BHUSAWAL MUNICIPAL COUNCILversusNIVRUTTI RAMCHANDRA PHALAK & ORS.

                    [2013] 17 S.C.R. 259


             BHUSAWAL MUNICIPAL COUNCIL                            A
                              v.
       NIVRUTTI RAMCHANDRA PHALAK & ORS.
        (C::ivil Appeal Nos. 11227-11228 of 2013)
                   DECEMBER ·17, 2013
                                                                   B
      [DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]

    Land Acquisition:

     Agricultural land - Acquired by Municipal Council - For       c
opening a primary school - High Court, by an interim order,
directing appellant-Council to pay to respondents 50% of
enhanced compensation as awarded by reference court -
Held: If the land is to be acquired, law requires prompt
payment of compensation - In case the party by whom or for         0
whom the land is acquired is not in a position to make the
payment of compensation, the person-aggrieved becomes
entitled to get the land restored - Payment of compensation
as per award u/s 11 of the Act 1894, cannot be sufficient
security to serve the interest of the person-interested pending
                                                                   E
adjudication of appeal against the reference court's award -
The excuse that appellant-Council has paucity of funds cannot
be accepted as a justified cause to entertain the petition - The
appellant is directed to make the payment of the enhanced
amount of compensation, failing which it must restore the
possession of suit land to persons aggrieved who in turn would     F
refund the entire amount received as compensation - Land
Acquisition Act, 1894 - ss. 11 and 18 - Maharashtra Regional
and Town Planning Act, 1966.

      Acquisition of land - Court showing its concern on State/    G
Authorities dragging uprooted claimants into litigation up to
apex Court for payment of paltry amounts - Government
litigation.

                             259                                   H
    260      SUPREME COURT REPORTS'             [2013] 17 S.C.R.

A         Constitution of India, 1950:

         Art.300A rlw Arts. 21 and 21-A - Acquisition of
    agricultural land for opening a primary school - Obligation of
    State or its instrumentality to open school and right of an
    individual land owner whose land is being acquitted for the
8
    purpose - Discussed.

       The instant appeals arose out of the interim order
  passed by the High Court in the appeal filed by the
  appellant-Municipal Council, directing it to pay to the
C respondents 50% of the enhanced compensation
  awarded by the reference court for acquisition of
  agricultural lands, and the order of the High Court
  rejecting the writ petition filed by the appellant seeking
  to stay the freezing of its bank accounts.
D
          Dismissing the appeals, the Court

       HELD: 1.1. The appellant might be willing to meet its
  Constitutional or legal obligation to open a primary
  school for imparting education to children below 14 years
E of age but it cannot be done at the cost of individual-
  citizens by depriving them of their Constitutional rights
  under Art.300A of the Constitution. [para 8] [265-F-G]

       1.2. The provisions of the Land Acquisition Act, 1894
F provide for ·two awards; one is made by a Land
  Acquisition Collector uls 11 of the Act 1894 which is an
  offer on behalf of the State as he also acts as an agent
  of the State, and the second award is made by the court
  uls18 of the Act 1894. The reference court after examining
G and considering the evidence adduced by the parties
  assesses the market value of the land. In doing so, there
  may be some variation in actual valuation of the land but
  that does not justify staying the operation of the award
  in toto. [para 9] [265-H; 266-A-B]
H
    BHUSAWAL MUNICIPAL COUNCIL v. NIVRUTTI                   261
           RAMCHANDRA PHALAK
     1.3. It has been noticed that land owners are being            A
deprived of their valuable rights without complying with
the statutory provisions of the Act 1894 or possession is
taken without paying any amount of compensation. Right
to property has been held not only a Constitutional or a
statutory right but also a human right. Therefore, it is not        B
permissible for any State/authority to uproot a person and
deprive him of his human rights, without ensuring
compliance of the statutory requirement under the garb
of development. The fundamental right of a farmer to
cultivate his land is a part of right to livelihood. [para 11, 13   c
and 17] [266-D, G; 267-8; 268-C]

     Tukaram Kana Joshi & Ors. v. Maharashtra Industrial
Development Corporation & Ors. 2012 (13) SCR 29 = AIR
2013 SC 565; K. Krishna Reddy & Ors. v. The Special Dy.
Collector, Land Acquisition Unit II, LMD Karimnagar, Andhra         D
Pradesh, 1988 (2) Suppl. SCR 853 = AIR 1988 SC 2123;
Narain Das Jain (since deceased) by Lrs. v. Agra Nagar
Mahapa/ika, Agra 1991 (1) SCR 389 = (1991) 4 SCC 212;
Mahanadi Coal Fields Ltd. & Anr. v. Mathias Oram &
Ors. 2010 (8) SCR 750 = (2010) 11 SCC 269; and Narmada              E
Bachao Ando/an v. State of Madhya Pradesh & Anr. 2011 (6)
SCR 443 = AIR 2011 SC 1989 - relied on.

    Girish Vyas & Anr. v. State of Maharashtra 2011 (12 )
 SCR 781 =AIR 2012 SC 2043; Raju S. Jethmalani & Ors.               F
v. State of Maharashtra & Ors. 2005 (1) Suppl. SCR 1 =
(2005) 11 sec 222 - referred to.

     1.4. The judicial process of the court cannot subvert
justice for the reason that the court exercises its
jurisdiction only in furtherance of justice. The State/             G
authority often drags poor uprooted claimants even for
payment of a paltry amount .upto this Court, wasting the
public money in such luxury litigation without realising
the miseries of a farmer and without realizing that poor
citizens cannot afford the exorbitant costs of litigation;          H
    262      SUPREME COURT REPORTS             [2013] 17 S.C.R.


A and no superior officer of the State is accountable for
  such unreasonable conduct. [para 16] [267-F-G]

         1.5. There is no justification in the appellant
    approaching this Court with an object to get an interim
    order so as not to make any payment of enhanced
8
    amount of compensation. Such attitude not only amounts
    to high-handedness and arbitrariness on its part, rather
    it may cause serious prejudice to the respondents. The
    excuse that the appellant-Council has paucity of funds
    cannot be accepted as a justified cause to entertain the
C   petition. If the land is to be acquired, law requires prompt
    payment of compensation. In case the party by whom or
    for whom the land is acquired is not in a position to make
    the payment of compensation, the person-aggrieved
    becomes entitled to get the- land restored. Payment of
D   compensation as per award u/s 11 of the Act 1894,
    cannot be sufficient security to serve the interest of the
    person-interested pending adjudication of appeal against
    the reference court's award. The appellant is directed to
    make the payment of the enhanced amount of
E   compensation within a period of 10 weeks, failing which
    it must restore the possession of the suit land to the
    persons-aggrieved, who in turn would refund the entire
    amount received as compensation. [para 19-20] [269-F-
    H; 270-A-8, C-D]
F
                        Case Law Reference :
          2011 (12) SCR 781           referred to     para 12
          2005 (1) Suppl. SCR 1       referred to     para 12
G         2012 (13) SCR 29            relied on       para 13
          1988 (2) Suppl. SCR 853     relied on       para 14

          1991 (1) SCR 389            relied on       para 15

H         2010 (8) SCR 750            relied on       para 17
   BHUSAWAL MUNICIPAL COUNCIL v. NIVRUTTI                    263
          RAMCHANDRA PHALAK
    2011 (6) SCR 443                 relied on        para 17        A

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
11227-11228 of 2013.

      From the Judgment and Order dated 20.04.2012 of the
High Court of Judicature of Bombay, Bench at Aurungabad in           B
Civil Application No. 1724 of 2012.

    Sudhanshu S. Choudhari for the Appellant.

    M. Y. Deshmukh for the Respondents.
                                                                     c
    The Judgment of the Court was delivered by

    DR. 8. S. CHAUHAN, J. 1. Delay condoned.

    2. Leave granted.
                                                                     D
    ,3. These appeals have been filed with a delay of 308 days
again.st the orders dated 20.4.2012 and 5.3.2013 passed by
the High Court of Bombay (Aurangabad Bench) in Civil
Application No. 1724/2012 and Writ Petition (C) No. 1586/
2013 respectively, by which the High Court has granted interim       E
relief to the extent of payment of 50% of the enhanced amount
of compensation as awarded by the reference court in land
acquisition proceedings.

     4. Facts and circumstances giving rise to these appeals
                                                                     F
are that:

     A. The land in dispute i.e. agricultural land bearing Gat No.
196/2B/1 to 196/2B/7 admeasuring 4.25 R. situated at
Bhusawal, Distt. Jalgaon, Maharashtra, was acquired resorting
to the provisions of the Maharashtra Regional and Town               G
Planning Act 1966 (hereinafter referred to as the 'Act 1966')
and the Land Acquisition Act, 1894 (hereinafter referred to as
the 'Act 1894').

     B. In respect of the land, the award was made on
                                                                     H
    264      SUPREME COURT REPORTS                  [2013] 17 S.C.R.


A   10.5.2000. After passing of the said award, the appellant took
    possession of the land on 11.2.2005 after making the payment
    of the awarded compensation to the tune of Rs.68,40,835/-.

         C. The respondents filed reference under Section 18 of the
    Act 1894, wherein the reference court made the award dated
8   16.9.201 O enhancing the amount of compensation to the tune
    of Rs.3, 11,90,634/- only including solatiuni and interests etc.

       D. Aggrieved and dissatisfied, the· appellant-Municipal
  Council preferred appeal before the High Court. Respondent
C Nos. 1 to 6 filed an execution application against which the
  appellant preferred a civil application before the High Court,
  wherein the High Court vide impugned order dated 20.4.2012
  directed the appellant-council to pay 50% of the enhanced
  amount of compensation within 1O weeks as condition
o precedent for stay of further execution proceedings. However,
  the appellant did not pay any amount within the stipulated
  period. The respondents filed ·an application for vacating the
  interim order which was disposed of vide order dated
  12.10.2012 observing that the order passed earlier was self-
E explanatory and did not require any further clarification.

        E. As the proceedings regarding enforcement of the award
  were not abated in view of the order passed by the High Court,
  the executing court continued with the proceedings. The
  appellant again approached the High Court by filing a writ
F petition to stay the freezing of its bank accounts. The said
  petition has been rejected and hence these appeals.

      5. We have heard Shri Sudhanshu S. Choudhari, learned
  counsel for the appellant and Shri M.Y. Deshmukh, learned
G counsel for the respondents.

        6. Shri Choudhari, learned counsel appearing for the
    appellant, could not explain as under what circumstances the
    appellant approached this Court with inordinate delay of 308
    days and what could be the justification for this court to entertain
H
   BHUSAWAL MUNICIPAL COUNCIL v. NIVRUTTI                    265
  RAMCHANDRA PHALAK [DR. B.S. CHAUHAN, J.]
the appeals and grant the interim relief of non-payment of           A
enhanced amount of compensation in toto.

     Shri Choudhari has submitted that the land had been
acquired for public purpose, i.e., to meet the Constitutional
obligation to impart primary education to children as required       B
by Article 21A of the Constitution of India. The appellant-council
does not have sufficient funds to pay the enhanced
compensation to the persons aggrieved under the provisions
of the Act 1894. Even though the High Court has directed to
pay only 50 per cent of the enhanced amount of the                   C
compensation awarded by the Reference Court under Section
18 of the Act 1894, as an interim measure the appellant is not
in a position to meet even the said requirement and therefore,
this Court must grant stay of payment of the enhanced amount
of compensation awarded by the Reference Court.
                                                                     D
     7. Per-contra Shri M.Y. Deshmukh, learned counsel
appearing for respondent Nos. 1 to 6, has vehemently opposed
the appeals contending that payment of initial compensation
awarded under Section 11 of the Act 1894 cannot be sufficient
security to serve the purpose of the respondents. The facts and      E
circumstance~ of the case do not warrant any interference by
this Court and the appeals are liable to be rejected.

      8. We see no justification to accept the submissions so
advanced on behalf of the appellant-council. Undoubtedly, the
                                                                     F
appellant might be willing to meet its Constitutional or legal
obligation to open a primary school for imparting education to
children below 14 years of age but the question does arise as
to whether the appellant-council has a right to meet a public
purpose or a Constitutional obligation at the cost of individual-
citizens by depriving them of their Constitutional rights under      G
Article 300A of the Constitution.

     9. The provisions of the Act 1894 provide for two awards;
one is made by a Land Acquisition Collector under Section 11
of the Act 1894 which is an offer on behalf of the State as he       H
    266      SUPREME COURT REPORTS                [2013] 17 S.C.R.


A also acts as an agent of the State, and the second award is
  made by the court under Section 18 of the Act 1894. Assessing
  the market value of the land is generally a guess work. The
  Reference Court after examining and considering the evidence
  adduced by the parties assess the market value of the land. In
B doing so, there may be some variation in actual valuation of
  the land but that does not justify staying the operation of the
  award in toto.

      10. In the instant case, the High Court had granted
C conditional stay to the tune of 50 per cent of the enhanced
  amount which appellant-council failed to pay.

       11. This Court is faced with similar problems every day
  whereby land owners are being deprived of their valuable rights
  without complying with the statutory provisions of the Act 1894
D or possessions is taken without paying any amount of
  compensation.

        12. In Girish Vyas & Anr. v. State of Maharashtr?, AIR          I
  2012 SC 2043, this Court has held that if the municipality does
E not have sufficient fund to meet its requirement to pay the
  compensation for the land acquired, ii may call upon the
  citizens to contribute for the project as there may be many
  philanthropist or corporate bodies or individuals who may
  come forward and support the public project financially. A
  similar view has been reiterated by this Court in Raju S.
F Jethmalani & Ors. v. State of Maharashtra & Ors., (2005) 11
  sec 222.
       13. In Tukaram Kana Joshi & Ors. v. Maharashtra
  Industrial Development Corporation & Ors., AIR 2013 SC 565,
G this Court held that right to property is not only a Constitutional
  or a statutory right but also a human right and human rights are
  considered to be in realm of individual rights which are gaining
  an even greater multifaceted dimension and, therefore, in case
  the person aggrieved is deprived of the land without making
H the payment of compensation as determined by the Collector/
   BHUSAWAL MUNICIPAL COUNCIL v. NIVRUTTI                      267
  RAMCHANDRA PHALAK [DR. B.S. CHAUHAN, J.]
court, it would tantamount to forcing the said uprooted persons        A
to become vagabond or to indulge in anti-social activities as
such sentiments would be born in them on account of such ill
treatment. Therefore, it is not permissible for any State/authority
to uproot a person and deprive him of his human rights, without
ensuring compliance of the statutory requirement under the garb        B
of development.

     14. In K. Krishna Reddy & Ors. v. The Special Dy.
Collector, Land Acquisiti()n Unit II, LMD Karimna[Jar, Andhra
Pradesh, AIR 1988 SC 2123, this Court while directing the
statutory authorities to make the payment of comperisation at          C
the earliest observed that the person so uprooted may not be
having any savings, he may not be knowing any other avocation,
thus, he may face starvation with rising inflation. A delayed
payment may loose the charm and utility of the compensation.
Thus, the compensation must be determined and paid without             D
loss of time.

     15. In Narain Das Jain (since deceased) by Lrs. v. Agra
Nagar Mahapalika, Agra, (1991) 4 SCC 212, this Court placed
reliance upon. various reports including the report of the Law         E
Commission of India which made it clear that "community has
no. right to enrich itself by deliberately taking away the property
of any of its members in such circumstances without providing
adequate compensation for it".

       16. The judicial process of the court cannot subvert justice    F
for the reason that the court exercises its jurisdiction only in
furtherance of justice. The State/authority often drags poor
uprooted claimants even for payment of a paltry amount upto
this Court, wasting the public money in such luxury litigation
ll'(ithout realising that poor citizens cannot afford the exorbitant   G
costs of litigation and, unfortunately, no superior officer of the
State is accountable for such unreasonable conduct. It would
be apt to quote the well known words of Justice Brennan:

     "Nothing rankles more in the human heart than a                   H
    268       SUPREME COURT REPORTS                 [2013] 17 S.C.R.


A         brooding sense of injustice. Illness we can put up with.
          But injustice makes us want to pull things down. When
          only the rich can enjoy the law, as a doubtful luxury, and
          the poor, who need it most, cannot have it because its
          expense puts it beyond their reach, the threat to the
8         continued existence of free democracy is not imaginary
          but very real, because democracy's very life depends
          upon making the machinery of justice so effective that
          every citizen shall believe in and benefit by its impartiality
          and fairness."
c       17. The fundamental right of a farmer to cultivate his land
  is a part Glf right to livelihood "Agricultural land is the foundation
  for a sense of security and freedom from fear. Assured
  possession is a lasting source for peace and prosperity." India
  being predominantly an agricultural society, there is a "strong .
D linkage between the land and the person's status in the soi:ial
  system."

       "A blinkered vision of development, complete apathy
  towards those who are highly adversely affected by the
E development process and a cynical unconcern for the
  enforcement or the laws lead to a situation where the rights and
  benefits promised and guaranteed under the Constitution hardly
  ever reach the most marginalised citizens. For people whose
  lives and livelihoods are intrinsically connected to the land. the
F economic and cultural shift to a market economy can be
  traumatic." (Vide: Mahanadi Coal Fields Ltd. & Anr. v. Mathias
  Oram & Ors., (2010) 11 SCC 269; and Narmada Bachao
  Ando/an v. State of Madhya Pradesh & Anr., AIR 2011 SC
  1989)

G       18. A farmer's life is a tale of continuous experimentation
    and struggle for existence. Mere words or a visual can never
    convey what it means to live a life as an Indian farmer. Unless
    one experiences their struggle, that headache he will never know
    how it feels. The risks faced by the farming community are
H
   BHUSAWAL MUNICIPAL COUNCIL v. NIVRUTTI                     269
  RAMCHANDRA PHALAK [OR. B.S. CHAUHAN, J.]

many; they relate to natural calamities such as drought and           A
floods; high fluctuation in the prices of input as well as output,
over which he has no control whatsoever; a credit system which
never extends a helping hand to the neediest; domination by
middlemen who enjoy the fruits of a farmer's hard work; spurious
inputs, and the recent phenomenon of labour shortages, which          B
can be conveniently added to his tale of woes. Of late, there
have been many (:ases of desperate farmers ending their lives
in different parts of the country. The Principles of Economics
provides for the producer of a commodity to determine his
prices but an Indian farmer perhaps is the only exception to this     c
principle of economics, for even getting a decent price for their
produce is difficult for them. Economic growth through the
1990's had made India a more market-oriented economy, but
had failed to benefit all Indians equally. The problems that
plagued the farmers several decades ago are still glaringly           D
present today; there ·is little credit available. What is available
is very expensive. There is no advice on best practice in
conducting agriculture operations. Income through farming is
 not enough to meet even the minimum needs of a farming
family. Support systems like free health facilities from the
goverriment .are virtually non-existent. The drama of millions
                                                                      E
 leaving their homes in search of jobs, which are non existent
 of villages swiftly losing able-bodies of adults, leaving behind
 the old, hungry and vulnerable. Families break up as their
 members head in diverse directions.
                                                                      F
      19. We do not see any justification in the appellant
approaching this Court with an object to get an interim order
so as not to make any payment of enhanced amount of
compensation. Such attitude not only amounts to high-
handedness and arbitrariness on its part, rather it may cause         G
serious prejudice to the respondents. The excuse that the
appellant-council has paucity of fund cannot be accepted as a
justified cause to entertain the petition. If the land is to be
acquired, law requires prompt payment of compensation. In
case the party by whom or for whom the land is acquired is not        H
    270       SUPREME COURT REPORTS               [2013] 17 S.C.R.


A in a position to make the payment of compensation, the person-
  aggrieved becomes entitled to get the land restored. Payment
  of compensation as per award under Section 11 of the Act
  1894, cannot be sufficient security to serve the interest of the
  person-interested pending adjudication of appeal against the
B reference court's award.

       20. In view of above, the appeals are devoid of any merit.
  In such a fact-situation, the court cannot sit limply and allow the
  defaulter to go scot free and force the person seeking.
  protection to loose hope. The court cannot adopt an indifferent
C and passive attitude in such circumstances. The appellant is
  directed to make the payment of the enhanced amount of
  compensation within a period of 10 weeks from today, failirig
  which it must restore the possession of the suit land to the
  persons-aggrieved who in turn would refund the entire amount
D received as compensation.

          With these observations, the appeals are dismissed.

    Rajendra Prasad                                Appeals dismissed.