State Authorities Can't Act As 'Goons' By Dispossessing A Person From Their Property And Then Not Pay Any Compensation: Madhya Pradesh HC
While hearing a matter concerning possession of a land, the Madhya Pradesh High Court said that the State authorities cannot act as goons and dispossess any person from their property and then claim that they will not pay any compensation/rent/mesne profit to the "illegally dispossessed".
In observing so, the court reaffirmed that no one can be deprived of their right to property which is not only a Constitutional right but also a human right, noting that in the present matter concerning the alleged dispossession of a woman from land owned by her, had been pending for 17 years from 2007, when the authorities had decided to acquire the land.
A single judge bench of Justice G.S. Ahluwalia observed, “Although the right to claim compensation or obligation of State to pay compensation to a person, who is deprived of his property, is not expressly provided under Article 300-A of the Constitution of India, but it is inbuilt in the Article and the State, who has acquired the private property for public purposes, cannot say that no compensation shall be paid. The statutory authorities are bound to pay adequate compensation for illegally dispossessing the petitioner from her private land.”
"Thus, it is clear that no one can be deprived of her right to property which is not only a Constitutional one, but is also a human right. The State authorities cannot act as goons thereby dispossessing any person from his/her property and then claiming that they will not pay any compensation/rent/mesne profit to the illegally dispossessed person, specifically when they sat over the matter for 17 years, i.e. from 3/7/2007, when they themselves had decided that the land should be acquired. Thus, it is clear that the State authorities are not ready to respect the law of land and they are acting as per their own wishes," the court added.
Background
A notification for acquisition of certain lands was issued but the land owned by the petitioner–Shashi Pandey was not included in the notification issued under Section 6 of the Land Acquisition Act, 1894. Ultimately, the matter went to the District Court which in its December 26, 2001 award held that as the land belonging to the Pandey was not included in the notification issued under Section 6 of the Land Acquisition Act, 1894, therefore, it cannot be held that the land belonging to the petitioner was acquired. Accordingly, it directed that if the land owner has been dispossessed, then the possession should be restored back.
Thereafter, a writ petition was filed by the petitioner which was disposed of by order dated August 21, 2006 with a direction to the Collector, Jabalpur to take up the issue and take a decision on whether the State Government is inclined to acquire the land or not. It said that in case if it is decided that the land is not required by the State, then the State shall return the possession of the land to the petitioner in accordance with law and the petitioner shall be entitled for compensation under Section 48 of the Act. It was also held that if the State Govt. wants to retain the land, the Collector shall proceed with the matter and take all steps necessary for the acquisition of the land and the petitioner shall be entitled to get the compensation in accordance with the provisions of the Act.
Thereafter, Collector, Jabalpur in its July 3, 2007 held that since the possession of the land had already been taken and the same had been handed over to NHAI and construction of by-pass has also been completed, therefore, it would not be in public interest to return the land. A direction was also issued to take necessary action for acquisition of land.
Even this order passed by the Collector, Jabalpur was not followed by his successor and in spite of the fact that 17 years had passed, neither the possession of the land was returned back to the petitioner nor it was acquired. The present petition had been pending since 2016 and here the N.H.A.I. has taken a specific stand that it came into picture in the year 2010 and the land in question is not required.
Whether the Petitioner can be deprived of her property without following due process of law?
While addressing the first issue, the court relied on Supreme Court's decision in Tukaram Kana Joshi v. MIDC, (2013) wherein it was observed, “The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment, etc. Now however, human rights are gaining an even greater multifaceted dimension. The right to property is considered very much to be a part of such new dimension.”
“Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There [is] no deprivation without [due] sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation," the Supreme Court had added.
Justice Ahluwalia thereafter said that it was clear that right to hold property is not only a Constitutional Right as enshrined under Article 300-A of Constitution of India but also a "Human Right and no one can be deprived of his property except in accordance with law"
Whether the Petitioner is entitled for compensation for her illegal dispossession?
The court said that since the State Government has decided not to return the land, therefore, compensation under Section 48 of the Land Acquisition Act will not be payable to the petitioner. However referring to the "analogy" of Section 48 and in view of the fact that right to hold the property is a Constitutional right under Article 300-A of Constitution of India, the court said that the petitioner is entitled for rent/mesne profit/compensation from the date of illegal dispossession till the land is actually acquired or returned.
With regard to this issue, the court relied on the Supreme Court's decision in Hari Krishna Mandir Trust Vs. State of Maharashtra and Others (2020) wherein it was observed, “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. Even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300-A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid. Statutory authorities are bound to pay adequate compensation.”
The high court order also notes the submission made by the counsel appearing for the State as well as the Collector, Jabalpur who stated that that petitioner is not entitled to any compensation and if the court is inclined to grant compensation, then the Collector would have to seek instructions from the State.
Expressing its shock at the submission the high court said, "The aforesaid submission made by Collector, Jabalpur is shocking in the light of judgment passed by Supreme Court in the case of Hari Krishna Mandir Trust (supra). Furthermore, that matter is pending for the last 8 years and the authorities are not doing anything except shifting the file from their table to the table of respondent no.3. It is once again clarified that the N.H.A.I. has specifically claimed that they are not in need of land in dispute".
Thus, it was held that the statutory authorities are bound to pay adequate compensation for illegally dispossessing the petitioner from her private land.
The court further said, "It is really unfortunate that this petition is pending since 2016. For the last 8 years, no effective action was taken by the Collector, Jabalpur to comply the order dated 3/7/2007 passed by his own predecessor as well as to comply the orders passed by the Civil Court as well as High Court. Thus, intention of the Collector, Jabalpur is writ large and he is not inclined to obey the order passed by the High Court".
Conduct of Collector Jabalpur
The high court further condemned the Collector's conduct in "sitting over the matter and frustrating the valuable human rights as well as Constitutional rights of the petitioner" is concerned".
It noted that on July 3, 2007 the then Collector had passed an order which was actually "never meant to be followed and it proved to be mere a paper formality". After the present petition was filed in 2016, the Collector, Jabalpur who was well aware of the background of the case, took no steps for acquiring the land. It also noted that when the court in its September 24 order (passed this year) pointed this aspect, the Collector directed the concerned SDM to file a simple affidavit pointing out that the land will be acquired without initiating any proceedings for acquisition.
The court thereafter said, "Under these circumstances, this Court is of the considered opinion that it is a fit case for initiating contempt proceedings against Shri Deepak Saxena, Collector, Jabalpur. Accordingly, issue notice to Shri Deepak Saxena, Collector, Jabalpur to show cause as to why proceedings for contempt may not be initiated against him for flouting the orders passed by this Court on 21/8/2006 in Writ Petition No.380/2005. Office is directed to register a separate case".
The court thereafter directed the State Government to pay a compensation of Rs. 10,000 per month to the petitioner for illegally dispossessing her from her 29150 sq ft of land w.e.f. February 5, 1988 until the land is duly acquired under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Case Title: SMT. SHASHI PANDEY Versus THE STATE OF MADHYA PRADESH AND OTHERS, WRIT PETITION No. 5793 of 2016