It is the duty of the state to compensate the owner of the acquired land… Supreme Court overturned the decision of the High Court

New Delhi/Mumbai: The Supreme Court overturned the Bombay High Court’s decision in a case involving landowners who handed over their land for public amenities. The country’s apex court said that the state has a duty to compensate those who lose their land. The court said that failure to do so would violate Article 300-A of the Constitution – the right to property. Once compensation in the form of TDR is determined, it is payable even in the absence of any representation made on behalf of the landowner. Article 300-A says that the property of a citizen cannot be taken away without following due process of law. The Supreme Court had set aside a 2018 decision of the Bombay High Court. It had dismissed a bunch of petitions filed by builders on the ground that there was a delay of about eight to 13 years in seeking TDR as compensation for land taken over by the BMC for public projects, mainly development plan roads.

What decision did the Bombay High Court give?
The Bombay High Court had dismissed the petitions seeking compensation from the BMC for land handed over for public amenities on the ground of delay and negligence. A bench of Justices B V Nagarathna and N K Singh of the Supreme Court said that the High Court was not right in dismissing the writ petitions on the ground of delay and negligence. The High Court had invoked the principles laid down by the apex court in its earlier judgment in 2009 involving Godrej & Boyce and the state government’s land acquisition scheme and the rules governing development in the state.

The Supreme Court therefore overturned the decision
The Supreme Court allowed over half a dozen appeals filed by Kukreja Constructions and others against a part of the high court order of December 18, 2018. It directed the BMC to consider their case and issue them the additional built-up space and TDRs expeditiously, and latest in three months. In only one case, the TDRs to be handed over to the builder are more than 6,000 sq m. The apex court’s decision will require the BMC to extend transferable development rights (TDRs) worth Rs 500 crore cumulatively, as per conservative estimates, lawyers said.

The BMC had filed three appeals against a part of the 2018 high court order directing it to pay additional TDR ranging from 75% to 100% to several landowners and builders Apurva Natwar Parikh and Company, who had applied soon after as land losers. The Supreme Court found no merit in the BMC’s appeals and dismissed them, holding the high court order by a bench of then justices Abhay Oka and Riyaz Chagla just and reasonable.

The petitioners before the high court and the Supreme Court included one of the city’s biggest landowners, Byramjee Jeejeebhoy, a HUF, Jitendra Sheth and others. Represented by leading law firms and top lawyers including Pravin Samdani, Amar Dave, Samit Shukla, Mahesh Agarwal and Shikhil Suri, the landowners argued that they had laid roads at their own cost and handed over land to the corporation, only to get nothing in return, though entitled by law to receive reasonable compensation from the state, which is an inherent and constitutional right guaranteed under Article 300-A of the Constitution.

he/she also argued that refusal to pay compensation would amount to taking over the property of citizens without authority of law and violate constitutional rights. It was argued that the rules state that if a landowner also develops the facility, he/she becomes eligible to receive additional compensation TDR. The state had cited a notification of November 2016, which amended the law to deny such compensation. Samdani said an amendment cannot deprive the owner of the constitutionally guaranteed right to payment for his/her land, especially when a prior law provides such a right.

What the Supreme Court found
The Supreme Court analysed the judgments and found that the claim for compensation for excess TDR, which was given to a landowner by law for construction of amenities, was suspended till its Godrej & Boyce I judgment of 2009 on the land acquisition scheme. It noted that landowners before it were given 25 per cent TDR for surrender of land and most had applied after 2009 for surrender of land made years earlier.

The Supreme Court held that the question of delay would not arise. The Supreme Court said that instead the delay was on the part of the Mumbai Municipal Corporation in complying with the rules in respect of these appellants and added that when relief is sought in the nature of compensation, as in this case, once the compensation is determined as FSI/TDR, the same is payable, irrespective of any representation or request made.