HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 35768 of 2013 Date: 16.04.2014 Between :
Gowri Shankar Sanghi R/o H No. 21-2-444, Gulzar House, Hyderabad … Petitioner and GHMC, rep by its Commissioner, Hyderabad & others … Respondents The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 35768 of 2013 ORAL ORDER:
Greater Hyderabad Municipal Corporation (for short GHMC) proposed for widening of the road from Himmathpura Junction to Chandrayanagutta (Charminar to Falaknuma road ) at Shaher-e-Hyderabad village, Bahadurpura mandal, Hyderabad district. Requisition was placed on the Land Acquisition Officer to initiate proceedings under the Land Acquisition Act, 1894 (Repealed Act) for acquiring the properties mentioned therein.
The proposal was affecting 11 properties with total extent of 1282.53 sq yards. Draft notification under Section 4 (1) was published in the Hyderabad District Gazettee dated 5.9.2008 which covered the property of the petitioner bearing H No. 21-2-444. Paper publication and locality notification were also issued. Urgency clause was invoked in accordance with Section 17 (4) of the Repealed Act and draft declaration was published in the Hyderabad District Gazettee dated 24.9.2008. Paper notification and locality notification were also issued. Notices under Sections 9 and 10 of the Act were issued fixing the date of enquiry as 16.10.2008. During the enquiry as no one participated, passing of the award was deferred to the extent of property bearing No. 21-2-444 and award was passed on 14.9.2009 to the extent of 340.06 sq yards. Owners of other properties to an extent of 674.96 sq yards consented to acquire their lands through negotiations under Section 146 of the Hyderabad Municipal Corporation Act.
2. GHMC sought for revised notification in respect of premises bearing No. 21-2-444 to be corrected as 21-4-443, 21-2-444/1 to 4. Accordingly, errata to draft notification was issued and the same was published in the Hyderabad District Gazette on 14.10.2009. Other modes of publication were also effected. Petitioner appeared on 17.9.2009 before the Land Acquisition Officer and filed his claim petition. Petitioner requested for supply of documents mentioned therein to file an effective reply. However, petitioner has also stated in the claim statement that he is willing for giving up his land, if an amount of Rs.90,000/- is determined as compensation per square yard. An award was passed on 13.4.2011 insofar as properties of the petitioner are concerned and compensation was determined at Rs.62,41,958/-. The rate per square yard requested by petitioner was not granted.
3. The acquisition of land of petitioner is subject of litigation continuously from the year 2007. Having come to know that GHMC was proposing to widen the road in this stretch and apprehending that petitioner would be dispossessed from his property without following due process of law, petitioner instituted W P No. 28257 of 2007. The said writ petition was disposed of by order dated 25.12.2007 with a direction to respondents not to dispossess the petitioner in respect of premises bearing No.21-2-444 without initiating proceedings under the HMC Act. Petitioner instituted W.P.No.7992 of 2007 alleging that his property bearing Nos.21-2-443 and 444 were marked for demolition without following the due process of law. The said writ petition was disposed of by order dated 29.12.2009 leaving it open to the petitioner to participate in the land acquisition proceedings, which were already initiated.
4. Petitioner instituted W P No. 28693 of 2009 challenging the draft notification under Section 4 (1) of the Repealed Act. Petitioner also challenged the very decision of the GHMC to widen the road based on Road Development Plan, as irrational and arbitrary. Petitioner also challenged dispensing with enquiry under Section 5–A of Repealed Act. By order dated 18.1.2010 this Court directed not to dispossess the petitioner, pending disposal of the writ petition. However, petitioner was given liberty to participate in the award enquiry. The said writ petition was dismissed by order dated 12.11.2013.
5. As noticed above, during the pendency of the writ petition, award was passed on 13.4.2011. After the dismissal of writ petition No. 28693 of 2009, two notices dated 27.11.2013 were served on the petitioner. First notice was under Section 12 (2) of the Repealed Act. Petitioner was informed that an award was passed on 13.4.2011 and total extent of land acquired was shown as 267.50 sq yards and compensation payable was also informed. Petitioner was directed to appear within 15 days after service of notice. By second notice the petitioner was directed to deliver vacant possession of the land along with structures attached to it by evening on 5.12.2013. This writ petition is instituted assailing both notices as well as the award dated 13.4.2011.
6. At the stage of admission, this Court granted interim order of stay of dispossession of the petitioner. Praying to vacate the interim order, W.V.M.P. No. 146 of 2014 is filed. When the matter is taken up, Sri G Vidyasagar, learned senior counsel appearing for petitioner, learned Government Pleader for Land Acquisition and learned standing counsel for GHMC requested for consideration and disposal of the writ petition on merits.
7. Learned senior counsel Sri G Vidyasagar submitted that the award passed on 13.4.2011 is in violation of Section 11-A of the Repealed Act. The errata to the draft notification and draft declaration published in the Hyderabad District on 14.10.2009 relates back to the original draft notification under Section 4 (1). As draft declaration was notified in the locality on 29.9.2008, award ought to have been passed before 29.9.2010. Since award was not passed within 2 years from 29.9.2008, as mandated by Section 11-A, the award proceedings are vitiated.
8. In support of his contentions, learned senior counsel placed reliance on the decisions of the Supreme Court in VISHAL AGRAWAL & ANOTHER Vs CHHATTISGARH STATE ELECTRIVITY BOARD AND
[1]
ANOTHER (para 15), STATE OF TAMIL NADU AND ANOTHER Vs.
[2]
MAHALAKSHMI AMMAL AND OTHERS (para 8) and POPAT BAHIRU GOVARDHANE AND OTHERS Vs SPECIAL LAND ACQUISITION
[3] OFFICER AND ANOTHER (para 16).
9. Learned Government Pleader for Land Acquisition strenuously contended that the award is passed within the time stipulated under Section 11-A of the Repealed Act and placed reliance on explanation to Section 11–A of the Repealed Act to contend that the period during which stay granted by this Court operates has to be excluded for computing two years period from the date of notification of the draft declaration and thus the award is within time. An order of stay of eviction is also covered by explanation to Section 11-A and since this Court granted an interim order not to dispossess the petitioner on 18.1.2010, the period of operation of the interim order has to be excluded for computing the period of two years from the date of draft declaration till the date of passing of award. In view of the operation of the interim order till the disposal of the writ petition, there was no obligation on the part of the Land Acquisition Officer to pass an award. Though, award was passed on 13.4.2011, till that date from 18.1.2010 has to be excluded for computing the two years period. Even assuming that the contention of the learned counsel for petitioner that errata relates back to the date of notification is valid, the award passed on 13.4.2011 is within time.
10. In support of his contention that explanation to Section 11-A covers the stay of dispossession, learned Government Pleader placed reliance on decision of the Supreme Court in M RAMALINGA THEVAR Vs
[4]
STATE OF TAMILNADU AND OTHERS (para 6 and 10).
11. Learned Government Pleader further contended that it is no more open to the petitioner to challenge the initiation of land acquisition proceedings, invoking urgency clause by dispensing with Section 5-A enquiry and passing of an award, in view of dismissal of W P No. 28693 of 2009. Insofar as initiation of the land acquisition proceedings and dispensing with Section 5-A enquiry, specific plea was raised but the same was rejected. Further more, with reference to the justification to pass an award, the plea was available to the petitioner in the said writ petition as award was passed during the pendency of the writ petition and petitioner having chosen not to challenge the award in the said writ petition, it is not open to the petitioner to separately institute fresh writ petition to challenge the award. The earlier order of this Court in W P No. 28693 of 2009 operates as constructive res judicata. He further submits that the writ petition was dismissed on merits. Court also considered passing of an award. Restoration petition filed in the said writ petition was also dismissed. Therefore, the judgment of the Court in W.P. No. 28693 of 2009 having become final, separate writ petition is not maintainable.
12. He further contended that petitioner participated in award enquiry. He submitted a written representation on 17.9.2009 claiming compensation and expressing his readiness for acquiring his property on the condition that compensation at the rate of Rs. 90,000/- per sq yard should be paid. Having considered his objection and having found that the justified compensation would be Rs.62,41,958/-, the same was determined. Since petitioner is agreed for acquisition of property but was only making a demand for higher compensation, it is not open for the petitioner to contend that award is vitiated. It is always open to the petitioner to claim higher compensation.
Having acquisitioned of the award proceedings, petitioner cannot turn around and challenge the award proceedings.
13. In support of his contention, learned Government Pleader placed reliance on decision of Supreme Court in URMILA ROY AND OTHERS Vs BENGAL PEERLESS HOUSING DEVELOPMENT COMPANY LIMITED
[5]
AND ANOTHER (para 60).
14. Learned standing counsel for GHMC submitted that due to continuous litigation instituted by the petitioner one after other, great inconvenience is caused in developing the road and commuters who use the said road are suffering. The acquisition as originally proposed in the stretch was complete except the property of the petitioner, because of the continuous litigation pursued by him, since year 2007.
15. In reply, learned senior counsel contended that prayer sought in the earlier writ petition and prayer sought in the present writ petition is different, and therefore the writ petition is maintainable. He further contended that though notification intended to acquire 267.50 Sq Yards land of the petitioner but during the negotiations, GHMC agreed to acquire only 200 sq yards leaving 67.50 sq yards from out of the acquisition proceedings, but contrary to the said understanding the entire extent of the land is now acquired.
16. Petitioner earlier instituted W P No. 28693 of 2009. As noticed herein above, the prayer sought in said writ petition encompasses the initial stage when the road development plan was drawn and road widening in this particular stretch was proposed to issuance of Section 4 (1) notification, draft declaration, errata to Section 4 (1) notification and draft declaration and also the justification to dispense with Section 5-A enquiry. Thus, all aspects of land acquisition were covered, except the award. Conspicuously petitioner did not choose to challenge the award in the above writ petition. During the course of hearing of said writ petition, learned Government Pleader relied on passing of the award by following the due procedure.
17. Having considered the said submissions, the writ petition was dismissed on merits. Thus, the decision to widen the road, the proposal to acquire the land including the errata and draft declarations by dispensing with Section 5-A enquiry have become final. Similarly the Court was apprised of passing of award and having considered the submissions of the learned Government Pleader on the justification to pass award, the writ petition was dismissed. No leave was granted to petitioner to challenge the award in separate writ petition. Thus, it is not open to the petitioner to assail the validity or correctness of the award.
18. The acquisition was for the purpose of widening of the existing road, as the existing road was found to be very narrow and congested and inconvenience is caused to the commuters using the road on account of the increase in the flow of traffic. Therefore the acquisition was for the public purpose and by following due procedure as mandated by the Repealed Act, the acquisition proceedings were concluded. No error, much less patent error is pointed out to declare the award as illegal. It is against larger public good to stall the widening of road more particularly when land acquisition proceedings with respect to adjacent properties were finalized long ago.
19. At one stage, petitioner conceded for acquisition for widening of the road but was asking more compensation than what was proposed. The said request for higher compensation was not acceded to and compensation amount was determined at the lesser rate. However, if the petitioner is not satisfied with the compensation determined, remedy is available to him to claim determination of higher compensation. The validity of award cannot depend on the amount of compensation payable.
20. The only point that remains for determination in this writ petition is whether passing of the award on 13.4.2011 is hit by Section 11-A of the Repealed Act. Even though, the learned Government Pleader has strenuously contended that in view of the dismissal of W P No. 28693 of 2009, even this contention is not open for the petitioner to raise, however, to test the said contention, the issue is considered by this Court.
21. Section 11-A of the Act, reads as under:
“11-A. Period within which an award shall be made.—(1) The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse.
Explanation.—In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded.”
22. The scope of Section 11-A was considered by the Apex Court in M RAMALINGA THEVAR (cited supra). The facts are identical to the facts of this case. In the said case also there was stay of dispossession of the appellant and during the operation of the stay, award was passed. In the said case draft declaration under Section 6 was issued on 10.4.1992 and award was passed on 16.9.1994. It was contended that since there was no stay on passing of the award, the period of two years should be counted from 10.4.1992 and therefore expired on 9.4.1994 and thus, the award passed on 16.9.1994 was hit by provision contained in Section 11-A of the Act. Rejecting the said contention, Supreme Court held as under:
“10. Thus, the position is now well settled that even when dispossession alone is stayed by the Court the period during which such stay operates would stand excluded from the time fixed for passing the award, the expiry of which would render the acquisition proceedings lapsed. In the light of the said interpretation it is now idle to contend that the Government is debarred from proceeding with the acquisition. The appeal is accordingly dismissed.”
23. In view of the authoritative pronouncement of the Supreme Court directly on the point, the contention of the learned senior counsel that the award is not passed within two years period, therefore award is vitiated, thus, violating the mandate of Section 11-A, is not valid and hence rejected.
24. The decisions relied by the learned senior counsel for the petitioner do not come to the aid of the petitioner. STATE OF TAMIL NADU (cited supra) was a case concerning the effect of errata. Supreme Court held that errata notification dates back to the date of initiation of draft notification and cannot be considered as fresh notification. It is not the case of the respondents that errata is effective only from the date it is notified and the issue in this writ petition does not relate to effect of the errata. Even otherwise, the contention of the learned senior counsel that errata relates back to Section 4 (1) and two years period should be computed from the first draft declaration do not come to the aid of the petitioner as analysed above. In POPAT BAHIRU GOVARDHANE Supreme Court held that law of limitation has to be applied with all its rigor when the statue so prescribe and Court has no power to extend the period of limitation on equitable grounds. Basing on hardship or inconvenience, a particular period cannot be a consideration and Court has no choice but to enforce it giving full effect to the same. Decision in VISHAL AGRAWAL is on the effect of clarificatory amendment. Supreme Court said an amendment clarificatory in nature would be retrospective.
25. As analised above, the order of stay of dispossession was issued by this Court on 18.1.2010, even if the date of locality notification of draft declaration is taken i.e. 29.9.2008, the Land Acquisition officer had two years time to pass the award i.e., 28.9.2010 but stay was operating from 18.1.2010. If this approximately 9 months period is excluded, the award is passed within two years time i.e., on 13.4.2011. Thus, there is no illegality in passing of the award.
26. As rightly contended by the learned Government Pleader as per the letter dated 17.9.2009, petitioner has consented for acquisition but was only claiming higher compensation. Having acquiesced to the acquisition proceedings, petitioner cannot turn around to say that the acquisition is bad in law as held by the Supreme Court in URMILA ROY (cited supra).
27. Much time is consumed due to litigation and property of the petitioner is coming in the way of proper utilization of the road for the benefit of the commuters. Thus, leaving it open to the petitioner to avail the remedies under the Repealed Act or new Act as the case may be, for seeking enhancement of the compensation, petitioner shall hand over the premises to GHMC immediately.
28. In the facts of the case, petitioner is granted two months time from today to vacate the premises and hand over vacant possession to GHMC to take up the road widening. It is further clarified that this order does not come in the way of petitioner entering into negotiations with the GHMC for the purpose of determination of compensation or for the purpose of leaving aside any portion of the land from out of 267.50 square yards originally proposed for acquisition, if the GHMC is of the view that any portion of the land is not required. It is also made clear that time schedule of two months granted to the petitioner for vacating the premises does not get altered even if process of negotiations are initiated.
27. Accordingly, the writ petition is dismissed. No costs. Sequel to the same, miscellaneous petitions, if any stand closed.
P.NAVEEN RAO,J DATE: 16-04-2014 TVK HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 35768 of 2013 Date: 16.04.2014 tvk
[1] 2014(1) SUPREME 326
[2] (1996) 7 SCC 269
[3] (2013) 10 SCC 765
[4] (2000) 4 SCC 322
[5] (2009)5 SCC 242