Section 352 of the Kolkata Municipal Corporation Act does not confer valid power for compulsory acquisition of property due to lack of procedural safeguards, violating constitutional rights.

1. Leave granted.

Introduction: The Kolkata Municipal Corporation claims to have acquired the property of respondent no. 1 in exercise of powers under Section 352 of the Kolkata Municipal Corporation Act, 1980 .

A single Judge and the Division Bench of the High Court have concurrently held that there is no such power of compulsory acquisition of immovable property under Section 352 . While upholding the decision of the High Court, we have given our additional reasons by interpreting the text and the context in which Section 352 is placed in the Act. Rejecting the alternative argument of the appellant-Corporation that there is also a provision for compensation under Section 363 of the Act when land is acquired under Section 352 , we have examined the constitutional position of acquisition of immovable property whereunder the mere presence of power to acquire coupled with a provision for payment of fair compensation by itself is not sufficient for a valid acquisition. Interpreting “authority of law” in Article 300A of the Constitution, we have held that a minimum content of a constitutional right to property comprises of seven sub-rights or procedures such as the right to notice, hearing, reasons for the decision, to acquire only for public purpose, fair compensation, efficient conduct of the procedure within timelines and finally the conclusion. These sub-rights have synchronously formed part of our laws and have attained judicial recognition. Therefore, as Section 352 does not provide for these sub-rights or procedures, it can never be a valid power of acquisition. Before we deal with the submissions and analyse the provisions, we will first narrate the necessary facts.

2. Facts: The property in question, Premises No. 106C, situated at Narikeldanga North Road, Kolkata – 7000111, belongs to Mr. Birinchi Bihari Shah2 having succeeded it through a deed of settlement executed by his father. As Birinchi Shah was minor at the time when his father passed away, his elder brother managed and administered the Property and, in that process, he also let out the premises admeasuring 2 bighas 18 kathas 6 chitaks and 40 square feet in favour of one M/s Arora Film Corporation. Upon attaining majority, the Property was mutated in the name of Birinchi Shah in the assessment book of the appellant-Corporation. It is affirmatively stated that 1 Hereinafter, referred to as the “Property”.

2 Hereinafter, referred to as “Birinchi Shah”.

all municipal dues including taxes with respect to the Property were paid regularly. It is also stated that the appellant- Corporation acknowledged the same and by its letter dated 07.04.2000 admitting that there are no outstanding dues with respect to property tax.

3. In the year 2009, when an attempt was made by the appellant-Corporation to forcefully enter and occupy the Property, Birinchi Shah filed a writ petition being W.P. No. 126 of 2009 before the High Court seeking a restraint order against the appellant-Corporation.

4. As there was no real contest about the title in the Property and the appellant-Corporation having not filed any affidavit-in- opposition, the High Court disposed of the writ petition by an order dated 17.09.2009 directing that the appellant- Corporation must hold an enquiry about the encroachments.

The High Court further directed the appellant-Corporation not to make any construction over the Property.

5. In July 2010, Birinchi Shah received information that the appellant-Corporation had deleted his name from the category of owner and had inserted its own name in the official records.

Aggrieved, he approached the High Court by filing a writ petition bearing W.P. No. 981 of 2010, not only for correction of the entries but also to restrain the appellant-Corporation from interfering with his peaceful possession over the Property. What happened in this writ petition is of seminal importance. The learned single Judge, by an order dated 08.01.2015, recorded the statement of the appellant-Corpora