Bombay High Court
Purnima Talkies Thr. Hemant Mali ( ... vs Chief Officer Dahanu Nagar Parishad And ... on 20 February, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:8143-DB W. P. 11543-2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11543 OF 2024
Purnima Talkies
Through Hemant Mali (Proprietor)
Dahanu Par Naka
Taluka Dahanu, District - Palghar ... Petitioners
Versus
1. Chief Officer, Dahanu Nagar Parishad,
Dahanu Nagar Parishad, Dahanu.
2. Dahanu Nagar Parishad
Opposite Dahanu Road Post Office
Main Road, Dahanu Road
Taluka - Dahanu.
District: Palghar - 410 602.
3. The State of Maharashtra ... Respondents
Ms. Yogita Deshmukh - Chitnis, for the Petitioners.
Mr. Kedar Dighe, Addl. GP a/w Ms. S.S. Bhende, AGP for the Respondents
- State.
_______________________
CORAM: G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
JUDGMENT RESERVED ON : 6 DECEMBER 2024
JUDGMENT PRONOUNCED ON : 20 FEBRUARY 2025
_______________________
Pallavi Wargaonkar, PS Page 1 of 22
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W. P. 11543-2024
JUDGMENT (Per Advait M. Sethna, J.) :
1. Rule, returnable forthwith. The respondents waive service. By
consent of the parties, heard finally.
2. This petition is filed under Article 226 of the Constitution of
India for the following substantive reliefs:-
"(b) That the Hon'ble High Court may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other writ/
Order/direction to the Respondent No.1 be directed to acquire the land of
the Petitioner under the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 in the
absence of agreement in regards to acceptance of TDR/FSI and pay them
monetary compensation.
(c)That the Hon'ble High Court may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
writ/Order/direction direct the Respondent Nos.1 to 3 not to disturb
the peaceful possession of the Petitioner till the monetary
compensation is paid to the Petitioner."
A) Issues Before the Court:
3. The legal issue which arises for consideration in this petition,
revolves around the legality of the impugned order dated 23 July 2024
("Impugned Order" for short) passed by respondent no. 1 whereby it refused to
grant compensation to the petitioner as prayed for and holding that the
petitioner is entitled only to TDR/FSI rights as set out in the impugned order.
Petitioner questions the validity and legality of the rejection of the petitioner's
claim to monetary compensation under provisions of the Right to Fair
W. P. 11543-2024
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 ("the 2013 Act" for short) to be read with the relevant
provisions of the Maharashtra Regional Town Planning Act ("MTRP Act" for
short).
(B) Factual Matrix:
The relevant facts necessary for adjudication of the present proceedings are :-
4. The petitioner is a proprietary concern of one Shri Hemant Mali,
residing at taluka Dahanu, District Palghar. The petitioner is in the business
of a Cinema Talkies as the cause title indicates. The respondent no. 1 is the
Chief Officer of the Dahanu Nagar Parishad. The respondent no. 2 is Dahanu
Nagar Parishad. The respondent no. 3 is the State of Maharashtra.
5. The petitioner has contended that Purnima Talkies was
constructed on an area admeasuring about 3027 sq. meters and situated in
Survey no. 7 ("The Subject Property/Land" for short) near Par Naka at
Dahanu. The land in question, is stated to be have vested in the sole
proprietor of the petitioner, pursuant to the grant of Sanad dated 1 October
1939, in favour of the late maternal grandfather of the petitioner, namely, Shri
Jamu Damu Mali, the ancestors of the petitioner. Thereafter, along with
Purnima Talkies there was a stall and a toilet constructed on the Subject
W. P. 11543-2024
Land/Property. The names of all legal heirs of the petitioner were mutated to
the revenue records.
6. By a letter dated 22 April 1993, the petitioner was granted a
permission by respondent no. 2 to construct a compound wall, for purposes of
protection of the subject land, by removing the barbed wire fencing. Such
permission was granted pursuant to an application of the petitioner dated 14
April 1993.
7. It was on 13 February 2019, that one Mr. Yash Dhanesh Mali,
nephew of the sole proprietor of the petitioner, who applied to respondent no.
1 for seeking permission to build and start an auto service station on the
subject land. However, such application remained to decided by respondent
no. 1.
8. A notification dated 20 June 1991 was issued by the Ministry of
Environment and Forest, Union of India, Department of Environment, Forest
and Wildlife declaring Dahanu town and taluka as an ecologically fragile area
with restrictions on setting up of industries that would have a detrimental
effect on the environment. Pursuant to the above, the Urban Development
Department of the State of Maharashtra issued a notification dated 4 April
2012 for preparation of draft development plan for Dahanu which entailed the
W. P. 11543-2024
permissible development activities that could be undertaken under such plan,
which was subsequently notified with modifications.
9. Respondent no.1 issued a notice dated 30 August 2022 to the
petitioner for road widening to the extent of 30 meters in accordance with the
development plan referred (Supra). The notice also called upon the petitioner
and legal heirs to remain present with documents of title on 1 September 2022
at the office of respondent no. 1. It was recorded that the compound wall
constructed by the proprietor of the petitioner, was impacting/affecting the
road widening to be carried out by the respondents for public purpose.
10. Pursuant to such notice, the petitioner filed a representation dated
20 September 2022 addressed to respondent no. 1 seeking clarification on the
aspect of monetary compensation for the proposed acquisition of subject
property/land.
11. The petitioner also preferred an application dated 22 September
2022 under Right to Information Act, 2005 ("RTI Act" for short) addressed
to the respondent no. 2 seeking documents pursuant to the issuance of
development plan by the respondents and the proposed acquisition of the
subject land. However, the petitioner claims that all documents were not
provided to the petitioner, hence, the petitioner also preferred an appeal dated
11 November 2022 under the RTI Act.
W. P. 11543-2024
12. Further, vide letter dated 10 January 2023, the petitioner
communicated with respondent no. 1, being the first appellate authority under
the RTI Act, acknowledging the receipt of the Gazette Notification in regard to
Approval of the Development Plan (Supra). The petitioner also intimated
respondent no. 1 about the provision of incomplete information to him and
therefore, requested for a personal hearing. However, according to the
petitioner, no such hearing was given.
13. The petitioner through his advocate addressed a legal notice dated
10 February 2023 to respondent no. 1, challenging the proposed demolition of
the said compound wall, as noted by us hereinabove. Respondent no. 1
replied to the said notice by its letter dated 15 February 2023, and furnished
certain information to the petitioner. Respondent no. 1 also raised an objection
regarding the construction of the washing center situated within the subject
land claiming that it was unauthorized.
14. Having received such reply, the petitioner through its advocate
issued another legal notice dated 27 February 2023 to respondent no. 1,
addressing the objections raised by respondent no. 1. The petitioner, in such
notice invited attention of respondent no. 1 to an application dated 13
February 2019 addressed by the nephew of the petitioner's proprietor, one
Mr. Yash Dhanush Mali addressed to respondent no. 1seeking permission to
W. P. 11543-2024
build and start auto service station on the subject land. Such application dated
13 February 2019 had remained to be decided, as also not rejected by the
respondents. It was specifically recorded that the action to compulsory acquire
the land, shall be undertaken by the State Government, on payment of
compensation.
15. On such backdrop, the petitioner filed Civil Suit No. 29 of 2023
before the Court of learned Civil Judge, Junior Division, Dahanu ("Trial
Court" for short) under Section 38 of the Specific Relief Act 1963. Under
Order XXXIX Rule (1), (5) of the Code of Civil Procedure, 1908, ("CPC" for
short) the petitioner prayed for a temporary injunction against the respondents
not to proceed with the demolition work on the suit property, i.e., subject
lands, as planned by the respondents and that they be immediately restrained
from carrying on any further demolition work. The petitioner also preferred an
Interim Application (Exhibit 5) dated 27 March 2023 in the said suit praying
for an interim injunction against the proposed demolition, of the compound
wall by the respondents constructed on the subject land.
16. An order dated 10 January 2024 was passed by the Trial Court on
the above interim application (Exhibit 5) filed in the said suit of the petitioner
rejecting the injunction application.
W. P. 11543-2024
17. On refusal of the Trial Court to grant a temporary injunction, on
16 January 2024 the petitioner's compound wall on the subject land was
demolished by the respondent no. 2 under police protection. Further,
respondent no. 2 put colored markings for the proposed road widening and
installed cement poles of uneven markings on the subject land/property. The
petitioner, as a consequence of such action of the respondents, amended the
plaint in Civil Suit No. 29 of 2023, being aggrieved by such demolition. By an
amendment (dated 16 July 2024), the petitioner additionally prayed for
damages of Rs. 4,85,000 for illegal demolition of the compound wall and other
structures on the Subject Land with directions to the respondents to
reconstruct the demolished compound wall and other structures on the Subject
Land of the petitioner, within a time bound period.
18. The petitioner then filed an appeal dated 9 February 2024 under
Order XLIII of the CPC, against the order dated 10 January 2024 of the Trial
Court (Supra) rejecting the interim application for injunctory reliefs filed by
the petitioner.
19. By an order dated 31 May 2024, the said appeal of the petitioner
was partly allowed by the Trial Court. The court held that, the contention of
the petitioner to seek permission to re-erect the compound wall was required to
be decided by the Trial Court. Accordingly, the order dated 10 January 2024
W. P. 11543-2024
passed by the Trial Court rejecting the petitioner's interim application (Exhibit
5), was set aside. The interim application filed in the suit was restored to the
file of the Trial Court for de novo adjudication. Directions were also issued to
respondent No. 2 keeping it open for the said respondent to decide the
representation of the petitioner dated 20 September 2022 in regard to claiming
compensation during pendency of the petitioner's interim application, which
was restored, as stated (Supra).
20. Pursuant to the above order a hearing notice was issued by
respondent No. 2 to the petitioner on which the petitioner was heard in the
offices of respondent No. 1 on 19 July 2024. Thereafter, as per minutes of
hearing dated 19 July 2024 the petitioner submitted his response, raising
objections in writing through his advocate, inter alia, alleging that respondent
No. 1 had acted in a biased manner. Thus, the petitioner strongly opposed the
hearing to be conducted by respondent No. 1.
21. On the aforesaid backdrop, dehors the objection of the petitioner,
as noted (Supra) the respondent No. 1 proceeded to pass the impugned order
dated 23 July 2024, against which the petitioner being aggrieved has preferred
this writ petition filed on 11 August 2024.
W. P. 11543-2024
(C) Rival Contentions:-
The case of the Petitioner:-
22. At the very outset, Ms. Yogita Deshmukh, learned counsel for the
petitioner would submit that the respondents have acted contrary to and in
breach of the provisions of Section 126 of the MRTP Act. It is further
submitted that the mandate under Section 126(1)(a) and 126(1)(b) of the said
Act has been totally overlooked, ignored by the respondents, in as much as,
there is no agreement and/or a concluded contract between the petitioner and
the respondent authorities, as far as the grant and acceptance of TDR/FSI is
concerned. It is her submission that in view of such undisputed factual
position, one would have to resort to Section 126(1)(c) of the MRTP Act,
under which the petitioner is entitled to the grant of compensation to be
determined and paid under the provisions of the 2013 Act. She would thus
submit that the actions of the respondents are in complete violation of such
statutory scheme and provisions contemplated under the MRTP Act, which
cannot be countenanced.
23. Ms. Deshmukh further contended that the respondents could not
have acquired the subject land of the petitioner without initiating proceedings
as stipulated under the 2013 Act. Both logically and legally, it was incumbent
to grant monetary compensation to the petitioner and thereafter the
W. P. 11543-2024
respondents ought to have proceeded for demolition in the manner recognised
by law. However, none of this was done.
24. Ms. Deshmukh would further submit that for the purposes of
granting TDR/FSI to the petitioner in lieu of compensation, there ought to be
a concluded contract between the petitioner and the respondents, which was
not so in the present case. Thus, nothing precluded the State and/or the
respondents Nos. 1 to 3 from paying compensation to the petitioner under the
provisions of the 2013 Act, as prescribed under Section 126(1)(c) of the MRTP
Act. In other words, the respondents could not have foisted upon the
acceptance of TDR/FSI on the petitioner in the absence of such
agreement/concluded contract between them, as expressly provided under
Section 126 of the MRTP Act. It is further submitted that in any event had the
respondents intended to grant of TDR/FSI to the petitioner, in lieu of
compensation, nothing prevented them from executing an agreement to that
effect as mandated in law, failing which the petitioner had to be paid monetary
compensation. It is submitted that the respondent authorities failed to consider
that the subject land of the petitioner is situated at Dahanu which has been
declared as an ecologically fragile area under notification dated 20 June 1991
issued by the MoEF, read with notification dated 4 April 2012 for preparation
of draft development plan for Dahanu, which provided the permissible
development activities to be undertaken under such plan. In view thereof, had
W. P. 11543-2024
there been any offer by the respondents to the petitioner to accept TDR/FSI
that too would have served no purpose, as the subject land then formed a part
of the green zone.
25. Ms. Deshmukh would then submit that respondents Nos. 1 and 2
ought to have considered that the ancestors of the petitioner had received the
subject land under a Sanad dated 1 October 1939. The building structure of
the petitioner talkies was almost 82 years old. The land and structure inside the
compound wall was no more protected pursuant to the demolition of the same
by the respondents. Such illegal demolition had caused huge financial loss and
mental agony to the petitioner. To make things worse for the petitioner there
was no compensation paid by the respondents to the petitioner, thus putting
the petitioner to undue hardship and onerous burden. She submits that such
actions of the respondents demonstrate arbitrariness and highhandedness on
part of the respondents.
26. Ms. Deshmukh then placed reliance on the decision of the Full
Bench of this Court (Nagpur Bench), in the case of Shree Vinayak Builders and
Developers, Nagpur v. State of Maharashtra and Others 1 to buttress her
submission that only when an agreement is entered between the parties with
regard to acquisition of land, by granting TDR/FSI rights to the petitioner,
would constitute a step towards acquisition of land. In the absence of such
1. 2022(4) Mh.L.J. 739
W. P. 11543-2024
agreement/concluded contract between the parties as in the given case, such
acquisition was contrary to the provisions of Section 126 of the MRTP Act and
hence illegal.
27. Ms. Deshmukh would also place reliance on the decision of a
Coordinate Bench of this Court in Our Lady of Immaculate Conception
Church A Public Charitable Trust v. Municipal Corporation OF Greater
Mumbai & Ors2 (of which one of us Justice G.S. Kulkarni was a member). This
is to contend that as held by the Full Bench decision of this Court (Supra), the
respondents could not have acquired the subject land of the petitioner contrary
to law, for the reasons noted above. In view thereof, the acquisition by the
respondents in the present case was completely contrary to the mandate and
procedure prescribed by law.
Submissions of the Respondents:-
28. Mr. Kedar Dighe, learned Additional Government Pleader and
Ms. Bhende, learned AGP for the respondents would not dispute the relevant
factual matrix as narrated above, essential for adjudicating the dispute in the
present petition. In fact, they would fairly submit that they cannot controvert
the settled legal position in the given facts and circumstances. This is with
regard to the predominant issue of land acquisition and payment of
2. 2024 SCC OnLine Bom 1905
W. P. 11543-2024
compensation in the context of the provisions of the MRTP Act and the 2013
Act, with the legal consequences thereof on the demolition of the petitioner's
compound wall, without payment of compensation. Both the learned counsel
for the respondents are not in a position to distinguish and/or controvert the
settled law as laid down by the decisions of the Courts in this regard.
(D) Analysis and Conclusion:
29. At the very outset to enable us to adjudicate on the issues
involved in the present petition, it is imperative to refer to the provisions of
Section 125 of the MRTP Act which read thus:-
"Section 125: Any land required, reserved or designated in a
Regional plan, Development plan or town planning scheme for
a public purpose or purposes including plans for any area of
comprehensive development or for any new town shall be
deemed to be land needed for a public purpose 1[within the
meaning of the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013
(30 of 2013)] :
2[Provided that, the procedure specified in sections 4 to 15
(both inclusive) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (30 of 2013) shall not be applicable in
respect of such lands.]"
Also, section 126 of the MRTP Act inter alia provides for acquisition of
land required for public purpose. The said provision stipulates that after
publication of the draft plan, or a development plan or any other plan or town
planning scheme, any land which is required or reserved for any public purpose
W. P. 11543-2024
specified in any plan or scheme under the MRTP Act, the competent authority
may acquire the land:- (a) by an agreement to pay the amount agreed to; or (b)
in lieu of such amount by granting the landowner FSI or TDR on the
surrender land or (c) by making an application to the State Government for
acquiring the land under the 2013 Act.
30. In the above context, it is to be noted that the fulcrum of dispute
in the present case touches upon the legal authority and power of the
respondents under the MRTP Act to acquire the subject land for public
purpose. On perusal of the scheme, framework, and applicable provisions of
the MRTP Act, it is clear that this can be done only by invoking Section 126(1)
(c) of the MRTP Act. However, for the said provision to apply, there ought to
be an express agreement between the parties, in regard to acceptance of
TDR/FSI. In absence of such agreement, the TDR/FSI, cannot be foisted on
the petitioner, particularly when, admittedly, there is no such agreement, as in
this case.
31. We may now refer to a decision of the Full Bench of this Court in
the case of Shree Vinayak Builders & Developers (Supra). The Court posed
three important questions referred for opinion of the Larger Bench :-
"(i) Whether the modes of acquisition provided under Section
126(1)(a) and (b) of the MRTP Act are at the choice of either of
the parties or only of the acquiring authority?
W. P. 11543-2024
(ii) If the planning authority has approved the request of the land
owner for grant of monetary compensation or grant of
TDR/FSI in lieu of compensation, can the land owner
withdraw his request and thereby refuse or decline to surrender
the land?"(i) Whether the modes of acquisition provided under
Section 126(1)(a) and (b) of the MRTP Act are at the choice of
either of the parties or only of the acquiring authority?
(ii) If the planning authority has approved the request of the land
owner for grant of monetary compensation or grant of
TDR/FSI
(iii) Can the grant of approval or passing of resolution by the
authorities concerned for grant of TDR in lieu of monetary
compensation be treated as a step for acquisition of land and
thereby commencing the proceedings for acquisition of the
land?"
In the above context, it would be apposite to refer to the relevant
paragraphs in the said judgment which have a significant bearing in deciding
the issues involved in the present petition:
"17. While concurring with the above proposition, we would like
to emphasize that the mode of acquisition of land under
Section 126(1)(a) and (b) of the MRTP Act is by an
"agreement". The word agreement connotes offer and
acceptance and signifies that the agreement is not an
unilateral act but a bilateral act which is concluded with
communication of acceptance of the offer. Thus, Acquisition
of land reserved for public purpose under Section 126(1) (a)
and (b) cannot be by any unilateral proposal of the Acquiring
Authority to acquire the land with an offer of compensation
or FSI/TDR. It is a mutual agreement between the Acquiring
Authority and the land owner whereunder the land is
acquired by the concerned authority by agreement either by
paying an amount agreed to or by granting, in lieu of any
agreed amount, FSI or TDR against the area of land
surrendered free of cost, and free of all encumbrances. That
being so, the modes of acquisition of land under Section
126(1)(a) and (b) of the MRTP Act, can be resorted to only
when there is a consensus between the parties; when the
parties are ad idem and not when there is dissension; not
W. P. 11543-2024
when they are at variance. That means these modes of
acquisition are essentially at the choice of either of the parties
and not just the acquiring authority, and are taken to their
logical end when the consensus is arrived at between these
parties. In the absence of such concord, the only option
available to the Acquiring Authority is to take recourse to
Section 126(1) (c) of the Act and make an application to the
State Government under the provisions 2013 Act.
27. Thus the contract would be legal and binding only when the
terms are settled and the contract is concluded. Of course,
whether there is any concluded contract or not would be a
question of fact to be determined in the facts and
circumstances of each case. It then follows that any
application made by a land owner or lessee for grant of FSI or
TDR or any approval given by the acquiring authority to such
an application would have to be examined and considered on
the touchstone of these requirements of a contract. Upon such
examination, if it is found that any of these requirements is
missing, there would be no concluded contract between the
parties and the land owner or lessee would be at liberty to
withdraw his application for grant of FSI/TDR.
28. While finding out if there is a concluded contract between the
parties or not, in case of an agreement under Section 126 (1)
(a), not much difficulty would be faced as the requirement
thereunder is of plain and clear agreement whereby the land is
acquired by paying an amount agreed to. But determination
of question as regards agreement under Section 126 (1) (b)
requires examination of acts and conduct of parties and an
assurance that they are in consonance with the requirements
of Section 126 (1)(b) of the MRTP Act.
34. We are, thus, of the view that once there is a concluded
contract between the land owner or the lessee and the
acquiring authority as regards grant of monetary
compensation or grant of TDR/FSI in lieu of compensation,
the land owner or the lessee cannot withdraw his request and
thereby refuse to surrender the land. He can withdraw his
such request only if there is no concluded contract between
the parties. What would be considered to be a concluded
contract between the parties, would be a question of fact to be
determined by considering all the relevant facts and
circumstances of each case.
W. P. 11543-2024
41. It is thus well settled that the step taken under the aforestated
section should be an irreversible step, which will culminate in
acquisition of land. Hence, mere grant of approval or passing
of resolution by the authorities concerned for grant of TDR in
lieu of monetary compensation cannot be treated as a step for
acquisition of land, but it is the conclusion of a contract
regarding acquisition of land by granting FSI/TDR which
constitutes a step for acquisition of land. Surrender of land
with a view to obtaining FSI/TDR can be a step to commence
acquisition proceedings, if it is something by which
conclusion of contract occurs. There may be, however, be
cases in which by acts and conduct of parties contract in terms
of Section 126(1)(b) of the MRTP Act is concluded even
before surrender of land and the latter act is only
consequential to contract between the parties. Ultimately, it all
boils down to the stage when the contract between parties
concludes."
The above decision of the Full Bench for the purposes of adjudicating
the present dispute lends clarity to the legal position that the insistence by the
authorities to accept TDR/FSI in lieu of monetary compensation cannot be
construed as a step towards acquisition of land. Instead, the determining
factor in such situation would be an express agreement between the parties
providing for acquisition of land by the grant of TDR/FSI, which would be the
yardstick for acquisition of such land. In the present case, admittedly there is no
agreement between the parties. Thus, the sequel to the absence of such
agreement as the law would warrant, would be payment of compensation by
the respondents to the petitioner, which is the ratio of the Full Bench judgment
(Supra).
W. P. 11543-2024
32. We would now gainfully advert to the judgment of a Coordinate
Bench of this Court in the case of Our Lady of Immaculate Conception Church
(Supra), wherein the Court in similar circumstances made the following observations.
"10. A bare reading of Section 126 of the
Maharashtra Regional and Town Planning
Act, 1966 would indicate that a land reserved
for public purpose can either be acquired by
an agreement by paying an amount or in lieu
of such amount, the TDR or FSI can be
granted to the claimant. However, the TDR
or FSI can only be granted in lieu of the
amount agreed. As such, it is necessary that
for TDR or FSI to be granted to the claimant,
there has to be basic agreement between the
parties. The TDR/FSI can only be granted in
lieu of the amount agreed. In the absence of
agreement between the parties, the reserved
land cannot be acquired under clause (a) or
clause (b) of Section 126(1). If there is no
agreement, the logical corollary to it is that,
the land reserved for public purpose has to be
subjected to acquisition as per the applicable
law, namely to be acquired under Section
126(1)(c). As such, we have no hesitation to
hold that the land of the petitioner, in
absence of any agreement between the
petitioner and the planning
authority/development authority, can be
acquired only under the 2013 Act for the
purposes of implementation of the regional
plan for constructing public garden/park on
the land of the petitioner."
The above judgment has duly considered and applied the decision of
the Full Bench (Supra), reiterating that if there is no agreement between the
owner of the land and the planning authority, the logical corollary would be
that the land acquisition ought to be undertaken in accordance with Section
W. P. 11543-2024
126(1)(c) of the MRTP Act. Resultantly, in absence of an agreement between
the petitioner and the planning/development authority, the subject land could
have been acquired only under the 2013 Act. Juxtaposing the said decision to
the given facts, in our view, the above judgment would squarely apply to the
present case.
33. While considering the submissions of the petitioner to the effect
that the entire process relating to acquisition of the subject land was arbitrary,
mechanical and highhanded we would refer to the seven guiding principles laid
down by the Supreme Court in the case of Kolkata Municipal Corporation &
Anr. v. Bimal Kumar Shah & Ors.3, which ought to be followed by the
authorities, prior to land acquisition, for public purpose. These are summarized
as under:
A. The Right to Notice,
B. The Right to be Heard,
C. The Right to a reasoned decision,
D. The Duty to Acquire only for Public Purpose,
E. The Right of Restitution or Fair Compensation,
F. The Right to an Efficient and Expeditious Process,
G. The Right of Conclusion.
3. 2024 SCC OnLine SC 968.
W. P. 11543-2024
34. It is pertinent to note that such edict of law more particularly the
right of restitution or grant of fair compensation to the petitioner is ex facie
breached and or infringed, violated by the respondents. In this context, the
Supreme Court has duly recognised that right to hold and enjoy property is an
integral part of the constitutional right under Article 300A. Any deprivation or
extinguishment of such right is permissible only upon restitution, be it in the
form of monetary compensation, rehabilitation or such other measures.
Compensation has always been considered to be an integral part of the
acquisition process. In the present case, the only mode and manner of
restitution of the petitioner's position, whose compound wall was demolished,
in the absence of the respondents following due process of law as prescribed
under Section 126 of the MRTP Act, would be by payment of compensation,
to be determined and paid under the provisions of the 2013 Act. In fact, Courts
have taken a consistent view that such compensation is not merely necessary
but also that a fair and reasonable compensation is the sine qua non for any
acquisition process.4
35. At this juncture, we consider it appropriate to also refer to the
settled legal proposition as enunciated by the Court of Chancery in Taylor v.
4. In State of U.P. v. Manohar, (2005) 2 SCC 126, this Court held that payment of compensation is an integral part of the process of land
acquisition. In M. Naga Venkata Lakshmi v. Visakhapatnam Municipal Corpn., (2007) 8 SCC 748, this Court held that wherever
promised, compensation is ought to be paid. In NHAI v. P. Nagaraju, (2022) 15 SCC 1, this Court held that compensation must be
adequate and must be arrived at keeping in mind the market value of the acquired land. In Vidya Devi v. State of H.P., (2020) 2 SCC 569,
this Court held that even though compensation is not expressly provided for under Article 300A of the Constitution, it can be inferred
therein. In the American jurisprudence, payment of compensation has been made part of due process (See Sweet v. Rechel [159 US 380
(1895) : 40 L.Ed. 188], Delaware L. & W.R. Co. v. Morristown [276 US 182 (1928) : 72 L.Ed. 523] and United States v. Caltex
(Philippines) [344 US 149 (1952) : 97 L.Ed. 157).
W. P. 11543-2024
Taylor5 that where any statutory provision provides a particular manner for
doing a particular act, then, that thing or act must be done in accordance with
the manner prescribed therefore in the Act. The respondents clearly
overlooked said settled legal principles in the case.
36. Thus, in the given facts and circumstances, we are constrained to
observe that instead of taking recourse to lawful acquisition of land, the
respondents in the present case have gone ahead to demolish the compound
wall on the subject land of the petitioner that too without payment of any
compensation to the petitioner. Thus, the respondents have acted contrary to
and in the teeth of the provisions of law as discussed above, which has also
infringed the constitutional right of the petitioner guaranteed under Article
300A.
37. In the light of the above discussion, we are certain that the
petition needs to succeed. It is accordingly made absolute in terms of prayer
clauses (b) & (c).
38. No order as to costs.
(ADVAIT M. SETHNA, J.) (G. S. KULKARNI , J.)
5. [L.R.] 1 Ch. 426, 431
PALLAVI MAHENDRA
MAHENDRA WARGAONKAR
WARGAONKAR Date: 2025.02.20
Pallavi Wargaonkar, PS
12:34:39 +0530
