Bombay High Court: In the instant petition, the Division Bench of M.S. Sonak* and Kamal Khata, JJ., presided over a land-acquisition dispute, to finally dispose of the same, wherein the petitioner had not been compensated for the plot of land that was acquired by the respondent- State authorities in 1988-89, and had not compensated the petitioner for the said acquisition until the date of the order. The Court found that such uncompensated acquisition was a violation of the petitioner’s constitutional and human rights and directed the respondents to grant interim compensation to the petitioner, along with additional compensation for the violation of constitutional and human rights of the petitioner.
Background
The petitioner was the owner of a plot of land (“said property”), that was acquired by the Maharashtra Housing and Area Development Authority (“MHADA”) in 1988-89, through an order issued by the Special Land Acquisition Officer (“SLAO”), MHADA. The grievance of the petitioner was since the acquisition (that was nearly 36 years ago), they had not been paid any compensation by the MHADA.
The petition was first considered by a Division Bench of the instant Court in 2003, during which the Court said that an expropriated owner cannot be defeated of his right of compensation because of the deficiencies in the functioning of the office of SLAO. Thereafter, another Division Bench presided over the matter in 2003, wherein a rule was issued. However, none of the respondents bothered to file any further affidavits. Therefore, the matter was before the instant Division Bench for a final disposal.
Court’s analysis and decision
The Court noted that despite the passing of 36 years since the acquisition of the said property, no records had been traced and no determination of the compensation amount payable to the petitioner had been made. The Court further noted that the respondents had not offered any justification for the inordinate and insensitive delay in compensating the petitioner for 36 years; such conduct was violative of Articles 14, 21 and 300-A of the Constitution.
The Court, considering the larger public interest involved, chose not to interfere with the acquisition, or direct the restoration of possession to the petitioner, since the said property might have been utilised for the purpose for which it was acquired. However, the Court opined that the petitioner should be suitably compensated at the earliest. The SLAO concerned submitted that the case papers were misplaced, which the Court considered was an insensitive excuse, and the petitioner’s right to receive compensation for the acquisition of his property could not be defeated based on it. Therefore, the Court viewed this as a complete non-compliance with the directions issued by the Division Bench in 2003.
The Court opined that the MHADA must be directed to determine the compensation payable to the petitioner, however, until such determination is made, some interim directions would have to be issued, so that the petitioner was not left at the mercy of MHADA again.
The Court referred to Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353, wherein the Supreme Court held that depriving the petitioners of their immovable properties was a clear violation of Article 21 of the Constitution, and further held that such conduct only breeds corruption and disrespect for governance. The Supreme Court also held that in a welfare State, “statutory authorities are bound not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons.” The Supreme Court also distinguished between ‘eminent domain” and “police power”, and stated that in certain circumstances, the State may have to operate police power to temporarily take possession of a citizen’s property; however, no absolute power has been vested in the State to acquire a citizen’s property without paying an adequate compensation. The Supreme Court referred to K. Krishna Reddy v. Special Dy. Collector, (1988) 4 SCC 163, wherein it was held that, “with rising inflation, the delayed payment may lose all the charms and utility of compensation. In some cases, the delay may be detrimental to the interests of claimants.”
The instant Court relied on Dharnidhar Mishra v. State of Bihar, 2024 SCC OnLine SC 932, wherein a citizen’s property was acquired, and no compensation was determined or paid for the same for more than 40 years. It was held by the Supreme Court in this case that at the time of the acquisition of the property concerned in that case, the right to property was a fundamental right guaranteed under Article 31 of the Constitution. However, through the Constitution (Forty-Fourth Amendment) Act, 1978, it continued to be a constitutional right under Article 300-A of the Constitution. The Supreme Court stated, “the obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article.”
In Dharnidhar Mishra (supra), it was further held by the Supreme Court, “where properties were acquired without payment of just and fair compensation, the petition should not be rejected for delay and laches, as delay and laches cannot be raised in a case of continuing cause of action…where the demand of justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice and not defeat it.”
Applying the law laid down in the cases above, the Court concluded that the State and MHADA had violated the petitioner’s human and constitutional rights, by acquiring his property but not paying any compensation for the same. Therefore, the Court ordered the respondents to pay a sum of Rs. 25,00,000 to the petitioner as interim compensation towards the acquisition of his property; ordered MHADA to pay a sum of Rs. 5,00,000 to the petitioner for violating his constitutional and human rights, and further ordered MHADA to pay costs of Rs. 1,00,000 to the petitioner. All the sums were ordered to be paid within 15 days of from the date of the order.
The SLAO was also directed to determine the net average monthly income actually derived from the said property, along with further instructions as to potential disagreements.
[Yusuf Yunus Kantharia v. Bombay Housing and Area Development Authority, 2024 SCC OnLine Bom 2462, decided on 01-08-2024]
*Judgment authored by: Justice M.S. Sonak
Advocates who appeared in this case :
For the petitioner: Omprakash Pandey, Rahul Pandey, Pramila Pandey, Alok Singh, Advocates i/b Pandey & Co.
For the respondents: Nishigandh Patil, AGP; P.G. Lad, Sayli Apte and Shreya Shah, Advocates
Buy Constitution of India HERE
