SC recaps 7 Constitutional rights of landowners against arbitrary acquisition

The Supreme Court has recently passed a significant judgment in which it has laid down the seven procedural sub-rights against arbitrary and illegal land acquisition as conferred on a landowner by Article 300A of the Constitution.

A single Bench of the apex court, in the judgment delivered on May 16, stressed that Article 300A, which says that “no person shall be deprived of his property save by authority of law”, is both a constitutional and a human right, and non-compliance of these will be akin to violation of those rights. Before any land acquisition, the seven procedural sub-rights must be passed, the court said.

Case history

The genesis of the case in question dates back to 2009, when a man named Birinchi Shah filed a writ petition in Calcutta High Court, alleging that the Kolkata Municipal Corporation (KMC) had tried to forcefully enter and occupy his property. Shah sought a restraint order against KMC and the High Court ruled in his favour. It asked the KMC not to make any construction on the said property and hold an inquiry into the encroachment.

However, in July 2010, Shah came to know that the KMC had in its records deleted his name as the owner of the property and inserted its own. Shah moved High Court once again by filing a writ petition, seeking not only a correction of the entry but also a restrain on the KMC from interfering in his possession of the said property.

A single Bench of the High Court, in an order passed in 2015, once again ruled in Shah’s favour. It upheld both his prayers and directed the KMC to remove its men and material from the property within two weeks.

KMC’s claim

However, in 2016, the executor to Shah’s estate, Bimal Kumar Shah, was back in Calcutta High Court with another writ petition, as the KMC claimed to have acquired the said property in exercise of its powers under Section 352 of the Kolkata Municipal Corporation Act, 1980. Bimal Shah sought an order quashing the “acquisition” as illegal and restoration of their name as owners in the records.

In 2017, a single Bench of the High Court once again ruled in favour of Shah and held that the KMC had no power to acquire any property under Section 352(a) of the said Act. It concluded that Section 537 of the Act was the only provision for land acquisition in this case.

Undeterred, the KMC filed an appeal before a Division Bench of the High Court challenging the single-Bench order. Once again, the court, in 2019, ruled in Shah’s favour, upholding the single-Bench order of 2017.

In Supreme Court

The KMC then moved Supreme Court in 2024, challenging the High Court order. On May 16, the single Bench of Justice PS Narasimha upheld the High Court verdict and rejected KMC’s case of “acquiring” land under Section 352 of the Act.

The court ruled that “Section 352 does not provide for any procedure whatsoever; we reject the contention that it contemplates the power of acquisition…. 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 makes an application to that effect….”

It also stated that the seven procedural sub-rights of a landowner by Article 300A must be passed before land acquisition. These are:

Right to notice: The owner of a property must be served a prior notice informing him or her that the state intends to acquire the property.

Right to be heard: The property owner has the right to communicate his or her objections and concerns to the authority acquiring the property. This right to be heard against the proposed acquisition must be meaningful and not a sham.

Right to a reasoned decision: After hearing and considering the objections, the authority must take an informed decision and communicate it to the property owner.

Duty to acquire only for public purpose: The acquisition must be done only for a public purpose.

Right to restitution or fair compensation: Acquisition of land or property is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation, or other similar means.

Right to an efficient and expeditious process: The administration must conclude the process efficiently and within a reasonable time.

Right to conclusion: As part of Article 300A, the acquiring authority also has the obligation to conclude and complete the process of acquisition.