Non-Payment Of Compensation For 36 Yrs After Land Acquisition Violates Constitutional And Human Rights: Bombay High Court

The Bombay High Court came down on the Maharashtra Housing and Area Development Authority (MHADA) for failing to compensate an individual whose land was acquired by it 36 years ago. The Court ruled that this inaction constitutes a violation of the individual's constitutional and human rights.

The petitioner's plot of land was acquired by the MHADA/respondent no. 2 under the Maharashtra Housing and Area Development Act, 1976 (MHADA Act) in 1988.

The matter was first considered by a Division Bench of the High Court in 2003. The Special Land Acquisition Officer, MHADA (SLAO/respondent no. 3) had filed a reply that the original records of the land acquisition were not traceable. On 05.08.2003, the Court had directed the MHADA to make all efforts in tracing the original records of the acquisition proceedings.

However, in all these years, the respondent authorities neither produced any records nor paid compensation to the petitioner. The High Court thus took up the case for final disposal.

Non-payment of compensation violates constitutional and human rights

The Division Bench of Justice M. S. Sonak and Justice Kamal Khata expressed their frustrations that despite 36 years having lapsed since the acquisition, the respondent authorities have not traced the acquisition records and have not carried out any exercise to determine the compensation amount.

The Court stated that the respondent authorities have not offered any justification for the inordinate delay in not compensating the petitioner. It remarked “Such conduct on the Respondent's part amounts to virtual expropriation of a citizen's property without the authority of law and without paying any compensation.”

The Court referred to Section 44(2) of MHADA Act, which provides that compensation must be determined with the concurrence of MHADA through an agreement between the State Government and the individuals entitled to compensation. In the present case, the Court noted that no attempt has been made by the respondent authorities to even reach an agreement with the petitioner.

Regarding the responsibilities of a Land Acquisition Officer (LAO), the Court referred to Section 44(5) MHADA Act which requires the LAO to conduct an inquiry to determine the net average monthly income derived from the land and to inform the landowner of this determination and see if they agree with the determination.

Here, the Court observed that the SLAO has not discharged any statutory duties and did not determine the amount of compensation till date. It remarked “The right to receive compensation towards the compulsory acquisition of the Petitioner's property cannot be defeated based on the insensitive excuse about misplaced case papers.”

The Court held that the action of respondent authorities violates Articles 14, 21 and 300-A of the Constitution. It stated that by failing to pay compensation, the authorities have infringed upon the petitioner's constitutional and human rights.

“The action, or rather, this inaction of the statutory authorities, violates the Petitioner's Constitutional and Human rights. The MHADA must be made to compensate the Petitioner for infringing his Constitutional and Human rights.”

As the land was already vested with the MHADA, the Court did not interfere with the acquisition done in 1989. It said that “Though this is a case of callousness on the part of the State Government and MHADA, considering the larger public interest involved, we are not inclined to interfere with the acquisition finalised in 1989 or direct the restoration of possession of the acquired property to the Petitioner.”

Determination of compensation

The Court ordered the SLAO to hold and enquiry and determine the compensation payable to the petitioner. However, considering the circumstances of the case, it issued an interim compensation order.

Based on the principles set out in the MHADA Act and Rules for determination of compensation, the Court made an ad-hoc determination that respondent authorities must pay Rs. 25 lakh as compensation to petitioner.

The Court noted that if the compensation is determined to be less than 25 lakh, the petitioner must return the excess to MHADA unless he seeks enhancement of compensation as per Sections 44 and 46 of the MHADA Act.

The Court also ordered MHADA to pay Rs. 5 lakh compensation to the petitioner for violating his constitutional and human rights, stating that this compensation would not be subject to any adjustment.

Case title: Yusuf Yunus Kantharia vs. Bombay Housing And Area Development Authority and ors. (WRIT PETITION NO. 700 OF 2003)

Click Here To Read/Download Order