Can the government acquire a person's land without paying compensation on oral consent?

  In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.

23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of ‘oral’ consent to be baseless and outlined the responsibility of the State:

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2273 OF 2022 

 SUKH DUTT RATRA & ANR. Vs STATE OF HIMACHAL PRADESH & ORS.

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Supreme court: Forcible dispossession of a person of their private property by the government without following due process of law is violative of their human right

 Concluding that the forcible dispossession of a person of their private property without following due process of law, was violative of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case. {Para 25}

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2273 OF 2022 

 SUKH DUTT RATRA & ANR. Vs STATE OF HIMACHAL PRADESH & ORS.

 Coram: S. RAVINDRA BHAT; PAMIDIGHANTAM SRI NARASIMHA, JJ.

 Dated: April 06, 2022 

Author: S. RAVINDRA BHAT, J.

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What is the nature of proof required in suits for declaration of title against the Government?

 This brings the Court to the question of the onus of the Plaintiffs of proving their ownership of the suit property. It is well-settled that in cases of government land, there is a greater responsibility of Courts in ascertaining title of third parties. In fact, the plaintiff in such cases must establish his clear right, title and nature of possession in the property, superior to that of the Government authority and there is a presumption in favour of the Government. In such cases, the Supreme Court has clearly observed that it is not sufficient to show possession or adverse possession merely by some stray revenue entries or records. This position was elaborated upon by the Supreme Court in R. Hanumaiah and Ors. v. Secretary to Government of Karnataka, Revenue Department and Ors., (2010) SCC 203:

“Nature of proof required in suits for declaration of title against the Government {Para 30}

15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.

16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.

Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).

17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.”

31. Thus, the Plaintiffs had a heavy onus to establish the following:

(i) That they had acquired the suit property through legally recognized documents such as registered sale deed, allotment from governmental authorities, etc. However, no such documents were produced by the Plaintiffs.

(ii) That the Plaintiffs were in possession of the suit property which falls in Khasra No.48/7 – this ought to have been established by positive evidence and not by an inference.

(iii) That the Plaintiffs had to rely on documents proved in accordance with law, even to establish possession – however, in this case, only some spattering revenue records which were marked and not even exhibited, were relied upon by the Plaintiffs.

32. The plaint in the present case is bereft of any pleadings as to how ownership/title was acquired by the Plaintiffs to the land in question. It is relevant to note that even paragraph 2 of the plaint shows the manner in which the Plaintiffs state that the suit property is not acquired by the Land Acquisition Collector and was not handed over to the DDA. This reflects the

state of mind of the Plaintiffs who seem to have themselves had an apprehension that the suit property may be falling in the acquired portion of the land.

36. In view of the above settled legal position, that mere sporadic or stray entries in the revenue records cannot confer title, and the facts mentioned above, this Court is of the opinion that the Plaintiff has failed to establish that there is any substantial question of law which deserves to be adjudicated upon in the present second appeal. In fact, from the evidence which has emerged from the record, it is clear that apart from some mention in khasra girdawaris, there are no other concrete documents which have been filed by the Plaintiff to discharge the heavy onus that is placed on him.

IN THE HIGH COURT OF DELHI AT NEW DELHI

 RSA 64/2020

NATHU RAM  Vs D.D.A & ANR

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Whether a public body can dispossess a party if the court rejects his application for interim relief after hearing both parties?

  In the present case also, similar to the decision in Prabhagiya Van Adhikai (supra), the manner in which the possession of Plaintiff/his family members is shown in some khasra girdawaris, that too as agriculturists and cultivators, for some sporadic periods but not continuously, does raise doubts as to whether they were in continuous possession or not. Therefore, the mere mention in some years of khasra girdawari showing possession, cannot by itself confer ownership and title in respect of such precious land. {Para 24}

25. In so far as the Trial Court’s finding stating that DDA cannot dispossess the Plaintiffs without due process of law, is concerned, this is clearly an erroneous approach inasmuch as even if the Plaintiffs are stated to be in settled possession, it is not necessary for the DDA to file a suit to take possession from them. The DDA can, as a Defendant, establish before the Court that the Plaintiffs are in possession of a government land and the same can result in dismissal of the suit. Due process of law, as is settled in several judgments of the Supreme Court and this Court, does not always require initiation of action by the owner/ Government. Dismissal of a suit by a competent Court of law after affording proper opportunity to the parties, is also a recognized mode of following the due process of law. On this issue, the observations of the Supreme Court in Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, are as under:

“81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the Defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.

82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial, 2006 (88) DRJ 545 : (AIR 2007) (NOC) 169) held as under:

"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing - ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence.”

26. This position was reiterated by this Court in Bal Bhagwan v. Delhi Development Authority [CM (M) 416/2019, decided on 18th December, 2020] holding that the ‘due process’ condition would be sufficiently met if a person in settled possession is dispossessed by the dismissal of an application for interim injunction, as long as the rights of the parties are adjudicated upon and opportunity is given to them to present their case. On the question of ‘due process’, this Court has observed as under:

“The issue as to what constitutes ‘due process’ is thus settled beyond any doubt. The Plaintiff, who is claiming possession, can be dispossessed in the suit for injunction filed by him. Due process does not always mean that the owner has to file the suit to prove his title. So long as a Court of law has examined the documents and has given a fair hearing to the parties concerned, the compliance of due process has taken place. Moreover, due process of law also does not mean the final adjudication after trial. It merely means an opportunity being given to present the case before the Court of law and the rights of the parties being adjudicated. It does not mean the whole trial, as per Maria Margarida (supra).

62. The main question to be determined is whether the Plaintiff, who is in settled possession, can be dispossessed in an application under Order XXXIX Rules 1 & 2 CPC. The answer is a clear yes.”

27. A special leave petition against this decision in Bal Bhagwan (supra) was also dismissed by the Supreme Court on 19th April, 2021, in SLP(C) No. 4247 / 2021 titled Bal Bhagwan v. DDA.

28. Recently in Mehvish Adil & Ors v. Delhi Wakf Board & Ors., [CRP 223/2019, decided on 15th December, 2021] this Court has observed in respect of Waqf land, which is also in the nature of a public land, as under:

“33. As held in Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, ‘due process’ need not always mean a process initiated by the owner it can be any judicial proceedings where the respective contentions of the parties are adjudicated in a free and fair manner and with proper opportunity being afforded to the parties. The observations of the Supreme Court in Maria Margarida (supra) are as under:

35. Thus, it is the settled legal position that ‘due process’ need not mean only an active process initiated by the owner of the property. It can even mean rejection of relief in a proceeding initiated by the occupants/encroachers or persons in possession.”

29. In view of this legal position, the requirement of adhering to due process of law has been satisfied in the present case and the Plaintiffs are not being dispossessed contrary to law.

40.  As government authorities continue to defend against suits filed by such occupants, the public is deprived of the use and enjoyment of the said land which has been acquired for public purposes. Thus, it is incumbent upon the Trial Courts, to consider the maintainability of such suits at the initial stage in a manner that they deem appropriate, so as to ensure that such long delays do not take place, especially in respect of government land.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 RSA 64/2020

NATHU RAM  Vs D.D.A & ANR

CORAM:

JUSTICE PRATHIBA M. SINGH

Date of decision: 01st February, 2022

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Whether the state can dispossess a citizen from his property without following due process of law as the right to property ceased to be a fundamental right?

 The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300 A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300 A, can be inferred from that Article. To forcibly dispossess a person of his private property without following due process of law is certainly violative of human right and so also, constitutional right provided under Article 300 A of the Constitution.

26. In case of Pradyumna Mukund Kokil v. State of Maharashtra reported in 2015 (4) All M.R. 983, it is held by the Apex Court that it would not be proper on the part of the government body or any State authority to take possession of somebodies land without following due process of law and even if a citizen has permitted his land being used by government authority, the authority should not take undue advantage thereof at a time of giving compensation when said land is acquired.

28. Depriving the persons of their immovable properties, was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfillment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.

30. It is now well settled position of law that right to property is a human right and according to Article 300-A of the Constitution, a person cannot be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation though not expressly included in Article 300-A, can be inferred from the said Article.

31. If a person is forcefully dispossessed from his private property without following due process of law would amount to breach of human right as well as violative of constitutional right under Article 300-A of the Constitution as held in case of Vidydevi (supra).

 In the High Court of Bombay(Aurangabad Bench)

(Before S.V. Gangapurwala and Shrikant D. Kulkarni, JJ.)

Writ Petition No. 5250 of 2020

Bhagauji Vs State of Maharashtra 

Decided on July 3, 2021

Citation: 2021 SCC OnLine Bom 982

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Leading Judgment on procedure to be followed by municipal corporation for demolition of unauthorised construction

 Hence, on the basis of the law as discussed above, it is directed that after 1st May, 1996 the Bombay Municipal Corporation or the Municipal Corporations con situated under the B. P.M.C. Act would follow the following procedure before taking action under Section 351 of the B.M.C. Act or under S.260 of the B.P.M.C. Act.

"(i) In every case where a notice under Section 351 of the B.M.C. Act/ under Sec. 260 of B.P.M.C. Act is issued to a party 15 days' time shall be given for submitting the reply. In case the party to whom notice is issued sends the reply with the documents, and shows cause, the Municipal Commissioner or Deputy Municipal Commissioner shall consider the reply and if no sufficient cause is shown, give short reasons for not accepting the contention of the affected party.

(ii) It would be open to the Commissioner to demolish the offending structure 15 days after the order of the Commissioner/Deputy Municipal Commissioner is communicated to the affected person.

(iii) In case the staff of the Corporation detects the building which is in the process of being constructed and/or reconstructed and/ or extended without valid permission from the Corporation, it would be open to the Commissioner to demolish the same by giving a short notice of 24 hours after drawing a panchanama at the site and also by taking photographs of such structure and/or extension. The photographs should indicate the date when the same were taken.

(iv) In case where the Municipal Corporation has followed due process of law and demolished the unauthorised structure and or extension, if the same is reconstructed without valid permission within a period of one year, it would also be open to the Corporation to demolish the same by giving a short notice of 24 hours.

(v) If the offending structure and/or extension which is assessed by the Corporation for two years, notice shall provide for 15 days' time to show cause. If the Deputy Municipal Commissioner comes to the conclusion that he requires assistance of the party, he may give an oral hearing if he deems fit and proper before passing the order. It is made clear that oral hearing is not at all compulsory but it is at the discretion of the authority.

(vi) In any other case the Corporation is directed to issue a show cause notice in case of any structure and/or extension other than those mentioned in clauses (i) to (iv) above. The Corporation shall provide for 7 days' time to show cause in such a case."

20. In case the notice is issued under Sec. 478 of the B.P.M.C. Act, 1949 and if the person has not complied with the requisitions of the Commissioner, then it would be open to the Commissioner to demolish the unauthorised structure after expiry of 30 days of the period specified in the notice for removal of such construction.

21. The Municipal Corporations in the State of Maharashtra would follow the above directions so as to avoid unnecessary litigation:

IN THE HIGH COURT OF BOMBAY

Writ Petns. Nos. 4765 to 4767 of 1995 and A.O. No. 477 of 1994

Decided On: 09.02.1996

Sopan Maruti Thopte Vs. Pune Municipal Corporation and Ors.

Hon'ble Judges/Coram:

M.B. Shah, CJ. and A.V. Savant, J.

Citation: AIR 1996 Bom 304

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When plaintiff is not entitled to get decree for possession of shop?

Assuming for the sake of argument that the defendant is a
trespasser,   one   cannot   overlook   the   fact   that   he   is   in   actual
physical possession of the suit shop holding electricity connection
in respect of the shop conducted in the name as “Bhavna Hair
Dressers”. He claims that he was tenant of one Mallubai who is no
more living.   These are the facts and circumstances which can
surely enable the defendant as possessor of the suit shop to resist
the   suit   filed   by   the   plaintiffs   on   the   ground   of   their   alleged
ownership of the suit shop.  Since, according to the defendant, he
was tenant and paid rent in advance to Mallubai ­ land lady who is
no longer living, a person or persons through her could have on
the pretext of ownership of the shop and claim as land lord have
instituted the suit according to law to evict the defendant. It was
not   such   a   case   before   the   trial   Court   as   well   as   in   the   first
Appellate Court.  Bearing in mind the basic principle of law in civil
jurisprudence   that   even   trespasser   cannot   be   evicted   without
following due process of law and no one can be allowed to take
law   into   his   own  hands   to   recover   possession   of   the  property
without  following due process of law and without proving title to
the immovable property in possession of a person holding actual

physical possession thereof.   Suffice it to say that there was no
evidence whatsoever in favour of the plaintiffs to establish their
title   to   the   suit   property   and   therefore,   the   suit   was   rightly
dismissed   by   the   trial   Court   by   a   well   reasoned   Judgment.
Interference   by   the   first   Appellate   Court   with   the   finding   of
dismissal of the suit was unwarranted and contrary to law for
abovesaid reasons.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.452 OF 2014
Suresh s/o. Pundalikrao Mirase,

Vs
 Ashok Girdharilal Chandak,
  
      CORAM     :  A.P.BHANGALE,  J.
      DATE         :  3.7.2015. 
Citation: 2016(4) ALLMR207

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Whether municipal corporation can evict tenant for road widening relying on consent given by landlord?

 The question referred is limited whether in case of
acquisition of land by municipal authorities, for road widening,
on consent of landlord of a shop any notice is necessary to be
given to the tenant in the shop?.  The Full Bench in
Ushodaya Publications (supra) considered almost similar
question and observed that a Municipal Corporation being
statutory authority has right to take possession of the land but
they must exercise their right within four corners of the
statute.  It was further observed that it is one thing to say
that the provisions of the MCH Act for acquiring land are not
required to be taken recourse to as the owner thereof has
given consent but the same would not mean that the lessees
consent need not be taken.  There cannot be any doubt
whatsoever that the consent granted by the lessor/owner
would not be binding upon a lessee and in that view of the
matter the Corporation has no right to take forcible possession
of the shop/land, such as in the present case, relying on the
purported consent obtained by it from the lessor, without
taking recourse to the provisions of the Land Acquisition Act,
thereby depriving the lessee of his valuable right.  Thus,
according to the Full Bench, a notice to the lessee/tenant in
the shop is necessary in case of acquisition of land by the
municipal authorities for road widening on consent of landlord
of a shop. 
HYDERABAD HIGH COURT

Order Dated;27-11-2015 

Raisunna Begum & others Appellants/Petitioners  
Vs

Premsukhai Jain & others Respondents   




THE HONBLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE,           
THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO,            
THE HONBLE SRI JUSTICE S.V.BHATT,      
THE HONBLE SRI JUSTICE S.RAVI KUMAR        
AND  
THE HONBLE MRS. JUSTICE ANIS      

W.A.No.453 of 2005, W.P.Nos.5135 of 2001 and 10106 of 2002   


Citation;AIR 2016 Hyderabad 100

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Whether Municipal corporation is obliged to follow due process of law prior to demolition of unauthorised construction?

Mere issuance of notice under the said section is not sufficient to suggest that the due process of law has been followed, inasmuch as after issuance of notice, the concerned person would file response and which response has to be considered by appropriate officer designated for that purpose and that officer is obliged to pass decision, one way or the other. Moreover, such a decision has to be communicated to the affected person giving reasonable opportunity to that person to challenge that decision as permissible by law. There is nothing on record to show that such a course has been followed. Unless such a course was followed, it is not possible to conclude that due process of law has been complied with. If the record placed before the Court suggests that due process of law has not been complied with, then, obviously, the application as preferred by the petitioner deserves to be considered and appropriate orders passed thereon. However, as observed earlier, the Court below has rejected the application on the solitary ground, which is unacceptable for the reasons indicated above.

Bombay High Court

Mangesh Amar Ghorpade vs Kalyan Dombivali Municipal ... on 2 September, 2003

Equivalent citations: 2005 (3) BomCR 483

Khanwilkar A.M., J.

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