IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND NINE PRESENT HON'BLE Mr. JUSTICE R.SUBHASH REDDY WRIT PETITION No.4597 of 2003 Between: 1 Smt. Chandhana Subba Lakshmi W/o. Chandhana Mohan Rao R/o. Plot No. 4 and 5, Kausalya Estates, Amravathi Co-Operative Society, Karkhana Road, Secunderabad. 2 Allaka Satyanarayana S/o. Late Narsimha Rao R/o. Plot No. 4 and 5, Kausalya Estates, Amravathi Co-Operative Society, Karkhana Road, Secunderabad 3 Allaka Sunitha W/o. Allaka Satyanarayana R/o. Plot No. 4 and 5, Kausalya Estates, Amravathi Co-Operative Society, Karkhana Road, Secunderabad. ... PETITIONERS AND 1 The Additional Commissioner, M.C.H., Secunderabad Division, Secunderabad. 2 The Commissioner Municipal Corporation of Hyderabad Hyderabad. 3 D. Rameswar Rao S/o. D. Venkateshwar Rao R/o. H.No. 10-2-3, West Maredpally, Secunderabad: (R3 is impleaded as per Court Order dt. 22/3/04 in WPMP 9877/03) 4 D. Vijay Kumar S/o. Venkateswar Rao R/o. H.No. 10-2-3, West Maredpally, Secunderabad: (R4 is impleaded as per Court Order dt. 22/3/04 in WPMP 9877/03) 5 D. Rajeswari W/o. Venkateswar Rao R/o. H.No. 10-2-3, West Maredpally, Secunderabad: (R5 is impleaded as per Court Order dt. 22/3/04 in WPMP 9877/03) ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ of Mandamus or any other appropriate Writ, order or direction: (a) By declaring the action of the Respondents in trying to demolish the petitioner's property without taking petitioner's consent or without issuing prior show cause notice as per section 146 and 146 of H.M.C Act, as illegal and unconstitutional (b) To direct the Respondents not to demolish the petitioner's property bearing No. 3-1- 10 to 3-1-13, all together admeasuring 18500 Sft., otherwise known as Danda Plaza, at R.P. Road, Secunderabad, without acquiring the same by initiating proceedings under Land Acquisition Act, and without obtaining petitioner's specific consent. Counsel for petitioners: Mr. Wasim Ahmed Khan Counsel for respondents 1 and 2: Smt. Kalpana Ekbote The Court made the following Order: Petitioners, three in number, seek a Writ of Mandamus declaring the action of the respondents in taking steps for demolition of structures of house property bearing Nos. 3-1-10 to 3-1-13 situated at R.P. Road, Secunderabad as illegal and arbitrary. 2. In the affidavit filed in support of the writ petition, it is stated that petitioners have jointly obtained the premises bearing Nos.3-1-10 to 3- 1-3 admeasuring 2500 Sft., known as Dando Plaza, at R.P. Road, Secunderabad, on lease by way of registered lease deed dated 20-06- 1996 from its owners, i.e. Sri D. Narsimha Rao and his family members. It is stated that the said lease is for a period of 25 years and they are doing business in cloth as lessees by virtue of the said lease. It is the grievance of the petitioners that, for the purpose of road widening, respondents-authorities are taking steps for demolition of the building in question, without initiating land acquisition proceedings and they visited the site on 15-03-2003 and marked portions for demolition. Precisely, it is their case that in absence of any consent from them and without initiating land acquisition proceedings, respondents cannot dispossess them. 3. Counter affidavit is filed by the City Planner, Secunderabad division. In the counter affidavit, while generally denying the allegations made by the petitioners, it is stated that the portion of the property which the petitioners are in possession is being affected in road widening, under junction improvement; as such steps have been taken for demolition basing on the consent of the owners of the property. It is stated that since the owners of the property have consented to part with the affected portion of the property for the purpose of road widening, the question of invoking the provisions of the Land Acquisition Act, 1894 does not arise. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondents. 5. In view of the pleadings on record, the only question which arises for consideration is whether the petitioners-tenants, who are undisputedly in possession of the building in question by virtue of the lease deed executed by the landlords in their favour, can be dispossessed from the building in question, for the purpose of road widening, without taking recourse to compulsory acquisition and in the absence of their consent. The question whether a tenant can be dispossessed from the property which he is in possession, for any public purpose, only based on the consent given by the owner, is considered by a Division Bench of this court in the case of Ushodaya Publications, Hyderabad v. Commissioner, Municipal Corporation of Hyderabad and another[1]. In the aforesaid case, this court has held that the Municipality cannot take possession of the land, which is in occupation of the tenant for the purpose of road widening only basing on the consent of the landlord/landlady. It was further held that in such an event the Municipality has to acquire the property only under the provisions of the Land Acquisition Act, 1894. In the instant case, it is clearly stated in the counter affidavit filed by the City Planner, Secunderabad division that steps are being taken for demolition for achieving the appropriate road width only basing on the consent stated to have been given by the owners of the property in question. It is also stated in the counter affidavit that before communication of the interim orders of this court, steps were taken for demolition of compound wall and slab of the corridor. As much as the consent of the petitioners has not been obtained and no effort has been made by the respondents to acquire the property in question under the provisions of the Land Acquisition Act, 1894 before taking steps to dispossess the petitioners, the action of the respondents is declared illegal. 6. In view of the ratio decided by this court in the judgment referred above, this writ petition is disposed of directing the respondents not to demolish the building in question, which is in possession of the petitioners, as tenants, without following due process of law. However, it is made clear that if the property in question is required for any public purpose, this order will not preclude the respondents to acquire the property in question, if not already acquired, under the provisions of the Land Acquisition Act, 1894. No order as to costs. _________________________ R. SUBHASH REDDY, J. June 30, 2009 MRR [1] 2001 (3) ALD 173 (DB)