# Kolkata Municipal Corporation & Anr v. Bimal Kumar Shah & Ors

- **Citation:** 2024 INSC 435
- **Court:** Supreme Court of India
- **Decided:** 2024-05-16
- **Case number:** Civil Appeal No. 6466 of 2024
- **Bench:** Pamidighantam Sri Narasimha, Aravind Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kolkata-municipal-corporation-anr-v-bimal-kumar-shah-ors-37719
- **Pages:** 28

## Headnote

State Municipal Corporation having claimed to have acquired the
property of respondent-land bearer in exercise of powers u/s.352
of the Kolkata Municipal Corporation Act, 1980, the High Court,
if justified in holding that there was no such power of compulsory
acquisition of immovable property u/s.352 of the Act.
Headnotes†
Kolkata Municipal Corporation Act, 1980 - s. 352 - Power to
acquire lands and buildings for public streets and for public
parking places - Interpretation of s. 352 - If there is power of
compulsory acquisition of immovable property u/s. 352 - On
facts, Kolkata Municipal Corporation claims to have acquired
the property of respondent-land bearer in exercise of powers
u/s. 352 - Single Judge and the Division Bench of the High Court
concurrently held that there was no such power of compulsory
acquisition of immovable property u/s. 352 - Interference with:
Held: Not called for - Scheme of the Act makes it clear that s. 352
empowers the Municipal Commissioner to identify the land required
for the purpose of opening of public street, square, park, etc. and u/s.
537, the Municipal Commissioner has to apply to the Government
to compulsorily acquire the land - Upon such an application, the
Government may, in its own discretion, order proceedings to be
taken for acquiring the land - s. 352 is thus, not the power of
acquisition - It cannot be said that s. 352 enables the Municipal
Commissioner to acquire land - s. 352 is only intended to enable
the Municipal Commissioner to decide whether a land is to be
acquired for public purpose - Power of acquisition is in fact vested
with the State u/s. 537 and it will exercise it, in its own discretion,
whenever the Municipal Commissioner makes an application to that
effect - s. 363 is not a provision for compensation for compulsory
acquisition - Valid power of acquisition coupled with the provision
832
[2024] 5 S.C.R.
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for fair compensation by itself would not complete and exhaust the
power and process of acquisition - Prescription of the necessary
procedures, before depriving a person of his property is an integral
part of the 'authority of law', u/Art. 300A and, s. 352 of the Act
contemplates no procedure whatsoever - Thus, the exercise of
the power is illegal, illegitimate and caused great difficulty to the
respondent-land-bearer - Single Judge held that the appellantCorporation acted in blatant violation of statutory provisions - High
Court justified in rejecting the case of the Corporation acquiring
land u/s. 352 - Costs quantified at Rs. 5,00,000/- to be paid to the
respondent no. 1-land bearer. [Paras 22, 23, 32-35]
Kolkata Municipal Corporation Act, 1980 - Scheme of the Act -
Explained. [Paras 14-23]
Constitution of India - Art. 300 A - Right to property - Net of
intersecting rights - Seven sub-rights or procedures to right
to property:
Held: Under the constitutional scheme, compliance with a fair
procedure of law before depriving any person of his immovable
property is well entrenched - Art 300A which declares that "no
person shall be deprived of his property save by authority of law"
has been characterised both as a constitutional and also a human
right - Twin conditions of the acquisition being for a public purpose
and subjecting the divestiture to the payment of compensation
in lieu of acquisition were mandated - Although not explicitly
contained in Art 300A, these twin requirements have been read in
and inferred as necessary conditions for compulsory deprivation
to afford protection to the individuals who are being divested of
property - Furthermore, binary reading of the constitutional right
to property must give way to more meaningful renditions, where
the larger right to property is seen as comprising intersecting
sub-rights, each with a distinct character but interconnected to
constitute the whole - Seven such sub-rights can be identified,
albeit non-exhaustive - These are, the right to notice; the right
to be heard; the right to a r

## Text

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* Author
[2024] 5 S.C.R. 831 : 2024 INSC 435
Kolkata Municipal Corporation & Anr.
v.
Bimal Kumar Shah & Ors.
(Civil Appeal No. 6466 of 2024)
16 May 2024
[Pamidighantam Sri Narasimha* and Aravind Kumar, JJ.]
Issue for Consideration
State Municipal Corporation having claimed to have acquired the
property of respondent-land bearer in exercise of powers u/s.352
of the Kolkata Municipal Corporation Act, 1980, the High Court,
if justified in holding that there was no such power of compulsory
acquisition of immovable property u/s.352 of the Act.
Headnotes†
Kolkata Municipal Corporation Act, 1980 - s. 352 - Power to
acquire lands and buildings for public streets and for public
parking places - Interpretation of s. 352 - If there is power of
compulsory acquisition of immovable property u/s. 352 - On
facts, Kolkata Municipal Corporation claims to have acquired
the property of respondent-land bearer in exercise of powers
u/s. 352 - Single Judge and the Division Bench of the High Court
concurrently held that there was no such power of compulsory
acquisition of immovable property u/s. 352 - Interference with:
Held: Not called for - Scheme of the Act makes it clear that s. 352
empowers the Municipal Commissioner to identify the land required
for the purpose of opening of public street, square, park, etc. and u/s.
537, the Municipal Commissioner has to apply to the Government
to compulsorily acquire the land - Upon such an application, the
Government may, in its own discretion, order proceedings to be
taken for acquiring the land - s. 352 is thus, not the power of
acquisition - It cannot be said that s. 352 enables the Municipal
Commissioner to acquire land - s. 352 is only intended to enable
the Municipal Commissioner to decide whether a land is to be
acquired for public purpose - Power of acquisition is in fact vested
with the State u/s. 537 and it will exercise it, in its own discretion,
whenever the Municipal Commissioner makes an application to that
effect - s. 363 is not a provision for compensation for compulsory
acquisition - Valid power of acquisition coupled with the provision
832
[2024] 5 S.C.R.
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for fair compensation by itself would not complete and exhaust the
power and process of acquisition - Prescription of the necessary
procedures, before depriving a person of his property is an integral
part of the 'authority of law', u/Art. 300A and, s. 352 of the Act
contemplates no procedure whatsoever - Thus, the exercise of
the power is illegal, illegitimate and caused great difficulty to the
respondent-land-bearer - Single Judge held that the appellantCorporation acted in blatant violation of statutory provisions - High
Court justified in rejecting the case of the Corporation acquiring
land u/s. 352 - Costs quantified at Rs. 5,00,000/- to be paid to the
respondent no. 1-land bearer. [Paras 22, 23, 32-35]
Kolkata Municipal Corporation Act, 1980 - Scheme of the Act -
Explained. [Paras 14-23]
Constitution of India - Art. 300 A - Right to property - Net of
intersecting rights - Seven sub-rights or procedures to right
to property:
Held: Under the constitutional scheme, compliance with a fair
procedure of law before depriving any person of his immovable
property is well entrenched - Art 300A which declares that "no
person shall be deprived of his property save by authority of law"
has been characterised both as a constitutional and also a human
right - Twin conditions of the acquisition being for a public purpose
and subjecting the divestiture to the payment of compensation
in lieu of acquisition were mandated - Although not explicitly
contained in Art 300A, these twin requirements have been read in
and inferred as necessary conditions for compulsory deprivation
to afford protection to the individuals who are being divested of
property - Furthermore, binary reading of the constitutional right
to property must give way to more meaningful renditions, where
the larger right to property is seen as comprising intersecting
sub-rights, each with a distinct character but interconnected to
constitute the whole - Seven such sub-rights can be identified,
albeit non-exhaustive - These are, the right to notice; the right
to be heard; the right to a reasoned decision; the duty to acquire
only for public purpose; the right of restitution or fair compensation;
the right to an efficient and expeditious process; and the right of
conclusion - These seven rights are foundational components of
a law that is tune with Art. 300A, and the absence of one of these
or some of them would render the law susceptible to challenge -
These seven sub-rights may be procedures, but they do constitute
[2024] 5 S.C.R.
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Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
the real content of the right to property u/Art. 300A, non-compliance
of these would amount to violation of the right, being without the
authority of law - Seven principles are integral to the authority of
law enabling compulsory acquisition of private property - Union
and State statutes have adopted these principles and incorporated
them in different forms. [Paras 24-29]
Constitution of India - Art. 300 A - Right to property -
Compulsory acquisition of immovable property - Principle of
right to notice - Importance of:
Held: Prior notice informing the bearer of the right that the State
intends to deprive them of the right to property is a right in itself -
Its a linear extension of the right to know embedded in Art. 19(1)
(a) - Constitution does not contemplate acquisition by ambush -
Notice to acquire must be clear, cogent and meaningful - s. 4 of
the Land Acquisition Act, 1894, s. 3(1) of the Requisitioning and
Acquisition of Immovable Property Act, 1952, s. 11 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013, and s. 3A of the National Highways
Act, 1956 reflect statutory incorporation of the right to notice before
initiation of the land acquisition proceedings. [Para 30.1]
Constitution of India - Art. 300 A - Right to property -
Compulsory acquisition of immovable property - Principle of
right to be heard - Importance of:
Held: Right to be heard against the proposed acquisition must
be meaningful and not a sham - Property-bearer has right to
communicate his objections and concerns to the authority acquiring
the property - s. 5A of the Land Acquisition Act, 1894, s. 3(1) of the
Requisitioning and Acquisition of Immovable Property Act, 1952, s.
15 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013, and s. 3C
of the National Highways Act, 1956, are the statutory embodiments
of this right. [Para 30.2]
Constitution of India - Art. 300 A - Right to property -
Compulsory acquisition of immovable property - Principle of
right to a reasoned decision - Importance of:
Held: It is incumbent upon the authority to take an informed decision
and communicate the same to the objector - Authorities have
heard and considered the objections is evidenced only through
a reasoned order - Declaration of the decision to acquire, is
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mandatory, failing which, the acquisition proceedings would cease
to have effect - s. 6 of the Land Acquisition Act, 1894, s. 3(2) of the
Requisitioning and Acquisition of Immovable Property Act, 1952, s.
19 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 and s. 3D of
the National Highways Act, 1956, are the statutory incorporations
of this principle. [Para 30.3]
Constitution of India - Art. 300 A - Right to property -
Compulsory acquisition of immovable property - Principle of
duty to acquire only for public purpose - Importance of:
Held: Acquisition must be for a public purpose is inherent and an
important fetter on the discretion of the authorities to acquire - This
requirement, which conditions the purpose of acquisition must
stand to reason with the larger constitutional goals of a welfare
state and distributive justice - If the court arrives at a conclusion
that that there is no public purpose involved in the acquisition,
the entire process can be set-aside - ss. 4 and 6 of the Land
Acquisition Act, 1894, ss. 3(1) and 7(1) of the Requisitioning and
Acquisition of Immovable Property Act, 1952, ss. 2(1), 11(1),15(1)
(b) and 19(1) of the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and
s. 3A(1) of the National Highways Act, 1956 depict the statutory
incorporation of the public purpose requirement of compulsory
acquisition. [Para 30.4]
Constitution of India - Art. 300 A - Right to property -
Compulsory acquisition of immovable property - Principle
of right of restitution or fair compensation - Importance of:
Held: Person's right to hold and enjoy property is an integral part to
the constitutional right u/Art 300A - Deprivation or extinguishment
of that right is permissible only upon restitution, in the form of
monetary compensation, rehabilitation or other similar means -
Compensation is an integral part of the process of acquisition -
Fair and reasonable compensation is the sine qua non for any
acquisition process - s. 11 of the Land Acquisition Act, 1894,
ss. 8 and 9 of the Requisitioning and Acquisition of Immovable
Property Act, 1952, s. 23 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013, and ss. 3G and 3H of the National Highways Act, 1956
are the statutory incorporations of the right to restitute a person
whose land has been compulsorily acquired. [Para 30.5]
[2024] 5 S.C.R.
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Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
Constitution of India - Art. 300 A - Right to property -
Compulsory acquisition of immovable property - Principle of
right to an efficient and expeditious process - Importance of:
Held: Acquisition process is traumatic for the administrative
delays in identifying the land, conducting the enquiry and
evaluating the objections, leading to a final declaration, consume
time and energy - Further, passing of the award, payment of
compensation and taking over the possession are equally time
consuming - It is necessary for the administration to be efficient
in concluding the process and within a reasonable time - This
obligation must necessarily form part of Art. 300A - ss. 5A(1),
6, 11A, and 34 of the Land Acquisition Act, 1894, ss. 6(1A) and
9 of the Requisitioning and Acquisition of Immovable Property
Act, 1952, ss. 4(2), 7(4), 7(5), 11(5), 14, 15(1), 16(1), 19(2), 25,
38(1), 60(4), 64 and 80 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 and ss. 3C(1), 3D(3) and 3E(1) of the National Highways
Act, 1956, prescribe for statutory frameworks for the completion
of individual steps in the process of acquisition of land within
stipulated timelines. [Para 30.6]
Constitution of India - Art. 300 A - Right to property -
Compulsory acquisition of immovable property - Principle of
right of conclusion - Importance of:
Held: Upon conclusion of process of acquisition and payment of
compensation, the State takes possession of the property in normal
circumstances - With the taking over of actual possession after the
normal procedures of acquisition, the private holding is divested and
the right, title and interest in the property, along-with possession
is vested in the State - Without final vesting, the State's, or its
beneficiary's right, title and interest in the property is inconclusive
and causes lot of difficulties - After taking over possession, the
process of land acquisition concludes with the vesting of the land
with the concerned authority - Obligation to conclude and complete
the process of acquisition is also part of Article 300A - s. 16 of the
Land Acquisition Act, 1894, ss. 4 and 5 of the Requisitioning and
Acquisition of Immovable Property Act, 1952, ss. 37 and 38 of the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, and ss. 3D and 3E of
the National Highways Act, 1956, statutorily recognise this right of
the acquirer. [Para 30.7]
836
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Case Law Cited
State of Kerala v. T.N. Peter [1980] 3 SCR 290 : (1980) 3 SCC
554; Girnar Traders (3) v. State of Maharashtra [2011] 3 SCR
1 : (2011) 3 SCC 1; Bankatlal v. Special Land Acquisition Officer
[2014] 7 SCR 879 : (2014) 15 SCC 116; Nagpur Improvement Trust
v. Vithal Rao [1973] 3 SCR 39 : (1973) 1 SCC 500; Lachhman
Dass v. Jagat Ram [2007] 2 SCR 980 : (2007) 10 SCC 448; Vidya
Devi v. State of Himachal Pradesh [2020] 1 SCR 749 : (2020)
2 SCC 569; State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh of Darbhanga [1952] 1 SCR 889 : (1952) 1 SCC 528;
Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai
[2005] Supp. 3 SCR 388 : (2005) 7 SCC 627; K.T. Plantation Pvt.
Ltd. v. State of Karnataka [2011] 13 SCR 636 : (2011) 9 SCC 1;
Narendrajit Singh v. State of U.P. [1970] 3 SCR 278 : (1970) 1
SCC 125; State of Mysore v. Abdul Razak Sahib [1973] 1 SCR
856 : (1973) 3 SCC 196; Narinderjit Singh and Ranjit Singh v.
State of U.P. [1973] 2 SCR 698 : (1973) 1 SCC 157; Competent
Authority v. Barangore Jute Factory [2005] Supp. 5 SCR 421 :
(2005) 13 SCC 477; Nandeshwar Prasad v. State of U.P. [1964]
3 SCR 425 : AIR (1964) SC 1217; Union of India v. Shiv Raj
[2014] 8 SCR 751 : (2014) 6 SCC 564; Kamal Trading (P) Ltd.
v. State of W.B. [2011] 13 SCR 529 : (2012) 2 SCC 25; Gojer
Bros. (P) Ltd. v. State of W.B. [2013] 12 SCR 489 : (2013) 16
SCC 660; Mohan Singh v. International Airport Authority of India
[1996] Supp. 8 SCR 569 : (1997) 9 SCC 132; Project Director,
Project Implementation Unit v. P.V. Krishnamoorthy [2020] 14
SCR 86 : (2021) 3 SCC 572; Somawanti v. State of Punjab
(1962) SCC OnLine SC 23; Daulat Singh Surana v. First Land
Acquisition Collector [2006] Supp. 8 SCR 1076 : (2007) 1 SCC
641; Union of India v. Jaswant Rai Kochhar [1996] 3 SCR 206 :
(1996) 3 SCC 491; D. Hanumanth SA v. State of Karnataka [2010]
12 SCR 1098 : (2010) 10 SCC 656; Munshi Singh v. Union of
India [1973] 1 SCR 973 : (1973) 2 SCC 337; Madhya Pradesh
Housing Board v. Mohd. Shafi [1992] 1 SCR 657 : (1992) 2
SCC 168; State of U.P. v. Manohar [2004] Supp. 6 SCR 911 :
(2005) 2 SCC 126; M. Naga Venkata Lakshmi v. Visakhapatnam
Municipal Corpn. [2007] 10 SCR 12 :(2007) 8 SCC 748; NHAI v.
P. Nagaraju [2022] 8 SCR 1070 :(2022) 15 SCC 1; Roy Estate
v. State of Jharkhand [2009] 7 SCR 343 : (2009) 12 SCC 194;
Union of India v. Mahendra Girji (2010) 15 SCC 682; Mansaram v.
[2024] 5 S.C.R.
837
Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
S.P. Pathak [1984] 1 SCR 139 : (1984) 1 SCC 125; Kerala State
Housing Board v. Ramapriya Hotels (P) Ltd. [1994] Supp. 2 SCR
338 : (1994) 5 SCC 672; Ram Chand v. Union of India [1993]
Supp. 2 SCR 558 : (1994) 1 SCC 44; Ambalal Purshottam v.
Ahmedabad Municipal Corpn. [1968] 3 SCR 207 : (1968) 3 SCR
207; Khadim Hussain v. State of U.P. [1976] 3 SCR 1 : (1976) 1
SCC 843; State of W.B. v. Vishnunarayan & Associates (P) Ltd.
[2002] 2 SCR 557 : (2002) 4 SCC 134; Jilubhai Nanbhai Khachar
v. State of Gujarat [1994] 1 SCR 807:1995 Supp 1 SCC 596;
P. Chinnanna v. State of A.P. [1994] Supp. 2 SCR 426 : (1994)
5 SCC 486; Delhi Development Authority v. Reena Suri [2016]
2 SCR 396 : (2016) 12 SCC 649; Fruit & Vegetable Merchants
Union v. Delhi Improvement Trust [1957] 1 SCR 1 :1956 SCC
OnLine SC 37; Union of India v. Tarsem Singh [2019] 13 SCR
49 : (2019) 9 SCC 304 - referred to.
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;
United States v. Caltex (Philippines), 344 US 149 (1952) : 97
L.Ed. 157 - referred to.
List of Acts
Kolkata Municipal Corporation Act, 1980; Constitution of India; Land
Acquisition Act, 1894; Requisitioning and Acquisition of Immovable
Property Act, 1952; Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013;
National Highways Act, 1956.
List of Keywords
Power of compulsory acquisition of immovable property; Public
purpose; Fair compensation; Costs; Right to property; Net of
intersecting rights; Seven sub-rights or procedures to right to
property; Right to notice; Right to be heard; Right to a reasoned
decision; Duty to acquire only for public purpose; Right of restitution
or fair compensation; Right to an efficient and expeditious process;
Right of conclusion.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6466 of 2024
From the Judgment and Order dated 17.12.2019 of the High Court
at Calcutta in APO No. 523 of 2017
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Appearances for Parties
Jaideep Gupta, Sr. Adv., Sujoy Mondal, Satish Vig, Partha Sil, Ms.
Sayani Bhattacharya, Abhiraj Choudhary, Chirag Joshi, Sanjiv Kr.
Saxena, Advs. for the Appellants.
Mukul Rohatgi, Huzefa Ahmadi, Sr. Advs., Ms. Ranjeeta Rohatgi,
Sagnik Majumdar, Rishabh Karnani, Ms. Shrika Gautam, Ms.
Madhumita Bhattacharjee, Sandeep, Ms. Srija Chodhury, Ms.
Osheen Bhat, Ms. Nitipriya Kar, Chanchal Kumar Ganguli, Shreyas
Awasthi, Ms. Ripul Swati Kumari, Ms. Astha Sharma, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
TABLE OF CONTENTS*
Introduction...................................................................................
1
Facts .............................................................................................
2
Submission of Counsels ............................................................
7
Scheme of the Act ......................................................................
8
The Right to property: A net of intersecting rights ................
15
The Right to notice ..................................................................
19
The Right to be heard .............................................................
20
The Right to a reasoned decision .........................................
21
The Duty to acquire only for public purpose .......................
22
The Right of restitution or fair compensation .....................
23
The Right to an efficient and expeditious process ..............
24
The Right of conclusion ........................................................
26
Conclusions ................................................................................
28
Judgment
Pamidighantam Sri Narasimha, J.
1.
Leave granted.
Introduction: The Kolkata Municipal Corporation claims to have
acquired the property of respondent no. 1 in exercise of powers under
Section 352 of the Kolkata Municipal Corporation Act, 1980. A single
Judge and the Division Bench of the High Court have concurrently held
* Ed. Note: Pagination as per the original Judgment.
[2024] 5 S.C.R.
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Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
that there is no such power of compulsory acquisition of immovable
property under Section 352. While upholding the decision of the High
Court, we have given our additional reasons by interpreting the text
and the context in which Section 352 is placed in the Act. Rejecting
the alternative argument of the appellant-Corporation that there is also
a provision for compensation under Section 363 of the Act when land
is acquired under Section 352, we have examined the constitutional
position of acquisition of immovable property whereunder the mere
presence of power to acquire coupled with a provision for payment
of fair compensation by itself is not sufficient for a valid acquisition.
Interpreting "authority of law" in Article 300A of the Constitution,
we have held that a minimum content of a constitutional right to
property comprises of seven sub-rights or procedures such as the
right to notice, hearing, reasons for the decision, to acquire only for
public purpose, fair compensation, efficient conduct of the procedure
within timelines and finally the conclusion. These sub-rights have
synchronously formed part of our laws and have attained judicial
recognition. Therefore, as Section 352 does not provide for these
sub-rights or procedures, it can never be a valid power of acquisition.
Before we deal with the submissions and analyse the provisions, we
will first narrate the necessary facts.
2.
Facts: The property in question, Premises No. 106C, situated
at Narikeldanga North Road, Kolkata - 7000111, belongs to Mr.
Birinchi Bihari Shah2 having succeeded it through a deed of
settlement executed by his father. As Birinchi Shah was minor at
the time when his father passed away, his elder brother managed
and administered the Property and, in that process, he also let
out the premises admeasuring 2 bighas 18 kathas 6 chitaks and
40 square feet in favour of one M/s Arora Film Corporation. Upon
attaining majority, the Property was mutated in the name of Birinchi
Shah in the assessment book of the appellant-Corporation. It is
affirmatively stated that all municipal dues including taxes with
respect to the Property were paid regularly. It is also stated that
the appellant-Corporation acknowledged the same and by its letter
dated 07.04.2000 admitting that there are no outstanding dues with
respect to property tax.
1
Hereinafter, referred to as the "Property".
2
Hereinafter, referred to as "Birinchi Shah".
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3.
In the year 2009, when an attempt was made by the appellantCorporation to forcefully enter and occupy the Property, Birinchi
Shah filed a writ petition being W.P. No. 126 of 2009 before the High
Court seeking a restraint order against the appellant-Corporation.
4.
As there was no real contest about the title in the Property and the
appellant-Corporation having not filed any affidavit-in-opposition, the
High Court disposed of the writ petition by an order dated 17.09.2009
directing that the appellant-Corporation must hold an enquiry about
the encroachments. The High Court further directed the appellantCorporation not to make any construction over the Property.
5.
In July 2010, Birinchi Shah received information that the appellantCorporation had deleted his name from the category of owner and
had inserted its own name in the official records. Aggrieved, he
approached the High Court by filing a writ petition bearing W.P.
No. 981 of 2010, not only for correction of the entries but also to
restrain the appellant-Corporation from interfering with his peaceful
possession over the Property. What happened in this writ petition is
of seminal importance. The learned single Judge, by an order dated
08.01.2015, recorded the statement of the appellant-Corporation
that they are unable to controvert the averments made in the writ
petition with respect to title and ownership of the Property. The writ
petition was disposed of restraining the appellant-Corporation from
interfering with the possession of Birinchi Shah and also injuncted
them from giving effect to the wrongful recording of its name in the
official records. The appellant-Corporation was also directed to remove
its men and material from the Property within two weeks from the
date of the said order. The specific finding of the High Court that
the appellant-Corporation could not establish its right and the title
in the Property is significant.
6.
Dissatisfied, the appellant-Corporation filed a writ appeal bearing
A.P.O. No. 51 of 2015 against the order of the single Judge and
contended that their affidavit-in-opposition could not be filed before
the Single Judge as the records were misplaced. It is more or less
an admitted fact that a plea of acquisition was taken for the first time
before the Division Bench, and this seems to be the reason for the
Division Bench to remand the matter back to the single Judge after
imposing a cost of Rs. 50,000/- on the appellant-Corporation. After
remand, the appellant-Corporation filed an affidavit-in-opposition
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Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
before the single Judge claiming that the land was acquired. In view
of new developments, Birinchi Shah sought permission to withdraw
the pending writ petition with the liberty to file a fresh writ petition.
The High Court permitted this by an order dated 11.08.2016.
7.
Accordingly, Writ Petition No. 930 of 2016 was filed by the respondent
no. 1, the executor to the estate of Birinchi Shah, inter alia, seeking
an order quashing the alleged acquisition as illegal and to restore
their name as owners in the official records.
8.
The learned single Judge of the High Court, allowing the writ petition
by order dated 14.09.2017, formulated two questions. The first
question relates to the maintainability of the writ petition, which was
answered in the affirmative. As there is no contest to this issue, we will
not deal with it. The second issue relates to the legality and validity
of acquisition of the Property in exercise of power under Section
352 of the Kolkata Municipal Corporation Act, 19803. Answering the
second question, the learned single Judge held that the appellantCorporation purported to acquire the Property under Section 352(a)
of the Act when there is no power of compulsory acquisition therein.
The learned single Judge therefore quashed and set-aside the alleged
action of acquisition.
9.
The appellant-Corporation as well as the respondent no. 1 assailed
the order of learned single Judge in writ appeals bearing APO No.
523 of 2017 and APO No. 210 of 2018, respectively.
10. The Division Bench of the High Court, by the judgment impugned
herein, affirmed the order of the Single Judge and accordingly,
disposed of the appeals with a direction that the appellant-Corporation
may initiate acquisition proceedings for the Property under Section
536 or 537 of the Act, within five months, or in the alternative, restore
the name of the last recorded owner as the owner of the Property.
11. It is against this judgment and order of the Division Bench of the
High Court, that the appellant-Corporation is in appeal before us.
12. Submission of Counsels: Mr. Jaideep Gupta, learned senior
counsel, representing the appellant-Corporation, has submitted
that the appellant-Corporation has the requisite statutory power to
3
Hereinafter, referred to as the "Act".
842
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acquire a property under Section 352 of the Act for the purposes of
constructing a park, as is the case here. He has referred to Section
363 of the Act provisioning compensation for acquisitions made
under Section 352 of the Act and submitted that acquisition under
this chapter is therefore complete and stands on its own footing. He
contended that the single and division benches of the High Court
erred in concluding that Section 537 of the Act is the only provision
for acquisition. Relying on State of Kerala v. T.M. Peter4, he would
submit that for differential schemes and purposes of acquisition,
different compensation structures will not violate Article 14 of the
Constitution. On the same point, he also relied on the decisions
of this Court in Girnar Traders (3) v. State of Maharashtra5, and
Bankatlal v. Special Land Acquisition Officer6.
13. Mr. Mukul Rohatgi and Mr. Huzefa Ahmadi, learned senior counsels,
appearing for the respondents, while supporting the judgment of the
High Court, impugned herein, submitted that the power of acquisition
is only in Section 537 of the Act and that invocation of Section 352
read with Section 363 is illegal and violative of Article 300A of the
Constitution. In support of their submissions, they relied on the
judgment of this Court in Nagpur Improvement Trust v. Vithal Rao7.
14. Scheme of the Act: The Kolkata Municipal Corporation Act, 1980
extends to 636 Sections, followed by 9 Schedules. It has IX Parts,
of which we are concerned only with Part VI of which Chapter
XXI - relating to Streets and Public Places and Part VIII of which
Chapter XXXIII - relating to Acquisition and Disposal of Property.
As the appellant-Corporation invoked Section 352 of the Act to
acquire the Property for the purpose of opening a park and ward
office, we need to examine the provision. Section 352 of the Act
provides as under:
"Section 352:- Power to acquire lands and buildings
for public streets and for public parking places:-
The Municipal Commissioner may, subject to the other
provisions of this Act -
4
[1980] 3 SCR 290 : (1980) 3 SCC 554
5
[2011] 3 SCR 1 : (2011) 3 SCC 1
6
[2014] 7 SCR 879 : (2014) 15 SCC 116
7
[1973] 3 SCR 39 : (1973) 1 SCC 500
[2024] 5 S.C.R.
843
Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
(a) acquire any land required for the purpose of opening,
widening, extending or otherwise improving any public
street, square, park or garden or of making a new one,
together with any building standing upon such land;
(b) acquire, in relation to any land or building as aforesaid,
such land with building thereon outside the regular
line or the projected regular line of such public street;
(c)
acquire any land for the purpose of laying out or
making a public parking place."
15. The appellant-Corporation has also relied on Section 363 of the Act
relating to payment of compensation. The said provision is as under:
"Section 363-Compensation to be paid:- (1)
Compensation shall be paid by the Corporation to the
owner of any building or land acquired for a public street,
square, park or garden under the provisions of this Chapter:
Provided that any increase or decrease in the value of
the remainder of the property, of which building or the
land so acquired formed part, likely to accrue from the
setting back to the regular line of a public street, shall
be taken into consideration in determining the amount of
such compensation.
(2) If any additional land, which will be included in the
premises of any person permitted or required by an order
under sub-section (2) of section 360 to set forward a
building to the regular line of a public street, belongs to the
Corporation, such order shall be a sufficient conveyance
to the owner of such land; and the price to be paid to the
Corporation by the owner for such additional land and the
other terms and conditions of the conveyance shall be set
forth in such order.
(3) The Corporation shall pay compensation in respect
of land or building acquired under this Chapter at the
following scale:
(i)....
(ii)...."
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16. A close examination of the text of Section 352 of the Act coupled with
the context with respect to the placement of the section in the Act,
clarifies the purpose and object of the provision. The text of Section
352 of the Act provides that the Municipal Commissioner may acquire
any land required for the purpose of opening, widening, extending,
etc. of a street, square, park, etc. The purpose of this provision is
to declare that if the Municipal Commissioner is of the view that any
land is required for the purpose of opening a street, park, etc., such
a land may be acquired. Once the Municipal Commissioner takes the
decision to acquire a piece of land, what would then be the process
of acquisition is not provided in Section 352. It is provided in Section
535 occurring in Chapter XXXIII of Part VIII of the Act which relates
to 'Acquisition of Property'.
17. Before we deal with the Section 535, it is sufficient to conclude
that Section 352 merely contemplates the power and duty of the
Municipal Commissioner to identify the land intended for opening
of a street, park etc., and once that decision is taken, the Municipal
Commissioner would take steps to acquire such a property, for a
public purpose.
18. The context in which Section 352 is located in Chapter XXI of Part
VI of the Act relating to 'streets for public place', also makes the
position clear that this provision relates to vesting of public street,
squares, parks and gardens in the appellant-Corporation but does
not provide for the power of acquisition. In the following paragraph,
we have explained how the text and the context of the expression,
'The Municipal Commissioner may acquire' in Section 352 is not at
all the power of acquisition.
19. Upon arriving at a decision to acquire any land for the purpose of
opening a street, square, park, etc., under Section 352, the Municipal
Commissioner will then apply to the Government under Section
537 of the Act to initiate the process of acquisition. Section 537 is
located in Chapter XXXIII Part VIII of the Act relating to 'Acquisition
of Property'. This Chapter commences with Section 535 which
specifically provides that the appellant-Corporation shall have the
power to acquire and hold immovable property. It is followed by the
power to acquire properties through an agreement under Section
536 of the Act or in the alternative, through compulsory acquisition
of immovable property as provided in Section 537 of the Act.
[2024] 5 S.C.R.
845
Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
20. The position is thus, clear. Upon application of the Municipal
Commissioner under Section 537 for the acquisition of land for
opening of a street, square, park etc., the Government may order
proceedings to be taken for acquiring land on behalf of the appellantCorporation as if the land is needed for a public purpose within the
meaning of the Land Acquisition Act, 1894.
21. Sections 535, 536 and 537 of the Act are extracted hereinbelow for
ready reference:
"Section 535. Acquisition of property. - The Corporation
shall, for the purposes of this Act, have power to acquire
and hold movable and immovable property or any interest
therein, whether within or outside the limits of Kolkata.
Section 536. Acquisition of immovable property by
agreement.-
(1) Whenever it is provided in this Act that the Municipal
Commissioner may acquire, or whenever it is necessary
or expedient for any purpose of this Act that the Municipal
Commissioner shall acquire, any immovable property, such
property may be acquired by the Municipal Commissioner
on behalf of the Corporation by agreement on such
terms and at such rates or prices or at rates or prices
not exceeding such maxima as may be approved by the
Mayor-in-Council either generally for any class of cases
or specially in any particular case.
(2) Whenever, under any provision of this Act, the Municipal
Commissioner is authorised to agree to pay the whole or
any portion of the expenses of acquiring any immovable
property, he shall do so on such terms at such rates or
prices or at rates or prices not exceeding such maxima as
may be approved by the Mayor-in-Council either generally
or in particular as aforesaid.
(3) The Municipal Commissioner may on behalf of the
Corporation acquire by agreement any easement affecting
any immovable property vested in the Corporation and
the provisions of sub-sections (1) and (2) shall apply to
such acquisition.
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Section 537. Procedure when immovable property
cannot be acquired by agreement. - (1) Whenever the
Municipal Commissioner is unable under section 536 to
acquire by agreement any immovable property or any
easement affecting any immovable property vested in
the Corporation or whenever any immovable property or
any easement affecting any immovable property vested
in the Corporation is required for the purpose of this
Act, the State Government may, in its discretion, upon
application of the Municipal Commissioner, made with
the approval of the Mayor-in-Council and subject to other
provisions of this Act, order proceedings to be taken for
acquiring the same on behalf of the Corporation, as if
such property or easement were land needed for public
purpose within the meaning of the Land Acquisition Act,
1894 (I of 1894)
(2).....
(3) For the purpose of acquisition of immovable property
under this section, the Land Acquisition Act, 1894, shall
be subject to the amendment that the market value of any
land or building to be acquired shall be deemed, for the
purpose of sub-section (1) of section 23 of the Act, to be
the market-value determined according to the disposition
of such immovable property at the date of declaration
under sub-section (1) of section 4 thereof in respect of
such immovable property.
(4) The amount of compensation awarded and all other
charges incurred in the acquisition of any such property
shall, subject to all other provisions of this Act, be forthwith
paid by the Municipal Commissioner and thereupon such
property shall vest in the Corporation."
22. The scheme of the Act makes it clear that Section 352 empowers the
Municipal Commissioner to identify the land required for the purpose
of opening of public street, square, park, etc. and under Section
537, the Municipal Commissioner has to apply to the Government
to compulsorily acquire the land. Upon such an application, the
Government may, in its own discretion, order proceedings to be
[2024] 5 S.C.R.
847
Kolkata Municipal Corporation & Anr. v. Bimal Kumar Shah & Ors.
taken for acquiring the land. Section 352 is therefore, not the power
of acquisition. We, therefore, reject the submission on behalf of
the appellant-Corporation that Section 352 enables the Municipal
Commissioner to acquire land.
23. We will now deal with the other submission of Mr. Jaideep Gupta
that there is also a provision for compensation under Section 363
where land is acquired under Section 352. In so far as Section 363
relating to payment of compensation is concerned, the High Court
has clarified that this provision relates to payment of compensation
upon an agreement and not for compulsory acquisition. We are in
agreement with this finding of the High Court.
24. The Right to property: A net of intersecting rights: There is
yet another aspect of the matter. Under our constitutional scheme,
compliance with a fair procedure of law before depriving any person
of his immovable property is well entrenched. We are examining
this issue in the context of Section 352 of the Act which is bereft
of any procedure whatsoever before compulsorily acquiring private
property. Again, assuming that Section 363 of the Act provides for
compensation, compulsory acquisition will still be unconstitutional if
proper procedure is not established or followed before depriving a
person of their right to property. We find it compelling to clarify that
a rather undue emphasis is laid on provisions of compensation to
justify the power of compulsory acquisition, as if compensation by
itself is the complete procedure for a valid acquisition.
25. While it is true that after the 44th Constitutional Amendment8, the right
to property drifted from Part III to Part XII of the Constitution, there
continues to be a potent safety net against arbitrary acquisitions,
hasty decision-making and unfair redressal mechanisms. Despite
its spatial placement, Article 300A9 which declares that "no person
shall be deprived of his property save by authority of law" has been
characterised both as a constitutional and also a human right10.
To assume that constitutional protection gets constricted to the
8
Constitution (Forty-Fourth Amendment) Act, 1978.
9
300A of the Constitution: "Persons not to be deprived of property save by authority of law. - No person
shall be deprived of his property save by authority of law."
10
Lachhman Dass v. Jagat Ram (2007) 10 SCC 448; Vidya Devi v. State of Himachal Pradesh (2020) 2
SCC 569
848
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mandate of a fair compensation would be a disingenuous reading
of the text and, shall we say, offensive to the egalitarian spirit of
the Constitution.
26. The constitutional discourse on compulsory acquisitions, has
hitherto, rooted itself within the 'power of eminent domain'.