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TMI Blog2024 (5) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. The High Court was fully justified in allowing the writ petition and rejecting the case of the appellant-Corporation acquiring land under Section 352 of the Act. The impugned judgment does not brook interference on any count. Appeal dismissed. - HON'BLE PAMIDIGHANTAM SRI NARASIMHA AND HON'BLE ARAVIND KUMAR, JJ. For the Petitioner : Mr. Sujoy Mondal, Adv. Mr. Satish Vig, AOR For the Respondent : Ms. Ranjeeta Rohatgi, AOR Mr. Sagnik Majumdar, Adv. Mr. Rishabh Karnani, Adv. Ms. Shrika Gautam, Adv. Ms. Madhumita Bhattacharjee, AOR Ms. Srija Choudhury, Adv. Ms. Osheen Bhat, Adv. Ms. Nitipriya Kar, Adv. Mr. Chanchal Kumar Ganguli, AOR Ms. Astha Sharma, AOR Mr. Srisatya Mohanty, Adv. Ms. Anju Thomas, Adv. Mr. Sanjeev Kaushik, Adv. Ms. Mantika Haryani, Adv. Mr. Shreyas Awasthi, Adv. Mr. Himanshu Chakravarty, Adv. Ms. Ripul Swati Kumari, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t conduct of the procedure within timelines and finally the conclusion. These sub-rights have synchronously formed part of our laws and have attained judicial recognition. Therefore, as Section 352 does not provide for these sub-rights or procedures, it can never be a valid power of acquisition. Before we deal with the submissions and analyse the provisions, we will first narrate the necessary facts. 2. Facts: The property in question, Premises No. 106C, situated at Narikeldanga North Road, Kolkata 700011 Hereinafter, referred to as the Property ., belongs to Mr. Birinchi Bihari Shah Hereinafter, referred to as Birinchi Shah . having succeeded it through a deed of settlement executed by his father. As Birinchi Shah was minor at the time when his father passed away, his elder brother managed and administered the Property and, in that process, he also let out the premises admeasuring 2 bighas 18 kathas 6 chitaks and 40 square feet in favour of one M/s Arora Film Corporation. Upon attaining majority, the Property was mutated in the name of Birinchi Shah in the assessment book of the appellant-Corporation. It is affirmatively stated that all municipal dues including taxes with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is more or less an admitted fact that a plea of acquisition was taken for the first time before the Division Bench, and this seems to be the reason for the Division Bench to remand the matter back to the single Judge after imposing a cost of Rs. 50,000/- on the appellant-Corporation. After remand, the appellant-Corporation filed an affidavit-in-opposition before the single Judge claiming that the land was acquired. In view of new developments, Birinchi Shah sought permission to withdraw the pending writ petition with the liberty to file a fresh writ petition. The High Court permitted this by an order dated 11.08.2016. 7. Accordingly, Writ Petition No. 930 of 2016 was filed by the respondent no. 1, the executor to the estate of Birinchi Shah, inter alia, seeking an order quashing the alleged acquisition as illegal and to restore their name as owners in the official records. 8. The learned single Judge of the High Court, allowing the writ petition by order dated 14.09.2017, formulated two questions. The first question relates to the maintainability of the writ petition, which was answered in the affirmative. As there is no contest to this issue, we will not deal with it. The second i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls, appearing for the respondents, while supporting the judgment of the High Court, impugned herein, submitted that the power of acquisition is only in Section 537 of the Act and that invocation of Section 352 read with Section 363 is illegal and violative of Article 300A of the Constitution. In support of their submissions, they relied on the judgment of this Court in Nagpur Improvement Trust v. Vithal Rao (1973) 1 SCC 500. 14. Scheme of the Act: The Kolkata Municipal Corporation Act, 1980 extends to 636 Sections, followed by 9 Schedules. It has IX Parts, of which we are concerned only with Part VI of which Chapter XXI relating to Streets and Public Places and Part VIII of which Chapter XXXIII relating to Acquisition and Disposal of Property. As the appellant-Corporation invoked Section 352 of the Act to acquire the Property for the purpose of opening a park and ward office, we need to examine the provision. Section 352 of the Act provides as under: Section 352:- Power to acquire lands and buildings for public streets and for public parking places: The Municipal Commissioner may, subject to the other provisions of this Act (a) acquire any land required for the purpose of opening, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquisition is not provided in Section 352. It is provided in Section 535 occurring in Chapter XXXIII of Part VIII of the Act which relates to Acquisition of Property . 17. Before we deal with the Section 535, it is sufficient to conclude that Section 352 merely contemplates the power and duty of the Municipal Commissioner to identify the land intended for opening of a street, park etc., and once that decision is taken, the Municipal Commissioner would take steps to acquire such a property, for a public purpose. 18. The context in which Section 352 is located in Chapter XXI of Part VI of the Act relating to streets for public place , also makes the position clear that this provision relates to vesting of public street, squares, parks and gardens in the appellant-Corporation but does not provide for the power of acquisition. In the following paragraph, we have explained how the text and the context of the expression, The Municipal Commissioner may acquire in Section 352 is not at all the power of acquisition. 19. Upon arriving at a decision to acquire any land for the purpose of opening a street, square, park, etc., under Section 352, the Municipal Commissioner will then apply to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-sections (1) and (2) shall apply to such acquisition. Section 537. Procedure when immovable property cannot be acquired by agreement. (1) Whenever the Municipal Commissioner is unable under section 536 to acquire by agreement any immovable property or any easement affecting any immovable property vested in the Corporation or whenever any immovable property or any easement affecting any immovable property vested in the Corporation is required for the purpose of this Act, the State Government may, in its discretion, upon application of the Municipal Commissioner, made with the approval of the Mayor-in-Council and subject to other provisions of this Act, order proceedings to be taken for acquiring the same on behalf of the Corporation, as if such property or easement were land needed for public purpose within the meaning of the Land Acquisition Act, 1894 (I of 1894) (2) .. (3) For the purpose of acquisition of immovable property under this section, the Land Acquisition Act, 1894, shall be subject to the amendment that the market value of any land or building to be acquired shall be deemed, for the purpose of sub-section (1) of section 23 of the Act, to be the marketvalue determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the 44th Constitutional Amendment Constitution (Forty-Fourth Amendment) Act, 1978, the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net 8 Constitution (Forty-Fourth Amendment) Act, 1978. 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. No person shall be deprived of his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge. The judgment of this Court in K.T. Plantations (supra) K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1. declares that the law envisaged under Article 300A must be in line with the overarching principles of rule of law, and must be just, fair, and reasonable. It is, of course, precedentially sound to describe some of these sub-rights as procedural , a nomenclature that often tends to undermine the inherent worth of these safeguards. These seven sub-rights may be procedures, but they do constitute the real content of the right to property under Article 300A, non-compliance of these will amount to violation of the right, being without the authority of law. 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. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and Acquisition of Immovable Property Act, 1952, Section 15 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and Section 3C of the National Highways Act, 1956, are some statutory embodiments of this right. (iii) Judicial opinions recognizing the importance of this right are far too many to reproduce. Suffice to say that that the enquiry in which a land holder would raise his objection is not a mere formality In Nandeshwar Prasad v. State of U.P., AIR 1964 SC 1217, this Court has held the right under Section 5A of the Land Acquisition Act, 1894 to be a substantial one and it cannot be taken away. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627, this Court has held that the right of submitting objections under Section 5A of the Land Acquisition Act, 1894 is a valuable right and the hearing given in pursuance of exercise of this right must not be rendered to a mere formality. In Union of India v. Shiv Raj, (2014) 6 SCC 564, this Court held that the rules of natural justice have been ingrained in the scheme of Section 5A of the Land Acquisition Act, 1894. In Competent Authority v. Barangore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Immovable Property Act, 1952, Sections 2(1), 11(1),15(1)(b) and 19(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Section 3A(1) of the National Highways Act, 1956 depict the statutory incorporation of the public purpose requirement of compulsory acquisition. (iii) The decision of compulsory acquisition of land is subject to judicial review and the Court will examine and determine whether the acquisition is related to public purpose. If the court arrives at a conclusion that that there is no public purpose involved in the acquisition, the entire process can be set-aside. This Court has time and again reiterated the importance of the underlying objective of acquisition of land by the State to be for a public purpose In Somawanti v. State of Punjab, 1962 SCC OnLine SC 23, this Court held that the Constitution permits acquisition of private land by the State only for a public purpose. The rationale of taking away private land by the State for a public purpose is that private interest must give way to public interest as observed by the Court in Daulat Singh Surana v. First Land Acquisition Collector, (2007) 1 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ket value of the acquired land. In Vidya Devi v. State of H.P., (2020) 2 SCC 569, this Court held that even though compensation is not expressly provided for under Article 300A of the Constitution, it can be inferred therein. In the American jurisprudence, payment of compensation has been made part of due process (See Sweet v. Rechel [159 US 380 (1895) : 40 L.Ed. 188], Delaware L. W.R. Co. v. Morristown [276 US 182 (1928) : 72 L.Ed. 523] and United States v. Caltex (Philippines) [344 US 149 (1952) : 97 L.Ed. 157). 30.6. The Right to an efficient and expeditious process: (i) The acquisition process is traumatic for more than one reason. The administrative delays in identifying the land, conducting the enquiry and evaluating the objections, leading to a final declaration, consume time and energy. Further, passing of the award, payment of compensation and taking over the possession are equally time consuming. It is necessary for the administration to be efficient in concluding the process and within a reasonable time. This obligation must necessarily form part of Article 300A. (ii) Sections 5A(1), 6, 11A, and 34 of the Land Acquisition Act, 1894, Sections 6(1A) and 9 of the Requisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the land. If possession is not taken, acquisition is not complete. With the taking over of actual possession after the normal procedures of acquisition, the private holding is divested and the right, title and interest in the property, along-with possession is vested in the State. Without final vesting, the State s, or its beneficiary s right, title and interest in the property is inconclusive and causes lot of difficulties. The obligation to conclude and complete the process of acquisition is also part of Article 300A. ii) Section 16 of the Land Acquisition Act, 1894, Sections 4 and 5 of the Requisitioning and Acquisition of Immovable Property Act, 1952, Sections 37 and 38 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and Sections 3D and 3E of the National Highways Act, 1956, statutorily recognise this right of the acquirer. iii) This step of taking over of possession has been a matter of great judicial scrutiny and this Court has endeavoured to construe the relevant provisions in a way which ensures non-arbitrariness in this action of the acquirer In State of W.B. v. Vishnunarayan Associates (P) Ltd., (2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a notification declaring the acquisition, which is done after the disposal of objections of the land-owner, if any. 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. 32. 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 make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question, I have no comment to make. If the aggrieved party moves the Court, then the Court will resolve the anomalies. It is curious to note that despite the same, the then Mayor put a note that the Corporation may proceed to acquire the property by invoking powers under Section 352(a) and the note of the Chief Municipal Law Officer was simply kept in the file. It would further appear from the subsequent noting of the Chief Municipal Law Officer put on 08.01.1991 wherein it is noted that the act is silent as to when the possession is to be taken either before or after the payment of compensation under Section 363 and according to him, the possession can only be taken after the payment of compensation under Section 363(3) of the said Act. Despite the aforesaid noting, the Municipal Commissioner passed an order of acquisition on 18.01.1991 directing to acquire the subject land under Section 352(a) of the Act with immediate effect and the possession should also be taken immediately. There is a serious dispute whether the possession was in fact taken in terms of the said order of the Municipal Commissioner or not. However, it is seen from the notes put on 16.03.1991 that the possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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