IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 2954 of 2000 Between: 1 Badrivishal Pitti, S/o.Pannalal Pitti, R/o.6-3-648, Somajiguda, HYDERABAD. 2 Smt. Shanti B.Pitti, W/o.Badrivishal Pitti, R/o.6-3-648/1, Somajiguda, HYDERABAD. 3 Sharad B.Pitti, S/o.Badrivishal Pitti, R/o.6-3-648/2, Somajiguda, HYDERABAD. ..... PETITIONER(S) AND 1 Municipal Corporation of Hyderabad, Rep. by its Special Officer & Commissioner, Lower Tank Bund Road, HYDERABAD. 2 Deputy Commissioner, Municipal Corporation of Hyderabad, Circle-V, HYDERABAD. 3 Chief City Planner, Municipal Corporation of Hyderabad, Lower Tank Bund Road, HYDERABAD. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue appropriate Writ, Order or direction more in the nature of Writ of Mandamus declaring that the Respondents are not entitled to demolish and acquire the petitioners land in H.No.6-3-648, 6-3-448/1 and 6-3-648/2, Somajiguda, Hyderabad, without following the procedure under HMC Act, as illegal and aribtrary action offending articels 14, 21 & 300(A) of the Consitution of India and pass such other order and further orders are just and necessary in the circumstances of the case of otherwise the petititioner will suffer grave and irreparable loss and injury. Counsel for the Petitioner:MR.V.HARI HARAN Counsel for the Respondent No.: SMT.KALPANA EKBOTE IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 3331 of 2000 Between: 1 Badrivishal Pitti, S/o. Pannalal Pitti, R/o. 6-3-648, Somajiguda, HYDERABAD- 500082 2 Smt. Shanti B.Pitti, W/o. Badrivishal Pitti, R/o. 6-3-648/1, Somajiguda, HYDERABAD 3 Sharad B.Pitti, S/o. Badrivishal Pitti, R/o. 6-3-648/2, Somajiguda, HYDERABAD ..... PETITIONER(S) AND 1 Municipal Corporation of Hyderabad, Rep.by its Special Officer & Commissioner, Lower Tand Bund Road, HYDERABAD 2 Deputy Commissioner, Municipal Corporation of Hyderabad, Circle -V, HYDERABAD 3 Chief City Planner, Municipal Corporation of Hyderabad, Lower Tank Bund Road, HYDERABAD .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue appropriate Writ, order or direction more in the nature of writ of mandamus declaring the action of the Respondents om demolishing and seeking to occupy and acquire the petitioner's land in H.No.6-3-648, 6-3-448/1 and 6-3-648/2, Somajiguda, Hyderabad, without following the procedure under HMC Act, as illegal and arbitrary action offending articles 14,21& 300(A) of the Constitution of India by directing damages and compensation for the actions done and pass such other order and futher orders as are just and necessary in the circumstances of the case. Counsel for the Petitioner:MR.V.HARI HARAN Counsel for the Respondent No.: SMT.KALPANA EKBOTE The Court made the following : THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NOs : 2954 & 3331of 2000 COMMON ORDER The petitioners in these two writ petitions are the owners and possessors of house Nos.6-3-648, 6-3-448/1 and 6-3-648/2 of Somajiguda, Hyderabad. These writ petitions are filed aggrieved by the action of the respondents in demolishing and seeking to occupy the land in the said premises without following due process of law. It is pleaded by the petitioners that earlier in the year 1982 the respondents acquired a portion of the property admeasuring 211.21 square meters out of the aforesaid house properties belonging to the petitioners for the purpose of road widening. In spite of several representations made by the petitioners, no compensation was paid. W.P.No.14143 of 1989 filed by the petitioners was allowed by this Court by order dated.01-04-1997 directing the respondents to comply with the undertaking given by them in the year 1982. Ultimately the issue could be settled in the year 1999 to the detriment of the petitioners. While so, the respondents have again proposed road widening and in that connection addressed a latter dated. 18-10-1999 calling upon the petitioners to surrender an extent of 226 square yards of land on the western side facing main road and about 18.36 square yards on the northern side in the bye-lane. Thus a total extent of 244.36 square yards out of the house properties of the petitioners was sought to be acquired. The said letter dated.18-10-1999 was served on the petitioners on 20.11.1999 and immediately thereafter by telegram dated.22-11-1999 the petitioners expressed their willingness to surrender the land subject to discussions and its outcome. The petitioners by subsequent letter dated.26-11-1999 submitted their proposals for a negotiated acquisition of the property in question. However, the respondents failed to respond. On the other hand on 21-02-2000 the respondents highhandedly demolished the entire Western compound wall facing the main road ignoring the protest raised by the petitioners. Aggrieved by the said highhanded action of the respondents and apprehending threat to the Northern wall facing the bye-lane, the petitioners filed W.P.No.2954 of 2000. This Court while directing notice to the respondents by order dated.23.02.2000 granted stay of demolition of the petitioners’ property. Subsequently the petitioners filed W.P.No.3331 of 2000 seeking a declaration that the action of the respondents in demolishing and seeking to occupy and to acquire the petitioners’ land in the houses in question without following the procedure under the Hyderabad Municipal Corporation Act,1955 ( for short “the Act”) as arbitrary and illegal and for a further direction to pay damages and compensation for the action already done. A common counter-affidavit is filed in both the writ petitions on behalf of the respondents. The Assistant City Planner, Circle-V Municipal Corporation of Hyderabad who deposed to the counter-affidavit stated that the petitioners had earlier applied for sub-division of their plots by undertaking to surrender the land out of the premises in question for the purpose of road widening. As per the said undertaking dated.25-11-1995 the petitioners have to surrender the land required for road widening free of cost without claiming any compensation. The sub-division as sought by the petitioners was granted subject to the above conditions. It is further stated that in response to the notice dated.18-10-1999 the petitioners gave conditional consent and thereafter the Corporation made inspection and informed the petitioners vide letter dated.17.02.2000, the details of the extent of land required by the Corporation. It is further contended that the petitioners obtained permission for commercial complex with relaxations and sub-division taking advantage of the lands surrendered to the Corporation for the purpose of road widening. It is further claimed that the land belonging to the petitioners was utilized for road widening and compound wall was demolished after obtaining the consent from the petitioners resorting to private negotiations as provided under the Act. It is further contended that the Municipal Corporation of Hyderabad is widening the road in public interest to implement the master plan and to reduce the traffic congestion and the same cannot be termed as arbitrary and illegal since the same is in terms of the undertaking of the petitioners dated.25-11-1995. I have heard the learned counsel for both the parties. The fact that the petitioners gave an undertaking on 25- 11-1995 when they applied for sub-division of their plots and subject to the said undertaking the sub division was granted vide order dated.25-11- 1995, is not in dispute. However, according to the petitioners, the said undertaking dated.25-11-1995 was only to surrender the land on the Northern side as per the Rules. Thus it is contended by the learned counsel for the petitioners that the impugned action of the respondents in demolishing the entire Western side compound wall facing main road without following due process of law was arbitrary and illegal. A copy of the undertaking dated.25-11-1995 has been placed before this Court. A perusal of the same shows that the petitioners herein undertook to handover the physical possession of the land effected in the road widening on the Northern side of the premises to the Corporation at the time of actual road widening as per the Rules. It is relevant to note that Chapter-V of the Act deals with acquisition of property. Section.146 of the Act provides for acquisition of immovable property by agreement. As per the said section the Commissioner may acquire any immovable property on behalf of the Corporation by agreement on such terms and conditions and rates as shall be approved by the Standing Committee. It shall also be lawful for the Commissioner on behalf of the Corporation to agree with the owner of any land needed by the Corporation for the purchase of said land or for compensating the owner. When the immovable property cannot be acquired by the Corporation under Section.146 of the Act, Section.147 of the Act empowers the Government to acquire the same on behalf of the Corporation in accordance with the provisions of the Land Acquisition Act,1894 as if such property were land needed for a public purpose within the meaning of the provisions of the said Act. It was also made clear under Sub-section (2) of Section.147 of the Act that the amount of compensation awarded and all other charges incurred in acquisition of any such property shall be paid by the Commissioner and thereupon the said property shall vest in the Corporation. Thus it is clear that either of the two modes specified under Sections.146 and 147 of the Act are required to be followed for the purpose of acquiring the property under the Act. Though in the counter-affidavit it is pleaded by the respondents that the consent of the petitioners was taken before resorting to demolition of the Western wall of the petitioners’ premises, the said plea was categorically denied by the petitioners in their Reply affidavit. The undertaking given by the petitioners dated.25-11-1995 shows that they agreed to surrender the land only in respect of the Northern side of the premises. On a careful consideration of the rival contentions and other material available on record, it is apparent that the Western side of the land acquired by the respondents was not with the consent of the petitioners. Nothing could be placed before this Court to show that before demolishing the Western side wall, procedure as contemplated under Section.146 of the Act was followed by the Corporation. In the circumstances so far as the said land is concerned the respondents are bound to initiate the proceedings for acquisition of the said land as required under Section.147 of the Act. With regard to the land situated in the Northern side of the premises is concerned, though in the undertaking dated.25.11.1995 the petitioners stated that they would handover the physical possession of the land on the northern side at the time of road widening, there is no reason to assume that the petitioners had agreed to surrender the said land free of cost. On the other hand the words “as per the rules” employed in para.4 of the undertaking made it clear that the consent to handover physical possession was not unconditional. Hence the respondents are bound to follow the procedure prescribed under Section.146 of the Act so far as Northern side of the premises is concerned. Accordingly the writ petitions are disposed of with a direction to the respondents to initiate the proceedings for acquisition of the Western side of the premises in question as contemplated under Section.147 of the Act. Such exercise shall be completed within a period of six(6) months from the date of receipt of a copy of this Order. So far as the Northern side of the premises is concerned, the respondents are directed to invite the petitioners for negotiations and take necessary steps in terms of Section.146 of the Act. Without following such procedure the respondents shall not interfere with the Northern side of the premises in question. The writ petitions are accordingly disposed of. No costs. _______________ G. ROHINI, J. Dt.16.02.2009 *Tsnr