When the party agreed to part with possession of property on negotiation for compensation, cannot again claim that the GHMC not proceeded according to law = I therefore have no hesitation whatsoever to reject the contentions canvassed by Sri Mohd. Zia-ul-Haque that the petitioner has been coerced and threatened to part with the immoveable property. I also have no hesitation to reject the further plea that the respondent corporation has unilaterally attempted to pay some undisclosed amount representing the compensation payable to the petitioner. From the statement contained in the file which has translated itself in preparation and drawing of a cheque as noted supra, it is more than clear that the petitioner has also been attempted to be paid the compensation at the same "handsome rate" offered to her neighbouring property owners. Therefore, there is no merit in the plea canvassed by the petitioner otherwise.= When once a party gives her consent to the corporation for acquiring the rights over an immoveable property or portion thereof, the question of falling back upon the procedure contemplated by Section 147 of the Act would not arise. Only when a consent is not given, by a party for acquiring by agreement an immoveable property belonging to her in favour of the corporation, the necessity for invoking the compulsory acquisition of land would arise, but not otherwise. In the instant case, the legal heir certificate and the pan card were obviously made available by the petitioner to the corporation. Otherwise, the details in this regard would not have been available with the corporation. It is therefore a case where the petitioner having given her consent has started entertaining apprehensions as to whether she would also get paid compensation at the same rate as her neighbours have been paid by the corporation. Her apprehensions are ill founded. Therefore, I do not see any merit in this writ petition and it is accordingly dismissed. But, however, without costs.

published in http://judis.nic.in/judis_andhra/filename=9706

THE HON'BLE SRI JUSTICE  NOOTY RAMAMOHANA RAO          

WRIT PETITION NO. 5220 OF 2013  

14-03-2013

Smt.Shamshu Begum  

Greater Hyderabad Municipal Corporation,Having its office at Municipal Complex,
Lower Tank Bund Road, Hyderabad rep. By its Commissioner and another                  

Counsel for the Petitioner: Sri Mohd.Zia-ul-Haque

Counsel for the Respondents: Dr.Smt.Y.Padmavathi, Standing Counsel
                             
<Gist:

>Head Note:

?CITATIONS:

ORDER:
        This writ petition is instituted seeking a writ of mandamus for declaring
the action of the respondent - Greater Hyderabad Municipal Corporation (GHMC) in
pressurizing the petitioner to hand over her immoveable property bearing
Municipal No.  8-1-168,  admeasuring 75 sq yards adjacent to TB Hospital,
Erragadda, Hyderabad, as illegal and consequently to refrain the respondents
from dispossessing the petitioner from the said property without following the
due process of law.
                The petitioner claims that she is the owner of property bearing
Municipal No. 8-1-168 admeasuring 75 sq yards adjacent to Chest Hospital,
Erragadda, Hyderabad.  It is claimed by her that the property was purchased by
her husband some time during 1970 and later on a small house with a mulgi in the
ground floor was got constructed and she has succeeded to the property after the
death of her husband. 
 It is stated that on 12.9.2012, the staff members of the
respondent - Municipal Corporation started demolishing several houses in the
vicinity of the property of the writ petitioner and on 15.9.2012, the petitioner
was told by the staff of the respondent - Municipal Corporation that in case she
fails to hand over possession of the property immediately, the corporation would
demolish the same in toto and ever since then, the staff of the corporation have
been periodically pressurizing the petitioner to hand over the property by way
of private negotiations. 
The petitioner has asserted in paragraph (8) of the
affidavit filed in support of the writ petition that she has never entered into
negotiations with the corporation and on 14.2.2013 and 15.2.2013 when some of
the staff members of the respondent corporation threatened the petitioner to
hand over the property in question immediately failing which they would take
coercive action, the petitioner has addressed the 2nd respondent - Assistant
City Planner on 19.2.2013 making it clear that she does not want to hand over
the property to them on her own.
But, however, it is stated that the petitioner
has received a telephone call from the office of the 2nd respondent that a cheque towards compensation has been prepared and kept ready and directed the  
petitioner to go over to the office of the 2nd respondent to collect the said amount without disclosing the amount for which the cheque was drawn.
The
petitioner has pointed out in paragraph (11) of the affidavit filed in support
of the writ petition that several persons, whose properties were effected by the road widening project undertaken by the corporation, have all received handsome compensation from the respondents, but strangely in her case the respondents are not declaring as to how much compensation will be paid to her.
In those set of
circumstances, the present writ petition is filed.
                Heard Sri Mohd Zia-ul-Haque, learned counsel for the petitioner and
Smt.Dr.Y.Padmavathi, learned Standing Counsel for the GHMC.
                Learned counsel for the writ petitioner Sri Mohd. Zia-ul-Haque would
contend that the corporation or its officials have no business to interfere with
the right of the petitioner to enjoy her immoveable property without recourse to
law.  The respondents have only a right to acquire the immoveable property of
the petitioner, that too for achieving a public purpose, but not otherwise.
Without thus acquiring the property in question, the petitioner cannot be
threatened or coerced into submission by the respondents.
                Further, it is contended that if the land in question is acquired,
the benefit of additional compensation, particularly in accordance with Section
23 (1A) of the Land Acquisition Act, 1894, would become available to the
petitioner and therefore the respondents cannot deny any such benefits to the
petitioner.  Further, the learned counsel for the petitioner would urge that if
the petitioner is not satisfied with regard to the quantum of compensation now
offered and paid by the corporation, she will have to indulge in an expensive
litigation to claim additional amounts towards compensation.  The petitioner in
such a case would not be entitled to claim all such benefits which are made
available to a claimant under the Land Acquisition Act.  At best, the petitioner
can only claim from the civil court, interest on the additional compensation
amount and hence the petitioner would be denied a fair and reasonable
opportunity of receiving adequate compensation for the immoveable property
acquired by the respondents.
                Along with this writ petition, three documents were exhibited.  The
1st is the representation said to have been submitted by the petitioner to the
Assistant City Planner, Circle No. 10, marking a copy thereof to the
Commissioner, GHMC on 19.2.2013.  The 2nd is a copy of the sale deed dated
22.9.1970 evidencing the purchase of an open site, of 45 ft x 15 ft, by her
husband Sri Mohd. Hussain, S/o Sri Shaik Ahmed.  The 3rd is a judgment rendered
by me in WP No. 2270 of 2013 declaring that unless a party gives consent, the
GHMC cannot dispossess the party from out of immoveable property except by way
of acquiring the said property.
        Dr.Y.Padmavathi, learned Standing Counsel for GHMC has placed before me,
for my perusal the contents of a file maintained by the corporation in this
regard.
                The GHMC has taken up the project of widening the existing road from
Panjagutta to Erragadda locality of the city in view of the ongoing Hyderabad
Metro Rail Project.  For purposes of establishing the Metro Rail Line, certain
portions of the existing roads have been dedicated for construction of massive
concrete pillars for holding the rail line above the ground level.  With the
rapid expansion of the Metropolitan cities, the available infrastructural
facilities, in particular, the surface transport infrastructure, have come under
tremendous stress.  With the increased economic power, of the middle class in
particular, the motor vehicular density on roads has just grown at a greater
proportion than could be visualized by the civic bodies and their
administrators.  Before a total chaotic situation would be prevailing on day to
day basis on the surface transport modes, alternative rapid transportation
facilities were thought of.  One such approved alternative was to put in place
dedicated Metro Rail line so that the commuting public can be transported by a
public railway carrier most efficiently and at an affordable cost.  Such rapid
urban transportation technologies were found, by experience world over, as the
most effective diffusing methods of density of the other surface transport
infrastructure.  But, however, certain portions of the existing surface roads
will have to be dedicated for construction of massive sized reinforced cement
concrete pillars for holding the rail lines.  For undertaking construction of
these concrete pillars little more space additionally is also consumed and such
portions of the roads would get blocked from becoming available to all road
users to facilitate hassle free execution of the civil construction works
relating thereto.  Consequently, the existing road networks are required to be
widened.  Hence, the GHMC has initiated the necessary proposals for acquiring
the land.  But, however, the revenue administration of the State Government has
tendered an opinion that the land falling in Town Survey No. 1, Block-D, Ward
No. 7, Yousufguda village, Khairatabad Mandal is treated as belonging to the
government.  In view of this opinion of the revenue establishment of the State,
the corporation was obviously caught in a dilemma.  The various properties which
have sprung up in recent times, there around, would only cause enormous delay in
taking their possession on the premise that the land in question belongs to the
government.
The occupiers and possessors would invariably resort to seemingly
interminable litigation and consequently the Metro Rail project would get
delayed if not completely derailed.  
In those circumstances, the GHMC in
consultation with the State Government have constituted a Four Member Committee  
comprising of the Commissioner, GHMC, the Special Deputy Collector, Land  
Acquisition, GHMC, the Executive Engineer of the concerned area and the General 
Manager (Land Management), Hyderabad Metro Rail Project, Hyderabad.
This   
Committee had held a meeting on 16.4.2012 with various occupants of the
properties falling in line and thus getting impacted by the road widening
project.  
The brief of this Committee was to negotiate and determine the ex
gratia that should be paid to the property owners.  The Sub-Registrar of the
concerned area has certified the market value as Rs.33,000/- per sq yard for
residential and Rs.60,000/- per sq yard for some of the leading properties
adjoining the important areas enroute.  
During the meeting of the Negotiations
Committee, the property owners have contended that the prevailing market value
of their properties is certainly more than Rs.60,000/- per sq yard and hence,
unless a reasonable compensation amount is paid, they will not agree to handover
the properties.  
After several rounds of negotiations, the Negotiation Committee
has ultimately decided to pay the ex gratia of the land at the rate of
Rs.45,000/- per sq yard.  The structural value of each effected building is
asked to be determined by the Executive Engineer.
          Most significantly, the file has disclosed that the following three
property owners have submitted, during negotiations, in support of their
ownership the relevant legal heir certificate and no objection certificate
relating to their respective properties.  The tabulated statement contained in
the file reads as under:
        

SI.
No.
File
No.
Name of owner &  
Pr.No.
Area 
affected
In
Sq.yrds 
Ownership sale deed 
documents submitted  
Other documents  


Remarks  
        
1
01/ACP/ 
C-10/13 
Smt. Shusheela  
Bai W/o. Late
Sath i Reddy, 8-3-
168/9, Erragadda.
34.22
Regd. Sale Deed No.325/1982,  
Dt: 18-02-1982 in favour of
Susheela Bai 
1. Land Value Certificate
2. Electricity Bill
3. Voter I.D.Card.
The party is in position  since 30 years
                2
02/ACP/ 10/13 
Smt, Shamshu   
Begum W/o. Mohd.   
Hussain, 8-3-
I 68/4/A, Erragadda
24.88
Regd. Sale Deed No.2765/1970,  
Dt:22-09-1970 in favour of
Mohd. Hussain. 
1. Legal Heirs Certificate
2. Electricity Bill
3. PAN Card 
4. Death Certificate in the name of Sri
Mohd. Hussain. 
The party is in position since 42 years
3
03/ACP/ 
C-10/13 
Sri Abdul Rasheed 
Khan S/o.Mohd.  
Abdul Samad Khan;  
8-3-168/1/1,
Erragadda 
69.44
Regd. Sale Deed No.2084/1979,  
Dt:23-04-1979 in favour of Mohd
Abdul Samad Khan   
1. Order of the Hon'ble High Court in W.P.NO.20129/2008
2. Market Value Certificate.
3. Affidavit for NOC from Legal Heirs,
4. Link Document 
5. Property tax receipt for the year 1972
6. Copy of permit
Xerox.
7. E.C. Certificate.
The party is in position since 33 years


It is, therefore, clear that Smt. Shamshu Begum, W/o Mohd. Hussain has 
participated in the negotiations held by the Negotiation Committee.  It was also
determined that the property to the extent of 24.88 sq yards only of the
petitioner is getting impacted.  Since her husband has died, she submitted the
Legal Heirs Certificate, the electricity bill, pan card issued by the Income tax
department and the death certificate of her husband.  In support of the
ownership of the property, she has also produced copy of the registered sale
deed No. 2765/1970 dated 22.9.1970.  The Negotiations Committee applied the 
value of the land at the rate of RS.45,000/- and consequently arrived the land
value for 24.88 sq yards as Rs.11,19,600/-.  Out of this amount, as is required,
Income tax was sought to be deducted in a sum of Rs.1,15,319/- and the net land
value payable to the petitioner has been worked out as Rs.10,04,281/-.
                In this context, it is worth noticing the averment of the petitioner
in paragraph (11) of the affidavit filed in support of the writ petition wherein
it is stated that she has come to know that some of the property owners in the
vicinity have received handsome compensation from the corporation, but whereas
she has not been accorded any such similar treatment.
 From the statement
contained in the file, I could make out that Smt. Shusheela Bai, W/o Late Sathi
Reddy, owner of property bearing No. 8-3-168/9, Erragadda, whose property is
effected to the extent of 34.22 sq yards is accordingly paid a net value of Rs.
13,81,290/-.  Similarly, Sri Abdul Rasheed Khan, owner of the property bearing
No. 8-3-168/1, Erragadda, whose property is effected to the extent of 69.44 sq
yards is offered a net value of Rs. 28,02,946/- by the Municipal Corporation.
Both the aforesaid individuals were also paid compensation at the rate of
Rs.45,000/- per sq yard, which is the same rate that has been sought to be paid
to the petitioner also.  In fact the findings of the Negotiation Committee have
been approved by the Corporation and accordingly the compensation amount have  
been paid to the others.  The file also discloses a cheque bearing No. 009853
drawon on State Bank of Hyderabad, Municipal Complex, Tank Bund Road, Hyderabad    
on 12.2.2013 drawn in a sum of Rs.10,04,281/- payable to the petitioner is also
available.  The cheque is drawn in the name of Smt. Shamshu Begum, W/o Mohd.   
Hussain and it is to the following effect:


The file also contains a representation addressed by the petitioner on
19.11.2012 to the Commissioner of the Corporation.  It was signed by Smt.
Shamshu Begum, W/o Mohd. Hussain and her Mobile No. (9346892239) was also noted      
therein.  The mobile phone number of Ms. Fathima Begum (9908480823) is also  
mentioned therein.  Ms. Fathima Begum is stated to be the only daughter of Late
Mohd. Hussain, the husband of the writ petitioner herein.  The most relevant
para of this representation dated 19.11.2012 reads as under:
"... However, I am ready to handover the entire affected portion/plot if
necessary.  But I may be paid the Ex-gratia against the effected plot to the
total extent i.e., 24.88 sq yards as per the present market value as per the due
procedure.
                In view of the above, I humbly request your goodself to kindly
consider my request for payment of ex gratia to the entire plot as per the
rules, for which I am very much thankful to you Sir."

And the file also contains the copy of the pan card bearing No. BZQPS9328R
issued to the petitioner by the Income tax department.  It is rather unfortunate
that the petitioner has not disclosed any of these facts in the affidavit filed
in support of this writ petition.  The affidavit leaves an unmistakeable
impression that she has never participated in the negotiations with the
Negotiation Committee and that on the other hand a positive assertion is made in
paragraph (8) as under:
"8.  ........... It is submitted that the Corporation has never entered into
negotiations with me or vise-versa."

It is clear, therefore, that the petitioner has approached this court without
disclosing the true and correct facts.
                Section 146 of the Hyderabad Municipal Corporation Act is forming
part of Chapter V of the Act.  It dealt with the procedure of acquisition of
immoveable property by way of an agreement by the HMC.  Section 146, in so many  
terms empowered the Commissioner to acquire any immoveable property on behalf of  
the corporation by agreement on such terms at such rates or prices not exceeding
such maxima as shall be approved by the Standing Committee, either generally for
any class of cases or specially in a particular case.
                Therefore, in the instant case, the Commissioner of the GHMC has
acted strictly in accordance with sub-section (1) of Section 146 of the Act.
The petitioner along with the owners of her neighbouring properties viz.,
Smt.Shusheela Bai and Sri Abdul Rasheed Khan has participated in the
negotiations undertaken by the Negotiation Committee.  They have agreed in
principle for transferring their right as an immoveable property by receiving
the compensation at the rate of Rs.45,000/- per sq yard. Out of 75 sq yards of
the property said to have been owned by the petitioner only 24.88 sq yards are
sought to be acquired by the corporation.  Therefore, the corporation is bound
to pay the compensation at the agreed rate of Rs.45,000/- per sq yard to that
extent.  The corporation cannot be either asked nor can this court direct to pay
for compensation for a larger extent than is being effected by the road widening
project.
                The expression `consent' has been defined in Blacks Law Dictionary
VII Edition as meaning agreement, approval, or permission as to some act or
performance, especially given voluntarily by a competent person.  The Living
Webster Encyclopedia Dictionary defined the verb `consent' as under:
"To agree, to accord, to yield, as to preservation, to comply, to acquiesce or
accede".

                From the above definition, any act or approval or permission of a
person would convey and imply one's consent.  By the very participation of the
writ petitioner in the negotiations undertaken by the Committee constituted for
the said purpose, the petitioner has unmistakably implied and conveyed her free
consent for acquiring a right over a portion of her property for the road
widening project undertaken by the GHMC.
 In such circumstances, it will be hard
to describe the action of the respondents as either coercive or amounting to
undue influence brought to bear upon the writ petitioner.
By her conduct and
representations all through the petitioner has unmistakenly conveyed to the GHMC
her free consent along with her daughter who is also a legal heir of her
deceased husband.
 I therefore have no hesitation whatsoever to reject the
contentions canvassed by Sri Mohd. Zia-ul-Haque that the petitioner has been
coerced and threatened to part with the immoveable property.  I also have no
hesitation to reject the further plea that the respondent corporation has
unilaterally attempted to pay some undisclosed amount representing the
compensation payable to the petitioner.  From the statement contained in the
file which has translated itself in preparation and drawing of a cheque as noted
supra, it is more than clear that the petitioner has also been attempted to be
paid the compensation at the same "handsome rate" offered to her neighbouring
property owners.  Therefore, there is no merit in the plea canvassed by the
petitioner otherwise.
                When once a party gives her consent to the corporation for acquiring
the rights over an immoveable property or portion thereof, the question of
falling back upon the procedure contemplated by Section 147 of the Act would not
arise.  Only when a consent is not given, by a party for acquiring by agreement
an immoveable property belonging to her in favour of  the corporation, the
necessity for invoking the compulsory acquisition of land would arise, but not
otherwise.
In the instant case, the legal heir certificate and the pan card
were obviously made available by the petitioner to the corporation.
Otherwise,
the details in this regard would not have been available with the corporation.
It is therefore a case where the petitioner having given her consent has started
entertaining apprehensions as to whether she would also get paid compensation at
the same rate as her neighbours have been paid by the corporation.  Her
apprehensions are ill founded.  Therefore, I do not see any merit in this writ
petition and it is accordingly dismissed.  But, however, without costs.
______________________________  
NOOTY RAMAMOHANA RAO, J      
14th March,  2013

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.