In Supreme Court's Order On Acquiring Private Property, A "Procedure" Caveat

Compulsory acquisition of private properties will be unconstitutional if proper procedure is not established or followed before depriving a person of their right to property, the Supreme Court said on Thursday.

In a significant verdict, the top court said even the statutory scheme of payment of compensation in return for acquisition of private properties will not be justified if the due procedure is not followed by the state and its instrumentalities.

While making the observations, a bench comprising justices PS Narasimha and Aravind Kumar dismissed the appeal of the Kolkata Municipal Corporation.

The civic body had approached the top court challenging the judgment of a division bench of the Kolkata High Court which had quashed acquisition of a property at Narkeldanga North Road in the city for constructing a park.

The high court had held that the civic body had no power under a specific provision to go for compulsory acquisition.

"We are of the considered opinion that the High Court was fully justified in allowing the writ petition and rejecting the case of the appellant-Corporation acquiring land under Section 352 of the Act. The impugned judgment does not brook interference on any count," the top court said in its 32-page judgment.

"Under our constitutional scheme, compliance with a fair procedure of law before depriving any person of his immovable property is well entrenched," Justice Narasimha said.

"Again, assuming that Section 363 of the Kolkata Municipal Corporation 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," it said.

It said undue emphasis is laid on the 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 Amendment, the right to property drifted from Part III (fundamental rights) to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms," it said.

The Article 300A (right to property) of the Constitution says that "no person shall be deprived of his property save by authority of law" and it has been characterised both as a constitutional and a human right.

"To assume that constitutional protection gets constricted to the mandate of a fair compensation would be a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution," it said.

It said there are seven sub-rights which can be identified.

"These are: i) duty of the State to inform the person that it intends to acquire his property - the right to notice, ii) the duty of the State to hear objections to the acquisition - the right to be heard, iii) the duty of the State to inform the person of its decision to acquire - the right to a reasoned decision, iv) the duty of the State to demonstrate that the acquisition is for public purpose - the duty to acquire only for public purpose," the court said.

"(v) the duty of the State to restitute and rehabilitate - the right of restitution or fair compensation, vi) the duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings - the right to an efficient and expeditious process, and vii) final conclusion of the proceedings leading to vesting - the right of conclusion," it added.

These seven rights are foundational components of a law that is in tune with Article 300A, and the absence of one of these or some of them would render the law susceptible to challenge.

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