Right to Property. Planning Authority or Municipal Corporation cannot deprive owner of private property without acquisition or purchase, and without paying compensation.

Right to Property. Planning Authority or Municipal Corporation cannot deprive owner of private property without acquisition or purchase, and without paying compensation. High Court should intervene under Article 226 under such circumstances. Supreme Court 7:8:2020.

Hari Krishna Mandir Trust vs State of Maharastra and others.

Civil Appeal 6156 /2013

Decided on 7 August 2020

Justice Indu Malhotra

Justice Indira Banerjee

Judgment link: https://main.sci.gov.in/supremecourt/2008/36435/36435_2008_39_1501_23345_Judgement_07-Aug-2020.pdf

Held: Para 96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others (2008) 4 SCC 649 (para 42). In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law.

97. Article 300A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar and Others v. Project Uchcha Vidya, Sikshak Sangh and Others (2006) 2 SCC 545, 574 (para 69); Jelubhai Nanbhai Khachar and Others v. State of Gujarat and Anr. (1995) Suppl. 1 SCC 596; Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Others (1982) 1 SCC 39, the State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 (paras 55 and 56).

98…..The right to property includes any proprietary interest hereditary interest in the right of management of a religion endowment, as well as anything acquired by inheritance. However, laudable be the purpose, the Executivecannot deprive a person of his property without specific legal authority, which can be established in a court of law.

99. In case of dispossession except under the authority of law, the owner might obtain restoration of possession by a proceeding for Mandamus against the Government as held by this Court in Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415. Admittedly, no compensation has been offered or paid to the appellant Trust. As observed by this Court in K.T. Plantation Private Limited and Anr. v. State of Karnataka (2011) 9 SCC 1 , even though the right to claim compensation or the obligation of the State to pay compensation to a person who is deprived of his property is not expressly provided in Article 300A of the Constitution, it is inbuilt in the Article. The State seeking to acquire private property for public purpose cannot say that no compensation shall be paid.
100. The High Courts exercising their jurisdiction under Article 226 of the Constitution of India, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred
101. The Court is duty bound to issue a writ of Mandamus for enforcement of a public duty. There can be no doubt that an important requisite for issue of Mandamus is that Mandamus lies to enforce a legal duty. This duty must be shown to exist towards the applicant. A statutory duty must exist before it can be enforced through Mandamus. Unless a statutory duty or right can be read in the provision, Mandamus cannot be issued to enforce the same.
102. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner’s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles.

S.Basavaraj, Daksha Legal, Bangalore. raj@dakshalegal.com