Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court had directed Kolhapur Municipal Corporation to acquire an unusable land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and compensate the landowners, the bench of MR Shah* and BV Nagarathna, JJ has held that when land is found to be unsuitable and unusable for the purposes for which it has been reserved, Corporation cannot be compelled to pay a huge compensation for such a useless and unsuitable land.

The dispute is with respect to the land ad-measuring 3 Hectors and 65 Ares in Kolhapur. The development plan for the City of Kolhapur was sanctioned on 18.12.1999. Different portions of the land in question were reserved in the sanctioned development plan for various public purposes namely, parking, garden, extension of sewage treatment plant etc. By Resolution dated 18.02.2012, the General Body of the Municipal Corporation resolved to acquire the said property and accordingly on 17.04.2012, a proposal was submitted by the Municipal Corporation to the State Government for compulsory acquisition of the subject property.

However, the subject land is flood affected through which a rivulet named ‘Jayanti Nala’ passes, making it unsuitable for the public purposes for which it was reserved. Further, it was argued that unless and until the substantial development is carried out, the land in question was not usable at all. The reserved area is coming within High Flood Line and every year for a period of fifteen days to one month, the said area gets flooded during rainy season.

As the land in question was not acquired and/or used for the public purposes for which the same was reserved under the sanctioned development plan, the original landowners served a notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966.

It is also to be noted that the reservation had lapsed as a mere Resolution being passed by the General Body of the Corporation to acquire the land and sending a letter to the Collector to acquire the land, without any further steps being taken under the Land Acquisition Act, namely no declaration under section 6 thereof being issued within a period of one year from the receipt of the said purchase notice, would result in the reservation as deemed to have lapsed.

The Supreme Court observed that once the reservation of land under the Development Plan is deemed to have lapsed by operation of law and it is released from reservation, no writ of Mandamus could have been issued by the High Court directing the Corporation to still acquire the land and to issue a declaration under Section 19 of the Act of 2013 (as in the meantime, the Land Acquisition Act, 1894 has been repealed and Act of 2013 has been enacted).

“Once by operation of law, the reservation is deemed to have lapsed, it is lapsed for all purposes and for all times to come.”

The Court also held that the High Court was not justified in directing the Municipal Corporation to acquire the land in question and to issue a declaration under Section 19 of the 2013 Act and to pay compensation under the Act of 2013 as right from the very beginning it was stated in the counter before the High Court that the land in question was not suitable and/or usable for the purposes for which it has been reserved.

“… as such at the time when the planning was made and the land in question was put under reservation for public purposes, a duty was cast upon the Planning Officer to consider whether the land, which will have to be acquired and for which the compensation is to be paid is really suitable and/or usable for the public purposes for which it is reserved. Otherwise, every landowner will see to it that though his land is not suitable and/or not very valuable, is put under reservation and the same is acquired by the Corporation and/or the Planning Authority and thereafter he is paid the compensation.”

It was, hence, held that no Corporation and/or the Planning Authority and/or the Appropriate Authority can be compelled to acquire the land which according to the Corporation/Planning Authority is not suitable and/or usable for the purposes for which it is reserved. Any other interpretation would lead to colourable and fraudulent exercise of power and cause financial burden on the public exchequer.

Under the Act of 2013, the Corporation was required to pay a huge sum of Rs. 77,65,12,000/- by way of compensation under the Act of 2013. According to the Corporation, when the entire annual budget for acquisition was Rs. 21 crores, it was beyond their financial position and/or budgetary provision to pay such a huge compensation, that too, for the land which is not suitable and/or useable for the purposes for which it has been reserved.

In such circumstances, the Court observed that while under MRTP Act, the financial constraint cannot be the sole consideration to acquire the land for the purposes for which it has been reserved namely public purposes, however, at the same time, when such a huge amount of compensation is to be paid and there would be a heavy financial burden, which as such is beyond the financial capacity of the Corporation, such a financial constraint can be said to be one of the relevant considerations, though not the sole consideration before embarking upon reservation of a particular extent of land for development.

The Court also held that a landowner is entitled to TDR in lieu of compensation with respect to the land reserved provided the land to be acquired is suitable and/or usable by the Corporation. However, once it is found that the land is not usable and/or suitable for the purposes for which it has been reserved, the Corporation cannot still be compelled and directed to acquire the land and grant TDR in lieu of amount of compensation.

[Kolhapur Municipal Corporation v. Vasant Mahadev Patil, 2022 SCC OnLine SC 179, decided on 14.02.2022]


*Judgment by: Justice MR Shah


Counsels

For Corporation: Senior Advocate Aparajita Singh

For Original Landowners: Senior Advocate C.U. Singh

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Rohinton Fali Nariman and B.R. Gavai, JJ., settled a decade-old land-acquisition dispute by directing NOIDA (New Okhla Industrial Development Authority) to pay compensation to the aggrieved land-owners who were dispossessed of their land by the authority without any land acquisition proceeding and without the authority of law.

Background

The Petitioner was the lawful and absolute owner and in possession of total land admeasuring 0.44325 hectares (4432.5 sq. meters) in Khasra No. 135 and 138 in Gautam Budh Nagar. In the year 2010, he was wrongfully and illegally dispossessed from his land by the Respondent without following due process of law and without any land acquisition proceedings. Being aggrieved, the petitioner approached the High Court of Judicature of Allahabad and later on to the Supreme Court seeking demarcation and peaceful vacant possession of the Petitioner’s land located inside the Dalit Prerna Sthal developed by the Respondent. The said petition was joined by a similarly placed and aggrieved intervener-petitioner 2, who had also lost his land admeasuring 1.32975 hectares (13,297.5 sq. meters) in Khasa No. 135 and 138 Gautam Budh Nagar, which was wrongfully taken over by the Respondent.

To unravel the issue, the Supreme Court had appointed Mr. Gaurav Agrawal as Advocate Commissioner to make a site inspection and produce a map stating who was in possession of what portion. Following the report filed by Mr. Gaurav Agrawal, the Bench had directed the ADM, Gautam Budh Nagar to furnish a report of demarcation. The report filed by the ADM made it clear that the parties’ lands had never been acquired and further revealed that NOIDA was indeed in possession of lands in excess of what was acquired under various notifications.

Final Order of the Court

After considering the ADM’s report, the Bench had directed the NOIDA to allot the petitioners appropriate land elsewhere admeasuring the extent to which the petitioner’s and the applicant’s land was taken over by them without authority of law. However, the matter was further contested by the NOIDA.

It was in the abovementioned backdrop that the Bench had appointed a valuer to conduct a valuation exercise on the disputed land and determine the market value as it was in the year of their dispossession; which was determined and even reiterated on being objected by the NOIDA at Rs. 20,000/- per sq. meter.

Consequently, while disposing of the matter, the Bench had awarded compensation to the petitioners at the rate determined by the valuer. The NOIDA was directed to pay the aforesaid sum to the petitioner and the applicant within a period of eight weeks. Though, the said final order was assailed by NOIDA in a review petition but the same was dismissed.

Contempt Petition

The instant contempt petition was filed to highlight wilful non-compliance of the above mentioned final order by the contemnor CEO of NOIDA by sleeping over repeated claim applications made by the petitioners seeking release of the awarded compensation.

In view of the above, the Bench directed NOIDA to release the awarded compensation (Approx 36 crores) in favour of petitioners.[Nayan Tara v. Ritu Maheshwari, Contempt Pet. (C) No. 316/2021, decided on 30-07-201]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner(s): Mr. Vijay Hansaria, Sr. Adv.
Mr. Sanjay Sarin, Adv.
Mr. Mohit Paul, AOR
Mr. Pratyush Miglani, Adv.
Mr. Nikhil Verma, Adv.
Ms. Sunaina Phul, Adv.
For Respondent(s): Mr. Ravindra Kumar, AOR
Mr. Kamlendra Mishra, AOR
Mr. Gaurav Agrawal, AOR
Mr. Mohit Paul, AOR
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

Patna High Court
Case BriefsHigh Courts

Patna High Court: Chakradhari Sharan, J. dismissed an application seeking initiation of fresh acquisition proceeding under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

A certain land was acquired under the Bihar Land Acquisition Act, 1894 in the year 1979 and award was prepared in favour of landowners. Petitioner herein, who was the grandson of a landowner, stated that since the Land Acquisition Officer had not prepared any award and had simply made a roll or index of compensation amount on Form-15, the same could not be treated as a valid award.

His case was that since the government had failed to make an award within two years of declaration under Section 6 of the Bihar Land Acquisition Act, the title over land remained with the owner and by virtue of Section 11-A of the said Act, entire acquisition proceeding stood lapsed. Whereas the respondent submitted that land owners were asked to receive the compensation amount, but they did not turn up to receive the same.

The Court noted that acquisition proceeding had started in the year 1978-79 and all land owners were paid the amount of compensation in 1979 itself on the basis of the award so prepared. The amount payable to the petitioner’s grandfather and his co-sharers was deposited by the Collector on 20-01-1981. In nearly three decades, no objection was ever raised against regularity or otherwise of the acquisition proceeding. Further, Section 18 of the Bihar Land Acquisition Act permits a person to make an application to the Collector, requiring him to refer the matter for the determination of the Court. Petitioner’s grandfather never approached the Collector under the said section seeking reference of the matter to Court. Most of the land owners had accepted the award.

It was observed that petitioner’s raising of grievance after almost 30 years, did not appear to be bona fide. His vague statements to the effect that landholders, being layman, could not raise any claim had no credence.

In view of the above-noted facts, the instant application was dismissed.[Alok Ranjan v. State of Bihar, 2019 SCC OnLine Pat 465, decided on 10-04-2019]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Krishna S. Dixit, J. while hearing a civil writ petition, quashed Reference Court’s order under Land Acquisition Act, 1894 enhancing compensation payable to land owners without affording a hearing to the beneficiary of acquisition.

Petitioner, a beneficiary of land acquisition, challenged the judgment and award made by Reference Court whereby compensation paid to land owners was enhanced without hearing the petitioner. Respondent resisted this petition on the ground that petitioner had an alternate and equally efficacious remedy of statutory appeal and therefore it should be relegated to the same.

The questions to be determined were: (i) whether a beneficiary of land acquisition is entitled to hearing by Reference Court, regardless of him being party to the proceedings or not; and (ii) maintainability of a writ petition against an order of Reference Court in the presence of alternate remedy of statutory appeal under Section 54 of the Act.

The Court opined that as per Section 20(2)(c) of the Karnataka Amendment to the Act, a Reference Court is obliged to hear the beneficiary of acquisition. The same was also a necessary requirement of the principles of natural justice.

In relation to the second question, relying on the dictum of Apex Court in Neyvely Lignite Corporation Limited v. Special Tahsildar (Land Acquisition) Neyvely, (1995) 1 SCC 221 it was held that in a proceeding seeking enhancement of compensation, if the land owner has not taken steps to implead beneficiary, then in such a case it was just and necessary that the Reference Court impleads beneficiary of acquisition. This would avoid multiplicity of proceedings in the form of writ petitions and statutory appeals.

In view of the above, the petition was partly allowed and the matter was remanded to Reference Court for fresh consideration after hearing the beneficiaries.[Karnataka Industrial Areas Development Board v. Byregowda, WP No. 55485 of 2017, Order dated 20-11-2018]