HARISH TANDON,J. - (1.) Indubitably the land of the petitioner measuring more or less 0.365 acres in Mouza - Salimpur, has been used and utilized by the Kolkata Metropolitan Development Authority (KMDA) for construction of Prince Anwar Shah Road Connector way back in the year 1980. The petitioner was deprived of the use and enjoyment of the said property since such time without having been served with any notice of requisition under Act II of 1948. Neither the KMDA as requisitioning body ever approached the State for acquisition until the year 2006 but continued to occupy and utilized such plot of land for such purposes. On the other hand the State appears to have been passed the responsibility from one shoulder to another and lastly took a technical plea that unless the proposal is routed through proper channel, the request from the requisitioning body cannot be acceded to.
(2.) The aforesaid stand appears to have been taken on October 25, 2011 whereby and whereunder the Chief Executive Officer of the KMDA was informed that they are required to re-submit the proposal as per guidelines mentioned in GO No. 1702/LA dated June 6, 2006 along with a copy of Cabinet Note and a copy of approval of the Cabinet.
(3.) The fact remains that no proceeding was ever initiated either for requisitioning the property or for acquisition, yet the petitioner has lost his possession and enjoyment of the property. Article 300A of the Constitution of India postulates that no individual can be deprived of his property saved by authority of law. There is no hesitation in my mind that the State enjoys the power of emminent domain and can take the property of an individual subject, however, that recourse is taken under the law. The State or its instrumentality cannot act at its whims and ignore the provisions of law inviting destruction of rule of law, which is a paramount facet of good governance. Though the right to property has not been recognized as fundamental right under Part-III of the Constitution yet it is a constitutional right and, therefore, the welfare State cannot act in such a manner which offends and violates such constitutional right enshrined under the Constitution of India.;