Right to property is not a fundamental right : Supreme Court
It has been observed over time and given the decisions of this court that the right to property has been severely undermined due to its character being that of a legal right and not a fundamental right. The evolving jurisprudence of this court also underlines that it is a valuable right ensuring guaranteed freedoms and economic liberty.This remarkable judgement was passed by the bench of the Supreme Court, consisting of Justice S Ravindra Bhat and Justice Indira Banerjee in the matter of B. K. Ravichandra &amp; Ors. V Union Of India &amp; Ors., [CIVIL APPEAL NO. 1460/2010].  A land owner was evicted from his land by the government for the governmental use of the property under the Requisitioning and Acquisition of Immovable properties Act, 1952. The owner appealed to the High Court praying for the government to vacate the land. Although the court did not grant this relief, it however granted relief in terms of prosecuting the government for adequate compensation. As mandated by Section 8 (2) of the Requisitioning Act, this dispute was referred to an arbitrator. Several issues were raised by the owner such as, amount of compensation payable, the recurring payments in respect of the periods of requisition and the sums equal to the rent that would have been payable for the occupation and use of the property and other sums towards 4 years of losses, i.e. pecuniary loss expense on account of the vacating of the requisitioned premises, expenses on account of re- occupying of premises after release from acquisition and damages other than normal repairs. The appeal was made to the Supreme Court. Firstly, in disagreement to the findings and order of the High Court in refusing to grant relief to the owners, the Apex Court opined, “the Union asserted that it had acquired at least some parts of the suit lands; these were examined by the High Court on two occasions, and in arbitration proceedings under the Requisitioning Act, on three occasions. Each time, the factual findings went against the Union. The Union’s occupation ceased to be lawful, with the lapse of the Requisitioning Act, in 1987. Yet, it has implacably refused to hand back possession, each time asserting that it has some manner of rights over it. The High Court, while noticing that the Union’s claim had no merits (in both its appeal, which was dismissed, as well as in the impugned judgment, disposing of the writ petition), nevertheless refused to issue any direction for the release of the suit lands”.
 IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1460 2010 B. K. RAVICHANDRA & ORS. ...APPELLANT(S) UNION OF INDIA & ORS. ...RESPONDENT(S) JUDGMENT S. RAVINDRA BHAT J. 1. This appeal by special leave questions a judgment of the Karnataka High Court1. The High Court rejected the appellants’ claim to direct the respondent hereafter called “the Union”) to vacate their lands leaving it open to the latter to initiate appropriate proceedings for acquisition of certain landsthe Requisitioning Act was to be 1 Dated 11.01.2008 in W.P. 8340 2006 2 By virtue of Section 1(3) the Act was initially temporary and to remain in force for six years. 2 in force for six years. Section 3 clothed the Union with the power to requisition properties for any public purpose Section 7 provided the procedure to requisition lands. It also spelt out the condition precedents for exercise of the power. Section 8 provided for compensation with regard to property. Section 8(2) laid out the principles applicable for determination of compensation for the property as a recurring one3. On 27.02.1958 the Requisitioning Act was amended and the period of its operation extended. In the meanwhile the Defence of India Act 1962 was enacted by Parliament empowering the Central Government with powers akin to those enacted under the Requisitioning Act. The Union invoked its powers under the DIA and requisitioned the three described properties which belonged to the predecessor of the appellants in Byppanahalli Bangalore South Taluk. The then owner late B.M. Krishnamurthy the appellants’ predecessor handed over the possession of the suit lands under protest these were taken over under Section 30 of the DIA. The competent authority fixed the compensation for these lands by order dated 3 Section 8(2)provided inter alia as follows: Section 8(b) provided for payment of following matters namely: i) pecuniary loss due to requisitioning “a recurring payment in respect of the period of requisition of a sum equal to the rent which would have been payable for the use and occupation of the property if it had been taken on lease for the period.” b) such sum or sums if any as may be found necessary to compensate the person interested for all or any of the ii) expenses on account of vacating the requisitioned premises iii) expenses on account of reoccupying the premises upon release from requisition and iv) damagescaused to the property during the period of requisition including the expenses that may have to be incurred for restoring the property to the condition in which it was at the time of requisition. 3 18.12.1964. The approval for this compensation fixation was given much later in 1968. By Act 463 Section 1(3) of the Requisitioning Act was amended and the period of operation of the Requisitioning Act was extended till 14.03.1970. In the meanwhile the DIA lapsed with effect from 10.01.1968. The Requisitioning Act was amended incorporating Section 25 which enacted that the immovable property requisitioned under the DIA which had not been released as on 10.01.1968 was deemed to have been requisitioned under the Requisition Act. It also continued the status quo with respect to determination of compensation completed under the DIA. This Amendment Ordinance was replaced by an actual amendment to the Requisitioning Act. The Requisitioning Act was again amended in 19704 to delete Section 1(3) of the main Act. The Amendment Act also enabled requisitioning of property and stated that requisitions were to be continued and were to be released after 12 years subsequently the period of 12 years was extended to 17 years)5. In late 1972 the predecessor of the appellants felt that the compensation fixed for the suit lands was inadequate and applied for enhancement. This was in 4 Act 70. The effect of this amendment Act was to change the temporary character of the legislation. 5 Section 6(1A) reads as follows: “ 6. Release from requisitioning.—(1) The Central Government may at any time release from requisition any property requisitioned under this Act and shall as far as possible restore the property in as good a condition as it was when possession thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force: Provided that where the purposes for which any requisitioned property was being used cease to exist the Central Government shall unless the property is acquired under section 7 release that property as soon as may be from requisition. 1A) Notwithstanding anything contained in sub section the Central Government shall release from requisition — a) any property requisitioned or deemed to be requisitioned under this Act before the commencement of the Requisitioning and Acquisition of Immovable Property Act 1970 on or before the expiry of a period offrom such commencement ” 4 terms of the amendment of 1970 contemplated retention of property for a total period of 3 years. Therefore the recurring payment was in respect of a short duration. The period of requisition under Section 8(2A)6 for the 6 “Section 8(2A) reads as follows: The recurring payment referred to in clause of sub section in respect of any property shall unless the property is sooner released from requisition under Section 6 or acquired under Section 7 be revised in accordance with the provisions of sub sectionin a case where such property has been subject to requisition under this Act for the period of five years or a longer period immediately preceding the commencement of the Requisitioning and Acquisition of Immovable PropertyAct 1975— i) first with effect from the date of such commencement and ii) secondly with effect from the expiry of five years and thirdly with effect from the expiry of ten years from such commencement ] b) in a case where such property has been subject to requisition under this Act immediately before such commencement for a period shorter than five years and the maximum period within which such property shall in accordance with the provisions of sub section of Section 6 be released from requisition or acquired extends beyond five years from such commencement — i) first with effect from the date of expiry of five years from the date on which possession of such property has been surrendered or delivered to or taken by the competent authority under Section 4 and ii) secondly with effect from the date of expiry of five years and thirdly with effect from the date of expiry of ten years from the date on which the revision made under sub clausetakes effect ] c) in any other case — i) first with effect from the date of expiry of five years from the date on which possession of such property has been surrendered or delivered to or taken by the competent authority under Section 4 and ii) secondly with effect from the date of expiry of five years and thirdly with effect from the date of expiry of ten years from the date on which the revision under sub clausetakes effect.] 5 purpose of compensation determination was during the pendency of the reference increased to five years. The reference was notified in a Gazette notification published by the Central Government. On 17.07.1975 the Arbitrator pronounced an Award which determined compensation as 6% per annum on the capital value of land assessed at ₹ 3 per square foot accepting the land requisitioned to be in Survey nos.103 2 and 104 in Byppanahalli. The Central Government had in the arbitration proceeding contended that the suit lands had also been acquired by virtue of a prior notification. The arbitrator considered this contention too and after examining the award of the LAC held: “From the evidence of RW 2 and also from the copy of the Ex R 13 and possession certificate as per Ex.R 14 it is established that 24 guntas and 29 sq. yards of land in S. No.103 2 and 8 guntas of land and 22 yards of land in S. No.104 of Byyappanahali were acquired for the purpose of NGEF and possession was taken by NGEF deducting the said acquired portion of the land in S. No.103 2 and 104 of Byyappanahalli the claimant would be the owner of the said lands in ARE No.72 73.” In view of the evidence it was also held that the appellants’ predecessor was entitled to receive compensation in respect of Survey No.104 deducting the portion of land acquired for the purposes of NGEF. This Award was made on The Requisitioning Act underwent a further amendment7. Section 8(2B) stated that recurring payment would be revised by re determining the amount8. 7 Act 75 which amended Section 6(1A) and substituted 10 years for the existing period for compensation determination. It also added Section 8(2A) by creating a deeming fiction that unless the property was released from requisition under Section 6 or duly acquired under Section 7 the recurring payment would be revised under provision of newly added sub sectionreads as follows: “(2B) The recurring payment in respect of any property shall be revised by re determining such payment in the manner and in accordance with the principles set out in sub sectionread with clauseof sub section6 As a consequence of this amendment of 1975 the recurring payment required to be determined and fixed under Section 8(2) had to be first decided and fixed with effect from the date of commencement of the Act and again with effect from the expiry of five years from the commencement of the amending Act. The amending Act came into force on 07.03.1975. To continue the narrative the arbitrator’s award was appealed against by the UOI. The award had determined compensation in terms of the DIA and later since it lapsed in 1968 also having regard to the principles spelt out in Section 8 of the Requisitioning Act as amended. On 21.07.1978 the Central Government’s appeal was disposed of in terms of a joint memo filed by the parties by which it was agreed that the matter with respect to determination of compensation would be remanded remitted for fresh adjudication however the compensation fixation of 10.01.1968 was agreed to be final and binding. The only caveat added was that the question of maintainability of appeals under Section 11 of the Requisitioning Act was pending before this Court in certain proceedings. However the parties agreed that till disposal of appeal by the arbitrator the compensation fixed @ ₹ 3 per square foot would be operative. It was further agreed that in case the appeals were not held to be maintainable the compensation fixed by the award was to be treated as final. But on the other hand if the appeal was held to be maintainable the arbitrator had to decide the fixation of compensation for the period prior to 10.01.1968. By a judgment of this Court9 it was held that an award covering the period of requisition can be challenged in appeal and that the award made under DIA was not appealable. Thus the compensation fixation for the period upto as if such property had been requisitioned under this act on the date with effect from which the revision has to be made under such sub sectionSCR 4 7 10.01.1968 in this casebecame final. 10. On 28.01.1985 in the second arbitration proceeding based on the fixation of compensation till 10.01.1968 it was held that the fixation of compensation till 10.01.1968 had to be accepted and basic fixation of rent was to be increased for over 5 years thereafter. The arbitrator then proceeded to fix the rental compensation payable per square foot for 3 distinct periods i.e. 10.01.1968 to 10.01.197310.01.1973 to 10.01.1975and 10.01.1978 to 10.01.1985 was introduced to the Requisitioning Act thus the recurring compensation question had to be decided from 10.01.1968 and then 10 Reported as Union of India v B.M. Krishnamurthy 1995KarLJ 607. 8 from the commencement of the Amendment Act and again from the expiry of that Act. It therefore held upon a reading of Section 8(2A) that “recurring compensation payable in this case from 10.01.1968 to the commencement of the amendment Act 75 upto 07.03.1975 shall be fixed and for the period 07.03.1975 it should be done as indicated in Section 8(2A). ” 11. The award therefore was set aside and the matter was remitted for fresh consideration by the arbitrator. In this freshround the arbitrator published two awards one dealing with the extent of land and the other the compensation payable. After examining all the evidence including the documentary evidence presented by the parties as well as the oral testimony i.e. the oral deposition on behalf of the UOI it was held that Survey nos. 103 1 and 103 2 were not validly acquired by the Central Government and that Survey No.104 was validly acquired. The other award determined the land value and recurring annual value at different rates which is set out below in a tabular form: Sl. No. Rate to be calculated for 2 acres 39 guntas) 10.1.1968 to 07.03.1975 ₹ 1 per square foot 6% p.a. 07.03.1975 to 07.03.1980 ₹ 1.5 per square foot 6% p.a. 07.03.1980 07.03.1985 ₹ 5 per square foot 6% p.a. 07.03.1985 07.03.1990 ₹ 25 per square foot 6% p.a. 07.03.1990 07.03.1995 ₹ 45 per square foot 6.5% p.a. 07.03.1995 07.03.2000 ₹ 100 per square foot 6% p.a. 9 12. Aggrieved by the two awards both dated 28.02.2000 the Union preferred an appeal before the Karnataka High Court. During its pendency the widow of the late BM Krishnamurthy and the present appellants her children filed a writ petitionclaiming that since the period of requisition had ended and the suit lands had not been acquired the possession of the Union after 1987 was untenable in law. In a judgment delivered on 11.01.2008the Division Bench of the Karnataka High Court rejected the contentions of the Union vis a vis its acquisition of suit lands or any part thereof and noted that the court was concerned “only with Sy. Nos. 103 1 and 103 2 for the period between 1968 and 2000 and so far as Sy. No. 104 is concerned between the period 1968 and 1977 as the portion of the land measuring 11985.24 square feet undisputedly came to be acquired”. It upheld the awards of the arbitrator fixing the compensation in 2000 and held that: “Accordingly in view of the discussion and reasoning stated above we confirm the fact that neither Sy. No. 103 1 nor Sy. No. 103 2 ever came to be validly acquired by the authorities for the benefit of appellant herein. We hold the rental compensation computed by the arbitrator is just and proper.” 13. The Union sought special leave to appeal under Article 136 of the Constitution against the said judgment dismissing its appeal11. By order dated 10.09.2010 that special leave petition was dismissed keeping it open for the Union to acquire the property in accordance with law. Thus as regards the question of ownership and the rental payable till the period 07.03.2000 the issue attained finality. By the impugned judgment delivered 11.01.2008 the Division 11 SLPCC No. 12634 2008. 10 Bench after considering the records dismissed the appellants’ writ petition and held that “It is also noticed from the records originally the land in question came to be handed over to the defence authorities It is also noticed from the records originally the land in question came to be handed over to the defence authorities by invoking the provisions of defence of India Act 1962 which act came to be repealed on 10.01.1968. By virtue of Section 25 of the Requisitioning Act 1952 whatever has been done under the Defence Act of India is presumed to have been done under Requisitioning Act the authorities could not have held the property beyond 08.03.1987 at any cost. We say so because withing the said period of 07.03.1987 apparently there was no valid acquisition of properties by the concerned authorities as noted above. the Requisitioning Act therefore u s 6 of It is also brought to our notice that though portions of land in different Sy. Numbers adjacent to these lands came to be acquired in the year 1972 and also on earlier occasions such acquisitions never came to be challenged by the respective owners and the defence authorities continued to be in possession of those properties as beneficiaries after acquiring the said lands by the competent authority. We notice that from the contentions of the defence authorities right from 1941 till date about 600 acres is in possession of them and some of the lands are acquired other than the lands in question. This Sy. No. 103 seems to be in the centre of that 600 acres on this vast area of 600 acres which is enclosed by a fence by the authorities. They have put up firing range buildings parade ground In that view of the matter as we noted above already at this late hour of the day it would not be just and proper to direct the respondents to hand over the possession of those properties. In the connected MFA No. 2220 02 we have already approved the computation of rental compensation awarded by the arbitrator upto 07.03.2000. The petitioners are entitled to seek compensation for the subsequent period in accordance with law. The Respondents defence authorities and the State Government are at liberty to initiate acquisition proceedings so far as these lands are concerned if they need in respect of property in Sy. No. 102 1 and 103 2 as well for the benefit of the defence authorities.” The contentions 14. Mr. Mohan Parasaran the appellant’s senior counsel argued that having upheld the main contentions with respect to the ownership and title of the suit lands the impugned judgment erred in law in refusing to grant the reliefs claimed in the writ proceedings. It was argued that even if arguendo any acquisition notification had covered any period upto 1975 with the coming into force of the 1984 amendments to the Land Acquisition Act a period of 2 years was statutorily granted by Parliament to complete the acquisition i.e. to issue the award. Since concededly there was no award valid ever made by virtue of the operation of law i.e. Section 11A12 the question of ownership which was decided by the arbitrator in the first and third award became conclusive and binding. It was also urged that the directions of the earlier Division Bench ruling in B.M. Krishamurthy13 were specifically to determine the extent of land acquired in compliance the arbitrator in the third arbitration proceedings by the first award decided the extent of acquired land. Those findings of the arbitrator rendered by virtue of the earlier remand became final because the Union’s appeal was rejected by the Division Bench. Further the special leave petition against that judgment was rejected by this court. 12 Section 11A reads as follows: “11A. Period shall be which an award within made. The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period the entire proceeding for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land AcquisitionAct 1984the award shall be made within a period of two years from such commencement. Explanation In computing the period of two years referred to in this section the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be 13 Supra n. 10 12 It was argued that once the issue of ownership stood settled conclusively the Union had to vacate the suit property because its possession was not justified or authorized by law. Learned counsel relied on the ruling of this court14 which held recollecting an earlier judgment in State of Haryana v Mukesh Kumar15 that the right to property is “not only a constitutional or statutory right but a human right”. This court quoted with approval earlier judgments which had ruled that deprivation of possession of one’s property without a law was untenable. It was argued that the determination of compensation was up to the period ending in 2000 i.e. 20 years ago. In the meanwhile the value of property as well as recurring value of compensation had risen astronomically as the suit lands had great commercial potential. 16. Mr. K.M. Natraj learned Additional Solicitor General urged this court not to interfere with the impugned judgment. According to him the High Court correctly denied the claim to release of lands since it was a dispute which had to be decided by the civil court. The learned ASG sought to argue that the findings with regard to extent of ownership were ambiguous and the courts committed errors in ignoring that the suit lands were acquired through notifications in 1941. Mr. Natraj contested the submission that the lands were unlawfully occupied pointing out that the properties were requisitioned validly and that those orders were never questioned by either the predecessor of the appellants or them in any 17. From the narration of events it is clear that first the suit properties were requisitioned in 1963 under the DIA. The amendment to the Requisition Act properly instituted proceedings. Analysis and findings 14 Vidya Devi v. State of H.P.2020SCC 569. 15 2013SCC 353 13 which enacted Section 25 in 1968 had the effect of creating a deeming fiction that requisitions under the DIA were deemed to be under the Requisitioning Act. Thereafter due to successive amendments to the Requisitioning Act the period of requisition continued it finally ended in 1987. In the meanwhile the original landowner late Krishnamurthy sought and was granted a reference to arbitration on the issue of compensation payable. The first award made in 1975 decided both the question of extent of land requisitioned the dispute was remitted. This time the arbitrator rendered two awards one deciding the question of ownership or its extent and the second on the question of compensation determination. The Union appealed to the High Court that appeal17 was dismissed by a judgment delivered on the same day as the impugned judgment. The Union’s special leave petition was dismissed 10 years ago provides for payment of compensation in accordance with predetermined principles. Yet the taking of property by definition is finite: it cannot result in expropriation or deprivation of title altogether unless another process for acquiring it is initiated. 19. Whilst dealing with a similar enactment18 this court in Grahak Sanstha Manch v. State of Maharashtra19 held through a Constitution Bench that requisition by its nature is temporary and that the landowner’s right to property cannot remain suspended indefinitely at the wishes of the state or its agencies: this Court “16. We find ourselves in agreement with the view taken in the cases of Collector of Akola1 SCR 401 : AIR 1968 SC 244] and Jiwani Kumar Paraki4 SCC 612] that the purpose of a requisition order may be permanent. But that is not to say that an order of requisitioning can be continued indefinitely or for a period of time longer than that which is in the facts and circumstances of the particular case reasonable. We note and approve in this regard as in Jiwani Kumar Paraki case4 SCC 612] the observations of the Nagpur High Court in the case of Mangilal Karwa v. State of M.P.which have been reproduced above. That the concept of requisitioning is temporary is also indicated by the Law Commission in its Tenth Report and as pointed out earlier by the terms of the said Act itself as it originally stood and as amended from time to time. There is no contradiction in concluding that while a requisition order can be issued for a permanent public purpose it cannot be continued indefinitely. Requisitioning might have to be resorted to for a 18 The Bombay Land Requisition Act 1948 194 SCC 192 at page 204 15 permanent public purpose to give an example to tide over the period of time required for making permanent premises available for it. The concepts of acquisition and requisition are altogether different as are the consequences that flow therefrom. A landlord cannot in effect and substance be deprived of his rights and title to property without being paid due compensation and the effect of prolonged requisitioning. Requisitioning may be continued only for a reasonable period what that period should be would depend upon the facts and circumstances of each case and it would ordinarily be for the Government to decide.” 20. When this court had to adjudicate in Rajendra Kumar Gupta v. State of U.P20 on somewhat similar facts i.e. the requisition having been resorted to during a national emergency under the DIA and its continuance under the Requisitioning Act the question which arose was the continued possession by the state. The court held that such possession long after the requisition period had ceased was contrary to law and observed that: “14. We therefore will have to examine the efficacy of the impugned order from the point of view of its prolonged duration uptil now which as seen earlier has been spread over more than two decades from the date on which it got its birth on 29 10 1976. For deciding this question we will assume with the respondents for the sake of argument that on the day on which it was passed it was validly passed under the provisions of Section 23. Even then the moot question still remains whether such an emergency order of requisition which might be justified in those days when it was passed could now be permitted to continue indefinitely. For answering this question we may usefully refer to the decision of the Constitution Bench of this Court in the case of Grahak Sanstha Manch4 SCC 192] . The Constitution Bench has in terms laid down that even though a requisition order can be issued for a permanent public purpose under the provisions of the Bombay Land Requisition Act 1948 it cannot be the relevant observations made in this connection by Bharucha J. speaking for the indefinitely. We may usefully refer 204 SCC 511 at page 525 16 majority of the Constitution Bench in paragraphs 16 and 17 of the Report:should be still permitted We have already shown that in the context of the emergency provisions of the Act in question the powers which could be exercised for requisitioning properties under Section 23 by their very nature could not be utilised for requisitioning immovable properties for an indefinite period. Such requisition virtually amounts to acquisition. In the facts and circumstances of this case it must be held that when years back the parent Act had ceased to operate and the internal and external emergency declarations had stood withdrawn now obviously there is no rhyme or reason why such a requisition order which by efflux of time has become stale and its very purpose has become obsolete should be permitted to be continued any further and the appellants’ properties requisitioned and in possession of the respondents. In the facts and circumstances of the case therefore it must be held that continued requisition of the appellants leasehold premises by now at least must be treated to have become unreasonable and it would necessarily indicate abuse of power and a colourable exercise thereof. It must be held that the impugned requisition order even assuming that it was valid and kicking and was not stillborn when it was passed in 1976 by now it has lost its efficacy and has become a dead letter in the present set of circumstances obtaining today. Even on this ground the continuance of the impugned requisition order cannot be sustained and has to be put an end to. The third point is also therefore answered in the affirmative in favour of the appellants and against the In this connection we may also note that it is not the case of 15. the respondents that now they require to acquisition the requisitioned premises on a permanent basis for the purpose for which they were initially requisitioned by exercise of powers under Section 30 of the Act. In fact the said provision could have been pressed in service by Respondent 3 if at all during the currency of the Act which provision is obviously not available to them now. Non exercise of powers under Section 30 for acquiring these requisitioned properties during the time the Act was in force itself shows that even according to the respondents the Government did not require the said requisitioned land to be acquired for its purposes or that it was felt that the cost of restoration of the requisitioned property by the Government would be 17 excessive. During the pendency of these proceedings this Court had earlier directed by order dated 21 9 1984 that status quo will remain so far as the construction in any part of the open space is concerned. That status quo was continued by an order of 29 10 1984. However by a latter order dated 9 2 1987 while granting special leave this Court had refused to grant stay but had made it clear that the respondents will not be entitled to claim the benefit of Section 30 of the Defence and Internal Security of India Act 1971 in the event of the appeal being allowed. Any further construction effected by the respondents will not be pleaded as defence during the hearing of the appeal. Under these circumstances therefore there cannot remain any valid defence for the respondents against the restoration of possession of the requisitioned premises to the appellants once the impugned order of requisition is found to be invalid in view of our findings on the aforesaid points for determination. In the result the appeal is allowed. The judgment and order of 16. the High Court are set aside. The writ petition filed by the appellants before the High Court is allowed. The impugned order of requisition of the premises in question dated 29 10 1976 is quashed and set aside. The respondents are directed to restore the possession of these requisitioned properties forthwith to the appellants by clearing off whatever construction may be existing on the spot and making available the requisitioned properties in their original form and shape to the appellants. The respondents are directed to comply with this order within eight weeks from the date of receipt of copy of this order at their end. In the facts and circumstances of the case there will be no order as to costs.” 21. Although the right to property is not a fundamental right protected under Part III of the Constitution of India21 it remains a valuable constitutional right. The importance of this right has been emphasized and iterated several times by this court. In Delhi Airtech Services Pvt Ltd v. State of U.P22 for instance this court underlined the issue as follows: 21 By reason of deletion of Article 19 (f) and Article 31 with sub heading “Right to Property” which were omitted by the Constitution 44th Amendment Act 1978. Article 31(1) was in effect enacted as Article 300A through an insertion in Chapter IV Part XII of the Constitution. 22 9 SCC 354 18 tyranny and economic oppression of “30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against Government. Jefferson was of the view that liberty cannot long subsist without the support of property." Property must be secured else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.” Earlier in State of Rajasthan v. Basant Nahata23 this court highlighted that a property owner’s rights cannot be deprived stating that: “59. ..In absence of any substantive provisions contained a parliamentary or legislative act he cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one’s right of property as envisaged under Article 300 A 300 A of the Constitution.” The decision in K.T. Plantation Pvt. Ltd. v. State of Karnataka24 interpreted Article 300A and held that: “168. Article 300A proclaims that no person can be deprived of his property save by authority of law meaning thereby that a person cannot be deprived of his property merely by an executive fiat without any specific legal authority or without the support of law made by a competent legislature. The expression “property” in Article 300 A confined not to land alone it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognized by law. 169. This Court in State of W.B. v. Vishnunarayan and Associates P) Ltd.6 while examining the provisions of the West Bengal Great Eastern Hotel Act 1980 held in the context of Article 300 A that the State or executive officers cannot interfere with the right of others unless they can point out the specific provisions of law which authorises their rights.” 2312 SCC 77 249 SCC 1 19 Other judgments of this court have also highlighted the importance of the right under Article 300 A in the context of regulatory laws and enactments which do not directly result in expropriation or acquisition but rather in an oblique and indirect fashion block the right to enjoyment of properties underlining that the essential theme of Article 300 A is unauthorized deprivation which would result in an indefinite suspension of the right to property. The court stressed that the law should be explicit about the nature and effect of the deprivation expressing the intention to do so. Therefore in T. Vijayalakshmi v. Town Planning Member25 this court observed that: “13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right however can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf but ecological aspects it is trite are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field ecological aspects have not been taken into consideration keeping in view the future need the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force. 258 SCC 502 20 15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. ….” emphasis supplied) This court has also recognized that regulatory laws which have the effect of impacting the right to property should be strictly construed.26 In a very recent judgment D.B. Basnett v. Land Acquisition Officer 27 the court approved the findings of the courts below that the lands were never acquired because the procedure prescribed was not followed notice of acquisition had not been given nor was any amount proved to have been received. The court also turned down the state’s plea of adverse possession and granted relief in the following terms: “20. We are conscious that the land is being used by the respondent State through Respondent 2 Department. That however does not give such a licence to the State Government. We had endeavoured to refer the matter for mediation to find an amicable solution but that did not fructify. We however would like to give some time to the respondent State 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 months time from the date of the 26 State of U.P. v. Manohar 2 SCC 126 Delhi Airtech Services Ltd. Bhavnagar University v. Palitana Sugar MillLtd. 2 SCC 111 Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher 2013SCC 627 : especially the following observation: “Shri Naphade s interpretation of the scheme of Sections 126 and 127 if accepted will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300 A of the Constitution.” Ref. also to Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher 5 SCC 627 Chairman Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. 8 SCC 705 Ramchandra Ravindra Waghmare v. Indore Municipal Corporation 1 SCC 667 and more recently in M.C. Mehta v Union of India 2020 SCC Online658. 274 SCC 572 at page 580 21 judgment for the respondent State to make up their mind as to what they want to do. Would they still like to retain the land by issuing a proper notification or would they like to surrender possession of the land. In either eventuality the question of payment for use and occupation would still arise which will have to be determined in accordance with law. Mesne profits would be determined by a Court Commissioner to be appointed by the trial court as a relief in that behalf has been sought in the plaint itself.” 24. To sum up the facts repeatedly the Union asserted that it had acquired at least some parts of the suit lands these were examined by the High Court on two occasions and in arbitration proceedings under the Requisitioning Act on three occasions. Each time the factual findings went against the Union. The Union’s occupation ceased to be lawful with the lapse of the Requisitioning Act in 1987. Yet it has implacably refused to hand back possession each time asserting that it has some manner of rights over it. The High Court while noticing that the Union’s claim had no meritsnevertheless refused to issue any direction for the release of the suit lands. The rationale given was that the adjoining areas had been acquired and were used by the Union for defense purposes. What is more the impugned judgment granted indefinite time to the Union to take steps to acquire the suit lands. The Union has not chosen to do so these last 12 years. These facts paint a stark even sordid picture. 25. The United States of America set up an exclusive courtwhich enabled the crown in the UK to assert its right to insist that it was not bound by the law unless there was express statutory intent29. Mercifully a later judgment30 overruled that understanding. In Superintendent and Remembrancer of Legal Affairsthis court held that “23. The next question is whether this Court should adopt the rule of construction accepted by the Privy Council in interpreting statute vis a vis the Crown. There are many reasons why the said rule of construction is inconsistent with and incongruous. In the present set up we have no Crown the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic it is inconsistent with the rule of law based on the doctrine of It is therefore no longer open to the state: in any of its formsto claim that the law or the constitution can be ignored or complied at its convenience. The decisions of this court and the history of the right to property show that though its pre eminence as a fundamental right has been undermined nevertheless the essence of the rule of law protects it. The evolving jurisprudence of this court also underlines that it is a valuable right ensuring guaranteed freedoms and economic liberty. The 29 In Director of Rationing and Distribution v. Corporation of Calcutta1 SCR 158] where this Court held that the State was not bound by the provisions of a state law and was not liable to prosecution for its contravention. Sinha C.J. spoke for the majority Sarkar J. concurred separately and Wanchoo J. recorded his dissent. The reasoning of Sinha C.J. is found in the following passage: “It is well established that the common law of England is that the King s prerogative is illustrated by the rule that the Sovereign is not necessarily bound by a statutory law which binds the subject…. That was law applicable to India also as authoritatively laid down by the Privy Council in the case referred to aboveL. Rule 73 I.A. 271] itmust be interpreted as including the common law of England which was adopted as the law of this country before the Constitution came into force.”2 SCR 170 23 phrasing of Article 300 A is determinative and its resemblance with Articles 21 and 265 cannot be overlooked they in effect are a guarantee of the supremacy of the rule of law no less. To permit the state: whether the Union or any state government to assert that it has an indefinite or overriding right to continue occupying one’s propertywhatever be the pretext is no less than condoning lawlessness. The courts’ role is to act as the guarantor and jealous protector of the people’s liberties: be they assured through the freedoms and the right to equality and religion or cultural rights under Part III or the right against deprivation in any form through any process other than law. Any condonation by the court is a validation of such unlawful executive behavior which it then can justify its conduct on the anvil of some loftier purpose at any future time aptly described as a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”31 27. For the above reasons this court holds that the impugned judgment committed an error in refusing relief to the appellants. 33 years is a long enough time even in India to be kept away from one’s property. The respondent Union is directed to hand back possession of the suit lands to the appellants within three months. Furthermore it is open to the appellants to seek compensation based on fresh fixation of capital value and recurring annual value based on the different five 31 The phrase is quoted from Justice Robert Jackson’s powerful and timeless dissent in Korematsu v United States 323 US 214order itself. A military order however unconstitutional is not apt to last longer than the military emergency. … once a judicial opinion rationalises such an order to show that it conforms to the Constitution or rather rationalises the Constitution to show that the Constitution sanctions such an order the Court for all times has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” 24 year periods for the last 20 years. Such a claim shall be referred to arbitration within four weeks of receipt of the reference. The arbitrator shall proceed to pronounce the award within six months of receipt of the reference. This is independent of the Union’s obligation to vacate and hand over peaceful possession of the suit lands within three months. 28. The appeal is allowed in the above terms the appellants shall be paid costs quantified at ₹ 75 000 . New Delhi November 24 2020. 