Srichand Rohra vs Commissioner, Municipal Corporation of Hyderabad and Others

In all these writ petitions the petitioners have residences at Subhash Road, Secunderabad. They are either owners or tenants. The Municipal Corporation of Hyderabad (MCH), it is alleged proposed to widen the said road and therefore sought to obtain letters of consent from the petitioners for occupying the land. The petitioners therefore approached this Court seeking a declaration that such action of the MCH without taking recourse to Sections 146 and 147 of the Hyderabad Municipal Corporation Act, 1955 (the HMC Act'' for brevity) is illegal and unconstitutional.

The tenants also submit that even where the landlords have given consent for acquiring their lands for road widening, in the absence of such consent from the tenants, MCH cannot forcibly demolish or evict the tenants acting on the letters of consent issued by the landlords. Reliance is placed on the judgment of Full Bench of this Court in Ushodaya Publications, Hyderabad Vs. Commissioner, Municipal Corporation of Hyderabad and Another, On 30-11-2001 this Court ordered Notice before admission and further directing the MCH not to demolish the property of the petitioners.

The learned Standing Counsel for MCH Ms. Jyothi Kiran submits that MCH never took any coercive steps to compel the landlords or the tenants to give consent letters. The letters were required to expedite the process of road widening if the owners are willing. She also submits that if owners do not give their willingness to part with their land the MCH has to acquire the land either under the Land Acquisition Act, 1894 or under Sections 146 and 147 of the HMC Act. The learned Counsel for the petitioners placed before this Court a letter addressed to the father of the petitioner in WP No.24893 of 2001 which reads as under:

It is to inform you that the MCH has taken up Road Widening proposal of the Subhasli Road starting from Bata to Ramgopalpet Police Station and proposed to widen this road to 50''-00" as per ZDP so as to ensure free flow of traffic.

In this regard your co-operation is required to achieve the above proposed road width which is in the interest of public at large.

In the said widening proposal your premises bearing No.4-2-357 is getting effected to a depth of 5''3'' to 5''3'' admeasuring 7.29 Syds. A plan indicating the effected portion together with consent letter proforma are enclosed and request you to exercise your consent to handover advance possession ofthe effected area in road widening to MCH in the larger interest of public.

The MCH will, however, pay compensation of the effected structures as per rules and extend all benefits as per rules.

A reading of the said letter does not in any way indicate that there is any truth in the submission made by the learned Counsel for the petitioners. What was sought to by issuing such letter is, a request was made to the landlords to give consent to handover advanced possession in the larger public interest. It was clearly informed that MCH will pay compensation to the effected structures as per the Rules and extend all benefits as per the Rules. If landlord desires to avail the benefits to be extended by the MCH on his own volition the landlord may give consent. If the landlord is not willing the letter nowhere compels one to part with the land for widening the road in which event as rightly contended by the learned Standing Counsel the MCH will have to resort to the provisions of the Land Acquisition Act.

In similar circumstances, WP No. 21341 of 2000 dated 7-11-2000 and WP No. 22216 of 2000 dated 16-11-2000 were disposed of by me with direction to the respondent-Corporation to take necessary action as per the Land Acquisition Act or the HMC Act, if the landlords are not willing to give their consent. 1 also directed that if the consent is already given by the landlord/owner, the MCH shall be at liberty to proceed with further action for widening the road. In view of the judgment of the Full Bench in M/s. Ushodaya Publications case (supra) the MCH has to obtain consent even from the tenants without which the road widening work cannot be taken up unless MCH takes action for acquisition of land as per law. Needless to mention that unless proper procedure is contemplated and initiated the MCH, in law, is not entitled to either forcibly take possession or demolish the structures in the area.

A Division Bench of this Court in WP No. 21198 of 1997 and batch, by order dated 3-2-1998, issued directions to be followed by Municipal authorities. Panchayat authorities and Revenue authorities for acquiring the land for road widening and/or for public purpose. Inter alia the following directions were issued by the Division Bench.

(1) Where a property is required for public purpose viz., widening of roads or for any other purpose, the authorities straightaway cannot take law into their hands and jump into the premises, dispossess or evict the occupants or demolish the property.

(2) If the authorities concerned want to take action for eviction/dispossession of the occupants or demolition, they shall issue 60 days prior notice notifying as to the nature of the property, the property to whom it belongs and the proposed action calling for explanation/objections if any from the occupants. On receipt of such objeclions, if there is any objection as to the ownership of the property, the authorities should determine the extent of encroachment or unauthorised occupation and also determine whether the property in question belongs to Government/any other local self Government or authority or the occupants and pass appropriate orders within three months from the date of receipt of the objections, after affording an opportunity of being heard to the occupants.

(3) In case where demolition of private property has already been made, the authorities shall determine the damages on the basis of the assessment to be made by the Engineer of the Roads and Buildings Department and disburse the amount of damages quantified forwith.

(4) If the demolition is in respect of local bodies Government property, the question of damages does not arise. In such an event, the occupant shall be entitled to remove the material used for the construction.

(5) In case of demolition of private property, the authorities concerned shall determine the loss caused to the occupations on the basis of the assessment to be made by the Engineer of R and B Department and on such assessment of damages, the concerned authorities shall take appropriate steps to disburse the amount quantified forthwith.

All the writ petitions are also disposed of with the above observations and directions. No costs.