Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.

State of Kerala v. T.N. Peter [1980] 3 SCR 290 : (1980) 3 SCC 554; Girnar Traders (3) v. State of Maharashtra [2011] 3 SCR 1 : (2011) 3 SCC 1; Bankatlal v. Special Land Acquisition Officer [2014] 7 SCR 879 : (2014) 15 SCC 116; Nagpur Improvement Trust v. Vithal Rao [1973] 3 SCR 39 : (1973) 1 SCC 500; Lachhman Dass v. Jagat Ram [2007] 2 SCR 980 : (2007) 10 SCC 448; Vidya Devi v. State of Himachal Pradesh [2020] 1 SCR 749 : (2020) 2 SCC 569; State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga [1952] 1 SCR 889 : (1952) 1 SCC 528; Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai [2005] Supp. 3 SCR 388 : (2005) 7 SCC 627; K.T. Plantation Pvt. Ltd. v. State of Karnataka [2011] 13 SCR 636 : (2011) 9 SCC 1; Narendrajit Singh v. State of U.P. [1970] 3 SCR 278 : (1970) 1 SCC 125; State of Mysore v. Abdul Razak Sahib [1973] 1 SCR 856 : (1973) 3 SCC 196; Narinderjit Singh and Ranjit Singh v.

State of U.P. [1973] 2 SCR 698 : (1973) 1 SCC 157; Competent Authority v. Barangore Jute Factory [2005] Supp. 5 SCR 421 : (2005) 13 SCC 477; Nandeshwar Prasad v. State of U.P. [1964] 3 SCR 425 : AIR (1964) SC 1217; Union of India v. Shiv Raj [2014] 8 SCR 751 : (2014) 6 SCC 564; Kamal Trading (P) Ltd. v. State of W.B. [2011] 13 SCR 529 : (2012) 2 SCC 25; Gojer Bros. (P) Ltd. v. State of W.B. [2013] 12 SCR 489 : (2013) 16 SCC 660; Mohan Singh v. International Airport Authority of India [1996] Supp. 8 SCR 569 : (1997) 9 SCC 132; Project Director, Project Implementation Unit v. P.V. Krishnamoorthy [2020] 14 SCR 86 : (2021) 3 SCC 572; Somawanti v. State of Punjab (1962) SCC OnLine SC 23; Daulat Singh Surana v. First Land Acquisition Collector [2006] Supp. 8 SCR 1076 : (2007) 1 SCC 641; Union of India v. Jaswant Rai Kochhar [1996] 3 SCR 206 : (1996) 3 SCC 491; D. Hanumanth SA v. State of Karnataka [2010] 12 SCR 1098 : (2010) 10 SCC 656; Munshi Singh v.

Union of India [1973] 1 SCR 973 : (1973) 2 SCC 337; Madhya Pradesh Housing Board v. Mohd. Shafi [1992] 1 SCR 657 : (1992) 2 SCC 168; State of U.P. v. Manohar [2004] Supp. 6 SCR 911 : (2005) 2 SCC 126; M. Naga Venkata Lakshmi v. Visakhapatnam Municipal Corpn. [2007] 10 SCR 12 :(2007) 8 SCC 748; NHAI v. P. Nagaraju [2022] 8 SCR 1070 :(2022) 15 SCC 1; Roy Estate v. State of Jharkhand [2009] 7 SCR 343 : (2009) 12 SCC 194; Union of India v. Mahendra Girji (2010) 15 SCC 682; Mansaram v. Digital Supreme Court Reports [2024] 5 S.C.R. 837 S.P. Pathak [1984] 1 SCR 139 : (1984) 1 SCC 125; Kerala State Housing Board v. Ramapriya Hotels (P) Ltd. [1994] Supp. 2 SCR 338 : (1994) 5 SCC 672; Ram Chand v. Union of India [1993] Supp. 2 SCR 558 : (1994) 1 SCC 44; Ambalal Purshottam v. Ahmedabad Municipal Corpn. [1968] 3 SCR 207 : (1968) 3 SCR 207; Khadim Hussain v. State of U.P. [1976] 3 SCR 1 : (1976) 1 SCC 843; State of W.B. v.

Vishnunarayan & Associates (P) Ltd. [2002] 2 SCR 557 : (2002) 4 SCC 134; Jilubhai Nanbhai Khachar v. State of Gujarat [1994] 1 SCR 807:1995 Supp 1 SCC 596; P. Chinnanna v. State of A.P. [1994] Supp. 2 SCR 426 : (1994) 5 SCC 486; Delhi Development Authority v. Reena Suri [2016] 2 SCR 396 : (2016) 12 SCC 649; Fruit & Vegetable Merchants Union v. Delhi Improvement Trust [1957] 1 SCR 1 :1956 SCC OnLine SC 37; Union of India v. Tarsem Singh [2019] 13 SCR 49 : (2019) 9 SCC 304 – referred to. Sweet v. Rechel, 159 US 380 (1895) : 40 L.Ed. 188; Delaware L. & W.R. Co. v. Morristown, 276 US 182 (1928) : 72 L.Ed. 523; United States v. Caltex (Philippines), 344 US 149 (1952) : 97 L.Ed. 157 – referred to. List of Acts Kolkata Municipal Corporation Act, 1980; Constitution of India; Land Acquisition Act, 1894; Requisitioning and Acquisition of Immovable Property Act, 1952; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; National Highways Act, 1956.

List of Keywords Power of compulsory acquisition of immovable property; Public purpose; Fair compensation; Costs; Right to property; Net of intersecting rights; Seven sub-rights or procedures to right to property; Right to notice; Right to be heard; Right to a reasoned decision; Duty to acquire only for public purpose; Right of restitution or fair compensation; Right to an efficient and expeditious process; Right of conclusion. Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6466 of 2024 From the Judgment and Order dated 17.12.2019 of the High Court at Calcutta in APO No. 523 of 2017 Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors. 838 [2024] 5 S.C.R. Appearances for Parties Jaideep Gupta, Sr. Adv., Sujoy Mondal, Satish Vig, Partha Sil, Ms. Sayani Bhattacharya, Abhiraj Choudhary, Chirag Joshi, Sanjiv Kr. Saxena, Advs. for the Appellants. Mukul Rohatgi, Huzefa Ahmadi, Sr.

Advs., Ms. Ranjeeta Rohatgi, Sagnik Majumdar, Rishabh Karnani, Ms. Shrika Gautam, Ms. Madhumita Bhattacharjee, Sandeep, Ms. Srija Chodhury, Ms. Osheen Bhat, Ms. Nitipriya Kar, Chanchal Kumar Ganguli, Shreyas Awasthi, Ms. Ripul Swati Kumari, Ms. Astha Sharma, Advs. for the Respondents. Judgment / Order of the Supreme Court TABLE OF CONTENTS* Introduction................................................................................... Facts ............................................................................................. Submission of Counsels ............................................................ Scheme of the Act ...................................................................... 1 2 7 8 The Right to property: A net of intersecting rights ................ 15 The Right to notice .................................................................. 19 The Right to be heard ............................................................. 20 The Right to a reasoned decision ......................................... 21 The Duty to acquire only for public purpose ....................... 22 The Right of restitution or fair compensation ..................... 23 The Right to an efficient and expeditious process .............. 24 The Right of conclusion ........................................................ 26 Conclusions ................................................................................ 28 Judgment Pamidighantam Sri Narasimha, J.

Leave granted. Introduction: The Kolkata Municipal Corporation claims to have acquired the property of respondent no. 1 in exercise of powers under Section 352 of the Kolkata Municipal Corporation Act, 1980. A single Judge and the Division Bench of the High Court have concurrently held * Ed. Note: Pagination as per the original Judgment. Digital Supreme Court Reports [2024] 5 S.C.R. 839 that there is no such power of compulsory acquisition of immovable property under Section 352. While upholding the decision of the High Court, we have given our additional reasons by interpreting the text and the context in which Section 352 is placed in the Act. Rejecting the alternative argument of the appellant-Corporation that there is also a provision for compensation under Section 363 of the Act when land is acquired under Section 352, we have examined the constitutional position of acquisition of immovable property whereunder the mere presence of power to acquire coupled with a provision for payment of fair compensation by itself is not sufficient for a valid acquisition. Interpreting “authority of law” in Article 300A of the Constitution, we have held that a minimum content of a constitutional right to property comprises of seven sub-rights or procedures such as the right to notice, hearing, reasons for the decision, to acquire only for public purpose, fair compensation, efficient conduct of the procedure within timelines and finally the conclusion. These sub-rights have synchronously formed part of our laws and have attained judicial recognition. Therefore, as Section 352 does not provide for these sub-rights or procedures, it can never be a valid power of acquisition. Before we deal with the submissions and analyse the provisions, we will first narrate the necessary facts.

Facts: The property in question, Premises No. 106C, situated at Narikeldanga North Road, Kolkata – 7000111, belongs to Mr. Birinchi Bihari Shah2 having succeeded it through a deed of settlement executed by his father. As Birinchi Shah was minor at the time when his father passed away, his elder brother managed and administered the Property and, in that process, he also let out the premises admeasuring 2 bighas 18 kathas 6 chitaks and 40 square feet in favour of one M/s Arora Film Corporation. Upon attaining majority, the Property was mutated in the name of Birinchi Shah in the assessment book of the appellant-Corporation. It is affirmatively stated that all municipal dues including taxes with respect to the Property were paid regularly. It is also stated that the appellant-Corporation acknowledged the same and by its letter dated 07.04.2000 admitting that there are no outstanding dues with respect to property tax. 1 2 Hereinafter, referred to as the “Property”. Hereinafter, referred to as “Birinchi Shah”. Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors. 840 [2024] 5 S.C.R.

In the year 2009, when an attempt was made by the appellant- Corporation to forcefully enter and occupy the Property, Birinchi Shah filed a writ petition being W.P. No. 126 of 2009 before the High Court seeking a restraint order against the appellant-Corporation.

As there was no real contest about the title in the Property and the appellant-Corporation having not filed any affidavit-in-opposition, the High Court disposed of the writ petition by an order dated 17.09.2009 directing that the appellant-Corporation must hold an enquiry about the encroachments. The High Court further directed the appellant- Corporation not to make any construction over the Property.

In July 2010, Birinchi Shah received information that the appellant- Corporation had deleted his name from the category of owner and had inserted its own name in the official records. Aggrieved, he approached the High Court by filing a writ petition bearing W.P. No. 981 of 2010, not only for correction of the entries but also to restrain the appellant-Corporation from interfering with his peaceful possession over the Property. What happened in this writ petition is of seminal importance. The learned single Judge, by an order dated 08.01.2015, recorded the statement of the appellant-Corporation that they are unable to controvert the averments made in the writ petition with respect to title and ownership of the Property. The writ petition was disposed of restraining the appellant-Corporation from interfering with the possession of Birinchi Shah and also injuncted them from giving effect to the wrongful recording of its name in the official records. The appellant-Corporation was also directed to remove its men and material from the Property within two weeks from the date of the said order. The specific finding of the High Court that the appellant-Corporation could not establish its right and the title in the Property is significant.

Dissatisfied, the appellant-Corporation filed a writ appeal bearing A.P.O. No. 51 of 2015 against the order of the single Judge and contended that their affidavit-in-opposition could not be filed before the Single Judge as the records were misplaced. It is more or less an admitted fact that a plea of acquisition was taken for the first time before the Division Bench, and this seems to be the reason for the Division Bench to remand the matter back to the single Judge after imposing a cost of Rs. 50,000/- on the appellant-Corporation. After remand, the appellant-Corporation filed an affidavit-in-opposition Digital Supreme Court Reports [2024] 5 S.C.R. 841 before the single Judge claiming that the land was acquired. In view of new developments, Birinchi Shah sought permission to withdraw the pending writ petition with the liberty to file a fresh writ petition. The High Court permitted this by an order dated 11.08.2016.

Accordingly, Writ Petition No. 930 of 2016 was filed by the respondent no. 1, the executor to the estate of Birinchi Shah, inter alia, seeking an order quashing the alleged acquisition as illegal and to restore their name as owners in the official records.

The learned single Judge of the High Court, allowing the writ petition by order dated 14.09.2017, formulated two questions. The first question relates to the maintainability of the writ petition, which was answered in the affirmative. As there is no contest to this issue, we will not deal with it. The second issue relates to the legality and validity of acquisition of the Property in exercise of power under Section 352 of the Kolkata Municipal Corporation Act, 19803. Answering the second question, the learned single Judge held that the appellant- Corporation purported to acquire the Property under Section 352(a) of the Act when there is no power of compulsory acquisition therein. The learned single Judge therefore quashed and set-aside the alleged action of acquisition.

The appellant-Corporation as well as the respondent no. 1 assailed the order of learned single Judge in writ appeals bearing APO No. 523 of 2017 and APO No. 210 of 2018, respectively.

The Division Bench of the High Court, by the judgment impugned herein, affirmed the order of the Single Judge and accordingly, disposed of the appeals with a direction that the appellant-Corporation may initiate acquisition proceedings for the Property under Section 536 or 537 of the Act, within five months, or in the alternative, restore the name of the last recorded owner as the owner of the Property.

It is against this judgment and order of the Division Bench of the High Court, that the appellant-Corporation is in appeal before us.

Submission of Counsels: Mr. Jaideep Gupta, learned senior counsel, representing the appellant-Corporation, has submitted that the appellant-Corporation has the requisite statutory power to 3 Hereinafter, referred to as the “Act”. Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors. 842 [2024] 5 S.C.R. acquire a property under Section 352 of the Act for the purposes of constructing a park, as is the case here. He has referred to Section 363 of the Act provisioning compensation for acquisitions made under Section 352 of the Act and submitted that acquisition under this chapter is therefore complete and stands on its own footing. He contended that the single and division benches of the High Court erred in concluding that Section 537 of the Act is the only provision for acquisition. Relying on State of Kerala v. T.M. Peter4, he would submit that for differential schemes and purposes of acquisition, different compensation structures will not violate Article 14 of the Constitution. On the same point, he also relied on the decisions of this Court in Girnar Traders (3) v. State of Maharashtra5, and Bankatlal v. Special Land Acquisition Officer6.

Mr. Mukul Rohatgi and Mr. Huzefa Ahmadi, learned senior counsels, appearing for the respondents, while supporting the judgment of the High Court, impugned herein, submitted that the power of acquisition is only in Section 537 of the Act and that invocation of Section 352 read with Section 363 is illegal and violative of Article 300A of the Constitution. In support of their submissions, they relied on the judgment of this Court in Nagpur Improvement Trust v. Vithal Rao7.

Scheme of the Act: The Kolkata Municipal Corporation Act, 1980 extends to 636 Sections, followed by 9 Schedules. It has IX Parts, of which we are concerned only with Part VI of which Chapter XXI – relating to Streets and Public Places and Part VIII of which Chapter XXXIII – relating to Acquisition and Disposal of Property. As the appellant-Corporation invoked Section 352 of the Act to acquire the Property for the purpose of opening a park and ward office, we need to examine the provision. Section 352 of the Act provides as under:

Section 352:- Power to acquire lands and buildings for public streets and for public parking places:– The Municipal Commissioner may, subject to the other provisions of this Act – 4 5 6 7 [1980] 3 SCR 290 : (1980) 3 SCC 554 [2011] 3 SCR 1 : (2011) 3 SCC 1 [2014] 7 SCR 879 : (2014) 15 SCC 116 [1973] 3 SCR 39 : (1973) 1 SCC 500 Digital Supreme Court Reports [2024] 5 S.C.R. 843 (a) acquire any land required for the purpose of opening, widening, extending or otherwise improving any public street, square, park or garden or of making a new one, together with any building standing upon such land; (b) acquire, in relation to any land or building as aforesaid, such land with building thereon outside the regular line or the projected regular line of such public street; (c) acquire any land for the purpose of laying out or making a public parking place.

The appellant-Corporation has also relied on Section 363 of the Act relating to payment of compensation. The said provision is as under:

Section 363-Compensation to be paid:– (1) Compensation shall be paid by the Corporation to the owner of any building or land acquired for a public street, square, park or garden under the provisions of this Chapter: Provided that any increase or decrease in the value of the remainder of the property, of which building or the land so acquired formed part, likely to accrue from the setting back to the regular line of a public street, shall be taken into consideration in determining the amount of such compensation. (2) If any additional land, which will be included in the premises of any person permitted or required by an order under sub-section (2) of section 360 to set forward a building to the regular line of a public street, belongs to the Corporation, such order shall be a sufficient conveyance to the owner of such land; and the price to be paid to the Corporation by the owner for such additional land and the other terms and conditions of the conveyance shall be set forth in such order. (3) The Corporation shall pay compensation in respect of land or building acquired under this Chapter at the following scale: (i)…. (ii)….

Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors. 844 [2024] 5 S.C.R.

A close examination of the text of Section 352 of the Act coupled with the context with respect to the placement of the section in the Act, clarifies the purpose and object of the provision. The text of Section 352 of the Act provides that the Municipal Commissioner may acquire any land required for the purpose of opening, widening, extending, etc. of a street, square, park, etc. The purpose of this provision is to declare that if the Municipal Commissioner is of the view that any land is required for the purpose of opening a street, park, etc., such a land may be acquired. Once the Municipal Commissioner takes the decision to acquire a piece of land, what would then be the process of acquisition is not provided in Section 352. It is provided in Section 535 occurring in Chapter XXXIII of Part VIII of the Act which relates to ‘Acquisition of Property’.

Before we deal with the Section 535, it is sufficient to conclude that Section 352 merely contemplates the power and duty of the Municipal Commissioner to identify the land intended for opening of a street, park etc., and once that decision is taken, the Municipal Commissioner would take steps to acquire such a property, for a public purpose.

The context in which Section 352 is located in Chapter XXI of Part VI of the Act relating to ‘streets for public place’, also makes the position clear that this provision relates to vesting of public street, squares, parks and gardens in the appellant-Corporation but does not provide for the power of acquisition. In the following paragraph, we have explained how the text and the context of the expression, ‘The Municipal Commissioner may acquire’ in Section 352 is not at all the power of acquisition.

Upon arriving at a decision to acquire any land for the purpose of opening a street, square, park, etc., under Section 352, the Municipal Commissioner will then apply to the Government under Section 537 of the Act to initiate the process of acquisition. Section 537 is located in Chapter XXXIII Part VIII of the Act relating to ‘Acquisition of Property’. This Chapter commences with Section 535 which specifically provides that the appellant-Corporation shall have the power to acquire and hold immovable property. It is followed by the power to acquire properties through an agreement under Section 536 of the Act or in the alternative, through compulsory acquisition of immovable property as provided in Section 537 of the Act. Digital Supreme Court Reports [2024] 5 S.C.R. 845

The position is thus, clear. Upon application of the Municipal Commissioner under Section 537 for the acquisition of land for opening of a street, square, park etc., the Government may order proceedings to be taken for acquiring land on behalf of the appellant- Corporation as if the land is needed for a public purpose within the meaning of the Land Acquisition Act, 1894.

Sections 535, 536 and 537 of the Act are extracted hereinbelow for ready reference: “Section 535. Acquisition of property. – The Corporation shall, for the purposes of this Act, have power to acquire and hold movable and immovable property or any interest therein, whether within or outside the limits of Kolkata. Section 536. Acquisition of immovable property by agreement.— (1) Whenever it is provided in this Act that the Municipal Commissioner may acquire, or whenever it is necessary or expedient for any purpose of this Act that the Municipal Commissioner shall acquire, any immovable property, such property may be acquired by the Municipal Commissioner on behalf of the Corporation by agreement on such terms and at such rates or prices or at rates or prices not exceeding such maxima as may be approved by the Mayor-in-Council either generally for any class of cases or specially in any particular case.

The scheme of the Act makes it clear that Section 352 empowers the Municipal Commissioner to identify the land required for the purpose of opening of public street, square, park, etc. and under Section 537, the Municipal Commissioner has to apply to the Government to compulsorily acquire the land. Upon such an application, the Government may, in its own discretion, order proceedings to be Digital Supreme Court Reports [2024] 5 S.C.R. 847 taken for acquiring the land. Section 352 is therefore, not the power of acquisition. We, therefore, reject the submission on behalf of the appellant-Corporation that Section 352 enables the Municipal Commissioner to acquire land.

We will now deal with the other submission of Mr. Jaideep Gupta that there is also a provision for compensation under Section 363 where land is acquired under Section 352. In so far as Section 363 relating to payment of compensation is concerned, the High Court has clarified that this provision relates to payment of compensation upon an agreement and not for compulsory acquisition. We are in agreement with this finding of the High Court.

The Right to property: A net of intersecting rights: There is yet another aspect of the matter. Under our constitutional scheme, compliance with a fair procedure of law before depriving any person of his immovable property is well entrenched. We are examining this issue in the context of Section 352 of the Act which is bereft of any procedure whatsoever before compulsorily acquiring private property. Again, assuming that Section 363 of the Act provides for compensation, compulsory acquisition will still be unconstitutional if proper procedure is not established or followed before depriving a person of their right to property. We find it compelling to clarify that a rather undue emphasis is laid on provisions of compensation to justify the power of compulsory acquisition, as if compensation by itself is the complete procedure for a valid acquisition.

While it is true that after the 44th Constitutional Amendment8, the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms. Despite its spatial placement, Article 300A9 which declares that “no person shall be deprived of his property save by authority of law” has been characterised both as a constitutional and also a human right10. To assume that constitutional protection gets constricted to the 8 9 10 Constitution (Forty-Fourth Amendment) Act, 1978. 300A of the Constitution: “Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.”