State’s Duty To Compensate For Land Acquisition, Can’t Contend Landowner’s Right Forfeited Due To Delay In Approaching Court: Calcutta HC

The remarks were made while dismissing multiple appeals preferred by the West Bengal government against orders of a Single-judge in 2017, directing the Land Acquisition Collector to compensate the respondent-landowners.

The division bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray observed:

“While right to property may not be a fundamental right any more, it is still a constitutional right. Article 300A of the constitution provides that no person shall be deprived of his property save by authority of law. In fact, right to property has now been recognised as a human right. Expropriation by the State without compensating the owner of the land is not permitted under the laws of the country...Any responsible Government must act fairly, reasonably and not arbitrarily and should on its own ensure that due compensation is paid to a citizen for the loss of his land which has been utilised by the Government, albeit for a public purpose. It would be preposterous if the State is permitted to contend that since the land looser was sleeping over his rights and did not approach a legal forum promptly, he forfeits the right to receive compensation for the land that the Government has taken over and is not in a position to return the same to the owner thereof.”

The land was acquired in 1972 under the West Bengal Land (Requisition and Acquisition) Act, 1948. The compensation is now payable as per the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (“2013 Act”).

State/appellants argued that the writ petition should have been dismissed on the ground of delay and ‘laches’.

It was argued that the land was requisitioned sometime in 1972-73, and that the petitioners only approached Court in 2015, after a delay of more than 40 years. It was further submitted that a right not exercised for a long time became non-existent.

It was further submitted by the State, that even if the Court was not inclined to allow the appeal, the inordinate delay by the petitioners/respondents in approaching the Court, would require equities to be balanced so that the respondents are not allowed to reap the benefit of the 2013 Act, since their land was acquired under the 1948 Act, as the same would cause great financial burden on the State.

The respondents contended that no acquisition proceedings had been initiated by the State under any of the land acquisition statutes in force at that time, and that while some rent compensation was initially paid, the State never paid the respondents any compensation for using their land.

Findings of the court

The Court held that the actions of the State in acquiring the land of the respondents without any acquisition process or compensation, and the subsequent nature of public work carried out on the land rendering it impossible to restore, were illegal and without jurisdiction, and needed to be regularised under the land acquisition acts presently in force.

It was further held that, due to the State having acquired the land of the respondents in an illegal manner, it would not be in any position to plead the doctrine of equity in order to protect its interests. The Court concluded that the 2013 Act would apply to the present case, and held:

“While it is true that the Courts are reluctant to enforce a stale claim, it also cannot be countenanced that the State shall take over possession of a citizens land and utilise the same without paying due compensation therefor to the owner of the land. It is not in dispute that in the present case no acquisition proceeding was ever initiated in respect of the land of the writ petitioners under any relevant statute. It is also an admitted position that the State has utilized the land of the writ petitioners but has not paid them any compensation. The State is not in a position to return the land to the writ petitioners. The state must compensate the writ petitioners who have lost their precious land. The State has in fact taken over the lands of the writ petitioners without following due process of law. This de facto acquisition must be regularized by initiating proceedings under the law which presently governs land acquisition by the State. That law is the 2013 Act.”

In the facts of the present case, the State having deprived the writ petitioners of their property without following due process of law and without paying any compensation- which is really an act of expropriation, the State cannot be permitted to argue that the delay on the part of the writ petitioners in approaching the Court will cause imposition of greater financial burden on the State since in the meantime the 2013 Act has come into operation and holds the field. Had the State acted in accordance with law, it could have avoided the additional financial burden, if any, that may be foisted on it by reason of compensation being calculated in terms of the provisions of the 2013 Act.”