Unravelling the Interplay of Sub-Rights within the Right to Property

Our constitutional framework mandates enforcement of a fair procedure of law before depriving any person of his immovable property. Although the 44th Constitutional Amendment axed the right to property from Part III of the Constitution, adequate safeguards were implanted in Article 300A which declares that “no person shall be deprived of his property save by authority of law” and this has been characterised both as a constitutional and a human right.

The judgment of the Supreme Court in K.T. Plantation Pvt. Ltd. & Anr. v. State of Karnataka[1] declares that the law envisaged under Article 300A must be in line with the overarching principles of the rule of law, and must be just, fair, and reasonable. This article examines the implications of a recent Apex Court ruling[2] which sheds light upon seven sub-rights forming crucial components of the law embedded within Article 300A.

Facts of the Case

The Appellant in this case viz. Kolkata Municipal Corporation (“Corporation”), sought to acquire the subject property for opening a park and replaced the name of the holder viz. Birinchi Bihari Shah with its own name as owner of the property in the assessment record. This acquisition was purported to be done by invoking Section 352 of the Kolkata Municipal Corporation Act, 1980 (“Act”). Birinchi Bihari Shah passed away shortly after appointing the Respondent to this appeal as the executor of his will.

The aforementioned acquisition by the Appellant was thereafter set aside by the Single Judge Bench of the Calcutta High Court, with the Court holding that Section 352 did not confer any power of compulsory acquisition. This decision was upheld by the Division Bench of the Calcutta High Court which directed the Appellant to either initiate acquisition proceedings under Section 536 or 537 of the Act or restore the name of the last recorded owner of the property in the official records. The Appellant approached the Supreme Court challenging the said order of the Division Bench.

The Heart of the Dispute

Interpreting the provisions of the Act, the Supreme Court closely examined the text of Section 352 of the Act and looked into the context with respect to the placement of the Section in the Act. Pursuant to such examination, the Court clarified the purpose and object of the provision. The Court observed that under Section 352 of the Act, the Municipal Commissioner had the power to only identify the piece of land and then apply to the Government under Section 537 of the Act to initiate the process of acquisition.

As per the scheme of the Act, Chapter XXXIII, Part VIII deals with ‘Acquisition of Property’. This Chapter commences with Section 535 which specifically provides that the 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 and the other alternative is through compulsory acquisition of immovable property as mentioned under Section 537 of the Act.

The Court determined that 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.”

The Corporation also referred to Section 363, which is provisioning compensation for acquisitions made under Section 352 of the Act and submitted that acquisition under this chapter is therefore complete in itself. The High Court observed that this provision relates to payment of compensation upon an agreement and is not applicable to compulsory acquisition. Affirming this observation, the Apex Court further clarified that “undue emphasis is laid on provisions of compensation to justify the power of compulsory acquisition, as if compensation by itself is the complete procedure for a valid acquisition.”

Peeling Back the Layers

Right to property is seen as comprising intersecting sub-rights, which weave themselves into each other, wherein each has a distinct character but is interconnected to constitute the whole. These sub-rights of procedure have been incorporated in both Central and State laws concerning compulsory acquisition and are also recognised by our constitutional Courts while reviewing administrative actions for compulsory acquisition of private property. The Court enumerated the following seven sub-rights under the right to property:

The Right to Notice:

The Constitution does not contemplate acquisition by ambush. A prior notice informing the bearer that the State intends to deprive them of their right to property is a right in itself a linear extension of the right to know embedded in Article 19(1)(a).

The Right to be Heard:

This is the right of the property-bearer to communicate his objections and concerns to the authority acquiring the property. The enquiry in which a landholder would raise his objection is not a mere formality, this right to be heard against the proposed acquisition must be meaningful and not a sham.

The Right to a Reasoned Decision:

That the authorities have heard and considered the objections is evidenced only through a reasoned order. The Courts have held that the declaration of the decision is mandatory, failing which, the acquisition proceedings will cease to have effect.

The Duty to Acquire only for Public Purpose:

Compulsory acquisition of land is subject to judicial review; the Court will examine and determine whether the acquisition is related to public purpose. The purpose of acquisition must stand to reason with the larger constitutional goals of a welfare state and distributive justice.

The Right of Restitution or Fair Compensation:

Deprivation or extinguishment of the right to property is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation or other similar means. Not only have Courts considered it to be an integral part of the acquisition process but have also held that fair and reasonable compensation is the sine qua non for any acquisition.

The Right to an Efficient and Expeditious Process:

The acquisition process is traumatic due to administrative delays followed by passing of the award, payment of compensation and taking over the possession. It is necessary for the administration to be efficient in concluding the process within a reasonable time. Failure to adhere to the timelines specified in law has led the Courts to set aside the acquisition proceedings.

The Right of Conclusion: 

The culmination of an acquisition process is not in the payment of compensation, but in taking over the actual physical possession of the land. Without final vesting, the State’s, or its beneficiary’s right, title and interest in the property is inconclusive.

Takeaways

The judgement reinforces additional layers of judicial scrutiny and compliance for land acquisition processes. Although heightening legal standards ensures adherence to a fair and transparent process, it may be speculated that procedural delays could be a side effect of it. Administrative departments will have to navigate more stringent requirements, potentially slowing down the execution of public projects.

To conclude, it is to be understood that the power of acquisition coupled with the provision for fair compensation would not complete and exhaust the acquisition process. The Apex Court has elucidated upon the assumption that constitutional protection is merely limited to fair compensation and observed that this would be “a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution”. The Court rightly held that the prescription of the necessary procedures before depriving a person of his property was an integral part of the ‘authority of law’, under Article 300A of the Constitution and, Section 352 of the Act contemplated no procedure whatsoever.


 

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*Disclaimer: This post is for informative purposes only and no part of it shall be construed as legal advice.

References:

[1] (2011) 9 SCC 1.

[2] Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors. (CA No.6466 of 2024); Judgment can be accessed here.

Image Credits:

Photo by Andrii Yalanskyi on Canva

Right to property is seen as comprising intersecting sub-rights, which weave themselves into each other, wherein each has a distinct character but is interconnected to constitute the whole. These sub-rights of procedure have been incorporated in both Central and State laws concerning compulsory acquisition and are also recognised by our constitutional Courts while reviewing administrative actions for compulsory acquisition of private property.

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