HON’BLE SRI JUSTICE P.NAVEEN RAO REVIEW W.P.M.P.No. 40870 OF 2014 IN WRIT PETITION No. 25103 of 2014 Date: 1.05.2015 Between :
The Assistant City Planner, Circle-14, Kukatpally, GHMC, Hyderabad.
… Review Petitioner/ Respondent No.4 And Khushal Patel, S/o. Sri Govind Patel, Aged about 50 years, Occu: Business, R/o.H.No.11-9-167, Laxminagar Colony, Road No.3, Kothapet, Hyderabad and others.
…. Respondents This Court made the following :
HON’BLE SRI JUSTICE P.NAVEEN RAO REVIEW W.P.M.P.No. 40870 OF 2014 IN WRIT PETITION No. 25103 of 2014 ORDER:
Heard learned Advocate General for State of Telangana for review petitioner and Sri P.Bhavana Rao, learned counsel for respondent/writ petitioners. Parties are referred as arrayed in the writ petition.
2. Alleging that even though land acquisition proceedings were concluded, the compensation determined was not paid and on the contrary, the respondent authorities were trying to take possession of the properties which were under acquisition, the writ petition is instituted. Direction was sought to respondents to pay compensation to the petitioners as per the award dated 28.12.2013 in respect of 730.05 square yards in premises bearing Nos.5-2-26/5/1, Beghmari Village, Kukatpally, Balangar Mandal, Ranga Reddy district. The State of Telangana; District Collector, Ranga Reddy District; Special Deputy Collector (Land Acquisition), GHMC, Hyderabad and Assistant City Planner, Circle-14, Kukatpally, GHMC, Hyderabad were arrayed as respondents to the said writ petition.
3. At the admission stage, writ petition was adjourned to enable the counsel representing respondents to obtain instructions on the claim made by the petitioners. When the writ petition was taken up for consideration on 19th September, 2014, learned Assistant Government Pleader represented that on 28.12.2013, notice in Form-10 was issued directing the awardees to handover the possession by 16.01.2014. The payment of compensation amount in the form of banker’s cheques were prepared and kept ready, but since awardees have not turned up to receive the payment and to handover the possession, the cheques were kept with the Land Acquisition Officer. Learned Government Pleader, on instructions, submitted that Land Acquisition Officer is willing to pay compensation as and when the owners of the properties approach him. On the said statement, counsel representing petitioners submitted that petitioners would appear before the Special Deputy Collector (Land Acquisition) on 20.09.2014 to receive the cheques. Having regard to the said statement, the writ petition was disposed of directing the petitioners to approach the 3rd respondent on 20.09.2014 to receive the cheques drawn in their favour towards compensation payable to them and to handover the possession of respective properties acquired.
4. Alleging non-compliance of the said order, the petitioners in the writ petition filed Contempt Case Nos.1766 and 1877 of 2014.
5. At this stage, the Assistant City Planner, Circle-14, Kukatpally, GHMC, Hyderabad, filed Review W.P.M.P.No.40870 of 2014 praying to review the orders passed by this Court in the writ petition.
6. Learned Advocate General submitted that 4th respondent in the writ petition, could not bring to the notice of this Court true and correct facts and, therefore, an opportunity be afforded to the review petitioner to place true and correct facts. It is further asserted that the subject premises was leased out to Chandana Brothers Textiles and Jewellers Private Limited and the said company applied to GHMC to construct multi-storeyed building on the premises and as per the norms of the GHMC, it is mandatory for the property owners to surrender portion of land abutting main road to GHMC to undertake construction of a new building. Out of 4337 square yards of land in the premises 730.05 square yards was intended to be surrendered by Chandra Brothers Textiles and Jewellery Private Limited. Suitable permissions were granted and accordingly, Chandana Brothers surrendered the land as agreed and constructed multi-storeyed building for commercial use. On account of such surrender, 730.05 square yards of land has now become the property of GHMC and, therefore, there is no question of paying compensation on the said land. This fact could not be brought to the notice of the Court when the writ petition was taken up for consideration and, therefore, the order passed by this Court should be reviewed.
7. Learned Advocate General further contended that the petitioners having leased out the premises to Chandra Brothers for a period of 30 years, during the subsistence of the lease, for all practical purposes Chandana Brothers is the owner of the property and is entitled to deal with the property as it deems fit.
8. On account of not looking into the records properly, the fact of Chandana Brothers surrendering this extent of land to GHMC was not noticed and therefore in a routine manner, the requisition was placed with the Land Acquisition Officer to initiate land acquisition proceedings to acquire this piece of property also in addition to several other properties and the Land Acquisition Officer conducted proceedings under the Land Acquisition Act and passed award. Though writ petitioners were aware that in terms of the lease agreement, Chandana Brothers undertook construction of multi- storeyed building by following due norms of the GHMC and by surrendering 730.05 square yards of land abutting the main road, they did not bring to the notice of the Land Acquisition Officer that the land is no more available for acquisition. This crucial fact was suppressed with an intention to receive compensation on the same extent of land, though they are not entitled. He further submits that there was no requirement of acquisition of subject land when the land already vested in the GHMC. Action of the writ petitioners in instituting the writ petition and claiming compensation amounts to playing fraud on public money and, therefore, all the consequent actions are also liable to be nullified.
9. Learned Advocate General further contended that in arraying of parties, Land Acquisition Officer was not correctly reflected. There are two Special Deputy Collectors for land acquisition in GHMC. The Special Deputy Collector (Land Acquisition), GHMC, was not the concerned person. The acquisition was for the purpose of providing corridor to Metro Rail Project and separate Land Acquisition Officer is looking after the acquisition of properties for Metro Rail Project. Since the correct person was not arrayed as respondent, the correct facts could not be placed before this Court. Similarly, the GHMC was not impleaded as respondent, whereas the Assistant City Planner, Circle-14, Kukatpally, GHMC, Hyderabad, was impleaded as respondent.
10. Learned Advocate General further contended that the compensation amount was not released, as at the stage of payment of compensation, Metro Rail authorities have verified their records and found that this piece of land was shown as belonging to GHMC and, therefore, the acquisition and payment of compensation would not arise. The relevant records could not be immediately traced. Therefore, no immediate action was taken and in the mean time. Internal verification was going on and by the time writ petition came up for hearing, verification was not finalized and thus, true facts could not be placed before this Court.
11. Learned Advocate General was emphatic in his contention that staff of GHMC colluded with owners of the property and contrary to record and contrary to physical possession, requisition was placed with the Land Acquisition officer to acquire subject property.
12. Learned Advocate General further submitted that in the normal course, once an award is passed compensation would be paid. There is no need for direction to the Land Acquisition Officer to pay compensation and possession would not be taken unless compensation amount is paid. Therefore, there was no cause of action for the petitioners to file the writ petition. The writ petition was filed with oblique motive of taking compensation knowing fully well that they are not entitled to receive compensation.
13. Learned Advocate General submitted that these are the essential facts which constitute grounds for review and if writ petition is restored, the respondents can place true and correct facts before this Court. Learned Advocate General further submitted that though the GHMC intending to withdraw the land acquisition proceedings insofar as this property is concerned, but since this writ petition is already disposed of, as an abundant caution this review petition is filed.
14. Learned counsel for petitioner contends that the grievance in the writ petition was against non-payment of compensation by the Land Acquisition Officer even though award was passed long ago and 4th respondent in the writ petition is no way concerned with payment of compensation. As long as award subsists compensation has to be paid in terms thereof. The acquisition is for Metro Rail Project and amount is paid by the Metro Rail Project authority. Thus, the Assistant City Planner of GHMC is not the person aggrieved and unless a person is aggrieved by the order of the Court, review petition is not maintainable.
15. Learned counsel further contended that the State of Telangana, the District Collector (LA) R.R.District at Hyderabad and the Special Deputy Collector (LA), GHMC, Hyderabad are arrayed as respondents and that is sufficient compliance in the light of the prayer sought in the writ petition. Neither GHMC nor Hyderabad Metro Rail is necessary parties as petitioner has no grievance against them.
16. A vague allegation of fraud is made in Review Petition. Mere allegation of fraud per-se cannot be a ground for review. Plea of fraud must be supported with full details and proof beyond reasonable doubt.
17. Review petition is in the nature of an independent writ petition against the award. In the form of a review, the review petitioner is seeking for re-hearing of the case beyond the scope of writ petition itself, which is not maintainable.
18. Learned counsel further contended that parameters for review of a decision are well laid down and the grounds urged in the Review Petition do not answer the requirement of a review in terms of Section 47 of CPC.
19. Learned counsel also made extensive submissions on merits of the claim, with reference to lease granted to M/s. Chandana Brothers and Jewellers Limited; on application submitted by one of the Directors of said firm for grant of permission to construct building and its binding nature on the owners of the property; the scope of such lease holder to alienate land; and competence of GHMC to take possession of land without paying compensation.
20. It is not disputed that GHMC has placed requisition to the Land Acquisition officer to acquire various extents of properties in Hyderabad including the subject property. Full gamut of the land acquisition proceedings is observed and an award was passed on 28.12.2013. This writ petition is instituted in August, 2014 alleging that though award was passed on 28.12.2013 and even after lapse of 8 months, compensation was not paid as determined and on the contrary active steps were taken to take possession of the property of the petitioners. Special Deputy Collector (LA) GHMC, Hyderabad was arrayed as third respondent.
21. At the stage of admission to ascertain the reasons for non payment of compensation, matter underwent few adjournments. All the respondents are represented by Government Pleader/ Standing counsels. At the instance of learned standing counsel representing 4th respondent, few adjournment were granted to obtain instructions. No instructions were placed before the court. As per the submissions of learned Advocate General, GHMC was already looking into the matter of requisition to acquire the subject property by the time the Writ Petition was instituted. If that is so, why the same was not informed to the Standing Counsel by the 4th respondent is not stated.
22. When the matter was taken up for consideration on 19.9.2014, learned Assistant Government Pleader on instructions submitted that on 28.12.2013 notice in Form 10 was issued directing the awardees to handover the possession by 16.1.2014 and that awardees did not turn out and possession was not handed over. He further submitted that cheques were already prepared but payment could not be made as claimants did not turn up. Having regard to the said statement of the learned Assistant Government Pleader, petitioners were directed to appear before the third respondent on 20.9.2014 to receive the cheques and writ petition was accordingly disposed of.
23. Though vaguely pleaded that fraud was committed by some lower level staff of GHMC, even by now, no persons appears to have been identified and responsibility is fixed. Though vague allegation is made of committing fraud, it is not shown how fraud is committed by petitioners; no details are furnished and apparently no action is taken against the officers responsible in GHMC. It is settled principle of law that fraud must be specifically pleaded and proved and vague statements cannot be the basis to allege fraud.
24. Though, it is urged that Special Deputy Collector (LA) is not the person concerned to deal with Metro Rail project land acquisition, this fact was not brought to the notice of the Court when the writ petition was considered. No objection was raised on the array of parties. On the contrary it was reported by third respondent that cheques are ready to be issued.
25. Learned Advocate General circulated government orders issued by the Government from time to time designating the Special Deputy Collector (LA- General) Hyderabad to act as Land Acquisition Officer and to perform the functions of the Collector-Hyderabad for the purpose of acquisition of land by GHMC. The first of such orders was G.O.Ms No. 68 dated 3.2.2012. Subsequent government orders would only disclose granting of extension of time to officer posted. A bare reading of the government orders would not indicate that there are two different Land Acquisition officers dealing with land acquisition in GHMC and one officer is specifically entrusted with the responsibility dealing with land acquisition for Metro Rail. Be that as it may, as noted above, third respondent did not bring to the notice of the Court that he was not the officer responsible to answer the issue.
26. This court only recorded the statement made on behalf of Land Acquisition Officer and disposed of the Writ Petition as the said statement accepts the stand of petitioners. No finding was recorded on any issue concerning acquisition. The Act, 1894 deals with all aspects of acquisition. It vests power in the requisition authority to withdraw from acquisition before possession is taken, but so far no such action is taken.
27. The parameters to review an order passed by the Court are well laid down and need no reiteration. The error must be such as would be apparent on mere looking at the record without requiring for long drawn process of reasoning. Reappraisal of the entire evidence on record for finding the error is not permissible. What is urged herein amounts to rehearing the matter for detecting an error in the decision and correcting the same. Power of review is not the same as appellate powers. The review petitioner has not made out case to review the decision in the Writ Petition. The review petition is dismissed. It is made clear that this court has not expressed any opinion on merits and it is for the respective parties to work out their remedies as available in law.
Miscellaneous petitions if any pending in review petition shall stand closed. No costs.
JUSTICE P.NAVEEN RAO Date : 01.05.2015 Kkm/tvk HON’BLE SRI JUSTICE P.NAVEEN RAO REVIEW W.P.M.P.No. 40870 OF 2014 IN WRIT PETITION No. 25103 of 2014 Date: 01.05.2015 Kkm/tvk HON’BLE SRI JUSTICE P.NAVEEN RAO REVIEW W.P.M.P.No. 40870 OF 2014 IN WRIT PETITION No. 25103 of 2014 Date: 1.05.2015