IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH TUESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND FOURTEEN Present HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.15365 of 2014 Between:
G. Maha Lakshmi, W/o. G. Satya Prakash, Aged: 58 years, Occ: Home Maker, R/o. H.No.6-2-20 to 22, Flat No.302, Central View Apartments, New Bhoiguda, Secunderabad-500 003.
.. Petitioner AND The Government of Telangana, Rep. by its Secretary, Land Acquisition Department, Secretariat Buildings, Hyderabad, Telangana State & 3 others .. Respondents WRIT PETITION No.15366 of 2014 Between:
G. Chandrasekhar Rao, S/o. Late G. Bhimasanrakram, Aged: 68 years, Occ: Pensioner (Retd. Employee), Central View Apartments, New Bhoiguda, Secunderabad-500 003.
.. Petitioner AND The Government of Telangana, Rep. by its Secretary, Land Acquisition Department, Secretariat Buildings, Hyderabad, Telangana State & 3 others .. Respondents AND WRIT PETITION No.15371 of 2014 Between:
Manohar P. Nankani, S/o. Purshottam A. Nankani, Aged: 46 years, Occ: Contractor, R/o. H.No.6-2-20 to 22, Flat No.402, Central View Apartments, New Bhoiguda, Secunderabad-500 003.
.. Petitioner AND The Government of Telangana, Rep. by its Secretary, Land Acquisition Department, Secretariat Buildings, Hyderabad, Telangana State & 3 others .. Respondents The Court made the following:
HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.15365, 15366 & 15371 of 2014 COMMON ORDER:
Petitioners are the owners of respective flats in Central View Apartments, bearing Municipal House No.6-2-20 to 22, New Bhoiguda, Secunderabad. The petitioners are aggrieved by the notice issued by the Greater Hyderabad Municipal Corporation on 03.05.2014, whereby the petitioners were informed that an extent of 444.10 square meters of the land in their property is going to be affected to take up road widening in the said stretch and, therefore, requested the petitioners to hand over the possession of the affected portion of the property with an assurance that the Greater Hyderabad Municipal Corporation would extend the benefits on submission of ownership documents.
2. Learned counsel for the petitioners contends that this is nothing but a mandate issued to the petitioners to vacate the premises. Prior to this notice issued, no willingness to surrender the property of the petitioners was obtained and without consent and without following the due process of law, the private property cannot be acquired even if it is meant for public purpose. In support of his claim, learned counsel for the petitioners also places reliance on decisions of this Court in BOC INDIA LIMITED, REP. BY ITS POWER OF ATTORNEY HOLDER, Mr. K. ANAND Vs. MUNICIPAL CORPORATION OF HYDERABAD, REP. BY
[1]
THE COMMISSIONER, HYDERABAD and USHODAYA PUBLICATIONS, HYDERABAD Vs. COMMISSIONER, MUNICIPAL CORPORATION OF HYDERABAD AND
[2]
ANOTHER .
3. Learned Standing Counsel representing the Greater Hyderabad Municipal Corporation, on instructions, submits that in accordance with the provision contained in Section 146 of the Hyderabad Municipal Corporations Act, 1955 (for short, ‘the Act’), this notice is issued, but it is only a notice and there is no mandate to vacate the premises and it is open to the petitioners to express their opinion against such acquisition in accordance with the scheme envisaged by Chapter V of the Act.
4. The very same contention was urged on behalf of the Greater Hyderabad Municipal Corporation in BOC INDIA LIMITED (Supra 1). Considering the relevant clause in the notice, which is similar to the clause in the notice impugned herein, this Court held as under:
“In fact, the record produced reads “that the party should handover the affected portion of land under road widening…..”. This cannot be termed as a mutual agreement. It is some sort of mandate that the party should handover the said portion earmarked for road widening. If the respondent-Municipal Corporation of Hyderabad obligates a person to handover a portion of the land for such purpose as mentioned above or for any other purpose as a pre-condition for grant of permission for construction, it is entirely a different thing. Then of course, the matter may have to be gone into on the touch stone of the fundamental rights guaranteed under Part-III of the Constitution of India. But, that is a question apart in this writ proceedings, as there is no such statutory provision. In fact, the statutory provision is contained under Chapter-V of Hyderabad Municipal Corporations Act, 1955 (hereinafter referred to as ‘the Act’), which comprises four Sections, viz., 145, 146, 147 and 148. Section 145 empowers the Corporation to acquire and hold moveable and immovable property or any interest therein. Section 146 of the Act empowers the Corporation to acquire any immovable property by agreement on such terms at such rates or prices or at rates or prices not exceeding such maximum as shall be approved by the Standing Committee. The very term agreement connotes consensus ad idem and that is lacking in the instant case. From the records, I could not find any such agreement inter se the petitioner and respondent, which can be traceable to Section 146 of the Act. Even if it is an agreement under Sec.146 of the Act, the price should be agreed and the said agreed price should be paid. But, in the instant case, the respondent is pleading that it is entitled to take the portion earmarked for road widening free of cost for which thee is no statutory provision. It is pertinent to mention that whenever a property is taken over by the Municipal Corporation it shall be only under Chapter-V and not otherwise. Since there is no agreement under Section 146 of the Act or acquisition by invoking the provision under Section 147 of the Act the action of the respondent-Corporation in refusing to pay the compensation for the above land earmarked for road widening and on the other hand calling upon the petitioner by the impugned letter dated 20-4-1994 (sic. 1995) to handover the portion earmarked for road widening without payment of compensation is clearly unconstitutional being infractive of the constitutional guarantee under Article 300-A of the Constitution of India and cannot sustain. The respondent is restrained from taking over the said portion of the land without payment of compensation.”
5. In the instant case also, no consent was given by the petitioners. In fact, no such consent was asked and straight away, the notice, dated 03.05.2014, was issued.
6. At this stage, learned Standing Counsel, on instructions, submits that it is open to the petitioners to submit their representation against the show cause notice, dated 03.05.2014, and until and unless the petitioners express their willingness for surrendering the land in accordance with the scheme envisaged in Chapter V of the Act and as incorporated in the notice, no coercive action will be taken against the petitioners.
7. Having regard to the submissions made, the Writ Petition is disposed of giving liberty to the petitioners to respond to the show cause notice, dated 03.05.2014, within a period of two (2) weeks from today and only if the petitioners express their willingness for surrendering the land, the respondent – Greater Hyderabad Municipal Corporation can take further course of action as provided by Chapter V of the Act. On the contrary, if the petitioners are not willing to surrender their land voluntarily and to accept the scheme proposed in the notice, no coercive action can be taken against them without following the due process of law as envisaged by Act 30 of 2013. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
P.NAVEEN RAO, J Date: 10th June, 2014 KL HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.15365, 15366 & 15371 of 2014 Date: 10th June, 2014 KL
[1] 1996 (1) ALT 185
[2] 2001 (3) ALD 173 (DB)