B. K. RAVICHANDRA & ORS. versus UNION OF INDIA & ORS.

[2020] 12 S.C.R. 974

[2020] 12 S.C.R.

B. K. RAVICHANDRA & ORS.

UNION OF INDIA & ORS.

(Civil Appeal No. 1460 of 2010)

BNOVERMBER 24, 2020

[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]

Requisitioning and Acquisition of Immovable Properties Act,1952:

CRequisition under – Continuation of occupation of the UnionGovernment, even after lapse of the Act – Refusal to hand back thepossession – High Court by impugned order despite holding thatthe Union claim has no merit, did not issue any direction to releasethe lands in question – Appeal to Supreme Court – Held: Acquisitionunder the Act is temporary – State’s occupation ceased to be lawful,Dwith the lapse of the Act in the year 1987 – Right to property thoughnot fundamental, is valuable constitutional right ensuringguaranteed freedoms and economic liberty – Court’s role is to actas the guarantor and protector of the people’s liberties – It is notopen to the State to claim that the law or the Constitution can beEignored or complied at its convenience – Permitting the State toassert its indefinite or overriding right to continue occupying one’sproperty, bereft of lawful sanction, would be condoning lawlessness– The State is directed to hand back possession of the suit lands tothe appellants.FAllowing the appeal, the Court

HELD: 1. The legal effect of requisitioning immovableproperty is that temporarily- i.e. for the period the requisitionorder is in operation, the owner loses her possessory rights, eventhough the title remains undisturbed. Since the deprivation ofGpossession is through authority of law, in keeping with fairprocedure, the law (in this case, the Requisitioning Act) providesfor payment of compensation in accordance with predeterminedprinciples. Yet, the taking of property by definition is finite: itcannot result in expropriation or deprivation of title altogether,unless another process for acquiring it, is initiated. [Para 18][989-HB-D]

Grahak Sanstha Manch v. State of Maharashtra (1994)4 SCC 192 : [1994] 3 SCR 746 – followed.

Rajendra Kumar Gupta v. State of U.P (1997) 4 SCC511 : [1997] 1 SCR 1056 – relied on.

2. Although the right to property is not fundamental rightprotected under Part III of the Constitution of India, it remains avaluable constitutional right. The decisions of this court, and thehistory of the right to property show that though its pre-eminenceas fundamental right has been undermined, nevertheless, theessence of the rule of law protects it. The evolving jurisprudenceof this court also underlines that it is valuable right ensuringguaranteed freedoms and economic liberty. The phrasing ofArticle 300-A is determinative and its resemblance with Articles21 and 265 cannot be overlooked- they in effect, are guaranteeof the supremacy of the rule of law, no less. [Paras 21 and 26][993-B; 998-B-C]

Delhi Airtech Services Pvt Ltd v. State of U.P (2011) 9SCC 354 : [2011] 12 SCR 191; State of Rajasthan v.Basant Nahata (2005) 12 SCC 77 : [2005] 3 Suppl.SCR 1; K. T. Plantation Pvt. Ltd. v. State of Karnataka(2011) 9 SCC 1 : [2011] 13 SCR 636; T. Vijayalakshmiv. Town Planning Member (2006) 8 SCC 502 : [2006]7 Suppl. SCR 534; D. B. Basnett v. Land AcquisitionOfficer (2020) 4 SCC 572; State of U.P. v. Manohar(2005) 2 SCC 126 : [2004] 6 Suppl. SCR 911;Bhavnagar University v. Palitana Sugar Mill (P)Ltd., (2003) 2 SCC 111 : [2002] 4 Suppl. SCR 517;Shrirampur Municipal Council v. SatyabhamabaiBhimaji Dawkher, (2013) 5 SCC 627 : [2013] 2 SCR664 – relied on.

Chairman, Indore Vikas Pradhikaran v. Pure IndustrialCoke & Chemicals Ltd. (2007) 8 SCC 705 : [2007] 6SCR 799; Ramchandra Ravindra Waghmare v. IndoreMunicipal Corporation (2017) 1 SCC 667 : [2016] 9SCR 373; M. C. Mehta v Union of India (2020) SCCOnline (SC) 658 – referred to.

3. It is not open to the State: in any of its forms (Executive,State Agencies or Legislature) to claim that the law – or theConstitution can be ignored, or complied at its convenience.[Para 26][998-B]

Superintendent Remembrancer of Legal Affairs v.BCorpn. of Calcutta [1967] 2 SCR 170 – relied on.

Director of Rationing and Distribution v. Corporationof Calcutta [1961] 1 SCR 158 – stood overruled.

4. The Union asserted that it had acquired at least someparts of the suit lands; these were examined by the High CourtCon two occasions, and in arbitration proceedings under theRequisitioning Act, on three occasions. Each time, the factualfindings went against the Union. The Union’s occupation ceasedto be lawful, with the lapse of the Requisitioning Act, in 1987.Yet, it has implacably refused to hand back possession, each timeDasserting that it has some manner of rights over it. The HighCourt, while noticing that the Union’s claim had no merits (inboth its appeal, which was dismissed, as well as in the impugnedjudgment, disposing of the writ petition), nevertheless refusedto issue any direction for the release of the suit lands. Therationale given was that the adjoining areas had been acquiredEand were used by the Union for defense purposes. The impugnedjudgment granted indefinite time to the Union to take steps toacquire the suit lands. The Union has not chosen to do so theselast 12 years. These facts paint stark, even sordid picture.[Para 24][996-F-H; 997-A]

5. To permit the State: whether the Union or any StateGovernment to assert that it has an indefinite or overriding rightto continue occupying one’s property (bereft of lawful sanction)–whatever be the pretext, is no less than condoning lawlessness.The courts’ role is to act as the guarantor and zealous protectorGof the people’s liberties: be they assured through the freedoms,and the right to equality and religion or cultural rights under PartIII, or the right against deprivation, in any form, through anyprocess other than law. Any condonation by the court is validationof such unlawful executive behavior which it then can justify itsconduct on the anvil of some loftier purpose, at any future time-H

aptly described as “loaded weapon ready for the hand of anyauthority that can bring forward plausible claim of an urgentneed.” [Para 26][998-C-F]

Korematsu v. United States 323 US 214 (1944) –referred to.

6. The impugned judgment committed an error in refusingrelief to the appellants. 33 years (based upon cessation of theUnion’s legal possession) is long enough time, even in India, tobe kept away from one’s property. The respondent Union isdirected to hand back possession of the suit lands to theappellants, within three months. Furthermore, it is open to theappellants to seek compensation based on fresh fixation of capitalvalue and recurring annual value, based on the different five-year periods for the last 20 years. Such claim shall be referredto arbitration, within four weeks of receipt of the reference. Thearbitrator shall proceed to pronounce the award within six monthsof receipt of the reference. This is independent of the Union’sobligation to vacate and hand over peaceful possession of thesuit lands within three months. [Para 27][999-A-C]

Special Military Estates Officer v. Munivenkataramiahand Anr. [1990] 1 SCR 4; Union of India v. B. M.Krishnamurthy 1995 (4) KarLJ 607; Vidya Devi v. Stateof H.P. (2020) 2 SCC 569; State of Haryana v. MukeshKumar (2013) 1 SCC 353 : [2012] 13 SCR 29 –referred to.

[2020] 12 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1460of 2010.DFrom the Judgment and Order dated 11.01.2008 of the High Courtof Judicature at Karnataka in W.P. No. 8340 of 2006(LA).

Mohan Parasaran, V. Krishnamurthy, Sr. Advs. V. Balachandran,Siddharth Naidu, M/S. KSN & Co., K.M. Natraj, Abhishek Kumar,Sharath Nambiar, Arvind Kr. Sharma, Mrs. Anil Katiyar, V. N.ERaghupathy, Manendra Pal Gupta, Advs. for the appearing parties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

1. This appeal by special leave questions judgment of theFKarnataka High Court[1]. The High Court rejected the appellants’ claimto direct the respondent (hereafter called “the Union”) to vacate theirlands, leaving it open to the latter to initiate appropriate proceedings foracquisition of certain lands (which belonged to the appellants).

2. Parliament, in exercise of the powers conferred upon the Union,Genacted the Requisitioning and Acquisition of Immovable properties Act,1952 (hereafter called “the Requisitioning Act”). It was brought intoforce on 15.03.1952.[2] The object of the Act was to enable the Union to

1 Dated 11.01.2008 in W.P. 8340/2006

2 By virtue of Section 1(3), the Act was initially temporary, and to remain in force forHsix years.

requisition or acquire immovable property if the competent authority wasof the opinion that any property was necessary for public purpose. BySection 1(3), the Requisitioning Act was to be in force for six years.Section 3 clothed the Union with the power to requisition properties forany public purpose; Section 7 provided the procedure to requisition (oracquire) lands. It also spelt-out the condition precedents for exercise ofthe power. Section 8 provided for compensation with regard to property.Section 8(2) laid out the principles applicable for determination ofcompensation for the property as recurring one[3]. On 27.02.1958, theRequisitioning Act was amended and the period of its operation extended.In the meanwhile, the Defence of India Act, 1962 (hereafter referred toas “the DIA”) was enacted by Parliament empowering the CentralGovernment with powers akin to those enacted under the RequisitioningAct. The Union invoked its powers under the DIA and requisitioned thethree described properties which belonged to the predecessor of theappellants (hereafter referred to as “the suit lands”). These comprisedof Survey Nos. 101/1 & 101/2 - the two survey numbers aggregating 2acres 39 guntas and Survey No.104 (2 acre 8 guntas) in Byppanahalli,Bangalore South Taluk. The then owner, i.e. late B.M. Krishnamurthy,the appellants’ predecessor handed over the possession of the suit landsunder protest; these were taken over under Section 30 of the DIA. Thecompetent authority fixed the compensation for these lands by orderdated 18.12.1964. The approval for this compensation fixation was givenmuch later - in 1968.

3. By Act 48 of 1963, Section 1(3) of the Requisitioning Act wasamended, and the period of operation of the Requisitioning Act was

3 Section 8(2) (a) provided inter alia, as follows:

“a recurring payment in respect of the period of requisition of sum equal to the rentwhich would have been payable for the use and occupation of the property, if it had beentaken on lease for the period.”Section 8 (2) (b) provided for payment of

(b) such sum or sums, if any, as may be found necessary to compensate the personinterested for all or any of the following matters, namely:

(i)pecuniary loss due to requisitioning;

(ii) expenses on account of vacating the requisitioned premises;

(iii) expenses on account of reoccupying the premises upon release fromrequisition; and

(iv) damages (other than normal wear and tear) caused to the property duringthe period of requisition, including the expenses that may have to be incurredfor restoring the property to the condition in which it was at the time ofrequisition.

Aextended till 14.03.1970. In the meanwhile, the DIA lapsed with effectfrom 10.01.1968. The Requisitioning Act was amended, incorporatingSection 25, which enacted that the immovable property requisitionedunder the DIA, which had not been released as on 10.01.1968 wasdeemed to have been requisitioned under the Requisition Act. It alsocontinued the status quo with respect to determination of compensationBcompleted under the DIA. This Amendment Ordinance was replacedby an actual amendment, to the Requisitioning Act. The RequisitioningAct was again amended in 1970[4], to delete Section 1(3) of the main Act.The Amendment Act also enabled requisitioning of property and statedthat requisitions were to be continued and were to be released after 12Cyears (subsequently the period of 12 years was extended to 17 years)[5].4. In late 1972, the predecessor of the appellants felt that thecompensation fixed for the suit lands was inadequate and applied forenhancement. This was in terms of the amendment of 1970 (becausethe land requisitioned in 1963 was deemed to have been continued byDthe Act of 1968). As required by Section 8 of the Requisitioning Act, thisdispute was referred to an arbitrator under Section 8(2). The referencemade was in respect of the amount of compensation payable, the recurringpayments in respect of the periods of requisition and the sums equal tothe rent that would have been payable for the occupation and use of theproperty and other sums towards 4 years of losses, i.e. pecuniary lossEexpense on account of the vacating of the requisitioned premises,

4 Act 1 of 1970. The effect of this amendment Act was to change the temporarycharacter of the legislation.

5 Section 6(1A) reads as follows:F“ 6. Release from requisitioning.—(1) The Central Government may at any time releasefrom requisition any property requisitioned under this Act and shall, as far as possible,restore the property in as good condition as it was when possession thereof was takensubject only to the changes caused by reasonable wear and tear and irresistible force:Provided that where the purposes for which any requisitioned property was being usedcease to exist, the Central Government shall, unless the property is acquired underGsection 7, release that property, as soon as may be, from requisition.[(1A) Notwithstanding anything contained in sub-section (1), the Central Governmentshall release from requisition,—

(a) any property requisitioned or deemed to be requisitioned under this Act before thecommencement of the Requisitioning and Acquisition of Immovable Property(Amendment) Act, 1970 (1 of 1970), on or before the expiry of period of [seventeenHyears] from such commencement;”

expenses on account of re-occupying of premises after release fromacquisition and damages other than normal repairs. At that point in time,Section 6(1A) contemplated retention of property for total period of 3years. Therefore, the recurring payment was in respect of shortduration. The period of requisition under Section 8(2A)[6 ]for the purposeof compensation determination was, during the pendency of thereference, increased to five years.

5. The reference was notified in Gazette notification publishedby the Central Government. On 17.07.1975, the Arbitrator pronouncedan Award which determined compensation as 6% per annum on thecapital value of land, assessed at 3 per square foot accepting the landrequisitioned to be in Survey nos.103/2 and 104 in Byppanahalli. TheCentral Government had, in the arbitration proceeding, contended thatthe suit lands had also been acquired by virtue of prior notification.

6 “Section 8(2A) reads as follows:

The recurring payment, referred to in clause (a) of sub-section (2), in respect of anyproperty shall, unless the property is sooner released from requisition under Section 6or acquired under Section 7, be revised in accordance with the provisions of sub-section(2-B)—

(a) in case where such property has been subject to requisition under this Act for theperiod of five years or longer period immediately preceding the commencement of theRequisitioning and Acquisition of Immovable Property (Amendment) Act, 1975—(i) first with effect from the date of such commencement, and

[(ii) secondly with effect from the expiry of five years, and thirdly with effect from theexpiry of ten years, from such commencement;]

(b) in case where such property has been subject to requisition under this Actimmediately before such commencement for period shorter than five years and themaximum period within which such property shall, in accordance with the provisionsof sub-section (1-A) of Section 6, be released from requisition or acquired, extendsbeyond five years from such commencement,—

(i) first with effect from the date of expiry of five years from the date on whichpossession of such property has been surrendered or delivered to, or taken by, thecompetent authority under Section 4, and

[(ii) secondly with effect from the date of expiry of five years, and thirdly with effectfrom the date of expiry of ten years, from the date on which the revision made undersub-clause (i) takes effect;]

[(c) in any other case,—

(i) first with effect from the date of expiry of five years from the date on whichpossession of such property has been surrendered or delivered to, or taken by, thecompetent authority under Section 4, and

(ii) secondly with effect from the date of expiry of five years, and thirdly with effectfrom the date of expiry of ten years, from the date on which the revision under sub-clause (i) takes effect.]

AThe arbitrator considered this contention too and after examining theaward of the LAC held:

“From the evidence of RW-2 and also from the copy of theEx-R-13 and possession certificate as per Ex.R-14, it isestablished that 24 guntas and 29 sq. yards of land inBS. No.103/2 and 8 guntas of land and 22 yards of land inS. No.104 of Byyappanahali were acquired for the purposeof NGEF and possession was taken by NGEF deducting thesaid acquired portion of the land in S. No.103/2 and 104 ofByyappanahalli the claimant would be the owner of the saidlands in ARE No.72-73.”C

6. In view of the evidence it was also held that the appellants’predecessor was entitled to receive compensation in respect of SurveyNo.104, deducting the portion of land acquired for the purposes of NGEF.This Award was made on 17.07.1975.

D7. The Requisitioning Act underwent further amendment[7].Section 8(2B) stated that recurring payment would be revised by re-determining the amount[8]. As consequence of this amendment of 1975,the recurring payment required to be determined and fixed under Section8(2) had to be first decided and fixed with effect from the date ofcommencement of the Act and again with effect from the expiry of fiveEyears from the commencement of the amending Act. The amending Actcame into force on 07.03.1975.

8. To continue the narrative, the arbitrator’s award was appealedagainst by the UOI. The award had determined compensation in termsof the DIA and later – since it lapsed in 1968, also having regard to theFprinciples spelt-out in Section 8 of the Requisitioning Act as amended.On 21.07.1978, the Central Government’s appeal was disposed of in

7 Act 2 of 1975, which amended Section 6(1A) and substituted 10 years for the existingperiod for compensation determination. It also added Section 8(2A) by creating adeeming fiction that unless the property was released from requisition under Section 6or duly acquired under Section 7, the recurring payment would be revised under provisionGof newly added sub-section (2B).

8 Section 8(2B) reads as follows:

“(2B) The recurring payment in respect of any property shall be revised by re-determiningsuch payment in the manner and in accordance with the principles set out in sub-section(1), read with clause (a) of sub-section (2), as if such property had been requisitionedunder this act on the date with effect from which the revision has to be made under suchHsub-section (2A)”

terms of joint memo filed by the parties by which it was agreed thatthe matter with respect to determination of compensation would beremanded/remitted for fresh adjudication; however, the compensationfixation of 10.01.1968 was agreed to be final and binding. The only caveatadded was that the question of maintainability of appeals under Section11 of the Requisitioning Act was pending before this Court in certainproceedings. However, the parties agreed that till disposal of appeal bythe arbitrator, the compensation fixed @ 3 per square foot would beoperative. It was further agreed that in case the appeals were not heldto be maintainable, the compensation fixed by the award was to be treatedas final. But on the other hand, if the appeal was held to be maintainable,the arbitrator had to decide the fixation of compensation for the periodprior to 10.01.1968.

9. By judgment of this Court[9], it was held that an award coveringthe period of requisition can be challenged in appeal and that the awardmade under DIA was not appealable. Thus, the compensation fixationfor the period upto 10.01.1968 in this case (when the requisition of suitlands was made under DIA) became final.

10. On 28.01.1985, in the second arbitration proceeding, based onthe fixation of compensation till 10.01.1968, it was held that the fixationof compensation till 10.01.1968 had to be accepted and basic fixation ofrent was to be increased for over 5 years thereafter. The arbitrator thenproceeded to fix the rental compensation payable per square foot for 3distinct periods, i.e. 10.01.1968 to 10.01.1973 (@ 4.10 per squarefoot); 10.01.1973 to 10.01.1975 (@ 5.40 per square foot) and10.01.1978 to 10.01.1985 ( Rs.10.20 per square foot). The partiesappealed against this judgment. By common judgment and order[10] inMFA 1405/1985, decided on 24.11.1994, Division Bench of theKarnataka High Court noted that the issue as to the extent of land forwhich compensation had to be determined was one that required decisionby the arbitrator. The High Court noted that there was no evidence todeduce whether notice under the Land Acquisition Act had been served,and that there was nothing to show when the award was made by theCollector, to support the Union’s contention about the acquisition of certainportions of the suit land. These were, therefore, left for enquiry andfresh decision. The Court proceeded to decide on the issue of

9 Special Military Estates Officer v. Munivenkataramiah and Anr. 1990 (1) SCR 4

10 Reported as Union of India v B.M. Krishnamurthy 1995 (4) KarLJ 607.

Acompensation and held that the agreed compensation in terms of theprevious joint memo, i.e. for the period up to 10.01.1968 was final. TheDivision Bench further noted that the arbitrator was not bound to treatthe amounts fixed for the period as on 10.01.1968 as the basic figureand proceed to increase the rent periodically. It was noted that the questionof fixation for period of five years arose after Section 8(2A) wasBintroduced to the Requisitioning Act– thus the recurring compensationquestion had to be decided from 10.01.1968 and then from thecommencement of the Amendment Act and again from the expiry ofthat Act. It, therefore, held, upon reading of Section 8(2A) that

“recurring compensation payable in this case from 10.01.1968Cto the commencement of the amendment Act 2 of 1975 upto07.03.1975 shall be fixed and for the period 07.03.1975 itshould be done as indicated in Section 8(2A).’’

11. The award, therefore, was set aside and the matter wasremitted for fresh consideration by the arbitrator. In this fresh (third)Dround, the arbitrator published two awards – one dealing with the extentof land, and the other the compensation payable. After examining all theevidence, including the documentary evidence, presented by the parties,as well as the oral testimony, i.e. the oral deposition on behalf of theUOI, it was held that Survey nos. 103/1 and 103/2 were not validlyEacquired by the Central Government and that Survey No.104 was validlyacquired. The other award determined the land value and recurring annualvalue at different rates, which is set out below in tabular form:12. Aggrieved by the two awards, both dated 28.02.2000, the Unionpreferred an appeal (MFA 2220/2002) before the Karnataka High Court.During its pendency, the widow of the late BM Krishnamurthy and thepresent appellants, her children, filed writ petition (WP 8340/2006)claiming that since the period of requisition had ended and the suit landshad not been acquired, the possession of the Union after 1987 wasuntenable in law. In judgment delivered on 11.01.2008 (i.e. the sameday when the impugned judgment was pronounced) the Division Benchof the Karnataka High Court rejected the contentions of the Union vis-a-vis its acquisition of suit lands, or any part thereof, and noted that thecourt was concerned “only with Sy. Nos. 103/1 and 103/2 for theperiod between 1968 and 2000 and so far as Sy. No. 104 isconcerned, between the period 1968 and 1977, as the portion ofthe land measuring 11985.24 square feet undisputedly came to beacquired”. It upheld the awards of the arbitrator fixing the compensationin 2000 and held that:

“Accordingly, in view of the discussion and reasoning statedabove, we confirm the fact that neither Sy. No. 103/1 nor Sy.No. 103/2 ever came to be validly acquired by the authoritiesfor the benefit of appellant herein. We hold the rentalcompensation computed by the arbitrator is just and proper.”

13. The Union sought special leave to appeal under Article 136 ofthe Constitution, against the said judgment dismissing its appeal[11]. Byorder dated 10.09.2010, that special leave petition was dismissed, keepingit open for the Union to acquire the property, in accordance with law.Thus, as regards the question of ownership and the rental payable till theperiod 07.03.2000, the issue attained finality. By the impugned judgmentdelivered 11.01.2008, the Division Bench after considering the records,dismissed the appellants’ writ petition and held that

“It is also noticed from the records, originally the land inquestion came to be handed over to the defence authorities Itis also noticed from the records, originally the land in questioncame to be handed over to the defence authorities by invokingthe provisions of defence of India Act 1962 which act cameto be repealed on 10.01.1968. By virtue of Section 25 of theRequisitioning Act, 1952, whatever has been done under theDefence Act of India, is presumed to have been done under

the Requisitioning Act, therefore, u/s 6 of the RequisitioningAct, the authorities could not have held the property beyond08.03.1987 at any cost. We say so because withing the saidperiod, of 07.03.1987, apparently, there was no validacquisition of properties by the concerned authorities as notedabove.

It is also brought to our notice that though portions of landin different Sy. Numbers adjacent to these lands came to beacquired in the year 1972 and also on earlier occasions, suchacquisitions never came to be challenged by the respectiveowners and the defence authorities continued to be inpossession of those properties as beneficiaries after acquiringthe said lands by the competent authority. We notice that fromthe contentions of the defence authorities right from 1941 tilldate, about 600 acres is in possession of them and some ofthe lands are acquired other than the lands in question. ThisSy. No. 103 seems to be in the centre of that 600 acres on thisvast area of 600 acres which is enclosed by fence by theauthorities. They have put up firing range, buildings, paradeground etc.

In that view of the matter, as we noted above already, at thisElate hour of the day, it would not be just and proper to directthe respondents to hand over the possession of thoseproperties. In the connected MFA No. 2220/02, we havealready approved the computation of rental compensationawarded by the arbitrator upto 07.03.2000. The petitionersare entitled to seek compensation for the subsequent periodFin accordance with law.

The Respondents - defence authorities and the StateGovernment are at liberty to initiate acquisition proceedingsso far as these lands are concerned if they need in respect ofproperty in Sy. No. 102/1 and 103/2 as well, for the benefit ofGthe defence authorities.”

The contentions

14. Mr. Mohan Parasaran, the appellant’s senior counsel, arguedthat having upheld the main contentions with respect to the ownershipand title of the suit lands, the impugned judgment erred in law, in refusingH

to grant the reliefs claimed in the writ proceedings. It was argued thateven if arguendo any acquisition notification had covered any periodupto 1975, with the coming into force of the 1984 amendments to theLand Acquisition Act, period of 2 years was statutorily granted byParliament to complete the acquisition, i.e. to issue the award. Sinceconcededly there was no award valid ever made by virtue of the operationof law, i.e. Section 11A[12], the question of ownership, which was decidedby the arbitrator in the first and third award, became conclusive andbinding. It was also urged that the directions of the earlier Division Benchruling inB.M. Krishamurthy13 were specifically to determine the extentof land acquired; in compliance, the arbitrator, in the third arbitrationproceedings, by the first award,decided the extent of acquired land.Those findings of the arbitrator, rendered by virtue of the earlier remand,became final because the Union’s appeal was rejected by the DivisionBench. Further, the special leave petition against that judgment wasrejected by this court.

15. It was argued that once the issue of ownership stood settledconclusively, the Union had to vacate the suit property, because itspossession was not justified or authorized by law. Learned counsel reliedon the ruling of this court[14] which held, recollecting an earlier judgmentin State of Haryana v Mukesh Kumar[15] that the right to property is“not only constitutional or statutory right, but human right”.This court quoted with approval earlier judgments, which had ruled thatdeprivation of possession of one’s property without law was untenable.It was argued that the determination of compensation was up to theperiod ending in 2000, i.e. 20 years ago. In the meanwhile, the value of

12 Section 11A reads as follows:“11A. Period shall be which an award within made. - The Collector shall make anaward under section 11 within period of two years from the date of the publication ofthe declaration and if no award is made within that period, the entire proceeding for theacquisition of the land shall lapse:

Provided that in case where the said declaration has been published before thecommencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), the awardshall be made within period of two years from such commencement.Explanation - In computing the period of two years referred to in this section, the periodduring which any action or proceeding to be taken in pursuance of the said declarationis stayed by an order of Court shall be excluded.”13 Supra n. 10

14 Vidya Devi v. State of H.P. 2020 (2) SCC 569.15 2013 (1) SCC 353

Aproperty, as well as recurring value of compensation had risenastronomically as the suit lands had great commercial potential.

16. Mr. K.M. Natraj, learned Additional Solicitor General, urgedthis court not to interfere with the impugned judgment. According tohim, the High Court correctly denied the claim to release of lands, sinceBit was dispute which had to be decided by the civil court. The learnedASG sought to argue that the findings with regard to extent of ownershipwere ambiguous and the courts committed errors in ignoring that the suitlands were acquired through notifications in 1941. Mr. Natraj contestedthe submission that the lands were unlawfully occupied, pointing out thatthe properties were requisitioned validly and that those orders were neverCquestioned by either the predecessor of the appellants or them, in anyproperly instituted proceedings.

Analysis and findings

17. From the narration of events, it is clear that first, the suitDproperties were requisitioned in 1963, under the DIA. The amendmentto the Requisition Act, which enacted Section 25 in 1968, had the effectof creating deeming fiction that requisitions under the DIA were deemedto be under the Requisitioning Act. Thereafter, due to successiveamendments to the Requisitioning Act, the period of requisition continued;it finally ended in 1987. In the meanwhile, the original landowner, lateEKrishnamurthy, sought and was granted reference to arbitration, onthe issue of compensation payable. The first award made in 1975, decidedboth the question of extent of land requisitioned (and also the land ownedby the landowner). The award was questioned, but the appeal wasdisposed of by the High Court on 21.07.1978, on the basis of jointFmemo. The fresh determination which was made through the awarddated 28.01.1985, again re-determined the compensation payable forthe period after 1.10.1968, using the capital value fixed earlier as thebasis. This led to the judgment of the High Court[16] which held that therewas no evidence to support the Union’s contention that some part of thesuit lands had been acquired. However, on that question as well as theGissue of basis for the recurring compensation (as well as its computation),the dispute was remitted. This time, the arbitrator rendered two awards-one, deciding the question of ownership or its extent and the second, onthe question of compensation determination. The Union appealed to the

High Court; that appeal[17] was dismissed by judgment, delivered on thesame day as the impugned judgment. The Union’s special leave petitionwas dismissed 10 years ago (on 10.9.2010). This court left it open to theUnion to take steps in accordance with law, with respect to the property.The impugned judgment too, held that the question of ownership hadattained finality – and in favour of the appellants. That part of the judgmenthas not been appealed against by the Union.

18. The legal effect of requisitioning immovable property, it goeswithout saying, is that temporarily- i.e. for the period the requisition orderis in operation, the owner loses her possessory rights, even though thetitle remains undisturbed. Since the deprivation of possession is throughauthority of law, in keeping with fair procedure, the law (in this case, theRequisitioning Act) provides for payment of compensation in accordancewith predetermined principles. Yet, the taking of property by definition isfinite: it cannot result in expropriation or deprivation of title altogether,unless another process for acquiring it, is initiated.

19. Whilst dealing with similar enactment[18] this court, in GrahakSanstha Manch v. State of Maharashtra[19] held through ConstitutionBench, that requisition, by its nature, is temporary and that thelandowner’s right to property cannot remain suspended indefinitely, atthe wishes of the state or its agencies:

“16. We find ourselves in agreement with the view taken inthe cases of Collector of Akola [(1968) 1 SCR 401 : AIR 1968SC 244] and Jiwani Kumar Paraki [Jiwani KumarParaki v. First Land Acquisition Collector, (1984) 4 SCC 612]that the purpose of requisition order may be permanent.But that is not to say that an order of requisitioning can becontinued indefinitely or for period of time longer thanthat which is, in the facts and circumstances of the particularcase, reasonable. We note and approve in this regard, as didthis Court in Jiwani Kumar Paraki case [Jiwani KumarParaki v. First Land Acquisition Collector, (1984) 4 SCC 612],the observations of the Nagpur High Court in the caseof Mangilal Karwa v. State of M.P. [ILR 1955 Nag 34 : AIR1955 Nag 153] which have been reproduced above. That the

17 MFA 2220/2002

18 The Bombay Land Requisition Act, 1948

19 (1994) 4 SCC 192 at page 204

Aconcept of requisitioning is temporary is also indicated bythe Law Commission in its Tenth Report and, as pointed outearlier, by the terms of the said Act itself, as it originally stoodand as amended from time to time. There is no contradictionin concluding that while requisition order can be issued fora permanent public purpose, it cannot be continuedBindefinitely. Requisitioning might have to be resorted to for apermanent public purpose, to give an example, to tide overthe period of time required for making permanent premisesavailable for it. The concepts of acquisition and requisitionare altogether different as are the consequences that flowCtherefrom. landlord cannot, in effect and substance, bedeprived of his rights and title to property without being paiddue compensation, and this is the effect of prolongedrequisitioning. Requisitioning may be continued only for areasonable period; what that period should be would dependupon the facts and circumstances of each case and it wouldDordinarily, be for the Government to decide.”

20. When this court had to adjudicate, in Rajendra Kumar Guptav. State of U.P[20] on somewhat similar facts, i.e. the requisition havingbeen resorted to during national emergency under the DIA, and itscontinuance under the Requisitioning Act, the question which arose wasEthe continued possession by the state. The court held that such possession,long after the requisition period had ceased, was contrary to law andobserved that:

“14. We, therefore, will have to examine the efficacy of theimpugned order from the point of view of its prolongedFduration uptil now which as seen earlier has been spreadover more than two decades from the date on which it got itsbirth on 29-10-1976. For deciding this question we will assumewith the respondents, for the sake of argument, that on theday on which it was passed it was validly passed under theGprovisions of Section 23. Even then the moot question stillremains whether such an emergency order of requisition whichmight be justified in those days when it was passed couldnow be permitted to continue indefinitely. For answering thisquestion we may usefully refer to the decision of the

Constitution Bench of this Court in the case of GrahakSanstha Manch [(1994) 4 SCC 192] . The Constitution Benchhas in terms laid down that even though requisition ordercan be issued for permanent public purpose under theprovisions of the Bombay Land Requisition Act, 1948 it cannotbe continued indefinitely. We may usefully refer to the relevantobservations made in this connection by Bharucha, J.speaking for the majority of the Constitution Bench, inparagraphs 16 and 17 of the Report: (SCC p. 204)

*******

We have already shown that in the context of the emergencyprovisions of the Act in question the powers which could beexercised for requisitioning properties under Section 23 bytheir very nature could not be utilised for requisitioningimmovable properties for an indefinite period. Such requisitionvirtually amounts to acquisition. In the facts and circumstancesof this case it must be held that when years back the parentAct had ceased to operate and the internal and externalemergency declarations had stood withdrawn, now obviouslythere is no rhyme or reason why such requisition order,which by efflux of time has become stale and its very purposehas become obsolete, should be permitted to be continuedany further and the appellants’ properties should be stillpermitted to remain requisitioned and in possession of therespondents. In the facts and circumstances of the case,therefore, it must be held that continued requisition of theappellants’ leasehold premises by now at least must be treatedto have become unreasonable and it would necessarilyindicate abuse of power and colourable exercise thereof. Itmust be held that the impugned requisition order evenassuming that it was valid and kicking and was not stillbornwhen it was passed in 1976, by now it has lost its efficacyand has become dead letter, in the present set ofcircumstances obtaining today. Even on this ground thecontinuance of the impugned requisition order cannot besustained and has to be put an end to. The third point is also,therefore, answered in the affirmative in favour of theappellants and against the respondents.

A15. In this connection we may also note that it is not the caseof the respondents that now they require to acquisition therequisitioned premises on permanent basis for the purposefor which they were initially requisitioned, by exercise ofpowers under Section 30 of the Act. In fact the said provisioncould have been pressed in service by Respondent 3, if at all,Bduring the currency of the Act which provision is obviouslynot available to them now. Non-exercise of powers underSection 30 for acquiring these requisitioned properties duringthe time the Act was in force itself shows that even accordingto the respondents the Government did not require the saidCrequisitioned land to be acquired for its purposes or that itwas felt that the cost of restoration of the requisitionedproperty by the Government would be excessive. During thependency of these proceedings this Court had earlier directedby order dated 21-9-1984 that status quo will remain so faras the construction in any part of the open space is concerned.DThat status quo was continued by an order of 29-10-1984.However by latter order dated 9-2-1987 while grantingspecial leave this Court had refused to grant stay but hadmade it clear that the respondents will not be entitled to claimthe benefit of Section 30 of the Defence and Internal SecurityEof India Act, 1971 in the event of the appeal being allowed.Any further construction effected by the respondents will notbe pleaded as defence during the hearing of the appeal.Under these circumstances, therefore, there cannot remainany valid defence for the respondents against the restorationof possession of the requisitioned premises to the appellantsFonce the impugned order of requisition is found to be invalidin view of our findings on the aforesaid points fordetermination.

16. In the result the appeal is allowed. The judgment and orderof the High Court are set aside. The writ petition filed by theappellants before the High Court is allowed. The impugnedorder of requisition of the premises in question dated29-10-1976 is quashed and set aside. The respondents aredirected to restore the possession of these requisitionedproperties forthwith to the appellants by clearing off whatever

construction may be existing on the spot and making availablethe requisitioned properties in their original form and shapeto the appellants. The respondents are directed to comply withthis order within eight weeks from the date of receipt of copyof this order at their end. In the facts and circumstances ofthe case there will be no order as to costs.”

21. Although the right to property is not fundamental rightprotected under Part III of the Constitution of India[21], it remains valuableconstitutional right. The importance of this right has been emphasizedand iterated several times by this court. In Delhi Airtech Services PvtLtd v. State of U.P[22]for instance, this court underlined the issue asfollows:

“30. It is accepted in every jurisprudence and by differentpolitical thinkers that some amount of property right is anindispensable safeguard against tyranny and economicoppression of the Government. Jefferson was of the view thatliberty cannot long subsist without the support of property.”Property must be secured, else liberty cannot subsist” wasthe opinion of John Adams. Indeed the view that propertyitself is the seed bed which must be conserved if otherconstitutional values are to flourish is the consensus amongpolitical thinkers and jurists.”

Earlier, in State of Rajasthan v. Basant Nahata[23], this courthighlighted that property owner’s rights cannot be deprived, statingthat:

“59. ..In absence of any substantive provisions contained ina parliamentary or legislative act, he cannot be refrained fromdealing with his property in any manner he likes. Suchstatutory interdict would be opposed to one’s right ofproperty as envisaged under Article 300-A 300-A of theConstitution.”

21 By reason of deletion of Article 19 (1) (f) and Article 31 with sub heading “Right toProperty” which were omitted by the Constitution 44th Amendment Act, 1978. Article31(1) was in effect, enacted as Article 300A – through an insertion in Chapter IV PartXII of the Constitution.22 (2011) 9 SCC 354

23 (2005) 12 SCC 77

AThe decision in K.T. Plantation Pvt. Ltd. v. State of Karnataka[24]interpreted Article 300A and held that:

“168. Article 300A proclaims that no person can be deprivedof his property save by authority of law, meaning therebythat person cannot be deprived of his property merely byBan executive fiat, without any specific legal authority orwithout the support of law made by competentlegislature. The expression “property” in Article 300-Aconfined not to land alone, it includes intangibles likecopyrights and other intellectual property and embracesevery possible interest recognized by law.C

169. This Court in State of W.B. v. Vishnunarayan andAssociates (P) Ltd.[6], while examining the provisions of theWest Bengal Great Eastern Hotel (Acquisition of Undertaking)Act, 1980, held in the context of Article 300-A that the Stateor executive officers cannot interfere with the right of othersDunless they can point out the specific provisions of law whichauthorises their rights.”

22. Other judgments of this court have also highlighted theimportance of the right under Article 300-A, in the context of regulatorylaws and enactments, which do not directly result in expropriation orEacquisition, but rather, in an oblique and indirect fashion, block the rightto enjoyment of properties, underlining that the essential theme of Article300-A is unauthorized deprivation, which would result in an indefinitesuspension of the right to property. The court stressed that the law (ofdevelopment or town planning, of any other such enactment) should beFexplicit about the nature and effect of the deprivation, expressingthe intention to do so. Therefore, in T. Vijayalakshmi v. Town PlanningMember[25], this court observed that:

“13. Town Planning legislations are regulatory in nature. Theright to property of person would include right to constructa building. Such right, however, can be restricted by reasonGof legislation. In terms of the provisions of the KarnatakaTown and Country Planning Act, comprehensivedevelopment plan was prepared. It indisputably is still in force.

24 (2011) 9 SCC 1H25 (2006) 8 SCC 502

Whether the amendments to the said comprehensivedevelopment plan as proposed by the Authority wouldultimately be accepted by the State or not is uncertain. It isyet to apply its mind. Amendments to development plan mustconform to the provisions of the Act. As noticed hereinbefore,the State has called for objection from the citizens. Ecologicalbalance no doubt is required to be maintained and the courtswhile interpreting statute should bestow seriousconsideration in this behalf, but ecological aspects, it is trite,are ordinarily part of the town planning legislation. If inthe legislation itself or in the statute governing the field,ecological aspects have not been taken into considerationkeeping in view the future need, the State and the Authoritymust take the blame therefor. We must assume that these aspectsof the matter were taken into consideration by the Authorityand the State. But the rights of the parties cannot beintermeddled with so long as an appropriate amendment inthe legislation is not brought into force.* * *

15. The law in this behalf is explicit. Right of person to construct residential houses in the residential area is avaluable right. The said right can only be regulated in termsof regulatory statute but unless there exists clear provisionthe same cannot be taken away. ….”

(emphasis supplied)

This court has also recognized that regulatory laws, which havethe effect of impacting the right to property, should be strictly construed.[26]

26 State of U.P. v. Manohar, (2005) 2 SCC 126; Delhi Airtech Services (P) Ltd. (supra);Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111; ShrirampurMunicipal Council v. Satyabhamabai Bhimaji Dawkher, 2013 (5) SCC 627 : especiallythe following observation:

“Shri Naphade’s interpretation of the scheme of Sections 126 and 127, if accepted,will lead to absurd results and the landowners will be deprived of their right touse the property for an indefinite period without being paid compensation. Thatwould tantamount to depriving the citizens of their property without the sanction-”of law and would result in violation of Article 300A of the Constitution.

Ref. also to Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, (2013)5 SCC 627 Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & ChemicalsLtd., (2007) 8 SCC 705; Ramchandra Ravindra Waghmare v. Indore MunicipalCorporation, (2017) 1 SCC 667; and, more recently in M.C. Mehta v Union of India2020 SCC Online (SC) 658.

A23. In very recent judgment, D.B. Basnett v. Land AcquisitionOfficer,[27] the court approved the findings of the courts below that thelands were never acquired, because the procedure prescribed was notfollowed; notice of acquisition had not been given, nor was any amountproved to have been received. The court also turned down the state’splea of adverse possession, and granted relief in the following terms:B

“20. We are conscious that the land is being used by therespondent State through Respondent 2 Department. That,however, does not give such licence to the State Government.We had endeavoured to refer the matter for mediation, to findan amicable solution, but that did not fructify. We, however,Cwould like to give some time to the respondent State to analysethe consequences of this judgment, and, in case they so desire,to acquire the land through proper notification under thesaid Act, and to take proper recourse in law so as to enablethem to keep the land. We grant three (3) months’ time fromDthe date of the judgment for the respondent State to make uptheir mind as to what they want to do. Would they still like toretain the land by issuing proper notification, or would theylike to surrender possession of the land. In either eventuality,the question of payment for use and occupation would stillarise, which will have to be determined in accordance withElaw. Mesne profits would be determined by CourtCommissioner, to be appointed by the trial court, as reliefin that behalf has been sought in the plaint itself.”

24. To sum up the facts, repeatedly the Union asserted that it hadacquired at least some parts of the suit lands; these were examined byFthe High Court on two occasions, and in arbitration proceedings underthe Requisitioning Act, on three occasions. Each time, the factual findingswent against the Union. The Union’s occupation ceased to be lawful,with the lapse of the Requisitioning Act, in 1987. Yet, it has implacablyrefused to hand back possession, each time asserting that it has someGmanner of rights over it. The High Court, while noticing that the Union’sclaim had no merits (in both its appeal, which was dismissed, as well asin the impugned judgment, disposing of the writ petition), neverthelessrefused to issue any direction for the release of the suit lands. Therationale given was that the adjoining areas had been acquired and

were used by the Union for defense purposes. What is more theimpugned judgment granted indefinite time to the Union to take steps toacquire the suit lands. The Union has not chosen to do so these last 12years. These facts paint stark, even sordid picture.

25. The United States of America set up an exclusive court (theUnited States Court of Federal claims, since 1866, referred to as “keeperof the nation’s conscience” to enable citizens to claim justice againstthe Federal government with poignant motto[28]. By contrast, the Indianexperience has been that the governments, taking cue from the Englishexperience, initially asserted that they are not subject to the law insistingupon the continuation of the royal prerogative (by virtue of Article 372of the Constitution) which enabled the crown in the UK to assert itsright to insist that it was not bound by the law, unless there was expressstatutory intent[29].Mercifully, later judgment[30] overruled thatunderstanding. In Superintendent and Remembrancer of Legal Affairs(supra, f.n. 29) this court held that“23. The next question is whether this Court should adoptthe rule of construction accepted by the Privy Council ininterpreting statute vis-a-vis the Crown. There are manyreasons why the said rule of construction is inconsistent withand incongruous. In the present set-up we have no Crown,the archaic rule based on the prerogative and perfection of

28 The motto of that court aptly summarizes its task, and the duty of the Federalgovernment:

“It is as much the duty of Government to render prompt justice against itself, infavor of citizens, as it is to administer the same, between private individuals.”29 In Director of Rationing and Distribution v. Corporation of Calcutta [(1961) 1 SCR158] where this Court held that the State was not bound by the provisions of state law and was not liable to prosecution for its contravention. Sinha, C.J., spoke for themajority; Sarkar, J., concurred separately and Wanchoo, J., recorded his dissent. Thereasoning of Sinha, C.J., is found in the following passage:

“It is well-established that the common law of England is that the King’sprerogative is illustrated by the rule that the Sovereign is not necessarily boundby statutory law which binds the subject…. That was law applicable to Indiaalso, as authoritatively laid down by the Privy Council in the case referred toabove [(1946) L. Rule 73 I.A. 271]…… it (law in force under Article 372 of theConstitution) must be interpreted as including the common law of Englandwhich was adopted as the law of this country before the Constitution came intoforce.” (At p. 173).

30 Superintendent and Remembrancer of Legal Affairs v. Corpn. of Calcutta, (1967) 2SCR 170

Athe Crown has no relevance to democratic republic; it isinconsistent with the rule of law based on the doctrine ofequality….”

26. It is, therefore, no longer open to the state: in any of its forms(executive, state agencies, or legislature) to claim that the law – or theBconstitution can be ignored, or complied at its convenience. The decisionsof this court, and the history of the right to property show that though itspre-eminence as fundamental right has been undermined, nevertheless,the essence of the rule of law protects it. The evolving jurisprudence ofthis court also underlines that it is valuable right ensuring guaranteedfreedoms and economic liberty. The phrasing of Article 300-A isCdeterminative and its resemblance with Articles 21 and 265 cannot beoverlooked- they in effect, are guarantee of the supremacy of the ruleof law, no less. To permit the state: whether the Union or any stategovernment to assert that it has an indefinite or overriding right to continueoccupying one’s property (bereft of lawful sanction)– whatever be the

Dpretext, is no less than condoning lawlessness. The courts’ role is to actas the guarantor and jealous protector of the people’s liberties: be theyassured through the freedoms, and the right to equality and religion orcultural rights under Part III, or the right against deprivation, in any form,through any process other than law. Any condonation by the court is avalidation of such unlawful executive behavior which it then can justifyEits conduct on the anvil of some loftier purpose, at any future time- aptlydescribed as “loaded weapon ready for the hand of any authoritythat can bring forward plausible claim of an urgent need.”[31]

F31 The phrase is quoted from Justice Robert Jackson’s powerful and timeless dissent inKorematsu v United States 323 US 214 (1944). The full text of the relevant extract,where the judge dissented from the majority of the US Supreme Court, which upheldthe indefinite internment of American citizens of Japanese origin, is reproduced below:

“a judicial construction of the due process clause that will sustain this order isa far more subtle blow to liberty than the promulgation of the [military] orderitself. military order, however unconstitutional, is not apt to last longer thanGthe military emergency. … once judicial opinion rationalises such an order toshow that it conforms to the Constitution, or rather rationalises the Constitutionto show that the Constitution sanctions such an order, the Court for all times hasvalidated the principle of racial discrimination in criminal procedure and oftransplanting American citizens. The principle then lies about like loadedweapon ready for the hand of any authority that can bring forward plausibleHclaim of an urgent need.”

27. For the above reasons, this court holds that the impugnedjudgment committed an error in refusing relief to the appellants. 33 years(based upon cessation of the Union’s legal possession) is long enoughtime, even in India, to be kept away from one’s property. The respondentUnion is directed to hand back possession of the suit lands to the appellants,within three months. Furthermore, it is open to the appellants to seekcompensation based on fresh fixation of capital value and recurring annualvalue, based on the different five-year periods for the last 20 years.Such claim shall be referred to arbitration, within four weeks of receiptof the reference. The arbitrator shall proceed to pronounce the awardwithin six months of receipt of the reference. This is independent of theUnion’s obligation to vacate and hand over peaceful possession of thesuit lands within three months.

28. The appeal is allowed in the above terms; the appellants shallbe paid costs, quantified at 75,000/-.

Kalpana K. Tripathy

Appeal allowed.