Compulsory Acquisition of Private Property: The Supreme Court lists seven subordinate rights to the constitutional right to property

Supreme Court: In the appeal filed by the Calcutta Municipal Corporation (the “Corporation”) against the judgment of the Calcutta High Court in which the Court held that there was no power to compulsorily acquire immovable property under Art. 352 of the Calcutta Municipal Corporations Act, 1980 (the “Act”), Division Bench P. S. Narasimha and Aravind Kumar, JJ. upheld the contested judgment. Moreover, when interpreting the concept of “legal authority” contained in Art. 300A of the Constitution, the Tribunal stated that the minimum content of the constitutional right to property includes seven partial rights or procedures, such as the right to notification, hearing, justification of the decision, obtaining exclusively for public purposes, fair compensation, efficient conduct of the proceedings within deadlines and final conclusion. These secondary rights have become synchronously part of our law and have been recognized by the court. Therefore, because Art. 352 does not provide for these secondary rights or procedures, it can never constitute a valid right to acquire. Moreover, the Court stated that Art. 352 is intended only to enable the Municipal Commissioner to decide whether land is to be acquired for a public purpose. In fact, the power to acquire is vested in the State under Art. 537 and shall exercise it at its discretion whenever a request to that effect is made by the municipal commissioner.

Analysis and decision:

After getting acquainted with the scheme of the Act and examining Art. 352 of the Act, the Tribunal stated that Art. 352 only considers the powers and duties of the municipal commissioner to determine the area intended for opening a street, park, etc., and after making this decision, the Mayor will take steps to acquire such property. Once the Municipal Commissioner decides to purchase a plot of land, the course of the acquisition process is not specified in Art. 352, but in Art. 535. The phrase “The City Commissioner may purchase” in Art. 352 does not appear at all. power of takeover.

The Tribunal also held that at the request of the Municipal Commissioner under Art. 537 relating to the acquisition of land for the purpose of opening a street, square, park, etc. The Government may order the initiation of land acquisition proceedings in the name of the Corporation as if the land were required for a public purpose within the meaning of the Land Acquisition Act, 1894.

Therefore, it is clear from the scheme of the Act that Art. 352 authorizes the city commissioner to determine the land necessary for the opening of public streets, squares, parks, etc., and under Art. 537 the municipal commissioner must apply to the municipal government for compulsory acquisition of land.

As to the claim that there is also a provision for compensation under Art. 363, if the land is acquired pursuant to Art. 352, the Court agreed with the High Court that the provision concerned the payment of compensation pursuant to contract and not to compulsory acquisition.

Property law: A network of intersecting rights:

The Court said that under our constitutional system, adherence to due process of law before depriving anyone of immovable property is well-entrenched. While it is true that after the 44th Amendment to the Constitution, property rights moved from Part III to Part XII of the Constitution, there is still a strong safety net against arbitrary seizures, hasty decision-making and unfair redress mechanisms. Despite its spatial location, Art. 300A has been characterized as both a constitutional right and a human right.

The Court noticed this “To assume that constitutional protections are limited to a fair compensation mandate would be a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution“.

The Court concluded that a binary reading of the constitutional right to property must give way to more meaningful interpretations in which the broader right to property is viewed as encompassing intersecting subordinate rights, each of which is distinct in nature but interconnected to form a whole. These partial rights are interwoven, and therefore state action or legislation resulting in the deprivation of private property must be assessed in relation to this constitutional web as a whole, and not just to one or more of its strands.

The Court identified the following 7 non-exhaustive subordinate rights:

1. Right to terminate – the state’s obligation to inform a person about the intention to acquire his property

2. The right to be heard – the state’s obligation to listen to objections to the acquisition

3. The right to a reasoned decision – the state’s obligation to inform the person about the purchase decision

4. Obligation to acquire exclusively for a public purpose – the state’s obligation to demonstrate that the acquisition is of a public nature

5. The right to restitution or fair compensation – the state’s obligation to restitution and rehabilitation

6. The right to an efficient and speedy trial – the state’s obligation to effectively carry out the takeover process within specified procedural deadlines

7. The right to conclude a contract – the final completion of the proceedings leading to the acquisition of rights

The Court found that these seven rights constitute the basic elements of a right consistent with Art. 300A and the absence of one or some of them will make the law open to challenge. These procedural sub-rights have been synchronously incorporated into the compulsory taking laws and are also recognized by our constitutional courts when reviewing administrative proceedings involving the compulsory taking of private property.

The Court also added that these seven principles constitute an integral part of the authority of the law enabling the compulsory acquisition of private property. Federal and state statutes have adopted these principles and incorporated them in various forms into laws providing for the compulsory acquisition of real estate. The importance of these principles, regardless of the statutory limitation period, was noticed by constitutional courts and became part of administrative law jurisprudence.

The Court held that a valid power of attorney to take, coupled with the provision of fair compensation, does not in itself supplement or exhaust the power and process of taking. Determining the necessary procedures before depriving a person of property is an integral part of “legal authority” within the meaning of Art. 300A, and Art. 352 of the Act does not provide for any proceedings.

The Court was of the opinion that the High Court was fully justified in allowing the application for an injunction and rejecting the land acquisition case of the Corporation under s. 352 of the Act. Therefore, the Court dismisses this appeal on the basis of costs estimated at PLN 500,000. 5,00,000/-, payable to respondent 1 within sixty days from the date of this judgment.

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