Telangana High Court

Smt. N. Madhavi W/O N. Madhusudan Rao vs Hyderabd Urban Development Authority ... on 15 April, 2024

     IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
                              *****
                 WRIT PETITION No.14831 OF 2008
Between:
Smt. N.Madhavi

                                                     ...Petitioner

AND
  1. Hyderabad Urban Development Authority and another
                                                ...Respondents
ORDER PRONOUNCED ON: 15.04.2024:

SUBMITTED FOR APPROVAL:


              THE HON'BLE SRI JUSTICE K.SARATH

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                                             _____________________
                                             JUSTICE K.SARATH
 +WRIT PETITION NO.14831 of 2008
%Dated 15.04.2024
# Smt.N.Madhavi
                                                         ...Petitioner

AND
$ Hyderabad Urban Development Authority and another

                                                      ...Respondents
! Counsel for Petitioner         : Sri Ghanta Rama Rao
                                 Learned Senior Counsel

^ Counsel for Respondents      : 1. Govt. Pleader for Land Acquisition

                                2. Smt.D.Madhavi,
                                   Learned Standing Counsel for HMDA
< GIST :

> HEAD NOTE :

? Cases referred :
                            (2014) 6 SCC 564
       THE HONOURABLE SRI JUSTICE K.SARATH

             WRIT PETITION No.14831 of 2008
ORDER:

Heard Sri Ghanta Rama Rao, learned Senior

Counsel appearing for the petitioner and learned

Government Pleader for Land Acquisition and

Smt. D.Madhavi, learned Standing Counsel for the HMDA.

2. Learned Senior Counsel submits that the petitioner is

the owner and possessor of land admeasuring 575 Square

Yards in Sy.No.43 to 47 and 49 Part, situated at Madhapur

village of Serilingampally Mandal of Ranga Reddy District

having purchased the same through registered sale deed

No.9688/2000 dated 25.10.2000. While it being so, the

respondent No.2 issued Notification under Section 4(1) of

the Land Acquisition Act, 1894 (for brevity 'the Act') on

28.02.2005 proposing to acquire certain lands at Madhapur

for formation of road. Thereafter, the respondent No.2

issued Draft declaration under Section 6 of the Act

25.03.2006 mentioning the Survey No.43, however, the said survey number was not mentioned in the earlier

Notification issued under Section 4(1) of the Act. On

coming to know that the part of the subject house of the

petitioner going to be affected in the widening of the road,

the petitioner filed a representation along with the copy of

sale deed before the Land Acquisition Officer. Thereafter,

the Land Acquisition Officer issued letter on 06.02.2008

stating that the land in Sy.No.43, to an extent of Ac.0.16

guntas is notified for the purpose of acquisition for

formation of the road from Madhapur Hitech City to

Western side of Durgam Chervu Road and the land in

Sy.No.43 has been declared as surplus and the case at the

stage of 10 (6), and asked to submit the required document

on or before 14.03.2008. Thereafter, Award has been

passed on 25.03.2008, without there being any reference of

amendment to 4(1) of the Act.

3. The learned Senior Counsel further submits that

Land Acquisition Officer issued notice of Award in Form-9

under Section 12 (2) of the Act, 1894 to the petitioner stating that award has been passed and part area of in

Sy.No.43 is covered under the park, road, part was

declared as surplus and hence no compensation was

awarded. As the subject property was notified under

Section 4(1) of the Act, the petitioner had no occasion to

participate in the enquiry under Section 5-A of the Act and

consequent to the draft declaration under Section 6 of the

Act is contrary to the procedure and Nil Award in respect of

the subject property is arbitrary and illegal and requested

this Court to set aside the same by allowing the Writ

Petition.

4. The learned Standing Counsel for HMDA basing on

the counter filed by the respondent No.2 submits that after

completion of the Award enquiry, the petitioner has filed

the representation on 08.10.2007 for payment of

compensation in respect of the land in Sy.No.43, Plot

No.15, and hence it is not possible to restart the award

enquiry. As the Special Officer and Competent Authority,

ULC, has informed that the land in No.43, plot Nos.14, 15, 16 and 17 were declared as surplus land and on

humanitarian grounds only a General Notice

No.LA/723/004 dated 07.03.2008 was issued to the

petitioner to submit any order of the Government whether

her land is regularized for payment of compensation, but

she did not do so and hence the Land Acquisition Officer

passed Nil Award as the said plot was not regularized.

5. The learned Standing Counsel further submits that

the amendment was given to the 4(1) Notification vide

Gazette RR No.7 dated 06.03.2006 and in the said

amendment notice it was clearly mentioned that an extent

of Ac.0.16 guntas in Sy.No.43 was intended for acquisition.

The Land Acquisition authorities have followed due

procedure and award has been passed by the then Land

Acquisition Officer and Land Acquisition Proceedings have

been completed and there are no merits in the writ petition

and requested to dismiss the Writ Petition.

6. After hearing both sides and on perusing the

record, this Court is of the considered view that admittedly

the part of the subject plot in No.43 of the petitioner was

acquired by the Respondent No.2 for formation of road.

The specific contention of the petitioner is that subject plot

was not notified in Notification issued Section 4(1)

Notification on 26.02.2005. But it was notified in the Draft

Declaration dated 25.03.2006 issued under Section 6 of

the Act and therefore the petitioner filed representation

before the Land Acquisition Officer. However, the

respondents have passed Nil award stating that plot

Nos.14,15,16 and 17 in Sy.No.43 was declared as surplus

land and since subject plot No.15 is situated in Sy.No.43,

no compensation was awarded to the petitioner and not

considered the representation of the petitioner. There is no

dispute about acquisition of subject plot for the purpose of

formation of road. The contention of the petitioner is that

as she is not aware of amendment to Section 4(1)

Notification, she had no occasion to participate in the Award Enquiry under Section 5-A of the Act and to file

objections, if any.

7. The respondents filed counter and along with the

material papers, which shows that amendment to Section

4(1) of the Act was issued on 04.03.2006 and draft

declaration under Section 6 of the Act was issued on

25.03.2023. As per Section 5-A of the Act, within thirty

(30) days from the date of Publication of 4(1) Notification,

objections should be heard from the interested persons.

The Section 5-A of the Act reads as follows:

Hearing of objections: (1) Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be".

8. Admittedly, in the instant case, the amendment to

Section 4(1) Notice of the Act was issued on 04.03.2006

and even before expiry of 30 days as mandated under

Section 5-A of the Act, Draft Declaration under Section 6 of the Act was issued on 25.03.2006 i.e. within 21 days from

the date of amendment notice and thereby the petitioner

lost her substantive right under Section 5-A of the Act,

9. The Hon'ble Supreme Court in Union of India v.

Shiv Raj 1 in similar circumstances held that the limited

right given to an owner/person interest under Section 5-A

of the 1894 Act to object to the acquisition proceedings is

not an empty formality and is a substantive right and the

relevant portion of the said Judgment is as follows:

"15. Therefore, Section 5-A of the 1894 Act confers a valuable right in favour of a person whose lands are sought to be acquired. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regard the public purpose as also suitability thereof must be preceded by application of mind having due regard to the relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the 1894 Act confers a valuable important right and having regard to the provisions, contained in Article 300-A of the Constitution of India has been held to be akin to a fundamental right. Thus, the

(2014) 6 SCC 564 limited right given to an owner/person interested under Section 5-A of the 1894 Act to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away only for good and valid reason and within the limitations prescribed under Section 17(4) of the 1894 Act.

16. The Land Acquisition Collector is duty-bound to objectively consider the arguments advanced by the objector and make recommendations, duly supported by brief reasons, as to why the particular piece of land should or should not be acquired and whether the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Land Acquisition Collector should reflect objective application of mind to the entire record including the objections filed by the interested persons."

(Emphasis added)

10. The Hon'ble Supreme Court in the above Judgment

categorically held that the Land Acquisition Officer must

have to give opportunity to the interested person for

personal hearing and thereafter, they have to proceed

further in the land acquisition proceedings. The above

said finding squarely apply to the instant case.

11. Therefore, the Award passed by the Land

Acquisition Officer in respect of the subject plot is liable to

be set aside. The respondents have to conduct Land

Acquisition enquiry from the Stage of Section 5-A of the

Act.