KALYANI (DEAD) THROUGH LRS. & ORS versus THE SULTHAN BATHERY MUNICIPALITY & ORS. on 26 April 2022

KALYANI (DEAD) THROUGH LRS. & ORS.

v.

THE SULTHAN BATHERY MUNICIPALITY & ORS.

(Civil Appeal No. 3189 of 2022)

APRIL 26, 2022

[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]

Constitution of India: Art. 300A–No person shall be deprivedof his property save by authority of law – Right to compensation tothe farmers for the land acquired – Held: Art. 300A clearly mandatesthat no person shall be deprived of his property save by authorityof law–On facts, appellants are farmers – They gave theiragricultural land to Panchayat/Municipality for being utilized forthe construction of road, on assurance that they would be givencompensation, however the same was not given – Land was part oftheir livelihood – Depriving them of their part of their livelihoodand also of their property without authority of law would be violativeof Art. 21 and Art. 300A –No authority of law under which the landof the appellants-farmers was taken and they were deprived of thesame – If the Panchayat and the PWD failed to produce any evidencethat appellants have surrendered their lands voluntarily, deprivingthe appellants of the property would be in violation of Art. 300-A–Construction/widening of road no doubt would be a public purposebut there being no justification for not paying compensation theaction of the Panchayat/Municipality would be arbitrary,unreasonable and clearly violative of Art. 300-A–Thus, thejudgement of the Single Judge of the High Court that the appellantswould be entitled to compensation for the land utilized for theconstruction/widening of the road is upheld.

Allowing the appeal, the Court

HELD: 1.1 The appellants did lose their land in theconstruction/widening of the road belonging to the Panchayat/Municipality. The road as it existed and after further constructionand widening would be owned by the Panchayat/Municipality, thatis to say that the appellants would be deprived of their right, titleor interest over the land utilized for the said purpose. As such

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Athe appellants have been deprived of their land in the said process.The appellants are farmers and the land utilized is agriculturalland. It was part of their livelihood. Depriving them of their partof their livelihood and also of their property without authority oflaw would be violative of Article 21 and Article 300A of theConstitution. [Paras 9, 10][858-D-F]

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1.2 Article 300A though not a fundamental right butnevertheless it has status of being a constitutional or a statutoryright. It provides that no citizen would be deprived of his propertysave without authority of law. Depriving somebody of his property,where it is land, can be made by number of modes e.g. byCacquisition, surrender or by transfer and other facets also. In theinstant case, it being utilized for the road to be owned by thePanchayat/Municipality, it could either have been voluntarilysurrendered, transferred by way of title deeds or by way ofacquisition as may be provided under the statute. [Para 11]D[858-G-H]

1.3 In the instant case, admittedly, there is neither anyacquisition proceedings nor any transfer of rights by the appellantsby way of sale, gift or otherwise. What is being alleged is that itwas a voluntarily surrender of rights for no consideration. This isEthe stand taken by Panchayat/Municipality. If the Panchayat/Municipality is taking this stand, the burden would be on thePanchayat/Municipality to establish such voluntary surrender. Amemorandum or an agreement or a written document ought tohave been executed by the appellants stating their free will tosurrender for no consideration in favour of the Panchayat/FMunicipality. The Single Judge clearly recorded that Panchayat/Municipality as also the PWD failed to produce any such evidence.Even the Division Bench did not find any material on recordproduced by the Panchayat/Municipality or the PWD to the saideffect. However, the Division Bench proceeded on the premiseGthat the burden would lie on the appellants to establish that theywere given an assurance. It is the Panchayat/Municipality whichis the beneficiary. Burden should be on the Panchayat/Municipalityto prove that there was a voluntary surrender. The Division Benchproceeded on a wrong premise on shifting the burden on the H

appellants. The assertion that it was surrendered voluntarilywithout any claim for consideration is by the Panchayat/Municipality. The PWD has only stated that it received the landfrom Panchayat and that it was given to understand that theland was surrendered voluntarily. Thus, it is the stand of Panchayat/Municipality which is to be taken note of. [Paras 12-14][859-A-F]

1.4 Another reasoning given by the Division Bench is thatthe appellants made a stale claim and it was as an afterthoughtthat they started claiming compensation after construction/widening of the road had completed. This reasoning of the DivisionBench, was also not sustainable in as much as the appellants hadrepresented at the earliest, after the land was utilized, to theauthorities to pay the compensation. As far as the averments inthe petition are concerned, they refer to a couple ofrepresentations given right from 2011 onwards and when nothingproceeded, the appellants approached the High Court in 2014.Therefore, to say that there was substantial delay on the part ofthe appellants in agitating for their rights would not be correct.In the counter affidavit filed by the Panchayat and also the PWD,the representation of the petitioners referred to above are notdenied. [Para 15][859-F-H; 860-C]

1.5 The Division Bench noted that there was no schemefor road development by giving price of the land acquired. Thisobservation by the Division Bench would also be contrary tomandate of Article 300A. If there was no scheme, then it wasthe fault of the State or the Panchayat. To say that there was noscheme is one thing and owner of the land surrendering hisland voluntarily without payment of compensation would bedifferent. If there was no such scheme then all the more it wasnecessary to get the surrender, if any, documented, by thePanchayat/Municipality or the State or the PWD, as the casemay be. [Para 16][860-C-E]

1.6 The Panchayat as also the PWD failed to produce a singlepiece of document or evidence in any other form in support oftheir defense that the appellants have surrendered their landvoluntarily. The consistent stand of the appellants, on the other A

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Ahand, has been that they have not given their land to thePanchayat voluntarily and that they were assured that they wouldbe suitably compensated. The PWD proceeded to construct theroad upon the land made available by the Panchayat. No doubt,the road is in the ownership and possession of the Panchayatbut the land over which the road was to be constructed orBwidened was neither in ownership nor possession of thePanchayat. The PWD did not care to take any further clarificationfrom the Panchayat as to whether such land has been acquired,purchased or voluntarily given by the land owners. The PWDonly stated that it received the land from Panchayat and that itCwas informed that such land has been made available voluntarilywithout any claim for compensation and free of cost. The standof the PWD cannot be the basis for determining as to whetherthe appellants had surrendered their land free of cost withoutany claim for compensation or that they had expectations toreceive compensation as assured by the Panchayat. The DivisionDBench erred in taking into consideration the stand of the PWD.[Paras 17, 18][860-F-H; 861-A-B]

1.7 The Division Bench also proceeded to note that theappellants were keen on changing their stand by initially claimingfrom the State and then from the Panchayat. This reasoning isEalso not tenable. The appellants are farmers. They cannot betreated as the persons conversant with intricacies of law. Theappellants had, from the very beginning, stated that assurancewas given by the Panchayat. They had not changed their standbut were consistent. It is for this reason that the Single JudgeFhad although directed the collector to determine the value ofcompensation but the liability to pay the compensation wassaddled on the Panchayat/Municipality and not on the State. TheDivision Bench erred in commenting against the appellants anddrawing an adverse inference. It took a view too technical, to deprive the appellants of their right to compensation.G[Para 19][861-C-D]

1.8 Article 300A clearly mandates that no person shall bedeprived of his property save by authority of law. In the instantcase, it cannot be found, under which authority of law, the land of H

the appellants was taken and they were deprived of the same. Ifthe Panchayat and the PWD failed to produce any evidence thatappellants have surrendered their lands voluntarily, deprivingthe appellants of the property would be in violation of Article300-A of the Constitution. Construction/widening of road no doubtwould be a public purpose but there being no justification for notpaying compensation the action of the respondents would bearbitrary, unreasonable and clearly violative of Article 300-A ofthe Constitution. The judgement and order of the Division Benchof the High Court is set aside and that of the Single Judge ismaintained. [Paras 20-22][861-E-F; 862-C-D]

K.T. Plantation Private Limited and another vs. State ofKarnataka (2011) 9 SCC 1 : [2011] 13 SCR 636 –referred to.

Case Law Reference

[2011] 13 SCR 636referred toPara 21

CIVIL APPELLATE JURISDICTION: Civil Appeal No.3189 of2022

From the Judgment and Order dated 12.09.2018 of the High Courtof Kerala at Ernakulam in W.A. No.2108 of 2016.

P. V. Ravindran, Sr. Adv., P. S. Sudheer, Ms. Anne Mathew, BharatSood, Ms. Shruti Jose, Advs. for the Appellants.

Rajesh P., Manoranjan Sharma, Vineet Sinha, Keshav Saini,Deeptanshu Jain, Anmol Kumar, Ms. Madhavi Tewatia, Nishe RajenShonker, Ms. Anu K. Joy, Alim Anvar, Advs. for the Respondents.

The Judgment of the Court was delivered by VIKRAM NATH, J.

1. Leave granted.

2. Appellants - eight in number, have assailed the correctness ofJudgment and Order dated 12.09.2018 passed by the Division Bench ofthe High Court of Kerala at Ernakulam in W.A. No. 2108 of 2016between Sulthan Bathery Municipality vs. Kalyani and 12 others, wherebythe judgment of the Single Judge was set aside and the writ petition filedby the appellants was dismissed.

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A3. The relevant facts giving rise to the present appeal are that theappellants are the owners of the land in dispute measuring 1.7078 hectares.The land is situate within the territorial limits of Respondent No.1, SulthanBhathery Grama Panchayat (hereinafter referred to as the “Panchayat”),later on declared a Municipality. The Panchayat requested the appellantsto utilize their land for construction/widening of Sulthan Batheri BypassBRoad. The appellants were assured that they would be given adequatecompensation for their land utilized for the said purpose. According tothe appellants, they gave their land on the assurance that they would begiven compensation.

4. The road was constructed but no compensation was paid. TheCappellants made various representations starting from the time,construction was going on and even after the construction work wascompleted. But when no heed was paid to their request, they approachedthe High Court of Kerala by way of W.P. (C) No. 2329 of 2014. Beforethe learned Single Judge, affidavits were exchanged.D

5. In the counter affidavit, the stand taken by the Panchayat wasthat the land had been voluntarily given without any claim forcompensation. The Panchayat denied of having given any assuranceregarding adequate compensation to be paid to the appellants. It wasalso alleged that the construction of road was completed in 2010 whereasEthe appellants approached the High Court in 2014 as such, the petitionwas substantially delayed and liable to be dismissed on the ground ofdelay. It was also stated in the counter affidavit that the Appellants hadvoluntarily surrendered their portion of land for the purpose ofconstruction/widening of the road and that is why no proceedings foracquisition were undertaken.F

6. In the counter affidavit filed by the State-Respondent i.e., PublicWorks Department (hereinafter referred to as the “PWD”), it was statedthat the Panchayat had handed over the land for the construction/widening of the road. The road is owned and possessed by the Panchayatand the PWD had only been assigned the work of construction forGwhich due documents were executed. It also denied having encroachedupon any part of the land of the appellants. It was also stated that to thebest information of PWD, the land in question was surrendered free ofcost.

7. The learned Single Judge, vide judgment dated 26.08.2016, afterHconsidering the material on record, came to the conclusion that there

was no material on record to show that the appellants had voluntarilysurrendered their land or that they had given up their right to claim anycompensation. It was also recorded in the findings that there was noissue or dispute that the land of the appellants has not been utilized forthe construction/widening of the road. Learned Single Judge, further,after considering the mandate of Article 300A of the Constitution heldthat appellants would be entitled to compensation for the land utilized forthe construction/widening of the road. Since, the Road is owned andpossessed by Panchayat, the learned Single Judge issued appropriatedirections to the State-Respondents as also to the 3[rd] Respondent i.e.Panchayat (converted into “Municipality”), would disburse the amountas may be determined by the Collector after determining the marketvalue of the property to the concerned parties. It also gave liberty to theappellants that in case they were not satisfied with the amount ofcompensation determined by the Collector, they could raise the challengebefore the Civil Court. The relevant findings and the operative portion ofthe judgment of learned Single Judge as contained in paragraphs 5 to 7are reproduced below:

“5. As noted above, the specific stand of the Public WorksDepartment is that a decision was taken by the GramaPanchayat on 28.04.2009 to form the road and the PublicWorks Department was required to construct the road. Ext.P4communication issued pursuant to an application submittedon behalf of the petitioners under the Right to InformationAct from the office of the Public Works Department indicatesthat the land required for the construction of the road wasmade available to the Public Works Department by theerstwhile Sulthan Bathery Panchayat. There is absolutely noreason to disbelieve the stand taken by the Public WorksDepartment in the counter affidavit filed in this matter. If theroad was formed based on the decision taken by the GramaPanchayat to the Public Works Department for constructionof the road, the case of the petitioners that they have permittedthe construction of the road through a portion of their property,as requested for by the Panchayat has to be accepted. Thenthe question is as to whether the stand taken by the thirdrespondent Municipality, which is the successor of theerstwhile Sulthan Bathery Grama Panchayat, in the counteraffidavit, that the petitioners and others have surrendered A

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Atheir lands voluntary for the purpose of constructing the roadis correct. Except the bald statement in the counter affidavitfiled by the Secretary of the Municipality that the petitionersand others have surrendered their land for construction ofthe road, no material is placed before this Court which wouldshow that the petitioners have in fact surrendered their landBvoluntarily, free of cost, it is only natural that a local bodysecuring properties of citizens for a public purpose of thisnature would get some documents evidencing such surrenderfrom the persons concerned. Further, it is seen that theconstruction of the road was commenced during the last monthCof December, 2010, and Ext.P3 representation was preferredby the petitioners before the fourth respondent on 30.03.2011.The specific case of the petitioners is that they have sent ext.P8representation also to the Grama Panchayat demandingpayment of compensation and that there was no response tothe same. The said statement made by the petitioners in theDwrit petition has not been denied in the counter affidavit filedby the third respondent. No reply was also sent by the thirdrespondent. No reply was also sent by the third respondent toExt.P8 representation. In the circumstances, especially in theabsence of any evidence to indicate that the petitioners haveEsurrendered their land free to cost for the purpose ofconstructing the road, I have no hesitation to hold that thecase set up by the petitioners in the writ petition that the landacquired for the construction of the road was secured fromthem by the Panchayat on the basis of the assurance thatthey will be given adequate compensation for the same.

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6. Article 300 A of the Constitution of India mandates that noperson shall be deprived of his property save by authority oflaw. In the peculiar facts and circumstances of the case, Ihave no hesitation to hold that the utilization of the propertyof the petitioners for the purpose of construction of the roadGfor the benefit of the general public was in violation of theconstitutional right guaranteed to the petitioners under Article300 A of the Constitution. In so far as the petitioners do notwant their property back, they are certainly entitled tocompensation for the land acquired from them.

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7. In the result, the writ petition is disposed of as follows:

i. The District Collector, Wayanad shall determine the marketvalue of the property taken over from the petitioners by theerstwhile Sulthan Bathery Grama Panchayat for the purposeof construction of the Sulthan Bathery Bye pass road, withina period of two months from the date of receipt of a copy ofthis judgment, ‘ after affording the petitioners, an opportunityfor hearing and issue a communication in that regard to thethird respondent Municipality which. succeeded the assetsand liabilities of the erstwhile Sulthan Bathery GramaPanchayat.

ii. The third respondent Municipality shall, thereupon,disburse the amounts determined as due to the petitioners,within a period of one month thereafter.

iii. It is made clear that if the petitioners are dissatisfied withthe quantum of the market value fixed by the District Collector,they are at liberty to move the civil court for the said purpose.Needless to observe that if such a suit if filed by the petitioners,the same will be disposed of by the civil court concerned onthe same lines on which an application for reference underSection 18 of, the erstwhile Land Acquisition Act, 1894 isbeing disposed of.”

8. The Panchayat/Municipality carried the matter in appeal. TheDivision Bench proceeded on the reasoning that the burden was on theappellants to prove that they were given assurance of suitablecompensation. The appellants having failed to discharge their burden,their claim could not succeed. It also recorded that there was no provisionfor road development by giving price of the land acquired. On suchconsiderations vide judgment dated 12.09.2018, the Division Benchallowed the appeal, set aside the judgment of the Single Judge anddismissed the writ petition. Relevant consideration as contained inparagraphs 6, 7 and 8 of the judgment is reproduced below:

“6. The learned Judge in the impugned judgment howeverproceeded on the basis that the circumstances indicated thatthere was an assurance by the Panchayat, to compensate thewrit petitioners, in the event they surrender their land free ofcost, for the bypass road. We on the other hand find that A

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Asuch assumption is not borne out by any documents producedin the writ proceedings by the claimants. In fact there arevital contradiction on the stand of the land owners on whohad given them the assurance of compensation.

7. In the aforesaid circumstances and particularly in theBabsence of any fact to show that the surrender of the landwas not voluntary, we have reason to believe the Ext.P3 andthe subsequent representations claiming compensations werenothing but after-thoughts and the right of the petitioner isnot established, on the basis of those representations.

C8. It is also necessary for us to point out that while formalsurrender of land require written documentation, there canbe situation where a land owner may voluntarily surrendertheir land without observing any formalities and that cannotbe a basis for us to conclude that the surrender was notvoluntary and would require the State to compensate the landDowner.”

9. It is not disputed that the appellants did lose their land in theconstruction/widening of the road belonging to the Panchayat/Municipality.It is also admitted that the road as it existed and after further constructionand widening would be owned by the Panchayat/Municipality, that is toEsay that the appellants would be deprived of their right, title or interestover the land utilized for the said purpose. As such the appellants havebeen deprived of their land in the said process.

10. The appellants are farmers and the land utilized is agriculturalland. It was part of their livelihood. Depriving them of their part of theirFlivelihood and also of their property without authority of law would beviolative of Article 21 and Article 300A of the Constitution.

11. Article 300A though not a fundamental right but neverthelessit has status of being a constitutional or a statutory right. It provides thatno citizen would be deprived of his property save without authority ofGlaw. Depriving somebody of his property, where it is land, can be madeby number of modes e.g. by acquisition, surrender or by transfer andother facets also. In the present case, it being utilized for the road to beowned by the Panchayat/Municipality, it could either have been voluntarilysurrendered, transferred by way of title deeds or by way of acquisitionas may be provided under the statute.H

12. In the present case, admittedly, there is neither any acquisitionproceedings nor any transfer of rights by the appellants by way of sale,gift or otherwise. What is being alleged is that it was a voluntarilysurrender of rights for no consideration. This is the stand taken byPanchayat/Municipality. If the Panchayat/Municipality is taking this stand,the burden would be on the Panchayat/Municipality to establish suchvoluntary surrender. A memorandum or an agreement or a writtendocument ought to have been executed by the appellants stating theirfree will to surrender for no consideration in favour of the Panchayat/Municipality.

13. The learned single Judge has clearly recorded that Panchayat/Municipality as also the PWD failed to produce any such evidence.Even the Division Bench did not find any material on record producedby the Panchayat/Municipality or the PWD to the aforesaid effect.However, the Division Bench proceeded on the premise that the burdenwould lie on the appellants to establish that they were given an assurance.It is the Panchayat/Municipality which is the beneficiary. Burden shouldbe on the Panchayat/Municipality to prove that there was a voluntarysurrender.

14. In our considered view, the Division Bench proceeded on awrong premise on shifting the burden on the appellants. The assertionthat it was surrendered voluntarily without any claim for consideration isby the Panchayat/Municipality. The PWD has only stated that it receivedthe land from Panchayat and that it was given to understand that theland was surrendered voluntarily. Thus, it is the stand of Panchayat/Municipality which is to be taken note of.

15. Another reasoning given by the Division Bench is that theappellants made a stale claim and it was as an afterthought that theystarted claiming compensation after construction/widening of the roadhad completed. This reasoning of the Division Bench, in our view, wasalso not sustainable in as much as the appellants had represented at theearliest, after the land was utilized, to the authorities to pay thecompensation. As far as the averments in the petition are concerned,they refer to a couple of representations given right from 2011 onwardsand when nothing proceeded, the appellants approached the High Courtin 2014. Therefore, to say that there was substantial delay on the part ofthe appellants in agitating for their rights would not be correct. We find A

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Afrom the writ petition that one of the first representation was made on30.03.2011 addressed to the Chief Engineer, PWD claiming compensationto which the appellants also received a response dated 25.04.2011 statingthat PWD had not acquired the land but had received it from thePanchayat. The appellants also obtained relevant material under the Rightto Information Act with respect to their claim which is also a part of theBwrit petition. The appellants further gave a legal notice dated 11.01.2013addressed to the State as also the PWD. Thereafter anotherrepresentation was given to the Secretary of the Panchayat on 05.11.2013claiming compensation. In the counter affidavit filed by the Panchayatand also the PWD, the representation of the petitioners referred to aboveCare not denied.

16. The Division Bench has also noted that there was no schemefor road development by giving price of the land acquired. This observationby the Division Bench would also be contrary to mandate of Article300A. If there was no scheme, then it was the fault of the State or theDPanchayat. To say that there was no scheme is one thing and ownerof the land surrendering his land voluntarily without payment ofcompensation would be different. If there was no such scheme thenall the more it was necessary to get the surrender, if any, documented,by the Panchayat/Municipality or the State or the PWD, as the caseEmay be.

17. Sole question for consideration would be as to whether theappellants had voluntarily surrendered their land to the Panchayat freeof cost without raising any claim for compensation or not. The Panchayatas also the PWD have failed to produce a single piece of document orFevidence in any other form in support of their defense that the appellantshave surrendered their land voluntarily. The consistent stand of theappellants, on the other hand, has been that they have not given theirland to the Panchayat voluntarily and that they were assured that theywould be suitably compensated. The PWD proceeded to construct theroad upon the land made available by the Panchayat. No doubt, the roadGis in the ownership and possession of the Panchayat but the land overwhich the road was to be constructed or widened was neither inownership nor possession of the Panchayat. The PWD did not care totake any further clarification from the Panchayat as to whether suchland has been acquired, purchased or voluntarily given by the land owners.HThe PWD has only stated that it received the land from Panchayat and that it was informed that such land has been made available voluntarilywithout any claim for compensation and free of cost.

18. The stand of the PWD cannot be the basis for determining asto whether the appellants had surrendered their land free of cost withoutany claim for compensation or that they had expectations to receivecompensation as assured by the Panchayat. The Division Bench fell inerror in taking into consideration the stand of the PWD.

19. The Division Bench also proceeded to note that the appellantswere keen on changing their stand by initially claiming from the Stateand then from the Panchayat. This reasoning is also not tenable. Theappellants are farmers. They cannot be treated as the persons conversantwith intricacies of law. The appellants had, from the very beginning,stated that assurance was given by the Panchayat. They had not changedtheir stand but were consistent. It is for this reason that the learnedSingle Judge had although directed the collector to determine the valueof compensation but the liability to pay the compensation was saddledon the Panchayat/Municipality and not on the State. The Division Benchcommitted an error in commenting against the appellants and drawingan adverse inference. It took a view too technical, to deprive theappellants of their right to compensation.

20. Article 300A clearly mandates that no person shall be deprivedof his property save by authority of law. In the present case, we do notfind, under which authority of law, the land of the appellants was takenand they were deprived of the same. If the Panchayat and the PWDfailed to produce any evidence that appellants have surrendered theirlands voluntarily, depriving the appellants of the property would be inviolation of Article 300-A of the Constitution.

21. A Constitution Bench of this Court in the case of K.T.Plantation Private Limited and another vs. State of Karnataka[1]apart from others, dealt with an issue relating to payment of compensationwhere a person is deprived of his property after deletion of Article31(2). It laid down that there are two requirements to be fulfilled whiledepriving a person of his property. Requirement of public purpose is apre-condition and right to claim compensation is also inbuilt in Article300-A. While answering the reference in paragraph 221(e) it providedas follows:

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A“221. We, therefore, answer the reference as follows:Xxxxxxxxx xxxxxx (e) Public purpose is a precondition for deprivation of a personfrom his property under Article 300-A and the right to claimcompensation is also inbuilt in that article and when a person isBdeprived of his property the State has to be justify both the groundswhich may depend on scheme of the statute, legislative policy,object and purpose of the legislature and other related factors.”

Construction/widening of road no doubt would be a public purposebut there being no justification for not paying compensation the action ofCthe respondents would be arbitrary, unreasonable and clearly violativeof Article 300-A of the Constitution.

22. For the foregoing reasons, the appeal deserves to be allowed.The judgement and order of the Division Bench of the High Court ofKerala dated 12.09.2018 in W.A. No. 2108 of 2016 is hereby set asideDand that of the Single Judge dated 26.08.2016 passed in WP(C) No.2329 of 2014 is maintained. There shall be no order as to costs.

23. Pending application(s), if any, shall stand disposed of.

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Appeal allowed.

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