THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.5924 of 1999 Date: 01-02-2008 Between: J.D.Lohade (died) and others . ..... PETITIONERS AND State of Andhra Pradesh, rep. by its Secretary, Municipal Administration and Urban Development, Hyderabad, and others. .....RESPONDENTS THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.5924 of 1999 ORDER: Jaichand D. Lohade is the owner of land admeasuring 6,284 sq. yards in survey Nos.160/1, 160/27 and 161/7 situated at Tankbund, Hyderabad (hereafter called, petition schedule land). The land is situated in front of Ambedkar Bhavan and runs all along the lower and upper Tankbund road. When there was an apprehension that the respondents might dispossess him, he filed O.S.No.717 of 1986 on the file of the Court of IV Additional Judge, City Civil Court, Hyderabad, for injunction. An Advocate Commissioner was appointed in the suit. As per his report, respondents were in possession of the petition schedule land and road widening works were in progress. Therefore, injunction was refused. The petitioner appealed to this Court, being C.M.A.No.1009 of 1986, which also ended without any benefit to him. In 1985, Government of Andhra Pradesh, Municipal Administration and Urban Development, first respondent herein, proposed to acquire the petition schedule land. It is stated that the Chief Minister negotiated with petitioner. It was agreed that an amount of Rs.250/- per sq. yard be paid to the petitioner, but the amount was not paid in entirety. The Government issued orders, vide G.O.Rt.No.1953, Municipal Administration, dated 24.11.1986 (hereafter called, first G.O.) proposing to acquire 409 sq. yards of land and G.O.Rt.No.1954, Municipal Administration, dated 24.11.1986 (hereafter called, second G.O.) proposing to acquire 2028 sq. yards of land under Section 4(1) of the Land Acquisition Act, 1894 (LA Act, for brevity) for widening the Tankbund road etc., In addition to this, an extent of 3,300 sq. yards of land was taken as per G.O.Rt.No.1951, Municipal Administration, dated 24.11.1986 and compensation was paid at Rs.250/- per sq. yard as per Award No.14 of 1986 dated 19.12.1986. The petitioner sought for a reference for enhancement of compensation. It was not done. His W.P.No.21347 of 1996 was dismissed on 26.11.1996 observing that his allegation regarding the breach of the package deal and the Government going back on its agreed settlement is a matter to be agitated in appropriate proceedings. This Court also observed that no relief can be granted with regard to 2,437 sq. yards of land (petition B schedule land) covered by first and second G.Os. The petitioner contends that the entire land was utilised by the respondents for widening the Tankbund road etc., and in spite of the repeated demands and requests by the petitioner, the compensation amount was not paid. After a decade, third respondent herein, namely, Hyderabad Urban Development Authority (HUDA) informed the petitioner that a decision was taken to drop petition B schedule land from acquisition and that second respondent also addressed to first respondent to withdraw the notification. In January, 1996, the petitioner thereafter approached respondent Nos.1 and 2 to know whether any notification withdrawing acquisition was issued or not, in vain. Therefore, he filed instant writ petition seeking a writ of Mandamus directing respondents to take appropriate and necessary action pursuant to first and second G.Os and pay compensation to him at the market value for petition B schedule land. This writ petition filed by Jaichand D. Lohade was admitted on 24.03.1999. During the pendency, he died and petitioner Nos.2 to 4 were brought on record as his legal representatives. Even after lapse of about nine years, respondent Nos.1 and 2 have not filed any counter- affidavit. It is unfortunate. HUDA filed a counter-affidavit admitting the acquisition proposals, issuance of first and second G.Os. and utilization of 3,300 sq. yards for widening the Tankbund road after paying compensation at Rs.250/- per sq. yard. But HUDA alleges that A.P.Rajaka Abhivrudhi Samithi, city unit, also filed W.P.No.3030 of 1987 with regard to petition B schedule land and this Court granted stay of all further proceedings on 08.03.1987. Therefore, HUDA decided to withdraw the proposals and submitted withdrawal proposals under Section 48(1) of LA Act. Sri Vilas V. Afzulpurkar, learned senior counsel appearing for the petitioners submits that as held by Civil Court in earlier suit entire land was taken possession by HUDA for widening Tankbund road and other public works pursuant to an agreement reached between first petitioner and the then Chief Minister to claim amount of Rs.250/- per sq. yard and therefore, respondents cannot withhold payment of compensation for petition B schedule land. Secondly he submits that as possession was taken, lapse of time does not bar passing of an award, especially when no notification under Section 48 of LA Act was issued by the Government. This Court heard learned standing counsel for HUDA on 31.01.2008. On that day, learned Assistant Government Pleader for Land Acquisition appeared and sought time to produce record. This Court waited till 4.00 p.m. but record was not produced. Therefore, the matter was adjourned to 01.02.2008. But learned Assistant Government Pleader could not produce the files and sought time. This writ petition is pending from March, 1999 and even now the Government is not in a position to place before this Court present position with regard to the alleged proposals made by HUDA for withdrawal of the notification. The only point that requires consideration is whether the petitioners are entitled for compensation in respect of petition B schedule land. There cannot be two opinions that the fundamental right to property as was entrenched in Article 19(1)(f) of the Constitution of India (CoI), though stands deleted by 42nd amendment to Constitution of India, right to property remains a constitutional right. Article 300A CoI mandates that “no person shall be deprived of his property save by authority of law”. The only authority given to the State to deprive a person to enjoy his property under LA Act or any other cognate law. A person, under LA Act, cannot be deprived of his property unless adequate compensation is paid to such person before taking the property. In this case, though HUDA made a bald allegation that only 3,300 sq. yards of land was acquired for laying down the road, the contention of the petitioners that the entire land was used for widening the Tankbund road and other related works is not specifically denied by the Government. As of now, no notification under Section 48(1) of LA Act is issued withdrawing the acquisition proposals. From this an inference can be drawn that the entire land was utilised. As rightly pointed out by learned senior counsel, even if such notification was issued at any time during the pendency of this writ petition or prior to the filing of the writ petition, such notification could not have been withdrawn. Be it noted under Section 48(1) of LA Act, it is competent for the Government to withdraw “from acquisition of any land of which possession has not been taken”. This only means that when once possession was taken, there cannot be any withdrawal from acquisition. Having regard to the principle of nontraverse and in the peculiar facts and circumstances of the case as presented in the affidavit accompanying the writ petition and the counter-affidavit of HUDA, this Court is of the considered opinion that ends of justice would be met by directing the Government and other authorities to take necessary steps to pass an award for petition B schedule land covered by first and second G.Os. In case the Government does not want land for any other purpose, respondent Nos.1 and 2 may also consider to release the land to the petitioners after negotiations. This Court is aware that when once possession was taken, there cannot be withdrawal from acquisition. But as there is a dispute in this regard, it is for the Government to decide the issue. With the above observations, the writ petition is disposed of. The petitioners shall be entitled to costs of this writ petition fixed at Rs.5,000/- (Rupees five thousand only). _____________ (V.V.S.RAO, J) 01st February, 2008 Note: Issue CC in one week. (B/o) GHN