Constitutional Right To 'Property' Must Be Understood In Context Of State's 'Eminent Domain': Calcutta High Court

The Calcutta High Court has held that the right of eminent domain exercised by a state for the larger public interest would prevail over the constitutional right to property of private landowners under Article 300A of the Constitution.

While allowing the authorities to acquire the petitioner's premises for metro railway construction, Justice Aniruddha Roy held:

The right guaranteed under Article 300A of the Constitution shall have to be read by including the provisions laid down under Article 31A of the Constitution of India and not in exclusion thereof. The sovereign power vested in the State to take private property for public use stands concluded with payment of just compensation to the land looser. A superior right to apply private property for public use. A superior right inherent in society and exercised by the sovereign power or upon delegation from it, whereby the subject matter of rights of property may be taken from the owner and appropriated for the general welfare of the society for a public purpose.

The right belonging to the society or to the sovereign, of disposing in cases of necessity, and for the public safety of all the wealth contained in the State is called Eminent Domain. Eminent Domain is in the compulsory purchase of the private property of a citizen for the purpose for applying it for public use. The expression property used under Article 300A of the Constitution, must also, therefore, be, understood in the context in which the sovereign power of Eminent Domain is exercised by the State and property is expropriated, he added.

The petitioner, aggrieved by the potential acquisition of his land for metro railway construction, approached the high court for relief. After the acquisition was notified by the Metro Railway, other occupiers left the premises while the petitioners submitted their objections against the proposed acquisition.

It was submitted that the petitioners had not objected to earlier acquisitions of the property since it did not affect their tenancy, but the impugned notification included the area which they had been occupying.

It was submitted that earlier the metro alignment had been passing through the premises of the Consul General of Nepal, and after prolonged negotiations with the Ministry of External Affairs, a compromise had been agreed whereby the Consul General would hand over a certain portion of their property.

After a new notification for acquisition was published, the petitioners premises had also been proposed to be occupied. This was objected to by the petitioner who stated that the authorities should have acquired the Consul General's premises which was actually aligned to the metro rail.

Court, however, held that the Consul General enjoys an immunity under the Vienna Convention, 1972. Since, only on the basis of the negotiation held with the Ministry of External Affairs, land from the said property will be made over to them in exchange for utilized land, the Consul General had agreed to only allow the Metro Railway to utilize their portion of land to maintain the track alignment of the metro railway, there was no other option or alternative left open to the Central Government and metro railway but to accept the said negotiation.

Thus it was stated that the authorities were constrained to carry out a second acquisition process, which included the petitioners premises.

Accordingly, the court allowed the acquisition, but directed the authorities to conduct a hearing with the petitioners to fix the fair rate of compensation in exchange for their land.

Case: Jagannath Prasad Gupta & Ors. Vs. Union of India & Ors.

Case No: W.P.A. 20081 of 2022

Citation: 2024 LiveLaw (Cal) 280

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