Guttapalli Anjalidevi, Prakasam ... vs The Union Of India, Transport, New ...
2022 Latest Caselaw 1962 AP

   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

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

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

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

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

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

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

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

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.

(2013) 1 SCC 353

AIR2020SC1389 MSM,J wp_16591_2015

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

(2007) 6 SCC 59 4 AIR 1986 SC180 MSM,J wp_16591_2015

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

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

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

(1996) 2 SCC 549 MSM,J wp_16591_2015

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