Andhra Pradesh High Court - Amravati
Nagothi Appalaraju, vs The State Of Andhra Pradesh, on 2 November, 2022
HIGH COURT OF ANDHRA PRADESH:: AMARAVATI
MAIN CASE No: W.P.No.21699 of 2021
PROCEEDING SHEET
Sl. OFFICE
DATE ORDER
No NOTE
17 02.11.2022 RNT,J
1. Sri Sai Kumar, learned counsel
representing Smt A. Varalakshmi, learned
counsel for the petitioner submits that the
petitioner's land was utilized for widening of
the road. The petitioner executed registered
gift deed dated 24.10.2018 in favour of the
2nd respondent-Greater Visakhapatnam
Municipal Corporation for the same. The G.O.Ms.No.119 dated 28.03.2017 provided for issue of Transferable Development Rights (in short, TDR) in the ratio of 1:2 i.e., double the land of the person taken by the corporation, to the person concerned.
G.O.Ms.No.119 was amended by G.O.Ms.No.223 dated 09.07.2018 increasing the ratio to 1:4. He submits that the petitioner is entitled for issuance of TDR in the ratio of 1:4 in terms of G.O.Ms.No.223 as it was applicable and in force on the date of the registered gift deed dated 24.10.2018 but the petitioner was issued T.D.R at the ratio of 1:2 only in terms of G.O.Ms.No.119.
2. Sri S. Lakshmi Nararayana Reddy, learned standing counsel for the 2nd 2 respondent-Corporation submits that the petitioner's land was taken possession of, with his consent in the year 2015 and the road was also laid in that very year. However, the gift deed was executed by the petitioner on 24.10.2018. He submits that on the date of taking possession G.O.Ms.No.168 dated 07.04.2012 was applicable according to which the T.D.R was to be issued at the ratio of 1:2 and accordingly the petitioner was issued TDR at the ratio of 1:2. The subsequent amendment vide G.O.Ms.No.223 is not applicable to the petitioner's case and he cannot take the advantage of his delaying act in not timely executing the Registered Gift Deed in favour of the Corporation in the year 2015.
3. It is not in dispute that the petitioner's land was taken by the Corporation vide gift deed dated 24.10.2018. This acquisition of the petitioner's land by the Corporation is thus by way of agreement.
4. Section 146 of the Municipal Corporation Act, in short A.P.M.C. Act provides for acquisition of immovable property by the Commissioner on behalf of the Corporation for the purpose of the Act by agreement with its owner, on such terms at such rates or prices not exceeding such maximum as shall be approved by the Standing Committee, either generally for any 3 class of cases or specially in a particular case.
5. Section 146 of the A.P.M.C. Act, therefore, provides for acquisition of immovable property by agreement for price, from the owner. In case of no agreement with the owner, the immovable property can be acquired under Section 147 of the A.P.M.C. Act, in accordance with the provisions of the Land Acquisition Act, 1894 as amended from time to time as if such property was needed for a public purpose under the Land Acquisition Act and as per sub section (2) of Section147 of the A.P.M.C. Act, the amount of compensation awarded and all other charges incurred in acquisition shall be paid by Commissioner and thereupon the said property shall vest in the Corporation. Under the land Acquisition Act, compensation awarded is in terms of money.
6. The acquisition of ones immovable property is made by the Municipal Corporation by agreement getting the gift deed executed, and T.D.Rs are being issued to the owner. T.D.R is defined under Rule 166 which though are for the value of the land but the value is not paid to the owner, instead the T.D.Rs to that extent in the ratio as may applicable, are issued. The owner of the land is required to surrender the land free of cost through registered gift deed and 4 as per rule 168(1) of the Rules, 2017 the T.D.R can be awarded only when the land is transferred to the local body by way of registered gift deed.
7. Article 300-A of the Constitution of India provides that no person shall be deprived of his property save by authority of law.
8. This Court is of the view, prima facie, that the deprivation of ones property can be only by authority of law and that authority of law in the matters of deprivation by the Municipal Corporation, is the Municipal Corporation Act, which provides two modes of deprivation, one by agreement with the owner and the other by compulsory acquisition under the Land Acquisition Act as amended from time to time. In both the cases that is, acquisition by agreement or compulsory acquisition the owner is entitled for the price of the immovable property/land. In case of agreement under Section 146 at such rates or prices not exceeding the maximum as approved by the Standing Committee and in the case of compulsory acquisition under Section 147, the amount of compensation as awarded under the Act.
9. The acquisition by agreement under Section 146, therefore contemplates an agreement between the owner and the 5 Corporation for the price. Rule 167 or 168 of the rules, 2017 requiring the owner to surrender free of cost through registered gift deed and transfer the land by way of registered gift deed, prima facie, appears to be, contrary to the provisions of Section 146 of the Municipal Corporation inasmuch as the gift deed as defined under Section 122 of the Transfer of Property Act in short, the T.P. Act, is for 'no consideration'. So the execution of the gift deed by the owner in favour of the Municipal Corporation of his immovable property would be for no consideration. Whereas the Municipal Corporation Act provides for acquiring such property by agreement for the price and in gift deed the element of price is missing. Further, the gift as defined under Section 122 of T.P. Act is made voluntarily, but when the Rules provide that the owner has to surrender his land by executing the registered gift deed, the element of 'voluntarily' vanishes. It becomes a compulsion under the statutory provision to execute the Registered Gift deed. The Registered Gift Deed prima facie, as provided under the Rules, 2017 cannot be considered as a mode of acquisition by agreement, under Section 146 of the Municipal Corporation Act, under which the deed of transfer of title has to be for 'price'.
610. This Court, therefore is of the prima facie view that the deprivation of immovable property to its owner by acquiring his immovable property by following the Rules, 2017, as per the procedure of Rules 166 to 170, is deprivation to the owner of his property, not in accordance with law under Article 300-A of the Constitution of India read with Sections 146 and 147 of the Municipal Corporation Act.
11. The issue requires consideration at depth.
12. Sri S. Lakshminarayana Reddy, prays that the matter may be posted to 16.11.2022 to enable him to argue on the above aspect as well for further hearing.
13. Sri P. Raja Sekhar, learned counsel present in the Court is appointed as Amicus Curiae to assist the court.
14. Learned Advocate General, State of A.P is requested to argue the matter on behalf of the State Government on the next date.
15. Let the complete paper book of the present writ petition along with copy of this order be served by the Registry to Sri P. Rajasekhar by 07.11.2022.
16. A copy of this order be also provided to the learned Advocate General.
717. Post on 16.11.2022 for further hearing, as part heard.
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