Though right in land not a fundamental right, it still remains an important Constitutional right, Supreme Court

The Supreme Court recently reiterated that although the right to property was no more a fundamental right, it still remains an important Constitutional right under Article 300A of the Constitution of India ( Basnett D through LRs v The Collector ).

. The Court said,

. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed. Supreme Court . The Bench comprising of Justices Sanjay Kishan Kaul and KM Joseph was deciding whether the due process of law was followed in acquiring certain land under Section 5(1) of the Sikkim Land (Requisition and Acquisition) Act, 1977. This law is similar the Land Acquisition Act, 1894 .

. In this case, the land was acquired back in 1980 to build a Progeny Orchard Regional Centre. The land acquisition was challenged, contending that no notice of acquisition was ever published, nor any process followed for the same.

. The case came up before the Supreme Court as an SLP challenging a 2008 verdict of the Sikkim High Court. The matter was taken up for the first time in May 2019. While it was briefly referred to mediation, it came back to the Supreme Court after mediation efforts failed.

. While deciding the case on merits, the Court re-emphasised that land acquisition law, being expropriatory in character, the same was required to be strictly followed.

. In answering the question whether the process of acquisition had been followed in accordance with law in this case, the Bench remarked,

. “No notification has been shown to us of the intent to acquire land under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process.”

. The Bench added that an unusual process of making compensation payment in cash was claimed to have been adopted, for which only a covering letter was available, and not the actual receipt of payment. The respondents failed to show proof of the withdrawal of the amount by the Collector, much less payment of the compensation. The Court remarked,

. “There cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspect…”

. The Supreme Court went on to impress upon the importance of complying with procedural laws before depriving persons of their property, in view of Article 300A of the Constitution. In this regard, the Court relied upon Vidaya Devi v The State of Himachal Pradesh to re-iterate,

. “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 300A, can be inferred in that Article.” Supreme Court in Vidaya Devi v. The State of Himachal Pradesh . In this case, the Court found that the respondents had failed to establish that they had acquired the land in accordance with law. The appellant/original landowner was, thus, entitled to the possession of the land and also damages for illegal use and occupation of the same by the respondents.

. The Court allowed the appeal with the following direction,

. "We, however, would like to give some time to the respondentState to analyse the consequences of this judgment, and, in case they so desire, to acquire the land through a proper notification under the said Act, and to take proper recourse in law so as to enable them to keep the land. We grant three (3) months’ time from the date of the judgment for the respondent-State to make up their mind as to what they want to do."

. [Read the Judgement here]

Though right in land not a fundamental right, it still remains an important Constitutional right, Supreme Court

Aishwarya Iyer

Related Stories