Municipality demolishing private property without following due process of law liable to pay compensation

The above provisions indicate the power of the Municipality to acquire land or other immovable property for the public purpose under various circumstances. Though those salutary provisions exist, the authorities did not take action and highhandedly resorted to demolition of the properties. The properties of the petitioners were demolished and no legal proceedings were taken for payment of compensation in accordance with law. In almost all the cases, the plea taken by the respondents was that the owners consented for demolition and the action was justified in public interest. The respondents forgot the fact that the petitioners also form part of the public and their right to property is protected, though not as a Fundamental Right, but as a Constitutional Right under Article 300-A of the Constitution of India. That right of the petitioners cannot be violated except in accordance with law. The petitioners are entitled to be paid compensation in accordance with the provisions of the Municipalities Act as applicable to the individual cases.

Andhra High Court

Dr.Tayi Venkata Subba Rao And ... vs The Revenue Divisional Officer, .. THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO  

WRIT PETITION Nos.13603 of 2003

Citation; AIR 2014 AP138

These three writ petitions are disposed of by a common order in view of the common issue involved in them. In these cases, the petitioners challenged the action of the respondents Municipalities in highhandedly demolishing their property without following any provisions of law and without paying any compensation.

W.P.No.13603 of 2003:

2. The petitioner is the owner and occupier of the building bearing door No.7-6-23, situated in Narsapur Municipality and he was paying taxes regularly. A part of the said building is used for his residence and the other part is used for his clinic, since he is a medical practitioner. There was a road to the northern side of the building. The Narsapur Municipality wanted to widen the road and put marking on the houses of either side of the road. When the Narsapur Municipality did not pay any compensation, the neighbours of the petitioners building filed W.P.No.6430 of 2003 before this Court. This Court passed an order on 10.04.2003, after hearing both sides, and the said order was a general order made applicable to all but not confined only to the parties in the writ petition. The petitioner was under the impression that the respondents would follow the said order in respect of his property also. But, on 24.06.2003, respondents, without issuing any notice, highhandedly and arbitrarily entered his premises and demolished a part of his building. He stated that he did not give any consent or agreed to remove the building. In the process of demolition, the furniture and other articles in the clinic of the petitioner were badly damaged. The officials of the Municipality, though are public servants, took law into their hands and demolished the building indiscriminately. Even though markings were made on the houses of both sides of the road, buildings on one side of the road were only demolished in order to help the other side owners. Thus the Municipality acted arbitrarily. In those circumstances, the petitioner challenged the action of the Narsapur Municipality for taking possession of his land to an extent of nearly 60 square yards and sought compensation for the damage caused to the furniture and other articles in the building to the tune of Rs.3,00,000/-. He sent a representation on 27.06.2003 to the respondents by registered post with acknowledgement due and though they have received the same on 28.06.2003 but no reply was given.

3. No counter-affidavit was filed by the respondents even after ten years. This Court, noticing that similar type of cases are coming before the Court frequently, by an order dated 31.03.2011, directed the Chief Secretary to Government to file an affidavit stating whether a circular as directed by this Court in case of Bantharam Bichappa and Others V. District Collector, R.R.District was issued, and if it was issued, whether any action was taken against those officials who have not complied with the same. This Court while passing the said order also noticed a decision in Keshav Prashad V. Commissioner and Special Officer, MCH, Hyderabad and others , wherein a Division Bench of this Court, while dealing with the case of demolition of a construction for the purpose of road widening, observed that in view of the Constitutional mandate under Article 300-A, the right to property cannot be taken away except in accordance with law.

4. Pursuant to the said orders of this Court, the Chief Secretary to Government filed an affidavit on 26.12.2012 stating that the Government issued G.O.Ms.No.243, MA & UD (J1) Dept., dated 28.06.2011, issuing instructions to take action strictly as per the judgments of this Court in cases relating to acquisition of private properties and not to enter into private properties except through due process of law. Those instructions were also issued to Secretariat Departments/Head of Departments/District Collectors directing to issue necessary instructions to all the Subordinate Officers to follow the above directions invariably, failing which, it was stated, that it would be viewed seriously and appropriate disciplinary proceedings would be initiated against the officers violating those instructions. A perusal of the above GO would indicate that the orders of this Court in W.P.No.9780 of 1999, dated 28.03.2000 and W.P.No.13603 of 2003, dated 31.03.2011, were taken into consideration while issuing those instructions.

W.P.No.17769 of 2006:

5. This writ petition was filed challenging the action of the respondents in demolishing two storied front portion of the house property of the petitioner bearing Door No.15/303 in Ward No.15, Subedarpet Road, Nellore, to an extent of 468 square feet without initiating proceedings under the Land Acquisition Act.

6. It is the case of the petitioner that she is the owner of house bearing D.No.15/303 situated in Ward No.15 of Subedarpet Road, Nellore. The said house was gifted to her by her mother at the time of her marriage in the year 1974. Her name was also mutated in the records of the municipality. While so, on 07.12.2002 she was called to the municipal office for negotiation for acquiring their house property for the purpose of road widening. Her husband attended the meeting and they expressed their willingness for acquisition on condition of payment of a reasonable compensation. Subsequently, another meeting was held on 03.08.2003 and they were offered alternate sites. Thereafter it was stated that no Government land was available with the Corporation and the petitioner along with others required to attend the meeting on 17.12.2004. As the husband of the petitioner is staying at a different place, he could not attend the meeting on that day and a notice was affixed on 17.12.2004 at 9.30 p.m. asking the petitioner to show cause why the building should not be removed for the purpose of road widening and they were asked to submit their explanation on or before 18.12.2004. When the petitioner came to know that the respondents were proposing to acquire 468 square feet of land along with two storied building and meagre compensation of Rs.3,64,000/- was fixed, a representation was submitted on 18.12.2004 stating that the proposed compensation of Rs.3,64,000/- was inadequate and the respondent was requested to initiate land acquisition proceedings. Instead of giving reply, the respondent demolished both ground floor and 1st floor on 18.12.2004 by using a proclainer. A word was sent to the husband of the petitioner to attend the office of the 3rd respondent and the husband of the petitioner was handed over a cheque for Rs.3,64,000/-. A legal notice was issued to the 3rd respondent on 24.01.2005. When no reply was issued to the said notice, the petitioner approached this Court by filing W.P. No.15533 of 2005. The said writ petition was disposed of at the admission stage by order dated 19.07.2005 directing the respondents to hear the petitioner personally and consider her representation dated 18.12.2004 and pass appropriate orders thereon. Again another notice was issued on 20.10.2005 and the same was served on the respondents. It was followed by another notice dated 27.10.2005. Ultimately, a final legal notice was issued on 20.01.2006 which was served on the respondents on 23.01.2006. When there was no response, a contempt case was filed in C.C. No.496 of 2006 and a notice was ordered in the said case on 06.06.2006. Upon receipt of the notice, the 3rd respondent issued a telegram on 22.06.2006 asking the petitioner to appear on 24.06.2006 to consider her representation dated 18.12.2004. Accordingly, the husband of the petitioner appeared and submitted his representation on 24.06.2006 along with estimates of damage caused to the building as well as the household articles by licensed surveyor. In those circumstances, when no action was taken on the said representation, the present writ petition was filed.

7. A counter-affidavit was filed on 03.02.2011 stating that the husband of the petitioner received the cheque issued by the 3rd respondents for Rs.3,64,000/- towards compensation without any protest on par with other affected persons and the order of this Court in W.P. No.15533 of 2005 dated 19.07.2005 was received by them on 29.7.2005, but, since the concerned Town Planning Supervisor, who dealt with the subject, was dismissed from service on allegations pertaining to other municipality and did not hand over the connected files in time, action could not be taken. Later on, pursuant to the notice of the respondent, the petitioner attended the office of the Municipal Office on 24.06.2006 for personal hearing. It was intimated to her that compensation was paid with consent and the compensation was received at Rs.7,000/- per square yard on par with other affected persons and that the work of road widening was already completed and the road is in use and the additional compensation cannot be paid at that stage. Thus, the application of the petitioner dated 18.12.2004 was disposed of.

8. The learned counsel for the petitioner submits that there was no consent of the petitioner for demolition of the building without payment of proper compensation and the receipt of amount of Rs.3,64,000/- was not towards full and final settlement of the compensation. Had the petitioner agreed for the said amount, the petitioner would not have pursued the matter in 2005 and 2006 by sending notices and representations.

W.P.No.20105 of 2006:

9. This writ petition was filed by a widow aged about 55 years along with her two sons seeking a direction to the respondents to pay compensation for the land in T.S.Nos.103 and 104 of M.G. Cloth Market Road, Chirala taken possession from them and also for a direction to the respondents to pay the said compensation at the prevailing market rate.

10. It is their case that the husband of the first petitioner and the father of petitioners 2 and 3 was the absolute owner and possessor of an extent of 224 square yards of the property situated in T.S.No.104 along with construction thereon bearing door No.14- 256 of Mahatma Gandhi Cloth Market Road, Chirala. He was also the owner of the land of an extent of 337 square meters situated in T.S.No.103 along with construction thereon bearing door No.14-257 and 258 of M.G.Cloth Market Road, Chirala. The Chirala Municipality passed a resolution on 20.10.1982 which was accepted on 29.05.1984 proposing to widen the road and extension of scheme road (M.G.D.T.P. Scheme Road) and addressed a letter to the District Collector, Prakasam District at Ongole for initiating land acquisition proposals. The District Collector, in turn, addressed a letter to the concerned Revenue Divisional Officer to complete preliminary formalities for acquiring the land. The Revenue Divisional Officer, in turn, directed the concerned Mandal Revenue Officer to inspect the site and submit a report for fixing the market value. At that stage also, the Chirala Municipality requested the District Collector to complete the process of acquisition as early as possible, by letter dated 11.06.1986. When the same was pending, the Chirala Municipality demolished the compound wall and a portion of the construction lying in the above door numbers in the year 1984. Though a portion of the property was demolished in the year 1984, the possession of the property was taken only on 15.04.1987 and neither land acquisition proceedings were initiated nor compensation was paid to the petitioner.

11. In the meanwhile, the husband of the first petitioner and father of petitioners 2 and 3 died on 15.08.1989 and the case was prosecuted by the petitioners. One Councillor of the Chirala Municipality could take the compensation along with interest in respect of the portion of his property taken for the purpose of road widening on 13.09.1989. On the representation of the petitioners, the Director of Municipal Administration addressed a letter on 05.01.1990 asking the respondents as to how the amount of compensation was paid to the Councillor exclusively ignoring the claim of others. The petitioners submitted number of representations including one on 25.07.2006 which was received by the respondents on 26.07.2006. When no action was taken for two decades, the petitioner filed the present writ petition.

12. A counter-affidavit was filed by the Commissioner of Chirala Municipality admitting the proposal to acquire the properties of land owners for road widening of a scheme road in T.S.Nos.103 and 104 of Chirala. The Chirala Municipality made correspondence with the revenue officials for acquisition of land on negotiations in respect of seven properties. The property of the petitioners was also affected to 337 and 491 respectively for widening of proposed 30 feet wide scheme road. The allegation that they demolished the compound wall and a portion of construction lying in the above property was denied. It was stated that they negotiated with the land owners for leaving the proposed portion to be widened voluntarily for public convenience and accordingly some of the land owners have accepted and removed a portion of their properties. The people of Chirala Municipality are utilising the same road since 1984 to till date. Some of the land owners did not claim any compensation and they left the properties excluded for widening purpose and some sold them to third parties also. It was also admitted that they have paid compensation to the Councillor on 30.09.1989. It was also stated that at that time none of the affected parties demanded payment of compensation, but they voluntarily removed the compound walls and allowed traffic for 17 years. But, surprisingly after 17 years, the representation dated 25.07.2006 was received from the petitioners for payment of compensation, and by not giving reasonable opportunity, the present writ petition was filed. The petitioners claim was barred by limitation and they cannot claim any right of compensation.

13. In all the above three cases, the properties of the petitioners were demolished for the purpose of road widening highhandedly without issuing proper notice or giving sufficient time to the petitioners to take steps for voluntarily removing the structures while offering the amount of compensation. The respondents consistently took a stand that the petitioners consented for demolition of their properties for the purpose of road widening and they kept quiet, but started demanding payment of compensation at a later point of time. But the record belies their stand. The petitioners have been vigorously pursuing their cases and never accepted for demolition of their properties without receiving any compensation. The law also speaks of payment of compensation. It is well settled that the petitioners cannot be deprived of their right to property without due process of law.

14. As stated supra, this Court in W.P.No.6430 of 2003, dated 10.04.2003, examined the issue and passed the following order: In P.Lakshmana Rao V. Executive Officer [2005 (5) ALT 246 (DB)], a Division Bench of this Court issued directions to be followed by Municipal authorities, Panchayat authorities and Revenue authorities for acquiring the land for public purpose. Having regard to the decision of the Division Bench, I have considered similar issue in a number of writ petitions and culled out various principles of law to be followed by the Government while acquiring/utilizing the private land for road widening. The principles were reiterated by my learned brother, Sri Justice B.Sudershan Reddy in M.Madhavi Latha V. Rajendranagar Municipality [2001 (2) ALT 482]. The principles laid down by the Division Bench are as follows:

(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 objections, 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 forthwith.

(4) If the demolition is in respect of local bodies Government property, the question of damages does not arise. In such 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 occupants on the basis of the assessment to be made by the Engineer of R & B Department and on such assessment of damages, the concerned authorities shall take appropriate steps to disburse the amount quantified forthwith.

(6) If there is any claim for grant/assessment of the property, the concerned authorities shall consider the same in accordance with law taking into consideration the eligibility and the entitlement of occupants, after making enquiry and till such claim is decided, there shall be status quo obtaining as on today regarding the structures.

The writ petition is disposed of in terms of the above directions. The respondents are further directed to maintain status-quo obtaining as on today till the claim is decided. No costs.

15. This Court in way back in 2000 in Keshav Prashads case (2 supra), considered the issue as to whether the constructions raised by the owners could have been demolished for the purpose of widening of the road without their consent. In the said case, when the owner approached this Court seeking compensation for the demolished portion of the building, the Municipal Corporation of Hyderabad put forward a plea of consent of the owner before demolishing the property and when the owner denied such consent before this Court, this Court accepted the plea of the owner and held that the action of the respondent Municipal Corporation was wholly illegal and held that having regard to the provisions of Article 300(A) of the Constitution of India, such a constitutional right could not have been taken away except in accordance with law i.e., by taking recourse to the statutory provisions of acquisition by the State, by invoking the Doctrine of Eminent Domain or by purchasing the land upon holding the negotiations thereon.

16. That was a case that arose out of the illegal action taken by the Municipal Corporation of Hyderabad. But in the case of highhanded and illegal action of taking possession of the land by the Irrigation Authorities in Bantharam Bichappas case(1 supra), this Court held that every citizen in this country has a right to posses property and the same cannot be deprived ordinarily except in the interests of the State, subject to the limitation prescribed by law. It was also held that the land was taken, was put to use and no notification to acquire the land was issued. In that case also, the officers were issued a notice and were given an opportunity to file their reply. Though they have not justified their action, they tried to explain by taking recourse to public interest and put forward the usual plea of taking possession with the consent of the owners. No such consent was produced before the Court. It was held that even if it was accepted that the owners had given oral consent for handing over the possession to the officers concerned, the officers were not within their rights to take over the possession because those officers were acting as the Agents of the Government and the Government could enter into a private property only after assumption of jurisdiction which could be assumed only after issuance of notification under Section 4(1) of the Land Acquisition Act. It was also held that no officer of the State Government is authorised to enter upon or take possession of the land belonging to private individuals unless and until a notification under Section 4(1) is published. However, during the pendency of the above case, notification was issued, 80% of compensation was paid to the owners and an award was also passed. This Court, noticing the said facts, held as follows:

In order to avoid such incidents in future, I direct that a copy of this order be sent to the Chief Secretary to the Government of Andhra Pradesh and he be requested to issue a circular to all the Government Officials directing them not to enter into private properties except through due process of law which would mean, after assuming the jurisdiction to acquire the land or property in accordance with the provisions of Land Acquisition Act.

17. Even though that decision was rendered in the year 2000, only another decision in the year 2011 prompted the Government to issue G.O.Ms.No.243, MA & UD (J1) Dept., dated 28.06.2011, but the authorities continued to ignore the law and the orders of the Government while acquiring the private properties for the purpose road widening. The action of the authorities is clearly arbitrary and violative of Article 300(A) of the Constitution of India.

18. Section 42 of the Andhra Pradesh Municipalities Act, 1965 (for short, the Municipalities Act) deals with the procedure for acquisition of immovable property under the Land Acquisition Act, 1894 and it reads as follows:

42. Procedure for acquisition of immovable property under the Land Acquisition Act, 1894:- (1) Any immovable property which any municipal authority authorised 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.

19. Section 172 of the Municipalities Act enables the Municipal Council to take up certain activities and it includes acquisition of land for the purpose of widening the road and it reads as follows:

172. Powers of municipal authorities:- (1) The council may-

(a)     lay out and make new public streets;
(b)     construct bridges and sub-ways;
(c)     turn, divert or with the special sanction of the Government

permanently close any public street or part thereof;

(d) Widen, open, extend or otherwise improve any public street.

(2) The owners and occupiers of any land or buildings which are acquired for, or affected by any such purposes shall be paid such reasonable compensation as may be determined by the executive committee.

20. Further Section 174 of the Municipalities Act also enables the Municipal Council to acquire any land and buildings for improvement of streets and the relevant portion of it reads as follows:

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) .

(3) .

(4) .

(5) .

The above provisions indicate the power of the Municipality to acquire land or other immovable property for the public purpose under various circumstances. Though those salutary provisions exist, the authorities did not take action and highhandedly resorted to demolition of the properties. The properties of the petitioners were demolished and no legal proceedings were taken for payment of compensation in accordance with law. In almost all the cases, the plea taken by the respondents was that the owners consented for demolition and the action was justified in public interest. The respondents forgot the fact that the petitioners also form part of the public and their right to property is protected, though not as a Fundamental Right, but as a Constitutional Right under Article 300-A of the Constitution of India. That right of the petitioners cannot be violated except in accordance with law. The petitioners are entitled to be paid compensation in accordance with the provisions of the Municipalities Act as applicable to the individual cases. Though this Court was considering the identical issue time and again on number of occasions, the respondents have been following the law in breach only forcing the affected parties to approach this Court repeatedly.

21. In view of the above facts, these writ petitions have to be allowed and consequently they are allowed directing the respondents to initiate action afresh under appropriate provisions of Andhra Pradesh Municipalities Act, 1965 and pay compensation to the petitioners to the extent of their properties affected and the said exercise shall be completed within a period of six months from the date of receipt of a copy of this order. The amount paid to the petitioner in W.P.No.17769 of 2006 shall be deducted from the compensation amount determined under the provisions of Andhra Pradesh Municipalities Act, 1965. The respective Municipalities shall pay an amount of Rs.10,000/- each to the petitioners in the Writ Petitions towards damages for violating the Constitutional rights of the petitioners. Miscellaneous Petitions pending, if any in these writ petitions, shall stand closed.

______________________________ A.RAMALINGESWARA RAO, J Date:10.02.2014

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