THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.7186 of 2000 Date: 31-01-2008 Between: N.Venkateswara Prasad. ..... PETITIONER AND The Municipal Commissioner-cum-Nodel Officer, Madanapalle Municipality, Chittoor District and others. .....RESPONDENTS THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.7186 of 2000 ORDER: The petitioner is a resident of Madanapalle town in Chittoor District. He is the owner of 41/100th share (roughly 124 sq.yards) in Ac.0.06½ vacant site (hereafter called, land) in survey No.196 of Kammapalli village. Said land was purchased from Bingi Sreeramaiah Chetty under a registered sale deed dated 31.10.1998 for a consideration of Rs.70,000/-. Be that as it is it appears that on 03.01.1999 the respondents made attempts to lay mud road on the land. The petitioner immediately got issued a notice dated 04.01.1999 through his lawyer informing the respondents about his title to land and requested them to desist from taking any further steps for laying the road over the land, in vain. Subsequently on 05.01.1999 according to the petitioner, the road was laid in one day. The petitioner, therefore, filed instant writ petition seeking a writ of Mandamus declaring the action of respondents in laying down road over the land as illegal, arbitrary and for a consequential direction to initiate proceedings under Land Acquisition Act, 1894 (LA Act, for brevity) and to pay compensation. First respondent, namely, the Commissioner of Madanapalle Municipality filed a counter-affidavit along with W.V.M.P.No.3238 of 2001. The allegation made by the petitioner that he is absolute owner of the land in survey No.196 is not specifically denied. It is stated that since times immemorial land is being used as road by the public as access from Sri Ramagovindappa street to Pai Ramanna street. It is admitted that on request of people of the locality, road was laid under Janma Bhoomi programme. It is alleged that the petitioner is not entitled for compensation for acquisition of the land. The learned counsel for the petitioner relied on the decisions in Keshav Prashad v. Commissioner and Special Officer[1], Executive Engineer, I.B.Divn. v. C. Shankar[2] and Tuljaram Singh v. District Collector, Hyderabad[3] in support of the contention that when private property is utilised for public purpose, public authority would be violating Article 300-A of the Constitution of India if compensation is not paid. Per contra, the learned standing counsel for the Municipalities, who has also produced original records, submits that land was used as road by people in the locality to go from one street to another and during Janma Bhoomi programme, one of the works sanctioned was for laying down pucca road over the land for benefit of the people. He also submits that as petitioner was never in possession of the land, he cannot claim compensation. First question that would arise for consideration flows from the submission of the learned standing counsel that the petitioner when allegedly not in possession of land cannot claim compensation under LA Act. The submission is wholly misconceived. Section 3(b) of LA Act defines ‘person interested’ to include all persons claiming an interest in compensation to be made on account of acquisition of land and a person shall be deemed to be interested in land if he is interested in easement affecting the land. There is no prohibition for an owner, who is allegedly not in possession of the property, to claim an interest in the land acquired. It is quite possible that the absolute owner in many situations may not be in actual possession but even when such property is leased or licenced or given permissive possession to a third party still the true owner is deemed to be in constructive possession. Possession in law is not always be treated as the physical possession by the owner of the property. Therefore, merely because allegedly the petitioner is not in possession of the land, he cannot be denied the locus to seek compensation when the same is acquired. Here it would be appropriate to refer to Section 110 of the Indian Evidence Act, 1872. It lays down that “when question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not owner is on the person who affirms that he is not the owner”. To say the least municipality did not discharge burden in this case. There is no dispute or denial in the counter-affidavit as to the ownership of the petitioner over the land. Indeed after perusing the two original files produced before this Court, it is found that there is not even a whisper in any of the files that the petitioner is not owner of the land. The municipal authorities proceeded on the premise that as land is being used by the people of Ramagovindappa street and Pai Ramanna street to go from one street to another, they (authorities) can lay a pucca road on the land. Such action of the municipal authorities is contrary to the provisions of the Andhra Pradesh Municipalities Act, 1965 (the Municipalities Act, for brevity), especially Sections 42 and 174 thereof. These provisions read as under. 42. Procedure for acquisition of immovable property under the Land Acquisition Act, 1894:- (1) Any immovable property which any municipal authority authorized by this Act to acquire may be acquired under the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894), and, on payment of the compensation awarded under the said Act in respect of such property and of any other charges incurred in acquiring it, the said property shall vest in council. (2) Where a municipal authority proposes to acquire any immovable property otherwise than under the provisions of the Land Acquisition Act, 1894, it shall obtain the previous approval of the District Collector therefor. While according his approval, the District Collector shall determine the value at which the property is to be acquired and every such acquisition shall be subject to the previous sanction of the Government. 174. Acquisition of land and buildings for improvement of streets:- (1) The council may acquire- (a) any land required for the purpose of turning, diverting, opening, widening, extending, or otherwise improving any public street, or of making any new public street, and the buildings, if any, standing upon such land; and (b) any land outside the proposed street alignment, with the buildings, if any, standing thereupon: Provided that in any case in which it is decided to acquire any land under clause (b) of this sub-section, the owner of such land may retain it by paying to the council an annual sum to be fixed by the council in that behalf, or a lumpsum to be fixed by the council, not being less than twenty-five times such annual sum and subject to such conditions as the council thinks fit as to the removal of the existing building, if any, the description of the new building, if any, to be erected, the period within which the new building, if any, shall be completed and any other similar matters. (2) If any sum payable in pursuance of the proviso to sub-section (1) in respect of any land to be not duly paid, it shall be recoverable in the manner provided by this Act for the collection of taxes, and, if not so recovered, the Commissioner may enter upon the land, and sell it, with any erections standing thereon, by public auction subject to the conditions, if any, imposed under sub- section (1) above and may deduct the said sum and the expenses of the sale from the proceeds of the sale and shall pay the balance, if any, to the defaulter. (3) Any sum paid in pursuance of the proviso to sub- section (1) or recovered under sub-section (2) in respect of any land shall be left out of account in determining the capital value or the annual rental value of such land for the purpose of assessing it to the property tax. (4) Any land or building acquired under clause (b) of sub- section (1) may be sold, leased or otherwise disposed of after public advertisements, and any conveyance made for that purpose may comprise such conditions as the council think fit as to the removal of the existing building, if any, the description of the new building, if any, to be erected, the period within which the new building, if any, shall be completed and any other similar matters. (5) The council may require any person to whom any land or building is transferred under sub-section (4) to comply with any conditions comprised in the said conveyance before it places him in possession of the land or building. A conjoint reading of the above two provisions would lead to the following position. When municipality claims or utilises immovable property, it is competent for the municipality to acquire the land under provisions of LA Act after obtaining approval of the District Collector. If land is needed for the purpose of diverting, widening, extending or improving any public street, again the municipality has to acquire the land in accordance with Section 42(1) of the Municipalities Act. Under this provision, it is also permissible for municipality to acquire any land outside proposed street alignment, with the buildings, if any, standing thereon. Therefore, unless and until the approval of the District Collector is obtained by the municipality, land cannot be acquired for the general purpose or for the purpose of laying/widening the road. The legal position is not seriously disputed or denied. Therefore, it becomes clear that the municipality has contravened the provisions of Municipalities Act as well as LA Act while laying down the road on land. While doing so, the provisions of Article 300-A of the Constitution of India were followed more in breach. In Keshav Prashad’s case and Tuljaram Singh’s case, this Court, having noticed that the land of the private persons were acquired and used for public purpose without paying compensation, awarded exemplary costs/damages. In this case, however, land was utilised without proper enquiry and therefore, the municipality at least now may proceed with and take appropriate action in accordance with Sections 42 and 174 of the Municipalities Act. Having regard to the facts and circumstances of the case, it is also permissible to the municipality to negotiate with the petitioner and pay appropriate compensation. In the result, the writ petition is allowed directing first respondent municipality to negotiate with the petitioner and pay compensation keeping in view that petitioner has been deprived of his right to enjoy land by reason of the hasty action taken by it for laying down the road on land. This exercise shall be completed within four months from the date of receipt of a copy of this order. It shall be open to the petitioner to produce all necessary material regarding his own ownership and market value at the time of negotiations. First respondent municipality shall pay costs of the writ petition to the petitioner. _____________ (V.V.S.RAO, J) 31st January, 2008 Note: 1. Learned Standing counsel – Sri S.I.Newton, undertakes to inform this order to first respondent municipality. 2. Dispatch copy in one week. (B/o) GHN [1] 2001(2) ALT 297(D.B.) [2] 2000(3) ALT 1 (D.B.) [3] 2004(6) ALT 211