Andhra Pradesh High Court - Amravati
Tadimarri Zaheera Bee vs The State Of Andhra Pradesh Rep, By Its ... on 6 September, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
1
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APHC010405982023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3209]
(Special Original Jurisdiction)
FRIDAY ,THE 13TH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION N
No: 43660 of 2016
Between:
Tadimarri Zaheera Bee & Others ...PETITIONERS
AND
The State of Andhra Pradesh,
Rep.by its Principal Secretary,
Revenue (Land Acquisition) Department & Others. ....RESP
....RESPONDENT(S)
ONDENT(S)
Counsel for the Petitionerss :
Mr.D.Krishna Murthy
Counsel for the Respondent
Respondents :
G.P. for land Acquisition
G.P. for Municipal Administration
Mr.Suresh Kumar Reddy Kaluva
The Court made the following Order:
The petitioners claiming to be the legal heirs
heir of one Sri T.Ni
T.Nizamuddin
filed the present writ petition seeking to declare the action of the respondents
in taking their land of an extent of Ac.0.02 cents situated in Survey No.1940/4
of Ananthapuram Town for the purpose of road widening without following due
process of law and without paying compensation as illegal, arbitrary and
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violative of Articles 21, 300-A of the Constitution of India and for consequential
directions.
2. The relevant facts as set out in the affidavit filed in support of the writ
petition may, briefly be stated, as follows:
The petitioners' father late T.Nizamuddin owns an extent of Ac.0.02
cents situated in Survey No.1940/4 of Ananthapuram Town which was
purchased under a Registered Sale Deed bearing Document No.4814 / 1979
dated 16.07.1979. In the year 1996, the 4th respondent-Municipal Corporation
had taken possession of the said land for the purpose of road widening from
Subhash Road to Railway Feeder Road with a promise to provide alternative
land in lieu of compensation for the said land. After much persuasion by the
petitioners' father, the Municipal Council passed Resolution No.756 dated
10.10.1996 for allotment of alternative land in Plot No.8 in L.P.No.49/80.
Proposals in this regard were submitted to the Government seeking
permission for allotment of alternate land.
The Government vide Orders in G.O.Ms.No.557, Municipal
Administration & Urban Development (J2) Department dated 17.11.2001,
accorded permission to the Municipal Corporation, Ananthapuram to allot
Ac.0.02 cents in L.P.No.49/80 in lieu of the site lost for formation of 80 feet
wide Master Plan Road, Subhash Road to Railway Feeder Road in
T.S.No.1940/4 to an extent of Ac.0.02 cents in favour of the petitioners' father
as private land was taken for road widening purpose. Subsequently, the 4 th
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respondent vide Endorsement dated 29.11.2001 required the petitioners'
father to submit the original title deed supporting his ownership claim, but the
same could not be submitted immediately in lieu of the serious illness of the
petitioners' father. He died on 16.10.2011 and the petitioners' mother was
pursuing the matter for allotment of alternate land with the respondents by
submitting representations.
In the meanwhile, the Commissioner of the 4th respondent-Corporation
addressed a Communication dated 06.09.2011 to the Director of Town and
Country Planning, Andhra Pradesh seeking a clarification on allotment of Plot
No.8 in L.P.No.49/80 stating that Government vide G.O.Ms.No.72 dated
20.02.2002 issued orders not to allot any lay out reserved open site other than
the original purpose as indicated in the lay out plan. After prolonged
correspondence between the concerned authorities, the 3 rd respondent vide
Memo dated 28.09.2015 requested the 4th respondent to submit remarks and
detailed report for taking necessary action with regard to allotment of
alternative site in lieu of the above said site taken over for formation of road.
However, no further action was taken. Hence the present writ petition.
3. The learned counsel for the petitioners inter alia submits that though the
respondents had taken the above said extent of land and utilized the same for
formation of road with a promise to allot alternate land in lieu of compensation,
no alternate land was allotted during the life time of their parents and
compensation was also not paid. He submits that though in terms of
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G.O.Ms.No.557 dated 17.11.2001, the Government accorded permission for
allotment of Ac.0.02 cents in L.P.No.49/80 in lieu of the land taken over from
the petitioners' father, it transpired that the said land is meant for communal
purposes, which cannot be alienated. Under such circumstances, the learned
counsel submits that the respondents should have offered alternative land or
initiated land acquisition proceedings in respect of the subject matter extent of
Ac.0.02 cents. He also contends that the action of the respondents in
depriving the petitioners of their property despite the above mentioned
Government Orders, amounts to violation of their rights guaranteed under
Articles 21 and 300-A of the Constitution of India. He also submits that the
petitioners having lost hope of getting alternate lands are seeking payment of
compensation in respect of the subject matter lands, to which they are lawfully
entitled to. Making the said submissions and placing reliance on the decisions
of the Hon'ble Supreme Court in Tukaram Kana Joshi & Others v.
Maharashtra Industrial Development Corporation & Others1, Vidya Devi
v. State of Himachal Pradesh & Others2 and Sukh Dutt Ratra & Another
v. State of Himachal Pradesh & Others 3, the learned counsel urges for
granting the reliefs as prayed for by allowing the writ petition.
4. On the other hand, Mr.Suresh Kumar Reddy Kaluva, learned counsel
representing the 4th respondent made submissions with reference to the
written instructions received from the Deputy City Planner, Municipal
(2013) 1 SCC 353
(2020) 2 SCC 569
(2022) 7 SCC 508
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Corporation of Ananthapuram and sought to justify the action of the
Corporation stating that if the petitioners produce the necessary documents
showing their rights in respect of Ac.0.02 cents of land in question and submit
the relevant supporting material that the said extent was acquired for road
widening, their request with regard to alternate land would be examined.
5. This Court has considered the submissions made and perused the
material on record.
6. At the outset, it may be pertinent to mention here that no counter-
affidavit is filed on behalf of respondents 1 to 3. The 4 th respondent's right to
file counter was forfeited by virtue of the Order dated 01.05.2018.
7. The case of the petitioners on appreciation of the matter that an extent
of Ac.0.02 cents in T.S.No.1940/4 of their father was lost due to road
formation and in lieu of the same, permission for allotment of an equal extent
of Ac.0.02 cents in Plot No.8 in L.P.No.49/80 was accorded by the
Government is fortified by G.O.Ms.No.557 dated 17.11.2001 (Ex.P1) and
there is no dispute about the same. When such is the position, this Court is at
loss to understand as to what made the 4th respondent to issue an
Endorsement dated 29.11.2001 calling upon the petitioners' father to submit
the original title deed in support of his claim in respect of the above said extent
of Ac.0.02 cents. The 4th respondent in the light of the said G.O., was under
an obligation to allot the alternate land with reference to which the permission
was accorded by the Government. Infact, the material on record i.e.,
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communication dated 15.10.2000 (Ex.P3) clearly goes to show that the
ownership particulars were submitted to the Director of Town & Country
Planning, yet the same were called for through the said Endorsement dated
29.11.2001 and no explanation is forthcoming from the respondents. Be that
as it may.
8. A reading of the Letter dated 06.09.2011 (Ex.P4) addressed by the 4th
respondent to the Director of Town and Country Planning, Andhra Pradesh,
would atleast, make it clear that the relevant documents were submitted on
28.05.2011. Despite the above undisputed position, no action was taken for
allotting the alternate land in terms of G.O.Ms.No.557 dated 17.11.2001. If the
respondents have encountered any difficulty in implementing the Government
Orders, they should have sought appropriate orders from the Government or
atleast in their wisdom, offered another alternate land to the petitioners.
Instead of adopting such course of action, the respondents have dodged the
matter, without any justification and drove the petitioners to this Court. Such
an action on the part of the respondents in depriving the petitioners of their
land without providing the alternate land or payment of compensation is not
legally sustainable and amounts to infringement of their rights under Article
300-A of the Constitution of India.
9. In Tukaram Kana Jhoshi case, the Hon'ble Supreme Court was
dealing with an appeal filed against the decision of High Court of Bombay,
wherein the claim of the appellants is for compensation to them in respect of
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the land taken by the respondent-authorities without resorting to any
procedure prescribed by Law. In the said case, the appellants who were
illiterate farmers, absolutely unaware of their rights on persuasion by the
respondent-authorities handed over possession of their lands in the year
1964, which were inturn handed over to Maharashtra Industrial Development
Corporation. Later, realizing that grave injustice was caused to the land
owners / appellants, a Notification under Section 4 of the Land Acquisition Act,
1984 dated 14.05.1981 was issued and thereafter no further proceedings
were initiated. As the appellants were unable to get any relief, they
approached the High Court by filing a writ petition in the year 2009, but the
same was dismissed on the ground of delay and non-availability of certain
documents. The Hon'ble Supreme Court while taken note of the fact that the
appellants were deprived of their immovable properties in 1964, formulated a
question as to whether in a democratic body polity, which is supposedly
governed by the rule of law, the State should be allowed to deprive a citizen of
his property, without adhering to the Law. The Hon'ble Supreme Court while
opining that the functionaries of the State took over possession of the land
belonging to the appellants without any sanction of Law, that the appellants
were repeatedly requesting for grant of benefit of compensation, observed that
the State must either comply with the procedure laid down for acquisition, or
requisition or any other permissible statutory mode. The Apex Court
categorically held that "the State, especially a welfare State, which is
governed by the rule of Law, cannot arrogate itself to a status beyond one that
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is provided by the Constitution." While negating the contention raised by the
respondents, the Hon'ble Supreme Court at Para No.14, held as follows:
"14. No hard-and-fast rule can be laid down as to when the High
Court should refuse to exercise its jurisdiction in favour of a party who
moves it after considerable delay and is otherwise guilty of laches.
Discretion must be exercised judiciously and reasonably. In the event that
the claim made by the applicant is legally sustainable, delay should be
condoned. In other words, where circumstances justifying the conduct
exist, the illegality which is manifest, cannot be sustained on the sole
ground of laches. When substantial justice and technical considerations
are pitted against each other, the cause of substantial justice deserves to
be preferred, for the other side cannot claim to have a vested right in the
injustice being done, because of a non-deliberate delay."
10. The Hon'ble Supreme Court also observed that depriving the appellants
of their immovable properties was a clear violation of Article 21 of the
Constitution that in a welfare State, statutory authorities are bound, not only to
pay adequate compensation, but there is also a legal obligation upon them to
rehabilitate such persons. The Hon'ble Supreme Court in the light of the
submission made on behalf of the State, that proceedings under Section 4 of
the Act, 1894 would be initiated, disposed of the appeal.
11. In Vidya Devi's case, the Hon'ble Supreme Court is dealing with a
case of forcible expropriation of private property of an illiterate widow from
rural area by the State without following any lawful procedure or compensation
and examined as to whether the claim for compensation after half a century is
barred by delay and latches. The Hon'ble Supreme Court after going through
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the earlier precedents, rejected the contention advanced by the State and held
that "delay and laches cannot be raised in a case of a continuing cause of
action or if the circumstances shock the judicial conscience of the Court. The
condonation of delay is a matter of judicial discretion, which must be exercised
judiciously and reasonably in the facts and circumstances of the case. It will
depend upon the breach of the fundamental rights, and the remedy claimed,
and when and how the delay arises. There is no period of limitation prescribed
for the Courts to exercise their constitutional jurisdiction to do substantial
justice." Reference was also made to the earlier decision in
P.S.Sadasivaswamy v. State of Tamilnadu 4 , wherein it was held that
"Where the demand for justice is so compelling, a Constitutional Court would
exercise its jurisdiction with a view to promote justice and not to defeat it." The
Hon'ble Supreme Court while holding that the cause of action in the said case
before it is a continuing one, since the appellant was compulsorily
expropriated of her property in 1967 without legal sanction or following due
process of law, in exercise of its powers under Article 136, 142 of the
Constitution directed the State to pay the compensation to the appellant.
12. In a subsequent decision, in Sukh Dutt Ratra, after analyzing the
matter with reference to various case law vis-à-vis Article 300-A of the
Constitution, the Hon'ble Apex Court opined as follows:
"14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or
property without due process, or authorization of law. The recognition of this dates back
(1975) 1 SCC 152
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to the 1700s to the decision of the King's Bench in Entick v. Carrington [Entick v.
Carrington, 1765 EWHC (KB) J98 : 95 ER 807] and by this Court in Wazir Chand v. State
of H.P. [Wazir Chand v. State of H.P., (1955) 1 SCR 408 : AIR 1954 SC 415] Further, in
several judgments, this Court has repeatedly held that rather than enjoying a wider
bandwidth of lenience, the State often has a higher responsibility in demonstrating that it
has acted within the confines of legality, and therefore, not tarnished the basic principle of
the rule of law.
15. When it comes to the subject of private property, this Court has upheld the high
threshold of legality that must be met, to dispossess an individual of their property, and
even more so when done by the State....."
13. While concluding that the forcible dispossession of a person of their
private property without following due process of law, is violative of both their
human right and constitutional right under Article 300-A, the Apex Court
allowed the appeal and in exercise of its extraordinary jurisdiction Articles 136
and 142 of the Constitution of India, directed the State to treat the subject
matter of appeal as a deemed acquisition and appropriately disburse
compensation to the appellants.
14. In the present case, no issue of delay or latches was raised by the
respondents. Even if there is any such delay, in the light of the expression of
the Hon'ble Supreme Court referred to above, the same would not come in the
way of the petitioners in making a claim for compensation or impede, this
Court from considering the claim made by the petitioners. Though the
petitioners' father succeeded in pursuing the Government which issued
G.O.Ms.No.557 dated 17.11.2001, the same was not implemented during his
life time and the petitioners were constantly making their efforts for getting
appropriate reliefs in respect of the subject matter land. Having failed in their
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efforts, ultimately they knocked the doors of this Court. Except non-
submission of documents of title, which appears to be not correct in the light of
Exs.P3 and P4 referred to above, no plausible explanation was offered by the
respondents by filing appropriate counter-affidavits with regard to delay or
disentitlement of the petitioners of the reliefs sought for. In the absence of the
same and in the light of G.O.Ms.No.557 dated 17.09.2001, which obviously
was issued by the Government after examining the claim of the petitioners'
father, according permission for allotment of alternate site in lieu of site lost by
him due to road formation without any condition, the action of the authorities in
not taking appropriate steps and delaying the matter is highly deprecable and
amounts to sitting over the decision of the Government. Taking over the
possession of the subject matter land without following due procedure on the
premise that alternate land would be provided and failure to comply with the
same would amount to deprivation of property of the petitioners and amounts
to violation of Article 300-A of the Constitution of India. Such an action in
expropriating the subject matter land without payment of compensation
shocks the judicial conscience of this Court.
15. In the light of the legal position stated above and the conclusions
arrived at supra, the petitioners are entitled for the relief as prayed for.
Accordingly, the writ petition is allowed with a direction to the respondents to
initiate land acquisition proceedings in respect of the land of an extent of
Ac.0.02 cents situated in Survey No.1940/4 of Ananthapuram Town under
Right to Fair compensation and Transparency in land acquisition,
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Rehabilitation and Resettlement Act of 2013, complete the same and pay
compensation to the petitioners, as expeditiously as possible, at any rate,
within a period of eight (8) weeks from today.
16. Further, on thorough appreciation of the relevant aspects with regard to
deprival of the petitioners' rights which compelled them to institute the present
writ petition, this Court is of the opinion that it is a fit case to award costs.
Accordingly, the respondents shall pay costs of Rs.50,000/- to the petitioners,
within a period of four (4) weeks from today. There shall be no order as to
costs. As a sequel, all pending applications shall stand closed.
__________________________
JUSTICE NINALA JAYASURYA
Dated 06.09.2024
BLV
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THE HON'BLE SRI JUSTICE NINALA JAYASURYA
WRIT PETITION No.43660 of 2016
Date: 06.09.2024
BLV
