HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.3666 of 2007 Date: August 19, 2010 Between: 1. Bishalaksha Basu & 15 others. … Petitioners And 1. Government of Andhra Pradesh, rep. by the Secretary Municipal Administration, Hyderabad and 3 others. … Respondents * * * HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No.3666 of 2007 ORDER: The petitioners seek a direction to the State and its authorities, respondents 1 to 3, to initiate acquisition proceedings in respect of their land admeasuring 300 square yards in Holding No.516, now T.S.No.85/1, Block 10, forming part and parcel of premises bearing No.11-1-6/1 situated at Waltair Ward, Visakhapatnam. They seek compensation as per the Land Acquisition Act, 1894. 2. The petitioners claim title to the subject land under a registered sale deed bearing Document No.666 of 1907 dated 02.10.1907. An extent of 655.57 square yards was leased out by the petitioners to M/s.Caltex India Ltd., the predecessor in title of the Hindustan Petroleum Corporation Limited, 4th respondent, under lease deed dated 28.5.1990. The petitioners, being residents of Calcutta, stated thatthe Commissioner, Visakhapatnam Municipal Corporation, respondent No.3, acquired an extent of about 300 square yards from the extent leased out to respondent No.4 for the purpose of road widening without intimation to them or to respondent No.4. They claim to have submitted representation dated 16.6.2006 to respondents 1 and 2 seeking compensation in respect of the acquired land but no action was taken thereupon. Hence, this writ petition. 3. In the counter filed on behalf of the Visakhapatnam Municipal Corporation its Commissioner stated that an extent of Ac.7-00 adjacent to the petitioners’ petrol bunk was acquired under the Land Acquisition Act, 1894, but the subject site was excluded at that time, as it was not at all useful for the government’s purpose as it was a triangular bit of land. He further stated that the petitioners’ lessee, respondent No.4, itself left about 247 square yards of triangular shaped unused part of the site so as to enable easy ingress and egress to its customers for availing the facilities offered by it. Thereby, it is stated that the triangular portion of site merged in the four-road junction and was being utilized by the public for more than 20 years. Admitting receipt of the petitioners’ representation dated 16.6.2006, he stated that reply dated 25.7.2006 was addressed to the petitioners informing them that no road widening had been taken up by the third respondent corporation and that the extent of 247 square yards had been left by respondent No.4 of its own volition whereby it merged in the four road junction. He reiterated that the subject site was not acquired for the purpose of road widening and therefore denounced liability for payment of compensation. A plan was appended to the said counter stating to the effect that the same reflected that the unused land of the petitioners was merged in the four-road junction for decades together. 4. Respondent No.4 filed a counter stating that it had operated an outlet in the leased premises under the name and style of M/s. KR & Sons, Siripuram up to 31.7.2004 when the dealership was terminated. Thereafter it contemplated installation of an Auto LPG unit at the premises. However when the civil works in this respect were commenced, it is stated that the officials of the Visakhapatnam Municipal Corporation prevented respondent No.4 from carrying on with the works on the ground that the site belonged to Visakhapatnam Urban Development Authority. It is further stated that the Visakhapatnam Municipal Corporation took possession of part of the driveway area of the outlet in May 2005 for alignment with the main road and that an extent of 300 square yards out of the total 655 square yards was lost on account of the said action. As no relief was claimed against it, respondent No.4 sought dismissal of the writ petition against itself. 5. In the light of the above said pleadings, as the Visakhapatnam Municipal Corporation itself stated that the subject site of 247 square yards had merged in the four road junction, Sri N. Ranga Reddy, learned standing counsel for Visakhapatnam Municipal Corporation was asked to ascertain whether the Corporation was willing to part with the said land in spite of the so called merger. Upon receiving written instructions dated 12.8.2010 from the Commissioner, Visakhapatnam Municipal Corporation, a copy of which is placed before this Court, the learned standing counsel stated that this site had been left voluntarily for providing ingress and egress to the customers of respondent No.4 and that it formed part of the Master Plan road formed long ago. However the Commissioner stated that the claim for compensation at this stage was not justified. 6. Sri Vijay Kumar Heroor, learned counsel for the petitioners, disputed the extent of the area which is said to have merged with the road. He pointed out that the entire extent of the leased site was 655.57 square yards out of which an extent of 385.43 square yards was still in the possession of respondent No.4, indicating that an extent of 270.14 square yards had been utilized for the purpose of the road. The learned counsel contended that as the Commissioner, Visakhapatnam Municipal Corporation himself conceded that the subject site had been shown as part of the Master Plan road, respondents 1 to 3 were liable to pay compensation. He placed reliance on the judgment of the Supreme Court in State of U.P. and others v. Manohar[1] and the judgment of this Court in K. Sai Reddy and others v. Deputy Executive Engineer, Irrigation and Command Area Development, Nampally, Hyderabad and others[2] in support of his contention. 7. Though there is a dispute as to how the subject site came to be utilized as part of the road as demonstrated by the contradictory pleadings of respondent No.3 and respondent No.4, it is not necessary for this Court to go into the same. As matters stand it is the case of the Visakhapatnam Municipal Corporation that the subject site was never required by it at any point of time warranting invocation of the expropriatory powers of the State for acquisition thereof. In that view of the matter, the State and its authorities should have no objection to the petitioners appropriating the subject site which belongs to them to their own needs. 8. Even as per the stand of the third respondent Corporation, it was the lessee of the petitioners, respondent No.4, that converted the said land for use as a road and they themselves did not have an active role in doing so. Though it is admitted that the subject site is shown as part of the Master Plan road, it is the categorical stand of Visakhapatnam Municipal Corporation that this land does not need to be acquired. Once it is admitted that the said land belongs to the petitioners, it is not open to the State or its instrumentalities to appropriate such private property without following due procedure. In the absence of the same, the petitioners’ rights of ownership and title with all other aspects incidental thereto cannot be disturbed. They are therefore at liberty to possess, protect and enjoy the entire extent of their land admeasuring 655 square yards, including the subject disputed triangular site situated in premises bearing door No.11-1-6/1, Waltair Ward, Visakhapatnam. The petitioners shall be at liberty to build a compound wall for protection of the subject site so as to prevent its usage as part of the road. The respondents shall not have any manner of right to interfere with the petitioners’ possession and enjoyment over the subject land in the light of the stand adopted by them referred to supra. The petitioners’ grievance, if any, with regard to the continuous use of the land as part of the road leading to a claim for damages would have to be addressed before the competent civil court, duly adducing sufficient evidence in support thereof. Liberty is given to the petitioners to avail the appropriate remedy in this regard in accordance with law. This order shall however not preclude the State from exercising the right of eminent domain and acquiring the subject land in accordance with law, if it so chooses and the situation warrants such acquisition. 9. The writ petition is accordingly disposed of in terms of the aforesaid directions. There shall be no order as to costs. ___________________ SANJAY KUMAR, J Date: August 19, 2010. BSB [1] AIR 2005 Supreme Court 488 (1) [2] AIR 1995 Andhra Pradesh 208