State Can't Evade Responsibility: Bombay HC Orders Compensation To Family Who Moved Court 37 Yrs After Its Land Was Used For Electricity Substation

The State cannot cite delay in approaching the court to absolve itself of its responsibility towards those whose private property has been “expropriated” or taken for public use without compensation, the Bombay High Court has held.

It ruled in favour of urban landowners who approached the court in 2021, nearly four decades after an electricity sub-station was built on their land.

A division bench comprising Justices BP Colabawalla and Somasekhar Sundaresan ordered the Collector of Thane to compute compensation payable to Damodarprasad Bhadani's family under the Land Acquisition Act 2013 for their 6685 sq meters of land utilized by the electricity board in 1984.

“Neither have the acquisition proceedings been conducted culminating in an award, nor has compensation been paid. Yet, possession of the land has been taken without any compensation being paid…The State cannot, on the ground of delay and laches, evade its responsibility towards those from whom private property has been expropriated,” Justice Sundaresan who authored the judgement wrote.

Significantly, the court rejected MSEDCL's argument and held that electricity regulations do not override land acquisition laws or prevent compensation for past unauthorized land acquisition by electricity boards.

The petitioners - legal heirs of late Damodarprasad Bhadani - approached the High Court challenging MSEDCL's possession of their land in Thane without following due process under the Land Acquisition Act, 1894 since 1984. The petitioners claimed their land was part of a larger land parcel of the Bhadani family.

They submitted they were under the assumption that the land handed over to MSEDCL, then known as MSEB, came under the share of their cousins. However, in 2019 they found the land belonged to them after they conducted a private survey. They filed RTIs with the department and eventually filed the present civil writ petition in the HC in 2021.

It was found that MSEDCL took over the land from developers engaged by Bhadani family for a low-cost housing project. The possession receipt showed intent to acquire the land under the MRTP Act.

Senior Advocate Vishwajit Sawant along with Vipul Makwana for the petitioners submitted that MSEDCL was still in possession of the land, with nothing to demonstrate compliant acquisition and payment of compensation. They accused MSEDCL of being an unlawful encroacher and usurper of the land.

Advocate Deepa Chawan for MSEDCL argued the matter on three aspects: delay in filing the writ petition due to which acquisition documents aren't available, the possibility of possession being taken from MHADA (therefore MHADA may have acquired the land). Lastly, in view of the Electricity Act, 2003 and the regulations thereunder at best, any person handing over land to a Distribution Licensee for a sub-station can only get a lease rental of rupee one per annum.

At the outset the court held the petitioners' delay in filing the writ petition does not bar it from considering the matter on merits. It applied the principles from Maharashtra SRTC v Balwant case in assessing laches by considering the delay length and whether any acts in the interval affected the balance of justice between parties.

The court also cited the SC judgements in Sukh Dutt Ratna and Another vs. State of Himachal Pradesh and Others wherein the SC held there could be no “limitation” to doing justice if it's clear that the right to property has been intruded without due process.

In Tukaram Kana Joshi vs. MIDC the SC held that the constitutional right to property could not be defeated on technical grounds citing delay.

Regarding the MSEDCL's third argument, the court that Maharashtra Electricity Regulatory Commission's electricity supply code governs relationships between electricity distributors and consumers only, not between land acquirers and owners.

“MSEDCL introducing a novel argument to state that when it comes to land acquisition for electricity sub-stations, electricity laws would upstage land acquisition legislation….Even a plain reading of Section 50 is adequate to see that the 2021 Regulations (which essentially is the Electricity Supply Code) has nothing to do with land acquisition for purposes of erecting a sub-station or construction of staff quarters.”

The court noted that the possession letter said “pending finalization of the acquisition formalities and procedure,” but there were no documents to show the land was ever acquired as per law and compensation paid.

“We also note that this is a case where possession of the Subject Land had been taken upfront. The Possession Notice had stated that such possession was necessary to avoid encroachments, the Subject Land already having a slum at its boundary. The land in question was not demarcated at the time of possession. The State has benefitted from the Subject Land and MSEDCL has enhanced its distribution capacity at the site. Staff quarters have been constructed. The owners of the land have not been compensated.”

The court directed the Collector to compute compensation under the 2013 Land Acquisition Act and pass an award within 3 months.

Case No - WRIT PETITION NO. 1430 OF 2022

Case Title - Rajeev Kumar Damodarprasad Bhadani & others vs The Executive Engineer

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