THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.16591 of 2015
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"to issue Writ or direction or order more in the nature of Writ of Mandamus, declaring the acts of the Respondents, in taking possession of 484 Square yards of site situated in Survey No.27 of Pellur Village, within the limits of Ongole Municipality of Prakasam District, without the process of the Law, as arbitrary, illegal, ultra vires, unjust and unconstitutional and to consequently to direct the Respondents either to resume the afore said land to the Petitioner or forthwith pay the present market value of the said property or forthwith allot similar extent within the limits of Ongole Municipality"
The case of the petitioner, in brief, is that she purchased 484 Sq. yards of house plot in Survey No.27 from P.Muleswara Rao, and others under registered Sale Deed dated 09.03.2006, bearing Document No.1608 of 2006. Since then, she is in possession and enjoyment of the said property till it was grabbed by the respondents without following due process of law. The vendors of the petitioners have purchased the said property under two registered sale deeds dated 09.07.1983 and 15.07.1983 bearing Document Nos.2613 of 1983 and 2723 of 1983.
While the matter stood thus, the petitioner, in the month of August 2014, to the utter surprise and dismay, noticed that the respondents have encroached the land for laying 6 lane NH-5 road, for the stretch of land from Km 1182.802 to Km 1307.900 (Chilakaluripet-Rudrakota Section) in Prakasam District. The Notification dated 30.11.2009 issued by the Ministry of Road, Transport and Highways bearing S.O.3061 (E) did not refer the acquisition of the said land. Thereupon, the petitioner approached MSM,J wp_16591_2015 2 respondent Nos.2 and 3 and brought to their notice about the encroachment of the subject land, but in vain. The petitioner issued legal notice dated 11.11.2013 to respondent Nos.2 and 3 by registered post, even after acknowledging the receipt of notice, respondent Nos.2 and 3 did not respond.
Having no other alternative, the petitioner filed W.P.No.25825 of 2014, questioning the illegal acts of the respondents, in taking possession of above said 484 Square yards of site situated in Survey No.27 of Pellur Village, within the limits of Ongole Municipality of Prakasam District. The respondents have taken much time to file their counter. Ultimately, they represented before the Court that they have not taken possession of the land of the petitioner admeasuring 484 square yards for the purpose of for laying 6 lane NH-5 road, for the stretch of land from Km 1182.802 to Km 1307.900 (Chilakaluripet-Rudrakota Section) in Prakasam District or for any other purpose and that the contention of the petitioner in W.P.No.25825 of 2014 is misconceived. Pertinently, title of the petitioner was not denied by the respondents in the counter filed in the said petition, as such the High Court of Andhra Pradesh disposed of the writ petition dated 19.09.2014 on merits and the operative portion of the order is reproduced hereunder for appreciation of this Court.
"Learned Standing Counsel representing National Highways Authority of India submitted that Petitioner's land was not part of the notification and the same is not acquired so far and if the land of the Petitioner is required, due process will be followed before acquiring the land from the Petitioner. Since no other material is placed on record in support of the contention that the land if the petitioner is utilized for the purpose of widening of the national highway and view of the categorical assertion of the learned standing counsel for National Highways Authority of India that so far land of the petitioner is not required and the same is not acquired, no further orders MSM,J wp_16591_2015 3 are necessary in this writ petition and the same is closed. However, if the land of the Petitioner required, National Highways Authority is at liberty to acquire the same by following due process of law."
After passing order, the petitioner got surveyed the land by the Mandal Surveyor of the office of the Tahsildar, Ongole Mandal and the said survey report dated 25.11.2014 has divulged that the said site of 484 square yards is proposed for the purpose of for laying 6 lane NH-5 road, for the stretch of land from Km 1182.802 to Km 1307.900 (Chilakaluripet Rudrakota Section) in Prakasam District, the same was brought to the notice of respondents 2 and 3 personally several times, but no action was taken. Taking possession of the land belonging to the petitioner admeasuring 484 Square yards of site situated in Survey No.27 of Pollur Village, within the limits of Ongole Municipality of Prakasam District without following due process of law is nothing but depriving the petitioner from property in violation of Constitutional right guaranteed under Article 300-A of the Constitution of India. Therefore, the petitioner approached this Court seeking the relief as stated above.
Respondent No.1 filed counter admitting that the National Highways Authority of India has taken up the work of existing 4-lane divided carriageway to 6-laning Chilakaluripet to Nellore section of NH-5 from Km.1182.802 to Km.1366.547 (length 183.620) in the State of Andhra Pradesh under NHDP phase V to be executed as BOT (Toll) project on DBFOT pattern.
It is further contended that the National Highways Act, 1956 the land acquisition process was initiated and finalised for acquisition of the lands for widening of the road on NH-5 from 4-lane to 6-lane. The proposal were initiated and accordingly 3A (1) and 3D MSM,J wp_16591_2015 4 proposal have been notified in the Gazette of India for acquiring the lands and as per the provisions of the said NHAI Act. Subsequently, award was also passed by the competent authority, Land Acquisition, NHAI, Prakasam District. The land of the petitioner in Sy.No.27 of Pelluru village is not notified and acquired and not affected as per the sub-division records furnished by the Survey Department. As such, the land acquisition proceedings were completed. Consequently, the petitioner is not entitled to claim any relief in the present writ petition.
It is also further contended that National Highways Authority of India will not interfere with the land of the petitioner without following due process of law. The National Highways Authority of India acquired the land of others and paid compensation to the landholder. Therefore, the petitioner is disentitled to claim any relief, requested to dismiss the writ petition.
Sri T.Sreedhar, learned counsel for the petitioner, would contend that depriving the petitioner from enjoying the property is a serious violation of right of the petitioner guaranteed under Article 300-A of the Constitution of India and also a human right. The petitioner brought to the notice of this Court survey report of Mandal Surveyor to substantiate its contention that it is covered by road widening process. Therefore, taking possession of the property by the State or its instrumentalities without following due process of law is nothing but violation of right guaranteed to the citizen under Constitution of India. Even as per survey report, the land of the petitioner in Sy.No.27 of the Pellur Village is covered by 6-lane road. Therefore, the petitioner is entitled for the relief as claimed in the writ petition.
MSM,J wp_16591_2015 5 Learned Government Pleader for Land Acquisition and Sri S.S.Varma, learned Standing Counsel for National Highways Authority of India submitted that the land belonging to the petitioner would not form part of the land covered by proposed road widening and it is not covered by Survey report submitted at the time of acquisition and on ground also, no road was laid in the land belonging to the petitioner. Therefore, the petitioner is not entitled to claim any relief in the present writ petition, requested to dismiss the writ petition.
Considering rival contentions, perusing the material available on record, the point need be answered by this Court is as follows:
Whether the land of the petitioner measuring 484 Square Yards in Sy.No.27 of Pellur Village was occupied by respondent Nos.1 to 3 for laying 6 lane NH-5 road, for the stretch from Km 1182.802 to Km 1307.900 (Chilakaluripet-Rudrakota Section) in Prakasam District without following due process of law? If so, whether depriving the petitioner from enjoying the property admeasuring 484 Square Yards situated in Sy.No.27 of Pellur Village is in violation of Article 300-A of the Constitution of India and Human right? If so, whether a direction be issued to the respondents to pay market value or provide similar extent to the petitioner in Ongole Municipality?
P O I N T:
Undisputedly, petitioner is the owner of the residential plot admeasuring 484 Square Yards in Sy.No.27 of Pellur Village. The main endeavour of the petitioner is that the land was not acquired under the provisions of the National Highways Act, 1956, but occupied the property for laying 6 lane NH-5 road. From the MSM,J wp_16591_2015 6 beginning, the petitioner made an attempt to convince the authorities for payment of compensation or to provide suitable site to her within the Ongole municipality limits, approached the authorities by making representations, but no purpose was served. The petitioner produced sale deed evidencing purchase of plot admeasuring 484 Square yards within the boundaries mentioned in the schedule, is as follows:
East : Land of Thotakura Balaramayya - this side 66 feet South : Plot No.108 this side 66 feet West : 30 feet market, this side 66 feet North : Plot 105, this side 66 feet.
Western boundary is 30 feet road. Thus, the land of the petitioner is adjacent to the road. Lay out plan is also placed on record to prove that the land was divided into plots.
The main grievance of the petitioner is that the land was not acquired, but occupied illegally without following due process of law, thereby deprived the petitioner from enjoying the property. The petitioner got the land surveyed and the report of the Mandal Surveyor, Ongole established that the land is covered by NH5. Whereas, the contention of the respondents is that the land was not acquired or not occupied by the respondents, laid any road in the land allegedly purchased by the petitioner. Therefore, the respondents denied the alleged illegal occupation of the land of the petitioner. Admittedly, the petitioner made certain representations to the authorities to take appropriate action for restoring the property or to pay compensation while laying the road as per the provisions of the Act No.30 of 2013. But no action was taken till date by the MSM,J wp_16591_2015 7 authorities concerned though correspondence has taken place between the authorities.
Thus, the real controversy is with regard to identification of land in Sy.No.27 of Pellur Village within the limits of Ongole, on ground. The only method of identification of property is conducting survey by following appropriate procedure prescribed under law. The respondents placed on record written instructions regarding subject matter of writ petition. According to the written instructions, a detailed report was submitted to the Court on 21.06.2015 with parawise remarks and reported that the land of the petitioner in Sy.No.27 of Pellur Village is not covered in the land acquisition notifications issued under 3A (1) and 3D (1) of the National Highways Act, 1956. It is also reported that basing on the enjoyment survey and sub division record of the then Mandal Tahsildar, Ongole notification under Section 3 D (1) was issued. The respondents denied the survey report filed by the petitioner, in which it was reported that the land of the petitioner in Sy.No.27 of Pellur village to an extent of 484.00 sq.mts is covered in the alignment of NH road and the respondents asserted that the petitioner has not filed any such report. It is further stated in the written instructions that the Tahsildar, Ongole enquired the matter and submitted a report that the land in Sy.No.27 of Pellur Village measuring an extent of Ac.9.27 cents is classified as "Gayalu" and the same was entered in the list of properties under Section 22-A (1) (e) of the Registration Act, 1908, the said survey number is not subdivided so far. Along with the written instructions, respondents filed Adangal copy along with Field Measurement Sketch, pertaining to Survey No.27 of Pellur village.
MSM,J wp_16591_2015 8 These documents are not sufficient to rebut the contention of the petitioner that she became the owner of the subject property after approving layout and purchase of the same by the petitioner and others.
It is evident from the layout plan certified by the Mandal Revenue Officer, Ongole, the petitioner is the owner of the plot bearing Nos.106 and 107 in Sy.No.27 in Pelluru village, but the other adjacent owners were paid compensation for acquiring the land. This itself is indicative of failure of the respondents to notify the land of the petitioner for acquisition. Therefore, the survey report would clinchingly establish that the land was occupied by National Highways Authority of India and laid road. However, the respondents denied the same in the counter, but such disputed question cannot be decided by this Court in the present writ petition and the only mode to decide such issue, is to direct the respondents to get the land surveyed strictly adhering to the procedure, duly intimating the date and time to the petitioner and identify the land on ground. If, for any reason, the land is covered by NH5, the respondents are bound to pay compensation to the petitioner in accordance with law and in case, the respondents are not willing to pay compensation, they shall restore the site to the petitioner.
When the respondents admitted that the land of the petitioner is not notified for acquisition under the provisions of the National Highways Act, 1956, the occupation, if any, by the respondents is illegal and it is not only violative of Article 21 and 300-A of the Constitution of India, but also violation of human right.
MSM,J wp_16591_2015 9 Time and again, the Apex Court held that deprivation of person from enjoying his/her property is violative of Articles 21 and 300-A of the Constitution of India.
The Supreme Court has also succinctly held that the right to property as a human right, in the context of adverse possession. In "Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation1" the Apex Court declared that:
9. The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi-faceted dimension. The right to property is considered, very much to be a part of such new dimension.
[emphasis added].
Relying upon the said judgment, the Apex Court in "D.B.
Basnett (D) through L.Rs. vs. The Collector, East District, Gangtok, Sikkim2", held that even though rights in land are no more a fundamental right, still it remains a constitutional right Under Article 300A of the Constitution of India.
In "Sukh Dutt Ratra vs. State of Himachal Pradesh (Civil Appeal No. 2773 of 2022 (Arising out of Special Leave Petition (C) No. 6335 of 2022 (Arising out of S.L.P. (C) Diary No. 13202 of 2020) Decided on 06.04.2022" the Apex Court held that the forcible dispossession of a person of their private property without following due process of law, was violative of both their human right, and constitutional right Under Article 300-A of the Constitution of India.
1(2013) 1 SCC 353 2 AIR2020SC1389 MSM,J wp_16591_2015 10 Similarly, in "P.T. Munichikkanna Reddy v. Revamma3" the Court held that:
"40. There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right [emphasis added].
41. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17: Since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid.
42. Moreover, the Universal Declaration of Human Rights, 1948 under Section 17(i) and 17(ii) also recognizes right to property: 17 (i) Everyone has the right to own property alone as well as in association with others.
(ii) No one shall be arbitrarily deprived of his property.
43. Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment, etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context."
In "Olga Tellis vs. Bombay Municipal Corporation4" the Apex Court held as follows:
"If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."(Emphasis is supplied).
The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and (f) of 3 (2007) 6 SCC 59 4 AIR 1986 SC180 MSM,J wp_16591_2015 11 Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.
The Apex Court in various judgments interpreted the right to livelihood is a part of right to life under Article 21 of the Constitution of India. However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable. The Court opined that the state acquires land in exercise of its power of eminent domain for a public purpose. The landowner is paid compensation in lieu of land, and therefore, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.
Thus, in view of the law laid down by the Apex Court in various judgments (referred supra), widening the meaning of word „right to life‟ includes „right to livelihood‟, right to livelihood and right to shelter is a fundamental right, and it is a part of right to life guaranteed under Article 21 of the Constitution of India.
No doubt, as discussed above, right to livelihood of a person can be deprived in accordance with law.
Article 300-A of the Constitution of India, protects right of an individual, but such right in the property can be deprived of save by authority of law.
MSM,J wp_16591_2015 12 Right to property of a private individual, though, permitted to be deprived of, it must be by authority of law. Still, Article 25 (1) of the Universal Declaration of Human Rights recognized such right in property as human right, which reads as follows:
"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
India is a State Party to the declaration, but the right to property is not being considered as human right till date by many Courts.
Right to property in India at present protected not only under Article 300-A of the Constitution of India, but also recognized as human right under Article 25 (1) of the Universal Declaration of Human Rights. A liberal reading of these two provisions, the intention to protect the land owners only from Executive fiat, imposing minimal restrictions on the power of the State to acquire land. This is in sharp contrast to the language adopted in the Indian Constitution.
Hence, the only authority of law to deprive a person from his property is acquisition of land under the provisions of relevant law.
Earlier, the Land Acquisition Act, 1894 permits acquisition of land of a private individual for various purposes. The land Acquisition Act, 1894 is repealed, enacting the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The said Act is a complete code MSM,J wp_16591_2015 13 governing the procedure for acquisition of land of a private individual and for payment of compensation to the private land owners. Therefore, by invoking the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the right of a private owner in property can be deprived of and the violation of fundamental right guaranteed under Article 21 i.e. right to livelihood will not come in the way of State to acquire such land in view of the law laid down by the Apex Court in "Chameli Singh v. State of Uttar Pradesh5".
In view of the principles enunciated in the judgments (referred supra) deprivation of petitioner from enjoying the land admeasuring 484 square yards situated in Sy.No.27 of the Pellur village, within the limits of Ongole Municipality without following due process of law or violating the procedure authorized by law amounts to violation of Articles 21 and 300-A of the Constitution of India, so also Human right. Accordingly, the point is answered.
In the result, the writ petition is disposed of directing respondent Nos.2 and 3 to identify the land of the petitioner on ground by conducting survey through Mandal Surveyor, within four (4) weeks from the date of receipt of a copy of this order, after serving notice to the petitioner duly intimating the date and time of the survey; and on identifying the land on ground, if found, it is occupied by NH5, the respondents shall follow the procedure for acquisition of land under the National Highways Act strictly adhering to the procedure prescribed under law and pay compensation to the petitioner within six (6) months from the date of identification of the 5 (1996) 2 SCC 549 MSM,J wp_16591_2015 14 land of the petitioner on ground. In the event, the land is not covered by NH5, the respondents are not under obligation to pay compensation or provide alternative site as demanded by the petitioner. No costs.
Consequently, miscellaneous applications pending if any, shall also stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 22.04.2022 Ksp