Telangana High Court
N.V.N Constructions Pvt., Ltd vs The State Of Telangana And 2 Others on 17 August, 2022
Author: B. Vijaysen Reddy
Bench: B. Vijaysen Reddy
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT PETITION No.15952 of 2021
ORDER:
The petitioner is aggrieved by the action of the respondents in taking possession of his land admeasuring Ac.0.35 guntas out of total land admeasuring Ac.3.35 guntas in Sy.No.1002 of Kukatpally Village, Kukatpally Mandal, Medchal-Malkajgiri District (subject land), for the purpose of laying 100 feet wide road from Hi-Tech City Railway Station to Borabanda, without initiating the land acquisition proceedings and paying compensation in accordance with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the Act'), as being illegal, arbitrary and violative of Articles 14, 21 and 300-A of the Constitution of India.
2. The petitioner claims to be the absolute owner and possessor of the subject land. Originally, one Intivenka Balaiah was the owner of the subject land and other lands in adjoining survey numbers. After the death of Balaiah, his four sons, namely, I. Laxmaiah, I. Narsimha @ Chinna Narasimha, I. Ramulu @ Veeresham and I. Yadaiah, succeeded to the estate of Balaiah and their names were recorded as pattadars and possessors in the revenue records. They filed declaration under Section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (for short 'the ULC Act'). Notice under 2 Section 8(1) of the ULC Act was issued declaring them as surplus holders of the above land excepting 1000 sq. yards in Sy.No.1002. As objections were not filed by the declarants, the competent authority under the ULC Act passed final order under Section 8(4) of the ULC Act declaring the said extent as surplus land.
3. The then Government of Andhra Pradesh issued G.O.Ms.No.456 enabling the owners to get exemption/regularization of surplus land by paying requisite fee. A sum of Rs.9,27,49,903/- was required to be paid towards regularization charges. As the owners did not have the amount to pay the said amount, they approached the petitioner to sell the land for total consideration of Rs.12 crores. Having accepted the proposal, the petitioner paid an amount of Rs.9,27,49,903/-, as per their understanding, to the Government towards requisition charges. The competent authority issued Gazette notification under Section 10(1) of the ULC Act dated 01.04.2006. Thereafter, notification under Section 10(3) was issued on 19.04.2006. The petitioner had been pursuing the matter with the Government/ULC authority for getting clearance in respect of the said land.
4. The petitioner paid entire sale consideration of Rs.12 crores and an agreement of sale cum GPA bearing document No.16132 of 2006 dated 07.08.2006 was executed by the owners by delivering 3 the possession of the subject land to the petitioner. Later, the ULC authorities issued proceedings under Section 10(6) of the ULC Act on 18.12.2007 to take over possession of the subject land and subsequently, the Government issued G.O.Ms.No.456 dated 26.03.2008 granting exemption under Section 20(1)(a) of the ULC Act for the entire surplus land. An endorsement was issued by the ULC authorities to that effect on 11.08.2008. Subsequently, one of the daughters of late Balaiah, namely, Smt. Buchamma, filed a civil suit for partition in O.S.No.1043 of 2008 before the VIII Additional District Judge, Ranga Reddy District, against the surviving brothers, legal heirs of her deceased sister and deceased brother. The suit was settled between the daughter of late Balaiah and the petitioner whereby Smt. Buchamma restricted her share in the retainable area in Sy.No.1002 and executed a registered sale deed vide document No.1632 of 2009 dated 11.05.2009 in favour of the petitioner. Likewise, the legal heirs of Smt. Narasamma, who is the other daughter of late Balaiah, also executed a registered sale deed vide document No.6662 of 2014 dated 10.11.2014 in favour of the petitioner.
5. All the legal heirs including the daughters of late Balaiah were impleaded in the pending suit and the matter was referred to Lok Adalat for recording compromise and the suit was disposed of in terms of the compromise vide award dated 14.10.2015 in 4 O.S.No.1043 of 2008. Clause 13 of the compromise entered before the Lok Adalat is extracted hereunder:
"13. The Plaintiff and Defendants 2 to 22, 24 & 25 hereby jointly and severally declare that a portion of suit land bearing Sy.No.1002 is earmarked for proposed 100 feet road in the Master Plan and the Defendant No.23 alone shall been entitled to receive compensation payable in respect of acquisition of said portion of land for the proposed road."
6. The case of the petitioner is that in the year 2009, the then State Government through its Principal Secretary (Municipal Administration Urban Development (F2) Department) passed G.O.Ms.No.182 dated 25.02.2009 for construction of 100 feet wide road from Hi-Tech City Railway Station to Borabanda, as per approved RDP (Road Development Plan). The GHMC-respondent No.2 herein, as per G.O.Ms.No.182 dated 25.02.2009, has taken physical possession of the land admeasuring Ac.0.25 guntas out of total land admeasuring Ac.3.35 guntas in Sy.No.1002, which belongs to the petitioner. According to the petitioner, the said land was taken without his consent. Though proposal for laying of the road was given in 2009, the actual work began in the year 2014.
7. Mr. Zeeshan Adnan Mahmood, Learned counsel for the petitioner, contended that the petitioner objected for laying of road and the municipal authorities informed the petitioner that the land acquisition proceedings will be initiated and compensation will be 5 paid to him. Though laying of 100 feet wide road from Hi-Tech City Railway Station to Borabanda was completed, the compensation was not paid to the petitioner for land admeasuring Ac.0.25 guntas till date. Several requests were made by the petitioner for payment of compensation and written representation dated 01.06.2021 was submitted calling upon the respondent No.2 to pay compensation for land admeasuring Ac.0.25 guntas by initiating proceedings under the Act of 2013. In the circumstances, the writ petition is filed to direct the respondents to acquire the said land by initiating land acquisition proceedings under the Act of 2013.
8. In the counter filed on behalf of the respondent No.2 it was stated that the road was laid in the vicinity of the subject property in the year 2013, which is a notified in the master plan road. The road was formed prior to coming into force of the Act of 2013. The petitioner obtained building permission for 2 cellars + Ground + 14 floors vide permit No.50566/HO/WZ/cir-14/2016 in File No.49490/17/07/2014/HO dated 24.05.2016 by submitting required documents and showing the abutting approach road of 100 feet much after the formation of the master plan road. The petitioner herein has signed the proposals by himself and obtained permission for construction of multi storied building for which 100 feet wide road is mandatory. The permission would not have been given to the petitioner for construction of multi storied 6 building had the petitioner not shown the abutting road of 100 feet wide road as per G.O.Ms.No.168 Municipal Administration and Urban Development dated 07.04.2012. The petitioner filed the writ petition with a malafide intention by hiding the above facts.
9. It is further stated in the counter affidavit that by showing the existing 100 feet wide road, the petitioner obtained permission for construction of high-rise building and the petitioner has already availed the benefit of existing 100 feet wide road. As the petitioner is benefited to the maximum, he cannot claim any right and compensation for already existing road, which has been shown in the proposal for construction of the building. As the petitioner benefited by showing 100 feet wide road to its site, the petitioner cannot claim compensation.
10. In the counter filed by the respondent No.3, it is stated that they have not received any requisition for acquisition of land admeasuring Ac.0.25 guntas. Therefore, no land acquisition proceedings have been initiated.
11. In the reply filed by the petitioner to the counter of the respondent No.2, it was contended that the petitioner never consented in any manner either orally or in writing for laying of road or waived its right for compensation. The said road is public road and cannot be laid on a private property without following due 7 procedure prescribed under law. Even if the petitioner has shown the road for obtaining building sanction, the same would not confer any right on the authorities to lay the road on the private property without paying compensation.
12. Heard Mr. Zeeshan Adnan Mahmood, learned counsel for the petitioner, Mr. Sampath Prabhakar Reddy, learned standing counsel for GHMC and learned Government Pleader for land acquisition.
13. The respondent No.2 in the counter affidavit did not dispute the ownership of the petitioner over the subject land admeasuring Ac.0.25 guntas in Sy.No.1002 utilized for laying 100 feet wide road. The issue which arises for consideration is whether the petitioner can be denied compensation for the said land even if the land has been shown as an approach road for obtaining permission for construction of multi storied building.
14. Learned counsel for the petitioner does not dispute the fact that the building permission has been obtained by the petitioner company for construction of multi storied building and that the subject road is shown as abutting road to the building. It is also fairly contended by the learned counsel that upon showing 100 feet wide road, permission for construction of 2 cellars + Ground + 14 floors was granted.
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15. The learned counsel for the respondents No.2 and 3 have not brought to the notice of this Court any law whereby the Government/GHMC can seek waiver of compensation on the premise that the said road has been utilized by the petitioner for obtaining sanction plan or that the land is shown as proposed road in the master plan. So also there is no material on record to show that the petitioner has surrendered the land free of cost or he has waived right to receive compensation. This Court in CHANNAVAJALA VIJAYA LAKSHMI v. STATE OF TELANGANA1 dealing with similar issue held as under:
"...The provision in Rule 16(a) of the Rules, which states that unless the area affected in road widening as per the statutory plan/master plan road or Circulation network is surrendered free of cost, no development permission shall be given, in my opinion, is ultra vires provisions of the GHMC Act. Admittedly Section 146 of the GHMC Act contemplates acquisition of immovable property by agreement between the Commissioner and the owner of the land and in the absence thereof, Section 147 of the GHMC Act provides for acquisition of the land under the provisions of the Land Acquisition Act, 1894 as amended from time to time. Rule 16(a) of the Rules is not in accordance with the GHMC Act, and is contrary to Section 146/Section 147 thereof. It is settled law that in case of conflict between delegated legislation and its parent substantive Act, the latter would prevail (See Novva Ads v. Deptt. of Municipal Admn. And Water Supply). Therefore, the provision requiring land owner to surrender land free of cost merely 1 (2015) 5 ALD 157 9 because a portion of the land owned by him is shown as road affected in a statutory plan/master plan or circulation network or as required to be widened as per road development plan is ultra vires provision of the GHMC Act.
Such compulsory deprivation of property without paying any compensation violates Articles 14 and 300-A of the Constitution of India.
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The two competing interests i.e. the interest of the State vis-à-vis the general public to have better living conditions and the right of property of an individual, though not a fundamental right but which is still a constitutional and human right, need to be balanced. Therefore, enforcement of the regulations framed under Section 14 of the HMDA Act should be done in such a way that a citizen is not deprived of his property save in accordance with law. If a zoning classification imposes unreasonable restrictions, it cannot be sustained.
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In view of this provision, and law declared by the Supreme Court in the above referred decisions, it is incumbent on the part of the respondents to initiate proceedings under Section 32 of the HMDA Act in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the 2013 Act) for acquisition of the portion of the land required by them for road widening out of the property owned by the petitioner and pay compensation to the petitioner. If not, the petitioner would be deprived of her valuable property without compensation."
16. In view of the above observations and judgement supra, this Court holds that the action of the respondents in depriving the 10 petitioner of payment of compensation for land admeasuring Ac.0.25 guntas and utilizing the same for laying of 100 feet wide road is illegal and arbitrary and violative of Articles 14 and 300-A of the Constitution of India.
17. For the foregoing reasons, the writ petition is allowed. The respondents are directed to initiate the land acquisition proceedings for acquiring the land in an extent of Ac.0.25 guntas in Sy.No.1002 of Kukatpally Village, Kukatpally Mandal, Medchal- Malkajgiri District, under the provisions of the Act of 2013 and pass award for payment of compensation to the petitioner within a period of two (2) months from the date of receipt of a copy of this order.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
____________________ B. VIJAYSEN REDDY, J August 17, 2022 DSK