State Can’t Claim Title To Land Belonging To Its Citizens By Taking Recourse To Adverse Possession Doctrine: Calcutta HC

While speaking out most vocally for the protection of paramount interests of the citizens of India pertaining to their property, the Calcutta High Court has in a most commendable, courageous, cogent, composed and creditworthy judgment titled The State of West Bengal & Ors. Vs. Dilip Ghosh & Ors. in MAT 464 of 2018 in exercise of its civil appellate jurisdiction observed that the State professing to be a welfare state cannot claim to have perfected its titled over a piece of land by invoking the doctrine of adverse possession to grab the property of its own citizens. The Division Bench of Hon’ble Mr Justice Arijit Banerjee and Hon’ble Mr Justice Rai Chattopadhyay further maintained that it would be very odd if the State forcibly occupies the land of a citizen on the ground of adverse possession. This cannot be justified unless there are very compelling circumstances.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Arijit Banerjee for a Division Bench of the Calcutta High Court comprising of Hon’ble Mr Justice Rai Chattopadhyay and himself first and foremost puts forth in para 1 that, “A Judgment and Order dated May 2, 2017, whereby the writ petition of the respondents herein was disposed of, is the subject matter of challenge in this appeal.”

To put things in perspective, the Division Bench then envisages in para 2 that, “It is not in dispute that the land of the writ petitioners was taken over by the Government and was utilised for the purpose of constructing a road. It is also not in dispute that the writ petitioners were not paid any compensation for such land. It is also an admitted position that other people whose lands were taken over in connection with L.A. Case No. 06/BRP/82- 83 renumber as L.A. Case No De-Novo 35/PW/Roads/2004-2005, received compensation. The writ petitioners approached the learned Single Judge claiming compensation for their lands which they lost.”

As it turned out, the Division Bench then points out in para 3 that, “The learned Single Judge called for a report from the Additional Land Acquisition Officer, Nadia who was the respondent no. 5 in the writ petition. Such report was filed. The learned Judge noted from such report that although road was built over the land of the writ petitioners, such land was not acquired by initiating any proceeding and no compensation for such land was paid. The learned Judge disposed of the writ petition with the following direction :-

“I direct the respondent nos. 3, 4 and 6 to initiate appropriate proceeding under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in connection with the land of the petitioners on which the road has already been constructed within a period of eight weeks from the date of communication of the order, so that the compensation is paid to the petitioners within a period of three months from the date of communication of the order.””

Needless to say, the Division Bench then states in para 4 that, “Being aggrieved, the State and other official respondents in the writ petition have come up in appeal.”

As we see, the Division Bench then points out in para 5 that, “Primarily two grounds have been urged as would appear from the Memorandum of Appeal. Firstly, that the learned Judge erred in directing initiation of proceedings under the provisions of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (in short ‘2013 Act’); the second ground is that the State Government has acquired title to the land of the writ petitioners by way of adverse possession.”

Be it noted, the Division Bench then observes in para 7 in simple and straightforward language that, “Taking the second ground of appeal first, I am not a little surprised to note that the State has taken the point of adverse possession for denying compensation to citizens whose land has been taken over by the State without initiating due proceedings contemplated in law. This is shocking. In this connection we may note the observation of the Hon’ble Supreme Court at paragraph 29 of the decision in the case of B.K. Ravichandra & Ors. v. Union of India & Ors., reported at 2020 SCC OnLine SC 950 which are to the following effect:-

“29. It is, therefore, no longer open to the state : in any of its forms (executive, state agencies or legislature) to 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 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 property (bereft of lawful sanction)- whatever 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 behaviour 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.””

Further, the Division Bench then notes in para 8 that, “Further, it is now settled by the Supreme Court vide its decision in the case of Vidya Devi v. The State of Himachal Pradesh and Ors., reported at (2020) 2 SCC 569 = AIR 2020 SC 4709, that the State cannot be permitted to take the plea of adverse possession. The State, professing to be a welfare state, cannot claim to have perfected its title over the concerned land by invoking the doctrine of adverse possession to grab the property of its own citizens.”

It would be instructive to note that the Division Bench then reveals in para 9 that, “In the aforesaid case the State had taken over the land of the appellant in 1967-68 for constructing a major road without taking recourse to acquisition proceedings or following due process of law. The construction of the road was completed by 1975. The appellant did not file any proceedings. Some similarly situated persons whose lands had also been taken over filed a writ petition before the Himachal Pradesh High Court. The High Court directed the State to acquire the lands of the writ petitioners under the Land Acquisition Act, 1894. Pursuant to such order, the State initiated acquisition proceedings under the 1894 Act only with respect to the lands of the writ petitioners who approached the High Court. The appellant filed a writ petition in the Himachal Pradesh High Court in 2010. The State in its reply took the point of adverse possession and also the point that the writ petition was barred by laches. The High Court dismissed the writ petition holding that the same involved disputed questions of law and fact. The appellant’s review petition was also dismissed by the High Court. Accordingly the appellant approach the Hon’ble Supreme Court.”

Most significantly, the Division Bench then minces no words to hold in para 11 that, “Although in that case the appellant was an illiterate lady, in my opinion, the same would not make any difference. The ratio of the decision is clear, i.e., the State cannot claim to have perfected title to land belonging to its citizens, by taking recourse to the doctrine of adverse possession. Although the said Supreme Court judgment says that the Hon’ble Supreme Court exercised extraordinary jurisdiction under Articles 136 and 142 of the Constitution to direct the State to pay compensation to the appellant, in my understanding, the detailed discussion leading to the conclusion that the State cannot resort to the principle of adverse possession to defeat a citizens claim for compensation for his land acquired by the State, is a binding declaration of law within the meaning of Article 141 of the Constitution. Law without Justice is as vain as a fancy motor car without its engine and as useless as a refrigerator without its compressor. Law is not an end by itself. The object of law- whether statutory or judge-made – must be to promote justice – both legal and social. That is what Rule of Law is all about. It would indeed be very odd if the State forcibly occupies the land of a citizen who may not be that enlightened, informed or diligent, and after 12 years the State is permitted to claim that it has perfected its title to such land by way of adverse possession. This cannot be countenanced in law and would be contrary to all canons of justice.”

Equally significant is what is then underscored in para 12 wherein it is held that, “As regards the other ground, there is no doubt that the State must compensate the respondents before us for having utilised their land, albeit for a public purpose. This, in my opinion, the State must do by acquiring the land in question in terms of the provisions of the 2013 Act. That is the only statute that is in force presently regarding acquisition of land from private persons. If that means that the State has to pay higher compensation compared to what its liability would have been under the 1894 Act, the State has only itself to blame. It is shocking that in spite of having taken over the land of the respondents several years back, not a penny has been paid to them to compensate them for depriving them of valuable property.”

While taking the most forthright stand, the Division Bench then mandates in para 13 holding that, “I see no infirmity in the judgment and order under appeal. The appellants shall initiate proceedings under the 2013 Act for acquiring the concerned land of which the writ petitioners are still the owners. Such proceedings shall be completed within 12 weeks from the date of communication of this order to the competent authority in the administration. The compensation in terms of the 2013 Act shall be paid to the respondents within a month thereafter.”

Furthermore, the Division Bench then directs in para 14 that, “The appeal and the connected applications stand disposed of. There will be no order as to costs.”

Finally, the Division Bench then concludes by holding in para 15 that, “Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all the requisite formalities.”

All told, we thus see that the Calcutta High Court has made it indubitably clear that the State can’t claim title to land belonging to its citizens by taking recourse to adverse possession doctrine. It also merits no reiteration that the State must comply in letter and spirit with what the Calcutta High Court has laid down so very laudably in this leading case and refrain from forcibly grabbing the land of a citizen on the specious ground of adverse possession. No denying it!