Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

122. The Full Bench thereafter proceeded to examine the matter keeping in mind the right to life. It proceeded to observe as under: “93. Section 2(d) of the Protection of Human Rights Act, 1993 (Act 10 of 1994) defines “human rights” that the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.

94. Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood.

95. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Art. 21 is wide and far reaching. An important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.

96. Chandrachud, C.J., in Olga Tellis v. Bombay Municipal Corporation, 1985 (3) SCC 545, observed: “If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.” (Emphasis is supplied).

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97. The right to live with human dignity, free from exploitation is enshrined in Art. 21 and derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.

98. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority ….. Income is the foundation of many fundamental rights ……… Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.

99. The function of human rights is to protect the individual from the leviathan of the State. A welfare State provides a wide range of benefits to the citizens as of right, but at the same time it enhances the power of administration, since the benefits provided are inevitably administered by government departments or their agents. A welfare State will continue to grow leading to a more just distribution of the resources resulting in greater governmental regulation. These developments may add further dimension to the relationship between the individuals and the State. There will be more and more assertions claiming entitlements to basic social benefits from the State in addition to civil and political rights.

100. The deprivation of the assignee’s right to payment of just compensation equivalent to the market value of the assigned land may amount to deprivation of right to livelihood. The denial of constitutional claim to receive just compensation after depriving the assignee of his land is impermissible except pursuant to a constitutionally valid rule or law.

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

101. The contention is that if the Government may withhold the benefit in the first instance itself without giving a reason, it may withhold or revoke the benefit even though its reason for doing so may be the individual’s refusal to surrender his constitutional rights. This argument is often phrased in syllogistic terms: if the State may withhold a particular benefit, it may grant it in a limited form since the greater power of withholding absolutely must necessarily include the lesser power of granting with restrictions. The contention often advanced is that the recipient of the benefit is not deprived of a right since he may retain all his rights simply by rejecting the proffered benefit. This contention is fraught with dangerous consequences. The number of ‘social choices’ programmes resulting from expanded social welfare activities, has greatly increased the total benefits extended, thus affording the government countless new opportunities to bargain for the surrender of constitutional rights. The potential erosion of fundamental liberties through the use of this bargaining technique has prompted the development of the doctrine of “unconstitutional conditions”. Reasonable conditions may be imposed in order to see that the interest in ensuring that the benefit or facility extended to the individual is maintained for the purposes intended, in order to protect the effectiveness of the benefit itself.

102. The recipients of public assistance are not estopped from setting up their fundamental rights as a defence as against “no compensation clause”. It is very well settled and needs no restatement at our hands that there can be no estoppel against the Constitution.

103. In Olga Tellis (18 supra), the Supreme Court observed:. “The Constitution is not only the paramount law of the land but it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter

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acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles, 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced would defeat the purpose of the Constitution. Were the argument of estoppel valid, and all-powerful State could easily tempt an individual to forego his precious personal freedom on promise of transitory, immediate benefits.”

104. Therefore, notwithstanding the fact that the recipients had accepted the assignment subject to ‘no compensation clause’ and that they will not object to the resumption of the assigned lands for a public purpose, they are entitled to assert that any such action on the part of the authorities

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

will be in violation of their guaranteed fundamental rights. How far the argument regarding the existence and scope of the right claimed by the recipients is well-founded is another matter. But, the argument has to be examined despite the concession.

105. In the matter of distribution of material resources of the community to the vulnerable sections of the society by the State in furtherance of its constitutional obligations no argument can be heard from the State contending that the recipient of the benefit may either accept with the restrictions or not to accept the benefit at all. The whole idea of distributive justice is to empower the weaker sections of the society and to provide them their share of cake in the material resources of the community of which they were deprived from times immemorial for no fault of theirs. Having resolved to extend the benefits as a welfare measure, no unconstitutional condition can be imposed depriving the recipients of the benefits of their legitimate right to get compensation in case of taking over of the benefit even for a valid public purpose. The recipients cannot be at the mercy of the State forever.

106. Justice K.K. Mathew, in his Democracy, Equality and Freedom has observed that property is a legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind. The learned Judge stated: “In a society with a mixed economy, who can be sure that freedom in relation to property might not be regarded as an aspect of individual freedom? People without property have a tendency to become slaves. They become the property of others as they have no property themselves. They will come to say: ‘Make us slaves, but feed us.’ Liberty, independence, self- respect, have their roots in property. To denigrate the institution of property is to shut one’s eyes to the stark reality evidenced by the innate instinct and the steady object of pursuit of the vast majority of people. Protection of property interest may quite

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fairly be deemed in appropriate circumstances an aspect of freedom. There is no surer way to give men the courage to be free than to insure them a competence upon which they can rely. This is why the Constitution-makers wanted that the ownership of the material resources of the community should be so distributed as to subserve the common good. People become a society based upon relationship and status.”

107. In Murlidhar Dayandeo Keskar v. Vishwanath Pandu Barde, 1995 Supp. (2) SCC 549, the Supreme Court observed: “Economic empowerment to the poor, Dalits and Tribes, is an integral constitutional scheme of socio- economic democracy and a way of life of political democracy. Economic empowerment is, therefore, a basic human right and a fundamental right as part of right to live, equality and of status and dignity to the poor, weaker sections, Dalits and Tribes. The State has evolved, by its legislative and executive action, the policy to allot lands to the Dalits and Tribes and other weaker sections for their economic empowerment. The Government evolved two-pronged economic policies to render economic justice to the poor. The Planning Commission evolved policies like DRDL for economic empowerment of the weaker sections of the society; the Dalits and Tribes in particular. There should be short-term policy for immediate sustenance and long-term policy for stable and permanent economic empowerment. All the State Governments also evolved assignment of its lands or the lands acquired under the ceiling laws to them. Appropriate legislative enactments are brought on statute books to prevent alienation of the assigned lands or the property had under the planned schemes, and imposed prohibition thereunder of alienation, declaring any conveyance in contravention thereof as void or illegal and inoperative not to bind the State or the assignee. In case the assignee was disqualified

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

or not available, on resumption of such land, the authorities are enjoined to resume the property and assign to an heir or others eligible among the Dalits and Tribes or weaker sections in terms of the policy. The prohibition is to effectuate the constitutional policy of economic empowerment under Articles 14, 21, 38, 39 and 46 read with the Preamble to the Constitution. Even in respect of private sales of the lands belonging to tribes, statutes prohibit alienation without prior sanction of the Competent Authority.”

108. Be it noted, the land by way of assignment is let for purposes of agriculture or for purposes ancillary thereto, for personal occupation and cultivation by the agricultural labourers and others belonging to weaker sections of the society. It may be lawful for the State to acquire any portion of such land as is within the ceiling limit but not without providing for compensation at a rate which shall not be less than the market value thereof. The acquisition of such land even for a public purpose without payment of compensation shall be in the teeth of Article 31 -A of the Constitution of India.

109. The masses have suffered socio-economic injustice too long and been separated by the poverty curtain too strong that if peaceful transformation of the nation into an egalitarian society were not achieved, chaos, upsurge may destroy the peaceful progress and orderly development of the society.

110. In the result, we hold that ‘no compensation’ clause, restricting the right of the assignees to claim full compensation in respect of the land resumed equivalent to the market value of the land, is unconstitutional. The ‘no compensation clause’ infringes the fundamental rights guaranteed by Articles 14 and 31-A of the Constitution. We are conscious that Article 21 essentially deals with personal liberty. But in cases where deprivation of property would lead to deprivation of life or liberty or livelihood, Article 21 springs into action and any such deprivation without just payment of compensation amounts to infringement

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of the right guaranteed thereunder. The doctrine of ‘unconstitutional conditions’ applies in all its force.

111. In the circumstances, we hold that the assignees of the government lands are entitled to payment of compensation equivalent to the full market value of the land and other benefits on par with full owners of the land even in cases where the assigned lands are taken possession of by the State in accordance with the terms of grant or patta, though such resumption is for a public purpose. We further hold that even in cases where the State does not invoke the covenant of the grant or patta to resume the land for such public purpose and resorts to acquisition of the land under the provisions of the Land Acquisition Act, 1894, the assignees shall be entitled to compensation as owners of the land and for all other consequential benefits under the provisions of the Land Acquisition Act, 1894. No condition incorporated in patta/deed of assignment shall operate as a clog putting any restriction on the right of the assignee to claim full compensation as owner of the land.” (Emphasis supplied)

123. The State has admitted that Pattadar Passbook was issued to the appellants years back. They have also not disputed that the appellants were paying revenue to the government and the revenue receipts have also been exhibited in the form of documentary evidence. Even if we were to ignore the sale deed executed in 1970 for the time being and treat the appellants as mere occupants with the right to possession, cultivation and enjoyment, we still must remain cognizant of the rights specifically vested in the appellants by way of issuance of Pattadar Passbook. Thus, what was vested in the appellant with the issuance of a Pattadar Passbook was a “property” within the meaning of Article 300-A of the Constitution.

124. Article 300-A provides that no person shall be deprived of his property save by authority of law. This Article has been inserted by the Constitution (44th Amendment) Act, 1978. Prior to this amendment, the right to property was guaranteed by Article 31. While Clause (1) of that Article has been shifted from Part III to Article 300-A, Clause (2) of that Article, which dealt with compulsory acquisition of property,

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Yerikala Sunkalamma & Anr. v. State of Andhra Pradesh, Department of Revenue & Ors.

has been repealed. Sub-Clause (f) of Clause (1) of Article 19, which guaranteed the right to acquire and hold property, has also been omitted by the same 44th Amendment Act, 1978. The result of these changes, in short, is that the right to hold property has ceased to be a fundamental right under the Constitution and it has been left to the Legislature to deprive a person by the authority of law.

125. Article 300-A provides that the property of a person can be deprived by authority of law. The phrase “save by authority of law” came before the Court for interpretation. This Court in the case of Wazir Chand v. State of H.P., reported in (1954) 1 SCC 787 held that under the Constitution, the Executive cannot deprive a person of his property of any kind without specific legal authority which can be established in Court of law, however laudable the motive behind such deprivation may be. In the same decision, this Court also held that in case of dispossession of property except under the authority of law, the owner may obtain restoration of possession by a proceeding for mandamus against the governmental authorities. Further, this Court in Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh reported in (1982) 1 SCC 39 held that the phrase “by authority of law” means by or under a law made by the competent Legislature. The same position is reiterated by this Court in the case of Jilubhai Nanbhai Khachar v. State of Gujarat reported in 1995 Supp. (1) SCC 596 wherein it has been observed that “Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation.”

126. In Delhi Airtech Services Pvt. Ltd. and Anr. v. State of U.P. and Anr. reported in (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words: “30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the 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

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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.” (Emphasis supplied)

F. CONCLUSION

127. Having regard to the nature of the land, the area of the suit land which is approximately three acres and the time spent pursuing this litigation for the past thirty years, we believe that the State should pay an amount of Rs. 70 lakhs towards compensation to the appellants.

128. We dispose of this appeal with the direction to the respondents to pay an amount of Rs. 70 lakhs to the appellants by way of compensation within a period of three months from the date of this judgment.

129. The Registry is directed to circulate one copy each of this judgment to all the High Courts across the country and one copy each to all the Chief Secretaries of the respective State Governments with more emphasis on the chapter of Section 80 CPC as discussed by this Court in the judgment.

Result of the case: Appeal disposed of.