9911796707
TMI Blog2024 (5) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... ..... 1 Facts............................................................................. 2 Submission of Counsels .................................................. 7 Scheme of the Act.......................................................... 8 The Right to property: A net of intersecting rights ........ 15 The Right to notice .........................................................19 The Right to be heard ......................................................20 The Right to a reasoned decision .....................................21 The Duty to acquire only for public purpose.....................22 The Right of restitution or fair compensation ..................23 The Right to an efficient and expeditious process ............24 The Right of conclusion...................................................26 Conclusions................................................................. 28 JUDGMENT PAMIDIGHANTAM SRI NARASIMHA, J. 1. Leave granted. Introduction: The Kolkata Municipal Corporation claims to have acquired the property of respondent no. 1 in exercise of powers under Section 352 of the Kolkata Municipal Corporation Act, 1980. A single Judge and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.04.2000 admitting that there are no outstanding dues with respect to property tax. 3. In the year 2009, when an attempt was made by the appellant-Corporation to forcefully enter and occupy the Property, Birinchi Shah filed a writ petition being W.P. No. 126 of 2009 before the High Court seeking a restraint order against the appellant-Corporation. 4. As there was no real contest about the title in the Property and the appellant-Corporation having not filed any affidavit-in-opposition, the High Court disposed of the writ petition by an order dated 17.09.2009 directing that the appellant-Corporation must hold an enquiry about the encroachments. The High Court further directed the appellant-Corporation not to make any construction over the Property. 5. In July 2010, Birinchi Shah received information that the appellant-Corporation had deleted his name from the category of owner and had inserted its own name in the official records. Aggrieved, he approached the High Court by filing a writ petition bearing W.P. No. 981 of 2010, not only for correction of the entries but also to restrain the appellant-Corporation from interfering with his peaceful possession over the Property. What h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipal Corporation Act, 1980 Hereinafter, referred to as the "Act". Answering the second question, the learned single Judge held that the appellant-Corporation purported to acquire the Property under Section 352(a) of the Act when there is no power of compulsory acquisition therein. The learned single Judge therefore quashed and set-aside the alleged action of acquisition. 9. The appellant-Corporation as well as the respondent no. 1 assailed the order of learned single Judge in writ appeals bearing APO No. 523 of 2017 and APO No. 210 of 2018, respectively. 10. The Division Bench of the High Court, by the judgment impugned herein, affirmed the order of the Single Judge and accordingly, disposed of the appeals with a direction that the appellant-Corporation may initiate acquisition proceedings for the Property under Section 536 or 537 of the Act, within five months, or in the alternative, restore the name of the last recorded owner as the owner of the Property. 11. It is against this judgment and order of the Division Bench of the High Court, that the appellant-Corporation is in appeal before us. 12. Submission of Counsels: Mr. Jaideep Gupta, learned senior counsel, representi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , together with any building standing upon such land; (b) acquire, in relation to any land or building as aforesaid, such land with building thereon outside the regular line or the projected regular line of such public street; (c) acquire any land for the purpose of laying out or making a public parking place." 15. The appellant-Corporation has also relied on Section 363 of the Act relating to payment of compensation. The said provision is as under: "Section 363-Compensation to be paid:- (1) Compensation shall be paid by the Corporation to the owner of any building or land acquired for a public street, square, park or garden under the provisions of this Chapter: Provided that any increase or decrease in the value of the remainder of the property, of which building or the land so acquired formed part, likely to accrue from the setting back to the regular line of a public street, shall be taken into consideration in determining the amount of such compensation. (2) If any additional land, which will be included in the premises of any person permitted or required by an order under sub-section (2) of section 360 to set forward a building to the regular line of a public s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of acquisition. Section 537 is located in Chapter XXXIII Part VIII of the Act relating to 'Acquisition of Property'. This Chapter commences with Section 535 which specifically provides that the appellant-Corporation shall have the power to acquire and hold immovable property. It is followed by the power to acquire properties through an agreement under Section 536 of the Act or in the alternative, through compulsory acquisition of immovable property as provided in Section 537 of the Act. 20. The position is thus, clear. Upon application of the Municipal Commissioner under Section 537 for the acquisition of land for opening of a street, square, park etc., the Government may order proceedings to be taken for acquiring land on behalf of the appellant-Corporation as if the land is needed for a public purpose within the meaning of the Land Acquisition Act, 1894. 21. Sections 535, 536 and 537 of the Act are extracted hereinbelow for ready reference: "Section 535. Acquisition of property. - The Corporation shall, for the purposes of this Act, have power to acquire and hold movable and immovable property or any interest therein, whether within or outside the limits of Kolkata. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such immovable property at the date of declaration under sub-section (1) of section 4 thereof in respect of such immovable property. (4) The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall, subject to all other provisions of this Act, be forthwith paid by the Municipal Commissioner and thereupon such property shall vest in the Corporation." 22. The scheme of the Act makes it clear that Section 352 empowers the Municipal Commissioner to identify the land required for the purpose of opening of public street, square, park, etc. and under Section 537, the Municipal Commissioner has to apply to the Government to compulsorily acquire the land. Upon such an application, the Government may, in its own discretion, order proceedings to be taken for acquiring the land. Section 352 is therefore, not the power of acquisition. We, therefore, reject the submission on behalf of the appellant-Corporation that Section 352 enables the Municipal Commissioner to acquire land. 23. We will now deal with the other submission of Mr. Jaideep Gupta that there is also a provision for compensation under Section 363 where land is acquired under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 30. Following are the seven principles: 30.1.The Right to notice: (i) A prior notice informing the bearer of the right that the State intends to deprive them of the right to property is a right in itself; a linear extension of the right to know embedded in Article 19(1)(a). The Constitution does not contemplate acquisition by ambush. The notice to acquire must be clear, cogent and meaningful. Some of the statutes reflect this right. (ii) Section 4 of the Land Acquisition Act, 1894, Section 3(1) of the Requisitioning and Acquisition of Immovable Property Act, 1952, Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and Section 3A of the National Highways Act, 1956 are examples of such statutory incorporation of the right to notice before initiation of the land acquisition proceedings. (iii) In a large number of decisions, our constitutional courts have independently recognised the right to notice before any process of acquisition is commenced In Narendrajit Singh v. State of U.P., (1970) 1 SCC 125, it was held that a notification under Section 4 of the Land Acquisition Act, 1894, even in urgent cases fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Barangore Jute Factory, (2005) 13 SCC 477, this Court observed that in the process from the initial notification to the final declaration, objections play a vital road. In Kamal Trading (P) Ltd. v. State of W.B., (2012) 2 SCC 25, this Court quashed the land acquisition proceedings when a proper hearing under Section 5A of the Land Acquisition Act, 1894 was not accorded. In Gojer Bros. (P) Ltd. v. State of W.B., (2013) 16 SCC 660, this Court held quashed the land acquisition proceedings when it was observed that a mere formality was rendered in the name of a hearing under Section 5A of the Land Acquisition Act, 1894. 30.3. The Right to a reasoned decision: i) That the authorities have heard and considered the objections is evidenced only through a reasoned order. It is incumbent upon the authority to take an informed decision and communicate the same to the objector. (ii) Section 6 of the Land Acquisition Act, 1894, Section 3(2) of the Requisitioning and Acquisition of Immovable Property Act, 1952, Section 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Section 3D of the National Highways Act, 1956, are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, (2007) 1 SCC 641. In Union of India v. Jaswant Rai Kochhar, (1996) 3 SCC 491 and D. Hanumanth SA v. State of Karnataka, (2010) 10 SCC 656, this Court held acquisition proceedings to be valid even if there was a change in the public purpose, so long as there is a public purpose for which the land is acquired. The importance of the communication of public purpose as an ingredient of the notification for acquisition was reiterated by this Court in Munshi Singh v. Union of India, (1973) 2 SCC 337 when acquisition proceedings were set aside since the public purpose was mentioned as "planned development of the area" which was observed to be wholly insufficient and conveyed no idea as to the specific purpose. Similarly, in Madhya Pradesh Housing Board v. Mohd. Shafi, (1992) 2 SCC 168, wherein this Court quashed the acquisition proceedings on the ground that the public purpose was mentioned as "residential" which was too vague. 30.5. The Right of restitution or fair compensation: (i) A person's right to hold and enjoy property is an integral part to the constitutional right under Article 300A. Deprivation or extinguishment of that right is permissible only upon restitution, be it in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 6(1A) and 9 of the Requisitioning and Acquisition of Immovable Property Act, 1952, Sections 4(2), 7(4), 7(5), 11(5), 14, 15(1), 16(1), 19(2), 25, 38(1), 60(4), 64 and 80 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Sections 3C(1), 3D(3) and 3E(1) of the National Highways Act, 1956, prescribe for statutory frameworks for the completion of individual steps in the process of acquisition of land within stipulated timelines. (iii) On multiple occasions, upon failure to adhere to the timelines specified in law, the courts have set aside the acquisition proceedings In Roy Estate v. State of Jharkhand, (2009) 12 SCC 194; Union of India v. Mahendra Girji, (2010) 15 SCC 682 and Union of India v. Mahendra Girji, (2010) 15 SCC 682, this Court has underscored the importance of following the timelines fixed by the statute. In Mansaram v. S.P. Pathak, (1984) 1 SCC 125, this Court has held that the powers relevant to the land acquisition process must be exercised within a reasonable time. In Kerala State Housing Board v. Ramapriya Hotels (P) Ltd., (1994) 5 SCC 672, this Court has held that if the concerned legislation does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nunarayan & Associates (P) Ltd., (2002) 4 SCC 134, this Court held that possession can be resumed by the acquirer only in a manner known to or recognised by law and it cannot resume possession otherwise than in due course of law. In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596, this Court held that though 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, even then the right to take possession of a private property must be exercised in the manner directed by the Constitution and the laws of the State, since deprivation of property must take place after following the procedure of law and upon ensuring due process. For that matter, after taking over possession, the process of land acquisition concludes with the vesting of the land with the concerned authority. The culmination of an acquisition process by vesting has been a matter of great importance. On this aspect, the courts have given a large number of decisions as to the time, method and manner by which vesting takes place In Girnar Traders (3) v. State of Maharashtra, (2011) 3 SCC 1, this Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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. 33. We are not referring to the detailed facts of the case involving multiple rounds of litigation where the respondents have taken inconsistent stands about the ownership and acquisition of the Property. There is no doubt in our mind that the exercise of the power is illegal, illegitimate and has caused great difficult to the respondent-land-bearer. It is necessary to refer to the findings of the learned single Judge that the appellant-Corporation acted in blatant violation of statutory provisions, these findings are as follows: "The facts disclosed by the Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen from the notes put on 16.03.1991 that the possession was taken. The fact remains that no compensation has been paid as yet. The Corporation has further disclosed a letter allegedly written by the recorded owner on 14.11.1991 wherein it is categorically stated that the possession has not been taken. Though it appears from the noting that the possession was taken way back in 1991 but the record maintained by the Corporation was not altered and/or corrected and in fact the Corporation continued to accept the property tax paid by the recorded owner in respect of the said property. Even in the year 2000, the Corporation mutated the name of the Birinchi Behari Shaw and also issued the No Due Certificate to him. It is only in the year 2010 the Corporation deleted the name of the said owner and incorporated its name as owner thereof. Yet, showing the huge outstanding on account of property tax with interest and penalty in the letter of intimation issued on 17.07.2010. The explanation is sought to be offered that there is no synchronization between the two departments of the Corporation and a mistake has been committed, which cannot confer any equity or right in favour of the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
