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Telangana High Court · body

2023 DIGILAW 640 (TS)

Banda Shekar Reddy v. State Of Telangana

2023-09-11

SUREPALLI NANDA

body2023
ORDER : Heard Learned Counsel for the petitioner, Government pleader for Land Acquisition appearing for respondents 1 and 2, learned standing counsel for GHMC appearing for respondents 3, 4 and 5, learned Government Pleader for Municipal Administration and Urban Development appearing for respondent No.6 and learned standing counsel for GHMC appearing for the 7th respondent. 2. This Writ Petition is filed to issue a Writ of Mandamus declaring the action of the Respondents more particularly the Respondent Nos. 2, 6 & 7, who have collectively acquired the Petitioner's Land admeasuring 360 Sq. Yards (300.9 Sq.Mts.,) in Plot No. 15 covered in Sy.Nos.24 & 136, situated in Shankernagar Colony, Nagole Village, Uppal Mandal, Medchal Malkajgiri District-TS without issuing the petitioner any Notice and without following due process of Law and by acting above rule of law, besides have not yet initiated any Land Acquisition Proceedings and also not paid any single rupee of Compensation to the Petitioner under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and Rules, 2014, as arbitrary, ex-facie illegal, highhanded, dereliction of duty, by giving colourable exercise to their statutory powers, in violation of principles of natural justice and consequently may direct the Respondents to either return back the Petitioner's aforesaid Land or to pay Compensation to the Petitioner under the New Land Acquisition Act No.30 of 2013 along with damages. 3. The case of the Petitioner, in brief, is as follows: a) The petitioner is the absolute owner and possessor of the aforesaid Land admeasuring 360 Sq. Yards in Plot No. 15 covered in Sy.Nos.24 & 136, situated in Shankernagar Colony, Nagole Village, Uppal Mandal, Medchal Malkajgiri District-TS, having purchased the same by virtue of Registered Sale Deed dated 31- 07-1993 vide Document No.2373 of 1993. b) However, the allegation was made that the petitioner’s aforesaid Land is part of Ceiling Surplus Land. Thus, the petitioner has regularized the said land as per the Government Scheme and obtained endorsement dated 10.04.2006. Thereafter, the petitioner left to the United State of America and by the time the petitioner came back to visit India, development activities by the Government has taken place in widening the Roads and other places. Thus, the petitioner has regularized the said land as per the Government Scheme and obtained endorsement dated 10.04.2006. Thereafter, the petitioner left to the United State of America and by the time the petitioner came back to visit India, development activities by the Government has taken place in widening the Roads and other places. c) Subsequently, when the petitioner visited the said land, it was observed that the same has been acquired by the GHMC without issuing any Notice nor paying any Compensation to the petitioner under the New Land Acquisition Act, 2013 for such acquisition. d) On 14.07.2022, the petitioner addressed a letter to the 2nd Respondent stating that the petitioner is the absolute owner of the said land and requested him to take necessary action. Accordingly, based on the above mentioned representation the 2nd Respondent addressed a letter to the 5th Respondent requesting him to look into the contents of the said representation, enquire and submit detailed report for taking further necessary action. e) Thereafter, the 5th Respondent after making necessary enquiry reported to the 2nd Respondent from the office of the 4th Respondent by stating that petitioner’s land was inspected and observed that his office has not acquired the aforesaid land nor did any developmental works. However, he observed that the walking track and some development work have been taken by the 6th Respondent in cooperation with the 7th Respondent which includes the petitioner’s land. f) The 6th Respondent with the cooperation of the 7th Respondent acquired the petitioner’s aforesaid Land without issuing any Notice to the petitioner and without following due process of law, which amounts to arbitrariness, highhandedness and giving colourable exercise to their statutory powers by acting above rule of law which is affecting the petitioner’s Right to Property guaranteed under Article 300-A of the Constitution of India. Hence this Writ Petition. 4. Counter Affidavit filed by Respondent Nos. 3 & 4, read as under: a) The Respondent Corporation has received a letter on 18.07.22/ 04.2022 vide No. C/284/SRDP/2018 from the 2nd Respondent herein stating the 2nd Respondent received a representation dated 14.07.2022 from the petitioner wherein he represented that the land in Sy. Hence this Writ Petition. 4. Counter Affidavit filed by Respondent Nos. 3 & 4, read as under: a) The Respondent Corporation has received a letter on 18.07.22/ 04.2022 vide No. C/284/SRDP/2018 from the 2nd Respondent herein stating the 2nd Respondent received a representation dated 14.07.2022 from the petitioner wherein he represented that the land in Sy. No. 136 situated in Shankernagar Colony, Nagole Village, Uppal Mandal, Medchal Malkajgiri District has been acquired by the Respondent Corporation and requested the 2nd Respondent herein to pay the compensation as per the rules and copy of the said representation is enclosed to the said letter and requested the Circle – 3 of the Respondent Corporation to look into the contents of the representation, enquire and submit detailed report for taking further necessary action in the matter, the Circle – 3 (Hayathnagar) forwarded to the Circle – 5 (Saroornagar) as the subject property falls in the jurisdiction of 4 & 5 regarding circle. b) The Petitioner land affected in walking track is to be identified by conducting joint survey by MRDF, Revenue Department and GHMC has no role in developing walking track adjacent to musi river, Nagole which is a buffer zone. Unless as certain by survey, the petitioner cannot claim any compensation in respect of the land. Hence, the Writ Petition is without merits and is liable to be dismissed. 5. Counter Affidavit filed by Respondent No.6, in brief, is as under: a) The MRDCL has taken up the developmental program to beautify the river banks for public purpose in various places. Initially, we have developed the Nagole bridge for a length of 2.5 kms on either side of the Musi River and also formed walkways, green belt provided open gym for the public purpose at Nagole without concrete which is highly appreciated by Hon'ble Justice Vilas V. Afzulpurkar, Former Judge and Chairman (for Monitoring Committee formed by National Green Tribunal) which is being used and enjoying by the public around the vicinity who are coming for morning and evening walking in day-to-day life. b) Further, all the activities taken up by the MRDCL are within the riverbed and the buffer zone only. It is beautified for the welfare of the public and to reduce the foul smell of River water and mosquito menace and also for Ecological Restoration. Hence, the Writ Petition is without merits and is liable to be dismissed. 6. b) Further, all the activities taken up by the MRDCL are within the riverbed and the buffer zone only. It is beautified for the welfare of the public and to reduce the foul smell of River water and mosquito menace and also for Ecological Restoration. Hence, the Writ Petition is without merits and is liable to be dismissed. 6. Counter Affidavit filed by Respondent No. 7, in brief, is as under: a) The 6th Respondent who is apt person to answer all the allegations leveled in said Writ Petition as the developmental activities such as construction of walking track, development of Green belt along the bunds of the Musi river have been taken up by the Musi River Front Development Corporation Limited (MRDLC) i.e., 6thRespondent herein. Only on the request of 6th Respondent, the 7th Respondent deputed 50 workers, 04 home guards and one in charge officer to assist in enforcing the activities of 6thRespondent. b) Hence it is made clear that this 7th Respondent has no role in their activities of MRDCL except deputation of staff on its request in assisting to provide security to the officers of MRDCL whenever enforcement activity has been taken up along the length of the Musi river within GHMC. The 6th Respondent is having its office at Managing Director, MRDCL, 2nd floor, DC COMPLEX, HMDA BUILDING, TARNAKA which is wrongly mentioned by the Petitioner in cause title of said Writ petition. The Director EV&DM, GHMC is made a formal party to the Writ Petition. Hence the Writ may be closed against 7th Respondent. Hence, the Writ Petition is without merits and is liable to be dismissed. PERUSED THE RECORD 7. The relevant portion of para 2 of the counter filed by the 7th respondent, reads under: “In fact it is respondent No.6 who is apt person to answer all the allegations levelled in above writ petition as the developmental activities such as construction of walking track, development of Green belt along the bunds of the Musi River have been taken up by the Musi River Front Development Corporation Limited (MRDLC) i.e. respondent No.6 herein. Only on the request of respondent No.6, this respondent No.7 deputed 50 workers 04 home guards and one in Charge officer to assist in enforcing the activities of respondent No.6. Only on the request of respondent No.6, this respondent No.7 deputed 50 workers 04 home guards and one in Charge officer to assist in enforcing the activities of respondent No.6. Hence it is made clear that this respondent No.7 has no role in their activities of MRDCL except deputation of staff on its request in assisting to provide security to the officers of MRDCL when ever enforcement activity has been taken up along the length of the Musi river within GHMC.” 8. The relevant portions of para 4 (b), (c), (d), and (e) of the counter filed by respondent Nos. 3,4 and 5, read under: “4. (b) It is submitted that the respondents' corporation has received a letter on 18-07-2022/ 04-2022 vide No.C/284/SRDP/2018 from the respondent no.2 herein who had stated that 2nd respondent received a representation dated 14-07-2022 from the petitioner herein wherein he represented that the land in Sy. No. 136, Situated in Shankernagar Colony, Nagole Village, Uppal Mandal, Medchal-Malkajgiri District has been acquired by the respondent corporation and requested the respondent no.2 herein to pay the compensation as per the rules and copy of the said representation is enclosed to the said letter and requested the circle -3 of respondent corporation to look into the contents of the representation, enquire and submit a detailed report for taking further necessary action in the matter, the Circle – 3 (Hayathnagar) forwarded to the circle - 5, (Saroornagar) as the subject property falls in the jurisdiction of 4 & 5 regarding circle. (c) It is submitted that on receipt of the above said letter from the respondent no.2 herein on transmit, the officials of the respondent No.5 herein have inspected the land mentioned in the 2nd respondent letter and observed that this respondent corporation have not acquired nor did any developmental works in the above subject land, further, it is observed that the walking track and some other developmental works have been taken up by Musi River Front Development Corporation (MRDC) in co-operation/assistance with Enforcement, Vigilance & Disaster Management (EV & DM) wing adjacent to musi river, Nagole, and factual report has been sent to the respondent No.2 herein vide its letter dt. 02-08-2022, stating that only the physical features existing adjacent to musi river at Nagole, but not stating whether the petitioner land is affected or not. 02-08-2022, stating that only the physical features existing adjacent to musi river at Nagole, but not stating whether the petitioner land is affected or not. (d) It is submitted that during the inspection, the petitioner herein was present and shown the mentioned land in the 2nd respondent letter and the petitioner herein requesting for compensation for the same. The petitioner herein failed to show that walking track is laid on his property and unless the physical features of the walking track are ascertained by conducting survey with reference to the title documents of the petitioner, moreover, the said walking track property is under buffer Zone as such the petitioner herein cannot claim compensation for this respondents corporation as no development activities had been taken up by this respondent corporation nor any land had been acquired. If the property of the petitioner herein had been developed in walking track developed by respondent No.6 herein has to initiate proceedings for acquisition as the walking track was developed by the respondent no.6 herein and letter dt. 02.08.2022 of the respondent no.5 herein will not give any right to the petitioner to claim compensation against this respondent or from 6th respondent. (e) It is relevant to submit that the petitioner land is effected in walking track is to be identified by conducting joint survey by MRDF, Revenue Department and GHMC has no role in developing walking track adjacent to musi river, Nagole which is a buffer zone. Unless ascertained by survey, the petitioner cannot claim any compensation in respect of his land.” 9. The counter filed by respondent No.6, in particular para 5, reads as under: “5. It is submitted that in this case, MRDCL did not acquire any land either petitioner’s or any others land situated in the banks of Musi River on either side at Nagole, Uppal Mandal. As per the National Green Tribunal (NGT) orders in O.A.No.426 of 2018, we have beautified the river banks in buffer area for the community purpose for ecological restoration, welfare and betterment of health of the public and to bring back the aesthetic glory of the Musi River. As per the National Green Tribunal (NGT) orders in O.A.No.426 of 2018, we have beautified the river banks in buffer area for the community purpose for ecological restoration, welfare and betterment of health of the public and to bring back the aesthetic glory of the Musi River. As per the G.O.Ms.No.168 of MA &UD Department, dated 07.04.2012 Role 3(a) (1) and G.O.Ms.No.07 of MA & UD (M1) Department, dated 05.01.2016 ‘NO buildings or developmental activity shall be allowed in the bed of water bodies like River and Nalas i.e. in Musi River boundary and buffer zone. DISCUSSION & CONCLUSION DISCUSSION 10. It is the specific case of the Petitioner that the Respondents No.2, 6 and 7 have collectively acquired Petitioners land admeasuring 360 sq. yards (300.9 sq.mtrs.) in Plot No.15, covered in Sy.Nos.24 and 136, situated in Shankernagar Colony, Nagole Village, Uppal Mandal, Medchal-Malkajgir District, TS, without issuing any notice to the Petitioner and without following due process of law and without initiating Land Acquisition proceedings. 11. A bare perusal of the counter affidavit filed by Respondent No.5 GHMC and also on behalf of Respondents No.3 & 4, indicates that it is stated that in pursuance to the representation of the Petitioner dated 14.07.2022, the Respondent Corporation received a letter dated 18.07.2022 from the Respondent No.2, whereunder the 2nd Respondent referring to the representation of the Petitioner dt. 14.07.2022 which pertained to conduct of an enquiry in respect of the land in Sy.No.136 situated in Shankernagar Colony, Nagole Village, Uppal Mandal, Medchal-Malkajgiri District, which according to the Petitioner had been acquired by the Respondent Corporation, the 2nd Respondent requested the 5th Respondent to enquire into the contents of the representation of the Petitioner dated 14.07.2022 and submit a detailed report and in pursuance to the said letter from the 2nd Respondent, the Respondent GHMC Corporation, L.B.Nagar Zone, Circle No.5, Saroornagar, inspected the subject land and observed that the Respondent Corporation had not acquired nor did any developmental works in the said subject land, but however, it is observed that walking track and some other developmental works have been taken up by the 6th Respondent herein in cooperation/assistance with Enforcement, Vigilance and Disaster Management (EV & DM) Wing adjacent to Musi river, Nagole and factual report had been sent to Respondent No.2 vide its letter dt. 02.08.2022 stating that only physical features exist adjacent to Musi river at Nagole. 02.08.2022 stating that only physical features exist adjacent to Musi river at Nagole. Para 4(e) of the counter affidavit filed on behalf of Respondent No.3, 4 & 5 clearly indicates that it is stated that the Petitioner’s land effected in walking track is to be identified by conducting joint survey by MRDF, Revenue Department and GHMC had no role in developing walking track adjacent to Musi river, Nagole, which is a buffer zone and unless survey is conducted the Petitioner cannot claim any compensation in respect of Petitioner’s land. 12. A bare perusal of the counter affidavit filed by the 7th Respondent clearly indicates the stand of 7th Respondent that the 7th Respondent had no role in the activities of MRDCL except deputation of staff on the request of 6th Respondent in assistance to provide security to the Officers of MRDCL whenever enforcement activity has been taken up along the length of the Musi river within GHMC and that the 6th Respondent is the concerned authority to answer all the allegations levelled by the Petitioner against the Respondents herein in the present writ petition. 13. A bare perusal of the counter affidavit filed on behalf of the 6th Respondent indicates a specific stand that MRDCL did not acquire any land either Petitioner’s or any other’s land situated in the banks of Musi river on either side at Nagole, Uppal Mandal and that MRDCL took up activities within the river bed and buffer zone only and undertook the developmental program to beautify the river banks for public purpose in various places. CONCLUSION : 14. This Court taking into consideration the specific averments made in the counter affidavit filed by Respondents No.6, 7 and 3, 4 and 5 (referred to and extracted above) opines that the relief as sought for by the Petitioner cannot be granted in the present case at this stage since none of the Respondents in their counter affidavits admit acquisition of Petitioner’s subject land. Taking into consideration the specific averments made in para 4(e) of the counter affidavit filed by Respondents No.3 to 5, this Court opines that unless a joint survey is conducted in respect of Petitioner’s subject land by Revenue Department, GHMC and MRDC and the portion of Petitioner’s land effected in walking track is identified, the Petitioner’s claim/entitlement for payment of compensation in respect of Petitioner’s subject land cannot be decided. 15. 15. NO PERSON CAN BE DEPRIVED OF HIS PROPERTY SAVE BY AUTHORITY OF LAW. i. The Apex Court in the judgment reported in AIR 2022 SC 2703 in Kalyani (dead) through LRs and others v Sulthan Bathery Municipality and others, in particular at para 20, observed as under: “Article 300A clearly mandates that no person shall be deprived of his property save by authority of law. In the present case, we do not find, under which authority of law, the land of the appellants was taken and they were deprived of the same. If the Panchayat and the PWD failed to produce any evidence that appellants have surrendered their lands voluntarily, depriving the appellants of the property would be in violation of Article 300-A of the Constitution. ii. The Apex Court in the judgment reported in (2020) 9 SCC 356 in Harikrishna Mandir Trust v State of Maharastra, in particular, paras 96, 97 and 99 observed as under: “96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300-A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel. In view of the mandate of Article 300- A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant Trust cannot be deprived of its property save in accordance with law. 97. Article 300-A of the Constitution of India embodies the doctrine of eminent domain which comprises two parts, (i) possession of property in the public interest; and (ii) payment of reasonable compensation. As held by this Court in a plethora of decisions, including State of Bihar v. Project Uchcha Vidya, Sikshak Sangh: Jilubhai Nanbhai Khachar v. State of Gujarat Bishambhar Dayal Chandra Mohan v. State of U.P, the State possesses the power to take or control the property of the owner for the benefit of public. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders v. State of Maharashtra( (2007) 7 SCC 555 ). 99. When, however, a State so acts it is obliged to compensate the injury by making just compensation as held by this Court in Girnar Traders v. State of Maharashtra( (2007) 7 SCC 555 ). 99. In case of dispossession, except under the authority of law, the owner might obtain restoration of possession by a proceeding for mandamus against the Government as held by this Court in Wazir Chand v State of H.P ( AIR 1954 SC 415 ). iii. The Apex Court in the judgment reported in (2020) SCC online SC 950 in B.K. Ravinchandra and others v Union of India and others, in particular, at para 21, observed as under: “21. Although the right to property is not a fundamental right protected under Part III of the Constitution of India, it remains a valuable constitutional right. The importance of this right has been emphasized and reiterated several times by this court. In Delhi Airtech Services Pvt. Ltd. v. State of U.P. for instance, this court underlined the issue as follows: “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 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.” 16. Taking into consideration the above referred facts and circumstances of the case, and the specific averments made in the counter affidavit filed by Respondents No.3 to 5 at para 4(e) (referred to and extracted above), and the law laid down by the Apex Court in the judgements referred to and discussed above on the point that “No person can be deprived of his property save by authority of law”, the writ petition is disposed off directing the Respondents herein i.e., MRDC, Revenue Department and GHMC to conduct Joint Survey of Petitioner’s subject land admeasuring 360 sq. yards (300.9 sq.mtrs.) in Plot No.15, covered in Sy.Nos.24 and 136, situated in Shankernagar Colony, Nagole Village, Uppal Mandal, Medchal-Malkajgir District, TS, and identify Petitioner’s subject land if actually effected, subject to verification, inspection and identification of the subject land developed by the 6th Respondent herein for walking track, within a period of 3 weeks from the date of receipt of the copy of the order by giving due notice to the Petitioner and in the presence of all the Respondent officials concerned and thereafter in the event the said report holds that the Petitioner’s subject land had been acquired in walking track laid by the Respondent No.6 herein, based on the said report, the Respondents are directed to consider the representation of the Petitioner dated 14.07.2022 for payment of compensation in respect of Petitioner’s subject land in the light of the law laid down by the Apex Court in the judgements referred to and extracted above and pass appropriate orders on the representation of the Petitioner dated 14.07.2022 addressed to the 3rd Respondent herein within a period of two weeks from the date of conduct of survey as directed by this Court in the present order duly communicating the decision to the Petitioner. However there shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.