KALYANI (DEAD) THROUGH LRS. & ORS. VS THE SULTHAN BATHERY MUNICIPALITY & ORS.

KALYANI (DEAD) THROUGH LRS. & ORS. VS THE SULTHAN BATHERY MUNICIPALITY  & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 3189 OF 2022
(arising out of SLP (Civil) No(s). 4125 of 2019)
KALYANI (DEAD) THROUGH LRS. & ORS.           ...APPELLANT(S)
VERSUS
THE SULTHAN BATHERY MUNICIPALITY 
& ORS.        ...RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
Leave granted.
2. Appellants - eight in number, have assailed the
correctness of Judgment and Order dated 12.09.2018 passed by
the Division Bench of the High Court of Kerala at Ernakulam in
W.A. No. 2108 of 2016 between Sulthan Bathery Municipality
vs. Kalyani and 12 others, whereby the judgment of the Single
Judge was set aside and the writ petition filed by the appellants
was dismissed.
1
3. The relevant facts giving rise to the present appeal are
that the appellants are the owners of the land in dispute
measuring 1.7078 hectares. The land is situate within the
territorial limits of Respondent No.1, Sulthan Bhathery Grama
Panchayat (hereinafter referred to as the “Panchayat”), later on
declared a Municipality. The Panchayat requested the
appellants to utilize their land for construction/widening of
Sulthan Batheri Bypass Road. The appellants were assured that
they would be given adequate compensation for their land
utilized for the said purpose. According to the appellants, they
gave their land on the assurance that they would be given
compensation.
4. The road was constructed but no compensation was paid.
The appellants made various representations starting from the
time, construction was going on and even after the construction
work was completed. But when no heed was paid to their
request, they approached the High Court of Kerala by way of
W.P. (C) No. 2329 of 2014. Before the learned Single Judge,
affidavits were exchanged.
2
5. In the counter affidavit, the stand taken by the Panchayat
was that the land had been voluntarily given without any claim
for compensation. The Panchayat denied of having given any
assurance regarding adequate compensation to be paid to the
appellants. It was also alleged that the construction of road
was completed in 2010 whereas the appellants approached the
High Court in 2014 as such, the petition was substantially
delayed and liable to be dismissed on the ground of delay. It
was also stated in the counter affidavit that the Appellants had
voluntarily surrendered their portion of land for the purpose of
construction/widening of the road and that is why no
proceedings for acquisition were undertaken.
6. In the counter affidavit filed by the State-Respondent i.e.,
Public Works Department (hereinafter referred to as the
“PWD”), it was stated that the Panchayat had handed over the
land for the construction/widening of the road. The road is
owned and possessed by the Panchayat and the PWD had only
been assigned the work of construction for which due
documents were executed. It also denied having encroached
upon any part of the land of the appellants. It was also stated
3
that to the best information of PWD, the land in question was
surrendered free of cost.
7. The learned Single Judge, vide judgment dated
26.08.2016, after considering the material on record, came to
the conclusion that there was no material on record to show
that the appellants had voluntarily surrendered their land or
that they had given up their right to claim any compensation.
It was also recorded in the findings that there was no issue or
dispute that the land of the appellants has not been utilized for
the construction/widening of the road. Learned Single Judge,
further, after considering the mandate of Article 300A of the
Constitution held that appellants would be entitled to
compensation for the land utilized for the construction/widening
of the road. Since, the Road is owned and possessed by
Panchayat, the learned Single Judge issued appropriate
directions to the State-Respondents as also to the 3rd
Respondent i.e. Panchayat (converted into “Municipality”),
would disburse the amount as may be determined by the
Collector after determining the market value of the property to
the concerned parties. It also gave liberty to the appellants
that in case they were not satisfied with the amount of
4
compensation determined by the Collector, they could raise the
challenge before the Civil Court. The relevant findings and the
operative portion of the judgment of learned Single Judge as
contained in paragraphs 5 to 7 are reproduced below:
“5. As noted above, the specific stand of the Public
Works Department is that a decision was taken by the
Grama Panchayat on 28.04.2009 to form the road and
the Public Works Department was required to construct
the road. Ext.P4 communication issued pursuant to an
application submitted on behalf of the petitioners under
the Right to Information Act from the office of the Public
Works Department indicates that the land required for
the construction of the road was made available to the
Public Works Department by the erstwhile Sulthan
Bathery Panchayat. There is absolutely no reason to
disbelieve the stand taken by the Public Works
Department in the counter affidavit filed in this matter. If
the road was formed based on the decision taken by the
Grama Panchayat to the Public Works Department for
construction of the road, the case of the petitioners that
they have permitted the construction of the road through
a portion of their property, as requested for by the
Panchayat has to be accepted. Then the question is as
to whether the stand taken by the third respondent
Municipality, which is the successor of the erstwhile
Sulthan Bathery Grama Panchayat, in the counter
affidavit, that the petitioners and others have
surrendered their lands voluntary for the purpose of
constructing the road is correct. Except the bald
statement in the counter affidavit filed by the Secretary
of the Municipality that the petitioners and others have
surrendered their land for construction of the road, no
material is placed before this Court which would show
that the petitioners have in fact surrendered their land
voluntarily, free of cost, it is only natural that a local
body securing properties of citizens for a public purpose
of this nature would get some documents evidencing
such surrender from the persons concerned. Further, it is
seen that the construction of the road was commenced
during the last month of December, 2010, and Ext.P3
representation was preferred by the petitioners before
the fourth respondent on 30.03.2011. The specific case
of the petitioners is that they have sent ext.P8
5
representation also to the Grama Panchayat demanding
payment of compensation and that there was no
response to the same. The said statement made by the
petitioners in the writ petition has not been denied in the
counter affidavit filed by the third respondent. No reply
was also sent by the third respondent. No reply was also
sent by the third respondent to Ext.P8 representation. In
the circumstances, especially in the absence of any
evidence to indicate that the petitioners have
surrendered their land free to cost for the purpose of
constructing the road, I have no hesitation to hold that
the case set up by the petitioners in the writ petition that
the land acquired for the construction of the road was
secured from them by the Panchayat on the basis of the
assurance that they will be given adequate
compensation for the same.
6. Article 300 A of the Constitution of India mandates
that no person shall be deprived of his property save by
authority of law. In the peculiar facts and circumstances
of the case, I have no hesitation to hold that the
utilization of the property of the petitioners for the
purpose of construction of the road for the benefit of the
general public was in violation of the constitutional right
guaranteed to the petitioners under Article 300 A of the
Constitution. In so far as the petitioners do not want their
property back, they are certainly entitled to
compensation for the land acquired from them.
7. In the result, the writ petition is disposed of as
follows:
i. The District Collector, Wayanad shall determine the
market value of the property taken over from the
petitioners by the erstwhile Sulthan Bathery Grama
Panchayat for the purpose of construction of the Sulthan
Bathery Bye pass road, within a period of two months
from the date of receipt of a copy of this judgment, '
after affording the petitioners, an opportunity for hearing
and issue a communication in that regard to the third
respondent Municipality which. succeeded the assets
and liabilities of the erstwhile Sulthan Bathery Grama
Panchayat.
ii. The third respondent Municipality shall, thereupon,
disburse the amounts determined as due to the
petitioners, within a period of one month thereafter.
iii. It is made clear that if the petitioners are dissatisfied
with the quantum of the market value fixed by the
6
District Collector, they are at liberty to move the civil
court for the said purpose. Needless to observe that if
such a suit if filed by the petitioners, the same will be
disposed of by the civil court concerned on the same
lines on which an application for reference under Section
18 of, the erstwhile Land Acquisition Act, 1894 is being
disposed of.”
8. The Panchayat/Municipality carried the matter in appeal.
The Division Bench proceeded on the reasoning that the burden
was on the appellants to prove that they were given assurance
of suitable compensation. The appellants having failed to
discharge their burden, their claim could not succeed. It also
recorded that there was no provision for road development by
giving price of the land acquired. On such considerations vide
judgment dated 12.09.2018, the Division Bench allowed the
appeal, set aside the judgment of the Single Judge and
dismissed the writ petition. Relevant consideration as contained
in paragraphs 6, 7 and 8 of the judgment is reproduced below:
“6. The learned Judge in the impugned judgment however
proceeded on the basis that the circumstances indicated
that there was an assurance by the Panchayat, to
compensate the writ petitioners, in the event they
surrender their land free of cost, for the bypass road. We
on the other hand find that such assumption is not borne
out by any documents produced in the writ proceedings
by the claimants. In fact there are vital contradiction on
the stand of the land owners on who had given them the
assurance of compensation.
7. In the aforesaid circumstances and particularly in the
absence of any fact to show that the surrender of the land
was not voluntary, we have reason to believe the Ext.P3
7
and the subsequent representations claiming
compensations were nothing but after-thoughts and the
right of the petitioner is not established, on the basis of
those representations.
8. It is also necessary for us to point out that while
formal surrender of land require written documentation,
there can be situation where a land owner may voluntarily
surrender their land without observing any formalities and
that cannot be a basis for us to conclude that the
surrender was not voluntary and would require the State
to compensate the land owner.”
9. It is not disputed that the appellants did lose their land in
the construction/widening of the road belonging to the
Panchayat/Municipality. It is also admitted that the road as it
existed and after further construction and widening would be
owned by the Panchayat/Municipality, that is to say that the
appellants would be deprived of their right, title or interest over
the land utilized for the said purpose. As such the appellants
have been deprived of their land in the said process.
10. The appellants are farmers and the land utilized is
agricultural land. It was part of their livelihood. Depriving them
of their part of their livelihood and also of their property without
authority of law would be violative of Article 21 and Article
300A of the Constitution.
8
11. Article 300A though not a fundamental right but
nevertheless it has status of being a constitutional or a
statutory right. It provides that no citizen would be deprived of
his property save without authority of law. Depriving somebody
of his property, where it is land, can be made by number of
modes e.g. by acquisition, surrender or by transfer and other
facets also. In the present case, it being utilized for the road to
be owned by the Panchayat/Municipality, it could either have
been voluntarily surrendered, transferred by way of title deeds
or by way of acquisition as may be provided under the statute.
12. In the present case, admittedly, there is neither any
acquisition proceedings nor any transfer of rights by the
appellants by way of sale, gift or otherwise. What is being
alleged is that it was a voluntarily surrender of rights for no
consideration. This is the stand taken by
Panchayat/Municipality. If the Panchayat/Municipality is taking
this stand, the burden would be on the Panchayat/Municipality
to establish such voluntary surrender. A memorandum or an
agreement or a written document ought to have been executed
9
by the appellants stating their free will to surrender for no
consideration in favour of the Panchayat/Municipality.
13. The learned single Judge has clearly recorded that
Panchayat/Municipality as also the PWD failed to produce any
such evidence. Even the Division Bench did not find any
material on record produced by the Panchayat/Municipality or
the PWD to the aforesaid effect. However, the Division Bench
proceeded on the premise that the burden would lie on the
appellants to establish that they were given an assurance. It is
the Panchayat/Municipality which is the beneficiary. Burden
should be on the Panchayat/Municipality to prove that there
was a voluntary surrender.
14. In our considered view, the Division Bench proceeded on a
wrong premise on shifting the burden on the appellants. The
assertion that it was surrendered voluntarily without any claim
for consideration is by the Panchayat/Municipality. The PWD has
only stated that it received the land from Panchayat and that it
was given to understand that the land was surrendered
10
voluntarily. Thus, it is the stand of Panchayat/Municipality which
is to be taken note of.
15. Another reasoning given by the Division Bench is that the
appellants made a stale claim and it was as an afterthought
that they started claiming compensation after
construction/widening of the road had completed. This
reasoning of the Division Bench, in our view, was also not
sustainable in as much as the appellants had represented at
the earliest, after the land was utilized, to the authorities to pay
the compensation. As far as the averments in the petition are
concerned, they refer to a couple of representations given right
from 2011 onwards and when nothing proceeded, the
appellants approached the High Court in 2014. Therefore, to
say that there was substantial delay on the part of the
appellants in agitating for their rights would not be correct. We
find from the writ petition that one of the first representation
was made on 30.03.2011 addressed to the Chief Engineer, PWD
claiming compensation to which the appellants also received a
response dated 25.04.2011 stating that PWD had not acquired
the land but had received it from the Panchayat. The appellants
11
also obtained relevant material under the Right to Information
Act with respect to their claim which is also a part of the writ
petition. The appellants further gave a legal notice dated
11.01.2013 addressed to the State as also the PWD. Thereafter
another representation was given to the Secretary of the
Panchayat on 05.11.2013 claiming compensation. In the
counter affidavit filed by the Panchayat and also the PWD, the
representation of the petitioners referred to above are not
denied.
16. The Division Bench has also noted that there was no
scheme for road development by giving price of the land
acquired. This observation by the Division Bench would also be
contrary to mandate of Article 300A. If there was no scheme,
then it was the fault of the State or the Panchayat. To say that
there was no scheme is one thing and owner of the land
surrendering his land voluntarily without payment of
compensation would be different. If there was no such scheme
then all the more it was necessary to get the surrender, if any,
documented, by the Panchayat/Municipality or the State or the
PWD, as the case may be.
12
17. Sole question for consideration would be as to whether the
appellants had voluntarily surrendered their land to the
Panchayat free of cost without raising any claim for
compensation or not. The Panchayat as also the PWD have
failed to produce a single piece of document or evidence in any
other form in support of their defense that the appellants have
surrendered their land voluntarily. The consistent stand of the
appellants, on the other hand, has been that they have not
given their land to the Panchayat voluntarily and that they were
assured that they would be suitably compensated. The PWD
proceeded to construct the road upon the land made available
by the Panchayat. No doubt, the road is in the ownership and
possession of the Panchayat but the land over which the road
was to be constructed or widened was neither in ownership nor
possession of the Panchayat. The PWD did not care to take any
further clarification from the Panchayat as to whether such land
has been acquired, purchased or voluntarily given by the land
owners. The PWD has only stated that it received the land from
Panchayat and that it was informed that such land has been
made available voluntarily without any claim for compensation
and free of cost.
13
18. The stand of the PWD cannot be the basis for determining
as to whether the appellants had surrendered their land free of
cost without any claim for compensation or that they had
expectations to receive compensation as assured by the
Panchayat. The Division Bench fell in error in taking into
consideration the stand of the PWD.
19. The Division Bench also proceeded to note that the
appellants were keen on changing their stand by initially
claiming from the State and then from the Panchayat. This
reasoning is also not tenable. The appellants are farmers. They
cannot be treated as the persons conversant with intricacies of
law. The appellants had, from the very beginning, stated that
assurance was given by the Panchayat. They had not changed
their stand but were consistent. It is for this reason that the
learned Single Judge had although directed the collector to
determine the value of compensation but the liability to pay the
compensation was saddled on the Panchayat/Municipality and
not on the State. The Division Bench committed an error in
commenting against the appellants and drawing an adverse
14
inference. It took a view too technical, to deprive the
appellants of their right to compensation.
20. Article 300A clearly mandates that no person shall be
deprived of his property save by authority of law. In the
present case, we do not find, under which authority of law, the
land of the appellants was taken and they were deprived of the
same. If the Panchayat and the PWD failed to produce any
evidence that appellants have surrendered their lands
voluntarily, depriving the appellants of the property would be in
violation of Article 300-A of the Constitution.
21. A Constitution Bench of this Court in the case of K.T.
Plantation Private Limited and another vs. State of
Karnataka1
 apart from others, dealt with an issue relating to
payment of compensation where a person is deprived of his
property after deletion of Article 31(2). It laid down that there
are two requirements to be fulfilled while depriving a person of
his property. Requirement of public purpose is a pre-condition
and right to claim compensation is also inbuilt in Article 300-A.
1 (2011)9 SCC 1
15
While answering the reference in paragraph 221(e) it provided
as follows:
“221. We, therefore, answer the reference as follows:
Xxx xxx xxx
(e) Public purpose is a precondition for deprivation of a
person from his property under Article 300-A and the
right to claim compensation is also inbuilt in that article
and when a person is deprived of his property the State
has to be justify both the grounds which may depend on
scheme of the statute, legislative policy, object and
purpose of the legislature and other related factors.”
Construction/widening of road no doubt would be a public
purpose but there being no justification for not paying
compensation the action of the respondents would be arbitrary,
unreasonable and clearly violative of Article 300-A of the
Constitution.
22. For the foregoing reasons, the appeal deserves to be
allowed. The judgement and order of the Division Bench of the
High Court of Kerala dated 12.09.2018 in W.A. No. 2108 of 2016
is hereby set aside and that of the Single Judge dated
26.08.2016 passed in WP(C) No. 2329 of 2014 is maintained.
There shall be no order as to costs.
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23. Pending application(s), if any, shall stand disposed of.
…………..........................J.
[DINESH MAHESHWARI]
………….........................J.
[VIKRAM NATH]
NEW DELHI
April 26, 2022. 
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