Case: KALYANI (DEAD) THROUGH LRS. &amp; ORS Vs. THE SULTHAN BATHERY MUNICIPALITY  &amp; ORS

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 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. 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. 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 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 Karnataka (2011)9 SCC 1 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. 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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]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.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 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 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 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.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.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 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 Karnataka (2011)9 SCC 1  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. 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.