person from his/her
property without resorting to the provisions of Land Acquisition Act and without
payment of compensation.
There are two types of cases where in the State takes over the land/ immovable property per force. In the first situation, the Central/State/ Local Government or the Railways, NHAI & other Government Bodies forcibly take possession of a private property without initiation of acqusition proceedings and without payment of compensation.
The second situation arises when the Government or it's body wishes to acquire an immovable property and the respective Acquisition Act has power to acquire but the procedure given in the said Act & the rules applicable there to do not conform to the Seven Basic Procedural Rights of private citizens making the acquisition violative of Article 300 A of the Constitution. In both the situations, the acquisition deserves to be struck down at the very outset.
It is no longer Res Judicata that no one can be deprived of his right to property which is not only a Constitutional right, but is also a human right.
It is pertinent to reproduce Article 300 A of the Constitution, which reads as under:
The process of land acquisition was previously governed by the provisions of the Land Acquisitions Act, 1894 and now by the LARR Act, 2013. Under both the enactments, no land could be acquired without any compensation and without following the procedure mandated under both the Acts. It is noteworthy that the State is under bounden duty to pay compensation for all landowners suo motto and not to only those who approach the Court for the same.
In a catena of cases the Apex Court has explicitly held that in view of Article 300 A of the Constitution, an owner of an immovable property cannot be deprived of his/her property without following the due process of law. The Apex Court has repeatedly deprecated the practice of the State to take over possession of immovable property of subjects without invoking the provisions of Land Acquisition Act.
The Apex Court has also ruled that the plea of adverse possession by the State is inadmissible as ours is a 'welfare State and delay in moving for due redressal is also not maintainable. It is indeed a matter of grave concern that in spite of declaration of law by the Apex Court such incidences are still happening unabated. It appears that the said declarations are only for ornamentation & not for implementation.
It would be relevant to refer to the Apex Court judgment in the case of Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353 wherein it has been held as under :
8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the right to property ceased to be a fundamental right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the law, as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar v. State of Gujarat, it has been held as follows : (SCC p. 627, para 48)
48. 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 [is] no deprivation without
[due] 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.
9. The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment, etc. Now however, human rights are gaining an even greater multifaceted dimension. The right to property is considered very much to be a part of such new dimension. (Vide Lachhman Dass v. Jagat Ram, Amarjit Singh v. State of Punjab, State of M.P. v. Narmada Bachao Andolan, State of Haryana v. Mukesh Kumar and Delhi Airtech Services (P) Ltd. v. State of U.P.)
It would be apropos to refer to Apex Court judgment in the case of B.K.Ravichandra v. Union of India (2021) 14 SCC 703 wherein the Court dealt with the issue in hand and held thus:
35. It is, therefore, no longer open to the State : in any of its forms (executive, State agencies, or legislature) to claim that the law — or the Constitution can be ignored, or complied at its convenience. The decisions of this Court, and the history of the right to property show that though its preeminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it. The evolving jurisprudence of this Court also underlines that it is a valuable right ensuring guaranteed freedoms and economic liberty.
The phrasing of Article 300-A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked, they in effect, are a guarantee of the supremacy of the rule of law, no less. To permit the State : whether the Union or any State Government to assert that it has an indefinite or overriding right to continue occupying one's property (bereft of lawful sanction) - whatever be the pretext, is no less than condoning lawlessness.
The court's role is to act as the guarantor and jealous protector of the people's liberties : be they assured through the freedoms, and the right to equality and religion or cultural rights under Part III, or the right against deprivation, in any form, through any process other than law. Any condonation by the court is a validation of such unlawful executive behaviour which it then can justify its conduct on the anvil of some loftier purpose, at any future time, aptly described as a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.
It is trite to refer to Vidaya Devi vs The State of Himachal Pradesh & Ors. 2020 (2) SCC 569 wherein the Apex Court deprecated the conduct of the State in illegally taking over the land of the old Appellant admeasuring about 3.34 Hectares in Dist. Hamipur, Himachal Pradesh in 1967–68 for the construction of a major District Road without taking recourse to acquisition proceedings & without following the due process of law. The Court admonished the State for being in continuous illegal possession of the property for the last 42 yeat claiming title by way of adverse possession. Appalled by the illegal action of the State, the Court observed thus:
10.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution.
Article 31 guaranteed the right to private property (The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92), which could not be deprived without due process of law and upon just and fair compensation.
10.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353) in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law.
The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article. ( K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1)To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution.
Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627 wherein this Court held that:
6. … Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of eminent domain may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. (emphasis supplied) In N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 this Court held that:
21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed. (emphasis supplied)
In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors. (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words:
30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property.
Property must be secured, else liberty cannot subsist was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists. (emphasis supplied)
In Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp. 1 SCC 596. this Court held as follows:
48. …In other words, Article 300A 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 300A. In other words, if there is no law, there is no deprivation. (emphasis supplied)
10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
10.4. The contention of the State that the Appellant or her predecessors had orally consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.
10.5. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353.wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
This Court in State of Haryana v. Mukesh Kumar 2011 (10) SCC 404 held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right.
Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.
10.6. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to adverse possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.
10.7. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it. (P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152)
In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,(2013) 1 SCC 353. this Court while dealing with a similar fact situation, held as follows :
There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether.
Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. (emphasis supplied)
In the present case, the Appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law.
The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction under Articles 136 and 142 of the Constitution, and direct the State to pay compensation to the Appellant.
It would be appropriate to refer to the case of D.B.Basnett (D) Thr. Lrs. vs The Collector East District, Gangtok, Sikkim & Anr. (2020) 4 SCC 572 wherein the Apex Court dealt with a similar situation.
The brief facts of the case are that 7.07 acres in the name of Man Bahadur Basnett situated in Sikkim was sought to be acquired for the purpose of building the Progeny Orchard Regional Centre in 1980. The State Government illegally & without authority of law encroached and trespassed the said land and used the same as an agricultural farm. The landowners claimed that the procedure envisaged under the Sikkim Land (Requisition and Acquisition) Act, 1977 had not been invoked or followed. The trial court dismissed the suit in 2006 both on grounds of limitation as well as substantive merits. The appeal against the said order was dismissed in 2008 by the Sikkim High Court.
The Court observed thus:
14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed. (Padmamma & Ors. v. S. Ramakrishna Reddy &Ors. (2008) 15 SCC 517)
15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 18942 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful3. The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.
The Court followed the reasonings given in Vidaya Devi vs The State of Himachal Pradesh & Ors. 2020 (2) SCC 569 and applied the dictum of the said case. Allowing the appeal of the landowners, the Court summed up thus:
19. The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them.
We are strengthened in our observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy (2011) 11 SCC 648 where it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published.
20. We are conscious that the land is being used by the respondent- State through respondent No.2 Department. That, however, does not give such a license to the State Government. We had endeavoured to refer the matter for mediation, to find an amicable solution, but that did not fructify. We, however, would like to give some time to the respondent- State to analyse the consequences of this judgment, and, in case they so desire, to acquire the land through a proper notification under the said Act, and to take proper recourse in law so as to enable them to keep the land.
We grant three (3) months' time from the date of the judgment for the respondent-State to make up their mind as to what they want to do. Would they still like to retain the land by issuing a proper notification, or would they like to surrender possession of the land. In either eventuality, the question of payment for use and occupation would still arise, which will have to be determined in accordance with law. Mesne profits would be determined by a Court Commissioner, to be appointed by the trial court, as a relief in that behalf has been sought in the plaint itself.
The Apex Court very recently in the case of Kukreja Construction Company & Others v. State of Maharashtra & Others (Neutral Citation: 2024 INSC 692) has reiterated that State is duty bound to pay Compensation to Land Losers as otherwise there would be a Breach of Article 300A of the Constitution.
The Apex Court Bench observed thus:
We have referred to the decisions of this Court where the question of delay and laches would not arise in matters such as the present cases. When relief in the nature of compensation is sought, as in the instant case, once the compensation is determined in the form of FSI/TDR, the same is payable even in the absence of there being any representation or request being made. In fact, a duty is cast on the State to pay compensation to the land losers as otherwise there would be a breach of Article 300-A of the Constitution.
The Court further held that in such cases neither the doctrine of delay and laches nor the principle of abandonment of claim or waiver would apply. The Court observed thus:
Rather the delay has occurred on the part of the Mumbai Municipal Corporation in complying with the Regulations insofar as these appellants are concerned.
In a very recent landmark case in Kolkata Municipal Corporation vs Bimal Kumar Shah decided on 16 May, 2024 (2024 INSC 43), the Apex Court went a step ahead to categorically hold that Procedure is an integral part of the 'authority of law' enshrined in Article 300A of the Constitution.
The Apex Court interpreted the scope & validity of Section 352 of the Kolkata Municipal Corporation Act, 1980 with reference to Article 300A of the Constitution and also considered the procedure of acquisition as to whether it conformed to the Seven Basic Procedural Rights of private citizens which constitute the real content of the right to property under Article 300A. The Court after detailed discussion observed thus:
24. The Right to property: A net of intersecting rights: There is yet another aspect of the matter. Under our constitutional scheme, compliance with a fair procedure of law before depriving any person of his immovable property is well entrenched. We are examining this issue in the context of Section 352 of the Act which is bereft of any procedure whatsoever before compulsorily acquiring private property.
Again, assuming that Section 363 of the Act provides for compensation, compulsory acquisition will still be unconstitutional if proper procedure is not established or followed before depriving a person of their right to property. We find it compelling to clarify that a rather undue emphasis is laid on provisions of compensation to justify the power of compulsory acquisition, as if compensation by itself is the complete procedure for a valid acquisition.
25. While it is true that after the 44th Constitutional Amendment8, the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms. Despite its spatial placement, Article 300A (300A of the Constitution: Persons not to be deprived of property save by authority of law) which declares that no person shall be deprived of his property save by authority of law has been characterised both as a constitutional and also a human right (Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448; Vidya Devi v. State of Himachal Pradesh, (2020) 2 SCC 569). To assume that constitutional protection gets constricted to the mandate of a fair compensation would be a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution.
26. The constitutional discourse on compulsory acquisitions, has hitherto, rooted itself within the 'power of eminent domain'. Even within that articulation, the twin conditions of the acquisition being for a public purpose and subjecting the divestiture to the payment of compensation in lieu of acquisition were mandated. (State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga, (1952) 1 SCC 528) Although not explicitly contained in Article 300A, these twin requirements have been read in and inferred as necessary conditions for compulsory deprivation to afford protection to the individuals who are being divested of property (Hindustan Petroleum Corporation Ltd v. Darius Shapur Chenai, (2005) 7 SCC 627; K.T. Plantation Pvt Ltd v. State of Karnataka, (2011) 9 SCC 1)
A post-colonial reading of the Constitution cannot limit itself to these components alone. The binary reading of the constitutional right to property must give way to more meaningful renditions, where the larger right to property is seen as comprising intersecting sub-rights, each with a distinct character but interconnected to constitute the whole. These sub-rights weave themselves into each other, and as a consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands.
27. What then are these sub-rights or strands of this swadeshi constitutional fabric constituting the right to property? Seven such sub-rights can be identified, albeit non-exhaustive.
These are:
29. These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are
also recognised by our constitutional courts while reviewing administrative actions for compulsory acquisition of private property. The following will demonstrate how these seven principles have seamlessly become an integral part of our Union and State statutes concerning acquisition and also the
constitutional and administrative law culture that our courts have evolved from time to time.
31. The seven principles which we have discussed are integral to the authority of law enabling compulsory acquisition of private property. Union and State statutes have adopted these principles and incorporated them in different forms in the statutes provisioning compulsory acquisition of immovable property. The importance of these principles, independent of the statutory prescription have been recognised by our
constitutional courts and they have become part of our administrative law jurisprudence.
Conclusions:
Returning to the legal submissions of the counsel for the appellant-Corporation, as we have noticed that Section 352 does not provide for any procedure whatsoever, we reject the contention that it contemplates the power of acquisition. We have already held that Section 352 is only intended to enable the Municipal Commissioner to decide whether a land is to be acquired for public purpose.
The power of acquisition is in fact vested with the State under Section 537 and it will exercise it, in its own discretion, whenever the Municipal Commissioner makes an application to that effect. We have also agreed with the decision of the High Court that Section 363 is not a provision for compensation for compulsory acquisition.
In this context, we have also held that a valid power of acquisition coupled with the provision for fair compensation by itself would not complete and exhaust the power and process of acquisition. Prescription of the necessary procedures, before depriving a person of his property is an integral part of the 'authority of law', under Article 300A and, Section 352 of the Act contemplates no procedure whatsoever.
Conclusion:
It is undisputed that the right to hold property is not only a Constitutional Right as enshrined under Article 300-A of Constitution of India but is also a Human Right and no one can be deprived of his property except in accordance with law and that too after following the procedure of law & the seven Rights theory as enumerated & elucidated in Kolkata Municipal Corporation (supra) being mandatory for a valid acquisition.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]
There are two types of cases where in the State takes over the land/ immovable property per force. In the first situation, the Central/State/ Local Government or the Railways, NHAI & other Government Bodies forcibly take possession of a private property without initiation of acqusition proceedings and without payment of compensation.
The second situation arises when the Government or it's body wishes to acquire an immovable property and the respective Acquisition Act has power to acquire but the procedure given in the said Act & the rules applicable there to do not conform to the Seven Basic Procedural Rights of private citizens making the acquisition violative of Article 300 A of the Constitution. In both the situations, the acquisition deserves to be struck down at the very outset.
It is no longer Res Judicata that no one can be deprived of his right to property which is not only a Constitutional right, but is also a human right.
It is pertinent to reproduce Article 300 A of the Constitution, which reads as under:
- Article 300A in Constitution of IndiaPersons not to be deprived of property save by authority of law
- No person shall be deprived of his property save by authority of law.
The process of land acquisition was previously governed by the provisions of the Land Acquisitions Act, 1894 and now by the LARR Act, 2013. Under both the enactments, no land could be acquired without any compensation and without following the procedure mandated under both the Acts. It is noteworthy that the State is under bounden duty to pay compensation for all landowners suo motto and not to only those who approach the Court for the same.
In a catena of cases the Apex Court has explicitly held that in view of Article 300 A of the Constitution, an owner of an immovable property cannot be deprived of his/her property without following the due process of law. The Apex Court has repeatedly deprecated the practice of the State to take over possession of immovable property of subjects without invoking the provisions of Land Acquisition Act.
The Apex Court has also ruled that the plea of adverse possession by the State is inadmissible as ours is a 'welfare State and delay in moving for due redressal is also not maintainable. It is indeed a matter of grave concern that in spite of declaration of law by the Apex Court such incidences are still happening unabated. It appears that the said declarations are only for ornamentation & not for implementation.
It would be relevant to refer to the Apex Court judgment in the case of Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353 wherein it has been held as under :
8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is pertinent to note that even after the right to property ceased to be a fundamental right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the law, as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar v. State of Gujarat, it has been held as follows : (SCC p. 627, para 48)
48. 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 [is] no deprivation without
[due] 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.
9. The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment, etc. Now however, human rights are gaining an even greater multifaceted dimension. The right to property is considered very much to be a part of such new dimension. (Vide Lachhman Dass v. Jagat Ram, Amarjit Singh v. State of Punjab, State of M.P. v. Narmada Bachao Andolan, State of Haryana v. Mukesh Kumar and Delhi Airtech Services (P) Ltd. v. State of U.P.)
It would be apropos to refer to Apex Court judgment in the case of B.K.Ravichandra v. Union of India (2021) 14 SCC 703 wherein the Court dealt with the issue in hand and held thus:
35. It is, therefore, no longer open to the State : in any of its forms (executive, State agencies, or legislature) to claim that the law — or the Constitution can be ignored, or complied at its convenience. The decisions of this Court, and the history of the right to property show that though its preeminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it. The evolving jurisprudence of this Court also underlines that it is a valuable right ensuring guaranteed freedoms and economic liberty.
The phrasing of Article 300-A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked, they in effect, are a guarantee of the supremacy of the rule of law, no less. To permit the State : whether the Union or any State Government to assert that it has an indefinite or overriding right to continue occupying one's property (bereft of lawful sanction) - whatever be the pretext, is no less than condoning lawlessness.
The court's role is to act as the guarantor and jealous protector of the people's liberties : be they assured through the freedoms, and the right to equality and religion or cultural rights under Part III, or the right against deprivation, in any form, through any process other than law. Any condonation by the court is a validation of such unlawful executive behaviour which it then can justify its conduct on the anvil of some loftier purpose, at any future time, aptly described as a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.
It is trite to refer to Vidaya Devi vs The State of Himachal Pradesh & Ors. 2020 (2) SCC 569 wherein the Apex Court deprecated the conduct of the State in illegally taking over the land of the old Appellant admeasuring about 3.34 Hectares in Dist. Hamipur, Himachal Pradesh in 1967–68 for the construction of a major District Road without taking recourse to acquisition proceedings & without following the due process of law. The Court admonished the State for being in continuous illegal possession of the property for the last 42 yeat claiming title by way of adverse possession. Appalled by the illegal action of the State, the Court observed thus:
10.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution.
Article 31 guaranteed the right to private property (The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92), which could not be deprived without due process of law and upon just and fair compensation.
10.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353) in a welfare State, and a Constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law.
The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred in that Article. ( K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1)To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution.
Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627 wherein this Court held that:
6. … Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of eminent domain may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. (emphasis supplied) In N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517 this Court held that:
21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed. (emphasis supplied)
In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors. (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words:
30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property.
Property must be secured, else liberty cannot subsist was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists. (emphasis supplied)
In Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp. 1 SCC 596. this Court held as follows:
48. …In other words, Article 300A 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 300A. In other words, if there is no law, there is no deprivation. (emphasis supplied)
10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
10.4. The contention of the State that the Appellant or her predecessors had orally consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.
10.5. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353.wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
This Court in State of Haryana v. Mukesh Kumar 2011 (10) SCC 404 held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right.
Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.
10.6. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to adverse possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens, as has been done in the present case.
10.7. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it. (P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152)
In Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors.,(2013) 1 SCC 353. this Court while dealing with a similar fact situation, held as follows :
There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether.
Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. (emphasis supplied)
In the present case, the Appellant being an illiterate person, who is a widow coming from a rural area has been deprived of her private property by the State without resorting to the procedure prescribed by law. The Appellant has been divested of her right to property without being paid any compensation whatsoever for over half a century. The cause of action in the present case is a continuing one, since the Appellant was compulsorily expropriated of her property in 1967 without legal sanction or following due process of law.
The present case is one where the demand for justice is so compelling since the State has admitted that the land was taken over without initiating acquisition proceedings, or any procedure known to law. We exercise our extraordinary jurisdiction under Articles 136 and 142 of the Constitution, and direct the State to pay compensation to the Appellant.
It would be appropriate to refer to the case of D.B.Basnett (D) Thr. Lrs. vs The Collector East District, Gangtok, Sikkim & Anr. (2020) 4 SCC 572 wherein the Apex Court dealt with a similar situation.
The brief facts of the case are that 7.07 acres in the name of Man Bahadur Basnett situated in Sikkim was sought to be acquired for the purpose of building the Progeny Orchard Regional Centre in 1980. The State Government illegally & without authority of law encroached and trespassed the said land and used the same as an agricultural farm. The landowners claimed that the procedure envisaged under the Sikkim Land (Requisition and Acquisition) Act, 1977 had not been invoked or followed. The trial court dismissed the suit in 2006 both on grounds of limitation as well as substantive merits. The appeal against the said order was dismissed in 2008 by the Sikkim High Court.
The Court observed thus:
14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed. (Padmamma & Ors. v. S. Ramakrishna Reddy &Ors. (2008) 15 SCC 517)
15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 18942 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful3. The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.
The Court followed the reasonings given in Vidaya Devi vs The State of Himachal Pradesh & Ors. 2020 (2) SCC 569 and applied the dictum of the said case. Allowing the appeal of the landowners, the Court summed up thus:
19. The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them.
We are strengthened in our observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy (2011) 11 SCC 648 where it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published.
20. We are conscious that the land is being used by the respondent- State through respondent No.2 Department. That, however, does not give such a license to the State Government. We had endeavoured to refer the matter for mediation, to find an amicable solution, but that did not fructify. We, however, would like to give some time to the respondent- State to analyse the consequences of this judgment, and, in case they so desire, to acquire the land through a proper notification under the said Act, and to take proper recourse in law so as to enable them to keep the land.
We grant three (3) months' time from the date of the judgment for the respondent-State to make up their mind as to what they want to do. Would they still like to retain the land by issuing a proper notification, or would they like to surrender possession of the land. In either eventuality, the question of payment for use and occupation would still arise, which will have to be determined in accordance with law. Mesne profits would be determined by a Court Commissioner, to be appointed by the trial court, as a relief in that behalf has been sought in the plaint itself.
The Apex Court very recently in the case of Kukreja Construction Company & Others v. State of Maharashtra & Others (Neutral Citation: 2024 INSC 692) has reiterated that State is duty bound to pay Compensation to Land Losers as otherwise there would be a Breach of Article 300A of the Constitution.
The Apex Court Bench observed thus:
We have referred to the decisions of this Court where the question of delay and laches would not arise in matters such as the present cases. When relief in the nature of compensation is sought, as in the instant case, once the compensation is determined in the form of FSI/TDR, the same is payable even in the absence of there being any representation or request being made. In fact, a duty is cast on the State to pay compensation to the land losers as otherwise there would be a breach of Article 300-A of the Constitution.
The Court further held that in such cases neither the doctrine of delay and laches nor the principle of abandonment of claim or waiver would apply. The Court observed thus:
Rather the delay has occurred on the part of the Mumbai Municipal Corporation in complying with the Regulations insofar as these appellants are concerned.
In a very recent landmark case in Kolkata Municipal Corporation vs Bimal Kumar Shah decided on 16 May, 2024 (2024 INSC 43), the Apex Court went a step ahead to categorically hold that Procedure is an integral part of the 'authority of law' enshrined in Article 300A of the Constitution.
The Apex Court interpreted the scope & validity of Section 352 of the Kolkata Municipal Corporation Act, 1980 with reference to Article 300A of the Constitution and also considered the procedure of acquisition as to whether it conformed to the Seven Basic Procedural Rights of private citizens which constitute the real content of the right to property under Article 300A. The Court after detailed discussion observed thus:
24. The Right to property: A net of intersecting rights: There is yet another aspect of the matter. Under our constitutional scheme, compliance with a fair procedure of law before depriving any person of his immovable property is well entrenched. We are examining this issue in the context of Section 352 of the Act which is bereft of any procedure whatsoever before compulsorily acquiring private property.
Again, assuming that Section 363 of the Act provides for compensation, compulsory acquisition will still be unconstitutional if proper procedure is not established or followed before depriving a person of their right to property. We find it compelling to clarify that a rather undue emphasis is laid on provisions of compensation to justify the power of compulsory acquisition, as if compensation by itself is the complete procedure for a valid acquisition.
25. While it is true that after the 44th Constitutional Amendment8, the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms. Despite its spatial placement, Article 300A (300A of the Constitution: Persons not to be deprived of property save by authority of law) which declares that no person shall be deprived of his property save by authority of law has been characterised both as a constitutional and also a human right (Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448; Vidya Devi v. State of Himachal Pradesh, (2020) 2 SCC 569). To assume that constitutional protection gets constricted to the mandate of a fair compensation would be a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution.
26. The constitutional discourse on compulsory acquisitions, has hitherto, rooted itself within the 'power of eminent domain'. Even within that articulation, the twin conditions of the acquisition being for a public purpose and subjecting the divestiture to the payment of compensation in lieu of acquisition were mandated. (State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga, (1952) 1 SCC 528) Although not explicitly contained in Article 300A, these twin requirements have been read in and inferred as necessary conditions for compulsory deprivation to afford protection to the individuals who are being divested of property (Hindustan Petroleum Corporation Ltd v. Darius Shapur Chenai, (2005) 7 SCC 627; K.T. Plantation Pvt Ltd v. State of Karnataka, (2011) 9 SCC 1)
A post-colonial reading of the Constitution cannot limit itself to these components alone. The binary reading of the constitutional right to property must give way to more meaningful renditions, where the larger right to property is seen as comprising intersecting sub-rights, each with a distinct character but interconnected to constitute the whole. These sub-rights weave themselves into each other, and as a consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands.
27. What then are these sub-rights or strands of this swadeshi constitutional fabric constituting the right to property? Seven such sub-rights can be identified, albeit non-exhaustive.
These are:
- Duty of the State to inform the person that it intends to acquire his property – the right to notice
- The duty of the State to hear objections to the acquisition – the right to be heard
- The duty of the State to inform the person of its decision to acquire – the right to a reasoned decision
- The duty of the State to demonstrate that the acquisition is for public purpose – the duty to acquire only for public purpose
- The duty of the State to restitute and rehabilitate – the right of restitution or fair compensation
- The duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings – the right to an efficient and expeditious process
- Final conclusion of the proceedings leading to vesting – the right of conclusion
29. These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are
also recognised by our constitutional courts while reviewing administrative actions for compulsory acquisition of private property. The following will demonstrate how these seven principles have seamlessly become an integral part of our Union and State statutes concerning acquisition and also the
constitutional and administrative law culture that our courts have evolved from time to time.
31. The seven principles which we have discussed are integral to the authority of law enabling compulsory acquisition of private property. Union and State statutes have adopted these principles and incorporated them in different forms in the statutes provisioning compulsory acquisition of immovable property. The importance of these principles, independent of the statutory prescription have been recognised by our
constitutional courts and they have become part of our administrative law jurisprudence.
Conclusions:
Returning to the legal submissions of the counsel for the appellant-Corporation, as we have noticed that Section 352 does not provide for any procedure whatsoever, we reject the contention that it contemplates the power of acquisition. We have already held that Section 352 is only intended to enable the Municipal Commissioner to decide whether a land is to be acquired for public purpose.
The power of acquisition is in fact vested with the State under Section 537 and it will exercise it, in its own discretion, whenever the Municipal Commissioner makes an application to that effect. We have also agreed with the decision of the High Court that Section 363 is not a provision for compensation for compulsory acquisition.
In this context, we have also held that a valid power of acquisition coupled with the provision for fair compensation by itself would not complete and exhaust the power and process of acquisition. Prescription of the necessary procedures, before depriving a person of his property is an integral part of the 'authority of law', under Article 300A and, Section 352 of the Act contemplates no procedure whatsoever.
Conclusion:
It is undisputed that the right to hold property is not only a Constitutional Right as enshrined under Article 300-A of Constitution of India but is also a Human Right and no one can be deprived of his property except in accordance with law and that too after following the procedure of law & the seven Rights theory as enumerated & elucidated in Kolkata Municipal Corporation (supra) being mandatory for a valid acquisition.
Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]
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