Case BriefsHigh Courts

Bombay High Court: The Division Bench of S.V. Gangapurwala and Shrikant D. Kulkarni, JJ., expressed 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 non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment.

Factual Matrix

Petitioners owned agricultural lands adjacent to a National Highway and on the said lands, they had their residential houses, wells, fruit trees, bore-well, etc. which were also adjacent to National Highway.

The said road came to be converted into State Highway without payment of any compensation while expansion of the same.

It has been submitted that, respondents are trying to take forcible possession of the lands of the petitioners and respondent authorities cautioned the petitioners to use police force while taking possession. Though petitioners made it clear that they are not opposing the road widening in question but the authority should acquire their respective lands for up-gradation of the roads as per the due procedure of law.

The said up-gradation is being done in phase wise manner and petitioners are concerned with the phase of Dhangar Pimpri to Wadigodri for which the authorities are attempting to take the forceful possession of their lands under the pretext of resolution regarding adjacent lands of road which need not require acquisition.

Further, it was added that the action initiated by the respondent-authorities thereby taking forcible possession of the lands belonging to the petitioners for road widening by showing the Government Resolution was contrary to the provision of Article 300-A of the Constitution of India.

Respondent authorities stand was that they are expending the road on the existing road of 30 meters. They are upgrading the same and there is no need to acquire the lands of the adjacent land holders as they won’t be affected by the same.

Analysis, Law and Decision

Width of the road – 12 or 30 metres?

As per standards, the width of the State Highway should be 30 meters. The road in question was a District Road. As per standard width of the District Road is 12 meters. By way of notification dated 19th April, 1967, the road in question was declared as State Highway in the year 1967. The question comes when District Road came to be declared as State Highway. How the width of the road is enhanced to 30 meters. Was there any acquisition of lands of adjacent land owners by way of proceedings under the old Land Acquisition Act of 1894? No record is forthcoming from both sides in order to clear the position.

Bench stated that merely, producing maps of certain villages and copies of road development plans, may not be helpful to arrive at a conclusion and record finding to that effect as the said would be an erroneous exercise. Further, it was noted by the Bench that at some places the width of the road of 30 meters and at some, it was less than 30 meters.

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 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.

 Is there an obligation to pay compensation under Article 300 A?

High Court remarked that obligation to pay compensation, though may not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

Elaborating more, High Court held that depriving persons of their immovable properties, was a clear violation of Article 21 of the Constitution.

It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

In view of the present facts of the case, High Court expressed that, respondents are the State authorities and Central authorities constructing National Highway. They are expected to be model litigants and are expected to respect the rights of petitioners and follow due procedure of law when property is likely to be acquired.

In a society governed by rule of law, there should not be arbitrariness in any decision.

In the instant case, there was no conclusive proof to establish the width of road to be 30 meters and no question of acquiring lands of petitioners.

Hence, there should be a joint measurement of road in presence of the petitioners and respondents under the supervision of District Collector, Jalna and if the width of the road at respective villages is found to be 30 meters, there shall not any question of acquisition of adjacent lands of the petitioners and if otherwise, then Centre and State shall follow due process of law in acquiring the same. [Bhagauji v. State of Maharashtra, 2021 SCC OnLine Bom 982, decided on 3-07-2021]


About the Bench:

JUSTICE SANJAY VIJAYKUMAR GANGAPURWALA

He was born on 24-05-1962.

Stood third in the order of merit in LL.B. examination. Started practice in the year 1985 and joined Chambers of advocate Shri S.N.Loya. Practiced in trial Court, High Court and Debt Recovery Tribunal. Was an advocate for Financial Institutions such as Central Bank of India, Bombay Mercantile Cooperative Bank, Jalgaon Janata Sahakari Bank, many Corporate bodies and Dr.Babasaheb Ambedkar Marathwada University. Also represented Government before Justice Mane Commission. Had privilege to be the advocate of the Hon’ble the Chief Justice of the Bombay High Court.

Extracurricular activities: Is a keen sportsman played lawn tennis at National level. Represented Dr. Babasaheb Ambedkar Marthwada University six times and captained it twice in All India University Tournament. Played Basketball at State level. He was the Honourary part-time lecturer in M.P.Law College since 1991 till date of elevation as Additional Judge of the Bombay High Court on 13-3-2010.

JUSTICE SHRIKANT DATTATRAY KULKARNI

Graduated in Commerce (Hons.) from G.A. College of Commerce, Sangli. Completed LL.B. in the year 1984 from N.S. Law College, Sangli. Did LL.M. from Bharti Vidyapeeth, Pune and Diploma in Cyber Law (D.I.C.L.) from Government Law College, Mumbai and enrolled as an Advocate with Bar Council of Maharashtra & Goa in the year 1985.

Practiced at various places in Sangli District and joined judiciary in the year 1990. Promoted as Addl.District Judge in the year 2002.

Worked as Registrar (Personnel) and Registrar (Judicial) at Principal seat Bombay from 2013 to 2015. Appointed as Principal District & Sessions Judge, Ahmednagar and worked from the year 2015 to 13th July 2017.

Worked as Member Secretary, Maharashtra State Legal Services Authority from 14th July 2017 to 13th January 2020.

Elevated as Judge of Bombay High Court on 14th January 2020.


SOURCE: Bombay High Court Website

Case BriefsSupreme Court

Supreme Court: In a case where the Union of India was sitting over certain lands since 33 years without any authority, the bench of Indira Banerjee and S. Ravindra Bhat*, JJ directed the Union of India to hand back possession of the suit lands to the appellants, within three months.

“33 years (based upon cessation of the Union’s legal possession) is a long enough time, even in India, to be kept away from one’s property.”


Background of the Case


  • Requisitioning and Acquisition of Immovable properties Act, 1952 was brought into force on 15.03.1952 with the object to enable the Union to requisition or acquire immovable property if the competent authority was of the opinion that any property was necessary for a public purpose. By Section 1(3), the Requisitioning Act was to be in force for six years. Section 3 clothed the Union with the power to requisition properties for any public purpose; Section 7 provided the procedure to requisition (or acquire) lands. It also spelt-out the condition precedents for exercise of the power. Section 8 provided for compensation with regard to property. Section 8(2) laid out the principles applicable for determination of compensation for the property as a recurring one.
  • On 27.02.1958, the Requisitioning Act was amended and the period of its operation extended. In the meanwhile, the Defence of India Act, 1962 (DIA) was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Requisitioning Act.
  • The Union invoked its powers under the DIA and requisitioned the three described properties which belonged to the predecessor of the appellants in 1963.
  • By Act 48 of 1963, Section 1(3) of the Requisitioning Act was amended, and the period of operation of the Requisitioning Act was extended till 14.03.1970. In the meanwhile, the DIA lapsed with effect from 10.01.1968. The Requisitioning Act was amended, incorporating Section 25, which enacted that the immovable property requisitioned under the DIA, which had not been released as on 10.01.1968 was deemed to have been requisitioned under the Requisition Act. It also continued the status quo with respect to determination of compensation completed under the DIA.
  • The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987.
  • Union asserted that it had acquired at least some parts of the suit lands; these were examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. The High Court, while noticing that the Union’s claim had no merits (in both its appeal, which was dismissed, as well as in the impugned judgment, disposing of the writ petition), nevertheless refused to issue any direction for the release of the suit lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. The impugned judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years.

Analysis


Legal effect of requisitioning immovable property

Temporarily- i.e. for the period the requisition order is in operation, the owner loses her possessory rights, even though the title remains undisturbed. Since the deprivation of possession is through authority of law, in keeping with fair procedure, the law provides for payment of compensation in accordance with predetermined principles.

“Yet, the taking of property by definition is finite: it cannot result in expropriation or deprivation of title altogether, unless another process for acquiring it, is initiated.”

Right to Property

Stating that it is not 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 Court noticed that although the right to property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right. Though its pre-eminence as a fundamental right has been undermined, nevertheless, the essence of the rule of law protects it.

“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.”

It was further stated that any condonation by the court is a validation of such unlawful executive behavior 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.”

Discussion on facts

Union’s assertion that it had acquired at least some parts of the suit lands was examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. Each time, the factual findings went against the Union.

“The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. These facts paint a stark, even sordid picture.”

The Court, hence, held that the impugned judgment of the Karnataka High Court committed an error in refusing relief to the appellants.

Directions

  • The Union of India is directed to hand back possession of the suit lands to the appellants, within three months.
  • It is open to the appellants to seek compensation based on fresh fixation of capital value and recurring annual value, based on the different five- year periods for the last 20 years. Such a claim shall be referred to arbitration, within four weeks of receipt of the reference. The arbitrator shall proceed to pronounce the award within six months of receipt of the reference. This is independent of the Union’s obligation to vacate and hand over peaceful possession of the suit lands within three months.
  • The appellants shall be paid costs, quantified at ₹ 75,000/-.

[BK Ravichandra v. Union of India, 2020 SCC OnLine SC 950, decided on 24.11.2020]


*Justice S. Ravindra Bhat has penned this judgment

For Appellant: Senior Advocate Mohan Parasaran

For Respondent: Additional Solicitor General K.M. Natraj

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banjerjee and Indu Malhotra, JJ that the Courts are duty bound to issue a writ of Mandamus for enforcement of a public duty.

“The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion malafide, or on irrelevant consideration.”

The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road.  In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters. Read more

“There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

Considering the issue at hand, the Court noticed in case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government. It said that in all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority.”

“In appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.”

Stating that the Court is duty bound to issue a writ of Mandamus for enforcement of a public duty, the bench said that there can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant.

“A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.”

It further said that High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.

[Hari Krishna Mandir Trust v. State of Maharashtra,  2020 SCC OnLine SC 631, decided on 07.08.2020]


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Case BriefsSupreme Court

Supreme court: The 2-judge bench of Indira Banerjee and Indu Malhotra, JJ has held that Section 88 of Maharashtra Regional and Town Planning Act, 1966 cannot be read in isolation from the other provisions of the Act, particularly Sections 65, 66, 125 and 126 thereof. It further, said,

“however laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.”

On whether Section 88 of Maharashtra Regional and Town Planning Act, 1966 can be read in isolation

Section 125 read with Section 126 enables the state/Planning authority to acquire land. Section 65 read with Section 66, on the other hand, protect the interests of the owners. Considering all the relevant provisions, the Court held that on a proper construction of Section 88, when land is acquired for the purposes of a Development Scheme, the same vests in the State free from encumbrances. No third party can claim any right of easement to the land, or claim any right as an occupier, licensee, tenant, lessee, mortgagee or under any sale agreement. However,

“Section 88 of the Regional and Town Planning Act cannot be read in isolation. It has to be read with Section 125 to 129 relating to compulsory acquisition as also Section 59, 69 and 65.”

On Right to property vis-à-vis Doctrine of Eminent Domain

Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts,

  • possession of property in the public interest; and
  • payment of reasonable compensation.

Noticing that the right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right, the Court said that the right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law.

“In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government.”

Factual background and Ruling

The Court was hearing the case pertaining to a private road in Pune being declared as being owned by Pune Municipal Corporation whilst in the property records, there was no private road.  In 1970, by an order of the Pune Municipal Corporation, a Plot was divided into 4 plots and a private road admeasuring 414.14 square meters.

On perusal of the documents, the Court noticed that there can be no doubt at all that the road in question measuring 444.14 sqm. never belonged to the Pune Municipal Corporation. In the property records, there was no private road. The Municipal Corporation was never shown as owner of the vacant plot or of any private road. Even assuming that there was any policy decision to have an approach road to every plot, it was incumbent upon the authorities concerned to acquire the land.

“There is no whisper as to how the road came to be shown as in possession of Pune Municipal Commissioner nor of the procedure adopted for effecting changes, if any, in the property records.”

The Court, hence, held that the Pune Municipal Corporation had a public duty under Section 91 to appropriately modify the scheme and to show the private road as property of its legitimate owners, as per the property records in existence, and or in the award of the Arbitrator.

It, hence, directed the Municipal Corporation to

“delete the name of the Pune Municipal Corporation as owner of the private road in the records pertaining to the Scheme and carry out such other consequential alterations as may be necessary under Section 91 of the Maharashtra Regional and Town Planning Act, 1966.”

[Hari Krishna Mandir Trust v. State of Maharashtra,  2020 SCC OnLine SC 631, decided on 07.08.2020]


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