Telangana High Court
Madhadi Srikanth Reddy vs Telangana State Northern Power ... on 7 April, 2022
Author: A. Abhishek Reddy
Bench: A. Abhishek Reddy
THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY
WRIT PETITION No. 18753 of 2018
ORDER:
Heard learned counsel appearing on behalf of petitioner and learned Standing Counsel appearing on behalf of respondent Nos.1 and 2 and learned Government Pleader for Revenue appearing on behalf of respondent Nos.3 to 5. With their consent, the present Writ Petition is being disposed of at the admission stage itself.
Questioning the action of the respondent Nos.1 and 2 in not taking steps to pay the compensation amount of Rs.25,00,000/- being market value of the petitioner's agricultural land to an extent of Ac.0.38 guntas out of Ac.1.38 guntas, in Survey No.101/B, situated at Gundrathimadugu Revenue Village, Kuravi Mandal, Mahabubabad District, occupied and constructed/erected 33/11 KV Electrical Sub-Station, the petitioner has filed the present Writ Petition.
The brief facts of the case are as under:
2 AAR, J W.P.No.18753 of 2018 The petitioner is the owner and possessor of the agricultural land to an extent of Ac.1.38 guntas in Survey No.101/B situated at Gundrathimadugu Revenue Village, Kuravi Mandal, Mahabubabad District. The name of the petitioner was mutated in the revenue records immediately after his purchase of the above said land in February, 2006. The petitioner has been cultivating the land by raising dry crops, such as, Mirchi and Maize. He has also raised 25 mango trees along with 50 teakwood trees.
During January, 2011, the petitioner along with family went to Canada and staying in Canada on contract employment. That on the petitioner's visit to his native place during December, 2017/January, 2018, he noticed that in his land to an extent of about Ac.0.38 guntas, a 33/11 KV Electrical Sub-Station was constructed and made functional. The petitioner has stated that the official respondents are not empowered to use the petitioner's patta land without his consent. Therefore, the petitioner got issued legal notice dated 24.01.2018 to the official respondents for payment of Rs.30,00,000/- towards compensation for the land taken and occupied by them.
3 AAR, J W.P.No.18753 of 2018 The respondent No.4 - Revenue Divisional Officer, Mahabubabad, sent a reply to the petitioner stating that a notice was sent to the respondent No.2 - Superintending Engineer, Telangana State Northern Power Distribution Company Limited, Hanamkonda, Warangal, for taking necessary action. But, so far, no action has been taken by the official respondents to pay the compensation amount for the land occupied by the respondents. In the circumstances, the petitioner has filed the present Writ Petition.
Learned counsel for the petitioner has stated that without acquiring the land of the petitioner, the sub- station has been constructed high-handedly by the official respondents in the land of the petitioner to an extent of Ac.0.38 guntas. The learned counsel has stated that taking advantage of the fact that the petitioner is staying in Canada, the official respondents have created a forged and fabricated document showing as if the petitioner on his own has gifted the subject property for the purpose of constructing the sub-station. The learned counsel has stated that the stand taken by the official respondents that 4 AAR, J W.P.No.18753 of 2018 the petitioner has gifted the subject property for the purpose of constructing the sub-station is a blatant lie and the said assertion is bogus and fabricated one. The learned counsel has taken this Court through the alleged Gift Settlement Document dated 27.08.2011 executed by the petitioner in favour of the respondent No.2 and has drawn the attention of this Court to the signature of the executant on the Gift Settlement Document dated 27.08.2011, and also the actual signature of the petitioner in the passport, PAN Card and other documents which clearly establish the fact that the signature of the executant on the Gift Settlement Document dated 27.08.2011 is not that of the petitioner. Further, the learned counsel has stated that even for the sake of argument if the contention of the official respondents is taken to be true, the requirement of law is that any gift deed gifting the immovable property has to be compulsorily registered as per Section 17 of the Registration Act, 1908, and therefore, the so-called Gift Settlement Document dated 27.08.2011, on which, the official respondents are basing their claim is also an invalid document. Further, the 5 AAR, J W.P.No.18753 of 2018 learned counsel has drawn the attention of the Court to the entry and exit dates and stamps in the passport endorsed by the Airport Authorities show that the petitioner had left India on 25.01.2011 and has arrived into India on 15.10.2018, whereas the alleged Gift Settlement Deed is dated 27.08.2011. Even otherwise, a bare perusal of the signature of the petitioner on the writ affidavit, PAN CARD issued by the Income Tax Department, driving license, passport bearing No.G3311452 dated 23.05.2007 and other documents filed by the petitioner clearly show that the signature on the said documents is completely different from the one found on the so-called Gift Settlement Deed dated 27.08.2011 and therefore, prayed this Court to allow the Writ Petition.
Per contra, learned Standing Counsel appearing on behalf of the respondent Corporation has vehemently opposed the very maintainability of the writ petition stating that the issues raised by the petitioner are all disputed questions of fact, which cannot be decided by this Court under Article 226 of the Constitution of India. Learned Standing Counsel has stated that the petitioner himself 6 AAR, J W.P.No.18753 of 2018 had gifted the property in favour of the Corporation and based on the said Gift Deed only, the Corporation has constructed the sub-station. That the petitioner has kept quiet for so many years, therefore, he cannot agitate for his rights at this point of time. Moreover, the question as to whether the signature on the Gift Deed is that of the petitioner cannot be decided by this Court, and can only be decided by the Civil Court. Therefore, the petitioner has to necessarily be relegated to the civil Court for adjudication of the rights, if any. The learned Standing Counsel has relied on the judgment of this Court in Narender v. Secretary, Municipal Administration and others1 to buttress his contention.
Admittedly, in the present case, there is no dispute with regard to the title of the petitioner over the subject land as the official respondents themselves have admitted that the petitioner is the owner and he had gifted the subject land through a Gift Settlement Deed dated 27.08.2011. The petitioner has also filed the pattadar pass book and pahani to show that he is the owner of the 1 W.P.No.17163 of 1996 dated 01.08.2003 7 AAR, J W.P.No.18753 of 2018 subject land. Moreover, basing on the legal notice dated 24.01.2018 got issued by the petitioner to the official respondents, the respondent No.4 has written a letter to the respondent No.2 seeking to sanction an amount of Rs.25,00,000/- towards compensation to the petitioner and requested to take necessary action.
A bare perusal of the Gift Settlement Deed dated 27.08.2011 shows that it is not a registered Gift Deed, a comparison of the signature on the Gift Settlement Deed with that of the signatures of the petitioner on the passport, PAN Card and other documents shows that there is a vast difference in the said signatures. Under Section 45 of the Evidence Act, this Court has ample powers to peruse the documents and compare the signatures if needed. The unregistered Gift Deed clearly establishes the fact that the said deed does not bear the signature of the petitioner. There is absolutely no comparison between the signatures on the Gift Settlement Deed relied on by the official respondents and that of the petitioner on the passport, PAN Card etc. The contention of the official respondents that there are disputed questions of fact 8 AAR, J W.P.No.18753 of 2018 which cannot be gone into by this Court is not correct and the same has to be rejected. Except the so-called Gift Settlement Deed dated 27.08.2011, the respondents have filed no other document to show that the subject land was validly transferred to the respondent Corporation. Under the provisions of the Registration Act, any document which conveys immovable property of more than Rs.100/- has to be compulsorily registered. The Gift Deed in question is not a registered one and therefore it cannot be said that there is a valid conveyance of the title to the property in favour of the respondents. It is pertinent to reiterate the law as laid down by this Court duly interpreting Article 300A of the Constitution of India.
In Vidya Devi vs. State of Himachal Pradesh (2020) 2 SCC 569), the Hon'ble Supreme Court has held that:
"12.2 The right to property ceased to be a fundamental right by the Constitution (Forty- Fourth Amendment) act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his
9 AAR, J W.P.No.18753 of 2018 property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article." In N.Padmamma v. S.Ramakrishna Reddy (2008) 15 SCC 517), the Hon'ble Supreme Court has held as under:
"21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300-A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300-A of the Constitution of India, must be strictly construed."
(emphasis supplied) In Delhi Airtech Services (P) Ltd., v. State of U.P. (2011) 9 SCC 354 : (2011) 4 SCC (Civ) 673), the Hon'ble Supreme Court has held as under:
"30. it is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support
10 AAR, J W.P.No.18753 of 2018 of property. "Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed-bed which must be conserved if other constitutional values are to flourish, is the consensus among political thinkers and jurists."
(emphasis supplied) In State of Haryana v. Mukesh Kumar (2011) 10 SCC 404 : (2012) 3 SCC (Civ) 769), the Hon'ble Supreme Court has held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faced dimension.
Insofar as the judgment of combined High Court in Narender (supra) relied on by the learned Standing Counsel is concerned, in that particular case, the petitioner had questioned the action of the official respondents in taking possession of his land without following the procedure and had approached this Court after a lapse of 11 years. Moreover, there was a dispute with regard to the title of the property in that case. In the 11 AAR, J W.P.No.18753 of 2018 said circumstances of the case, this Court has held that where there are disputed questions of fact, the same cannot be gone into under Article 226 of the Constitution of India. But, having regard to the law laid down by the Hon'ble Supreme Court in the above referred judgments, the judgment relied on by the learned Standing Counsel is not applicable to the facts of the present case. As held by the Hon'ble Supreme Court, no person can be denied of his property except in accordance with the law. The fact that the petitioner had not signed on the Gift Settlement Deed is also borne by the fact that the official respondent has written a letter to the Corporation for depositing of the compensation amount. Therefore, the contention of the respondents that the petitioner should be relegated to Civil Court is without any legal basis.
This Court as well as the Hon'ble Supreme Court, in a catena of cases, has held that the present Writ Petition shall not be thrown out only on the sole ground that there is alternative and effective remedy available to the petitioner.
12 AAR, J W.P.No.18753 of 2018 In ABL International Ltd. v. Export Credit Guarantee Corp. of India Ltd. (2004) 3 CC 553), the Hon'ble Supreme Court held as under:
"A writ petition involving serious disputed questions of fact which requires consideration of evidence which is not on record, will not normally be entertained by a Court in the exercise of its jurisdiction under Article 226 of the Constitution, but there is no absolute rule that in all cases involving disputed question of fact, the parties should be relegated to a civil suit. (para 16) If the facts require, oral evidence can be taken which clearly shows that in an appropriate case, the writ Court has the jurisdiction to entertain a writ petition involving disputed question of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed question of fact. (para 19) In Om Prakash v. State of Haryana (1971) 3 SCC
277), the Hon'ble Supreme Court held as under:
"The Court cannot dismiss a petition in limine under Article 226 merely observing that it raises a question of fact, without determining whether the question can be decided on the materials on record, whether the petitioner has an efficacious alternative remedy and whether the case is otherwise fit for the
13 AAR, J W.P.No.18753 of 2018 exercise of the writ jurisdiction, e.g., that it raises important constitutional question." In Hanif Mohd. V. State of Assam (1970) 2 SCR 197, it is held as under:
"Where the breach of a fundamental right has been prima facie established, the Court would not be justified to reject the petition on the simple ground that it involves a determination of disputed questions of fact, because it is the duty of the Supreme Court to enforce fundamental rights. There is no reason why the same principle should not be applicable to a petition under Article 226, where it has been brought for the enforcement of fundamental right, for the duty of the High Court, to protect the fundamental rights cannot, in any way, be less than that of the Supreme Court."
In WHIRLPOOL CORPN. v. REGISTRAR OF TRADE MARKS (1998) 8 SCC 1), the Hon'ble Supreme Court has held as under:
"The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the
14 AAR, J W.P.No.18753 of 2018 Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."
Having regard to the above, the petitioner cannot be deprived of his property based on the so-called Gift Settlement Deed, which on the face of it shows that the same was not signed by the petitioner and being an unregistered one, the same does not convey any title to the official respondents nor can it be said that the same has been executed by the petitioner. Therefore, the official respondents are directed to initiate land acquisition 15 AAR, J W.P.No.18753 of 2018 proceedings at the earliest and pay the rightful compensation to the petitioner as per the procedure contemplated under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. This entire exercise shall be completed within a period of three (3) months from the date of receipt of a copy of this order.
Accordingly, this Writ Petition is allowed. Miscellaneous applications, if any pending, shall stand closed. There shall be no order as to costs.
_________________________ A. ABHISHEK REDDY, J 7th APRIL, 2022.
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