Kalyani (Dead) Through Lrs. vs The Sulthan Bathery Municipality

CIVIL APPEAL NO(s). 3189 OF 2022 (arising out of SLP (Civil) No(s). 4125 of 2019)

KALYANI (DEAD) THROUGH LRS. & ORS. ...APPELLANT(S)

VERSUS

THE SULTHAN BATHERY MUNICIPALITY & ORS. ...RESPONDENT(S)

JUDGMENT

VIKRAM NATH, J.

Leave granted.

2. Appellants - eight in number, have assailed the

correctness of Judgment and Order dated 12.09.2018 passed by

the Division Bench of the High Court of Kerala at Ernakulam in

W.A. No. 2108 of 2016 between Sulthan Bathery Municipality

vs. Kalyani and 12 others, whereby the judgment of the Single Signature Not Verified Digitally signed by

Judge was set aside and the writ petition filed by the appellants Anita Malhotra Date: 2022.04.26 16:40:31 IST Reason:

was dismissed.

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3. The relevant facts giving rise to the present appeal are

that the appellants are the owners of the land in dispute

measuring 1.7078 hectares. The land is situate within the

territorial limits of Respondent No.1, Sulthan Bhathery Grama

Panchayat (hereinafter referred to as the “Panchayat”), later on

declared a Municipality. The Panchayat requested the

appellants to utilize their land for construction/widening of

Sulthan Batheri Bypass Road. The appellants were assured that

they would be given adequate compensation for their land

utilized for the said purpose. According to the appellants, they

gave their land on the assurance that they would be given

compensation.

4. The road was constructed but no compensation was paid.

The appellants made various representations starting from the

time, construction was going on and even after the construction

work was completed. But when no heed was paid to their

request, they approached the High Court of Kerala by way of

W.P. (C) No. 2329 of 2014. Before the learned Single Judge,

affidavits were exchanged.

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5. In the counter affidavit, the stand taken by the Panchayat

was that the land had been voluntarily given without any claim

for compensation. The Panchayat denied of having given any

assurance regarding adequate compensation to be paid to the

appellants. It was also alleged that the construction of road

was completed in 2010 whereas the appellants approached the

High Court in 2014 as such, the petition was substantially

delayed and liable to be dismissed on the ground of delay. It

was also stated in the counter affidavit that the Appellants had

voluntarily surrendered their portion of land for the purpose of

construction/widening of the road and that is why no

proceedings for acquisition were undertaken.

6. In the counter affidavit filed by the State-Respondent i.e.,

Public Works Department (hereinafter referred to as the

“PWD”), it was stated that the Panchayat had handed over the

land for the construction/widening of the road. The road is

owned and possessed by the Panchayat and the PWD had only

been assigned the work of construction for which due

documents were executed. It also denied having encroached

upon any part of the land of the appellants. It was also stated

3 that to the best information of PWD, the land in question was

surrendered free of cost.

7. The learned Single Judge, vide judgment dated

26.08.2016, after considering the material on record, came to

the conclusion that there was no material on record to show

that the appellants had voluntarily surrendered their land or

that they had given up their right to claim any compensation.

It was also recorded in the findings that there was no issue or

dispute that the land of the appellants has not been utilized for

the construction/widening of the road. Learned Single Judge,

further, after considering the mandate of Article 300A of the

Constitution held that appellants would be entitled to

compensation for the land utilized for the construction/widening

of the road. Since, the Road is owned and possessed by

Panchayat, the learned Single Judge issued appropriate

directions to the State-Respondents as also to the 3 rd

Respondent i.e. Panchayat (converted into “Municipality”),

would disburse the amount as may be determined by the

Collector after determining the market value of the property to

the concerned parties. It also gave liberty to the appellants

that in case they were not satisfied with the amount of

4 compensation determined by the Collector, they could raise the

challenge before the Civil Court. The relevant findings and the

operative portion of the judgment of learned Single Judge as

contained in paragraphs 5 to 7 are reproduced below:

“5. As noted above, the specific stand of the Public Works Department is that a decision was taken by the Grama Panchayat on 28.04.2009 to form the road and the Public Works Department was required to construct the road. Ext.P4 communication issued pursuant to an application submitted on behalf of the petitioners under the Right to Information Act from the office of the Public Works Department indicates that the land required for the construction of the road was made available to the Public Works Department by the erstwhile Sulthan Bathery Panchayat. There is absolutely no reason to disbelieve the stand taken by the Public Works Department in the counter affidavit filed in this matter. If the road was formed based on the decision taken by the Grama Panchayat to the Public Works Department for construction of the road, the case of the petitioners that they have permitted the construction of the road through a portion of their property, as requested for by the Panchayat has to be accepted. Then the question is as to whether the stand taken by the third respondent Municipality, which is the successor of the erstwhile Sulthan Bathery Grama Panchayat, in the counter affidavit, that the petitioners and others have surrendered their lands voluntary for the purpose of constructing the road is correct. Except the bald statement in the counter affidavit filed by the Secretary of the Municipality that the petitioners and others have surrendered their land for construction of the road, no material is placed before this Court which would show that the petitioners have in fact surrendered their land voluntarily, free of cost, it is only natural that a local body securing properties of citizens for a public purpose of this nature would get some documents evidencing such surrender from the persons concerned. Further, it is seen that the construction of the road was commenced during the last month of December, 2010, and Ext.P3 representation was preferred by the petitioners before the fourth respondent on 30.03.2011. The specific case of the petitioners is that they have sent ext.P8

5 representation also to the Grama Panchayat demanding payment of compensation and that there was no response to the same. The said statement made by the petitioners in the writ petition has not been denied in the counter affidavit filed by the third respondent. No reply was also sent by the third respondent. No reply was also sent by the third respondent to Ext.P8 representation. In the circumstances, especially in the absence of any evidence to indicate that the petitioners have surrendered their land free to cost for the purpose of constructing the road, I have no hesitation to hold that the case set up by the petitioners in the writ petition that the land acquired for the construction of the road was secured from them by the Panchayat on the basis of the assurance that they will be given adequate compensation for the same.

6. Article 300 A of the Constitution of India mandates that no person shall be deprived of his property save by authority of law. In the peculiar facts and circumstances of the case, I have no hesitation to hold that the utilization of the property of the petitioners for the purpose of construction of the road for the benefit of the general public was in violation of the constitutional right guaranteed to the petitioners under Article 300 A of the Constitution. In so far as the petitioners do not want their property back, they are certainly entitled to compensation for the land acquired from them.

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

i. The District Collector, Wayanad shall determine the market value of the property taken over from the petitioners by the erstwhile Sulthan Bathery Grama Panchayat for the purpose of construction of the Sulthan Bathery Bye pass road, within a period of two months from the date of receipt of a copy of this judgment, ' after affording the petitioners, an opportunity for hearing and issue a communication in that regard to the third respondent Municipality which. succeeded the assets and liabilities of the erstwhile Sulthan Bathery Grama Panchayat.

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 with the quantum of the market value fixed by the

6 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 on the same lines on which an application for reference under Section 18 of, the erstwhile Land Acquisition Act, 1894 is being disposed of.”

8. The Panchayat/Municipality carried the matter in appeal.

The Division Bench proceeded on the reasoning that the burden

was on the appellants to prove that they were given assurance

of suitable compensation. The appellants having failed to

discharge their burden, their claim could not succeed. It also

recorded that there was no provision for road development by

giving price of the land acquired. On such considerations vide

judgment dated 12.09.2018, the Division Bench allowed the

appeal, set aside the judgment of the Single Judge and

dismissed the writ petition. Relevant consideration as contained

in paragraphs 6, 7 and 8 of the judgment is reproduced below:

“6. The learned Judge in the impugned judgment however proceeded on the basis that the circumstances indicated that there was an assurance by the Panchayat, to compensate the writ petitioners, in the event they surrender their land free of cost, for the bypass road. We on the other hand find that such assumption is not borne out by any documents produced in the writ proceedings by the claimants. In fact there are vital contradiction on the stand of the land owners on who had given them the assurance of compensation.

7. In the aforesaid circumstances and particularly in the absence of any fact to show that the surrender of the land was not voluntary, we have reason to believe the Ext.P3

7 and the subsequent representations claiming compensations were nothing but after-thoughts and the right of the petitioner is not established, on the basis of those representations.

8. It is also necessary for us to point out that while formal surrender of land require written documentation, there can be situation where a land owner may voluntarily surrender their land without observing any formalities and that cannot be a basis for us to conclude that the surrender was not voluntary and would require the State to compensate the land owner.”

9. It is not disputed that the appellants did lose their land in

the construction/widening of the road belonging to the

Panchayat/Municipality. It is also admitted that the road as it

existed and after further construction and widening would be

owned by the Panchayat/Municipality, that is to say that the

appellants would be deprived of their right, title or interest over

the land utilized for the said purpose. As such the appellants

have been deprived of their land in the said process.

10. The appellants are farmers and the land utilized is

agricultural land. It was part of their livelihood. Depriving them

of their part of their livelihood and also of their property without

authority of law would be violative of Article 21 and Article

300A of the Constitution.

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11. Article 300A though not a fundamental right but

nevertheless it has status of being a constitutional or a

statutory right. It provides that no citizen would be deprived of

his property save without authority of law. Depriving somebody

of his property, where it is land, can be made by number of

modes e.g. by acquisition, surrender or by transfer and other

facets also. In the present case, it being utilized for the road to

be owned by the Panchayat/Municipality, it could either have

been voluntarily surrendered, transferred by way of title deeds

or by way of acquisition as may be provided under the statute.

12. In the present case, admittedly, there is neither any

acquisition proceedings nor any transfer of rights by the

appellants by way of sale, gift or otherwise. What is being

alleged is that it was a voluntarily surrender of rights for no

consideration. This is the stand taken by

Panchayat/Municipality. If the Panchayat/Municipality is taking

this stand, the burden would be on the Panchayat/Municipality

to establish such voluntary surrender. A memorandum or an

agreement or a written document ought to have been executed

9 by the appellants stating their free 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 produced by the Panchayat/Municipality or

the PWD to the aforesaid effect. However, the Division Bench

proceeded on the premise that the burden would lie on the

appellants to establish that they were given an assurance. It is

the Panchayat/Municipality which is the beneficiary. Burden

should be on the Panchayat/Municipality to prove that there

was a voluntary surrender.

14. In our considered view, the Division Bench proceeded on a

wrong premise on shifting the burden on the appellants. The

assertion that it was surrendered voluntarily without any claim

for consideration is by the Panchayat/Municipality. The PWD has

only stated that it received the land from Panchayat and that it

was given to understand that the land was surrendered

10 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 the

appellants made a stale claim and it was as an afterthought

that they started claiming compensation after

construction/widening of the road had completed. This

reasoning of the Division Bench, in our view, was also not

sustainable in as much as the appellants had represented at

the earliest, after the land was utilized, to the authorities to pay

the compensation. As far as the averments in the petition are

concerned, they refer to a couple of representations given right

from 2011 onwards and when nothing proceeded, the

appellants approached the High Court in 2014. Therefore, to

say that there was substantial delay on the part of the

appellants in agitating for their rights would not be correct. We

find from the writ petition that one of the first representation

was made on 30.03.2011 addressed to the Chief Engineer, PWD

claiming compensation to which the appellants also received a

response dated 25.04.2011 stating that PWD had not acquired

the land but had received it from the Panchayat. The appellants

11 also obtained relevant material under the Right to Information

Act with respect to their claim which is also a part of the writ

petition. The appellants further gave a legal notice dated

11.01.2013 addressed to the State as also the PWD. Thereafter

another representation was given to the Secretary of the

Panchayat on 05.11.2013 claiming compensation. In the

counter affidavit filed by the Panchayat and also the PWD, the

representation of the petitioners referred to above are not

denied.

16. The Division Bench has also noted that there was no

scheme for road development by giving price of the land

acquired. This observation by the Division Bench would also be

contrary to mandate of Article 300A. If there was no scheme,

then it was the fault of the State or the Panchayat. To say that

there was no scheme is one thing and owner of the land

surrendering his land voluntarily without payment of

compensation would be different. If there was no such scheme

then all the more it was necessary to get the surrender, if any,

documented, by the Panchayat/Municipality or the State or the

PWD, as the case may be.

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17. Sole question for consideration would be as to whether the

appellants had voluntarily surrendered their land to the

Panchayat free of cost without raising any claim for

compensation or not. The Panchayat as also the PWD have

failed to produce a single piece of document or evidence in any

other form in support of their defense that the appellants have

surrendered their land voluntarily. The consistent stand of the

appellants, on the other hand, has been that they have not

given their land to the Panchayat voluntarily and that they were

assured that they would be suitably compensated. The PWD

proceeded to construct the road upon the land made available

by the Panchayat. No doubt, the road is in the ownership and

possession of the Panchayat but the land over which the road

was to be constructed or widened was neither in ownership nor

possession of the Panchayat. The PWD did not care to take any

further clarification from the Panchayat as to whether such land

has been acquired, purchased or voluntarily given by the land

owners. The PWD has only stated that it received the land from

Panchayat and that it was informed that such land has been

made available voluntarily without any claim for compensation

and free of cost.

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18. The stand of the PWD cannot be the basis for determining

as to whether the appellants had surrendered their land free of

cost without any claim for compensation or that they had

expectations to receive compensation as assured by the

Panchayat. The Division Bench fell in error in taking into

consideration the stand of the PWD.

19. The Division Bench also proceeded to note that the

appellants were keen on changing their stand by initially

claiming from the State and then from the Panchayat. This

reasoning is also not tenable. The appellants are farmers. They

cannot be treated as the persons conversant with intricacies of

law. The appellants had, from the very beginning, stated that

assurance was given by the Panchayat. They had not changed

their stand but were consistent. It is for this reason that the

learned Single Judge had although directed the collector to

determine the value of compensation but the liability to pay the

compensation was saddled on the Panchayat/Municipality and

not on the State. The Division Bench committed an error in

commenting against the appellants and drawing an adverse

14 inference. It took a view too technical, to deprive the

appellants of their right to compensation.

20. Article 300A clearly mandates that no person shall be

deprived of his property save by authority of law. In the

present case, we do not find, under which authority of law, the

land of the appellants was taken and they were deprived of the

same. If the Panchayat and the PWD failed to produce any

evidence that appellants have surrendered their lands

voluntarily, depriving the appellants of the property would be in

violation 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

Karnataka1 apart from others, dealt with an issue relating to

payment of compensation where a person is deprived of his

property after deletion of Article 31(2). It laid down that there

are two requirements to be fulfilled while depriving a person of

his property. Requirement of public purpose is a pre-condition

and right to claim compensation is also inbuilt in Article 300-A.

1 (2011)9 SCC 1

15 While answering the reference in paragraph 221(e) it provided

as follows:

“221. We, therefore, answer the reference as follows:

Xxx xxx xxx

(e) Public purpose is a precondition for deprivation of a person from his property under Article 300-A and the right to claim compensation is also inbuilt in that article and when a person is deprived of his property the State has to be justify both the grounds which 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

purpose but there being no justification for not paying

compensation the action of the respondents would be arbitrary,

unreasonable and clearly violative of 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 of Kerala dated 12.09.2018 in W.A. No. 2108 of 2016

is hereby set aside and 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.

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

…………..........................J. [DINESH MAHESHWARI]

………….........................J. [VIKRAM NATH]

NEW DELHI April 26, 2022.

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