Dismissed

The Commissioner and Spl. Officer v. C. Sreeramulu(died) per Lr Rr 2 to 4

Telangana HC14 Jun 2013CCCA/43/2006

Case brief

AI extract

What is this about?

An amendment appeal filed by the Commissioner against a suit decree awarding compensation to a plaintiff whose land was taken for a road over bridge. The court held that the administration could not force an undertaking waiving compensation and ordered the payment of the claimed amount.

What did the court decide?

Contempt application is dismissed; no order as to costs.

The Commissioner and Spl. Officer Vs C. Sreeramulu(died)… — Land Acquisition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY and

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THE HON’BLE SRI JUSTICE S.V.BHATT

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C.C.C.A..No.43 of 2006

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% 14.06.2013 CMA Nos.46 & 166 of 2012 Between: The Commissioner & Special Officer, MCH, Hyderabad.

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.... APPELLANT And C.Sreeramulu and others.

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...RESPONDENTS

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! COUNSEL FOR THE APPELLANT :- Smt. A.Deepthi COUNSEL FOR THE RESPONDENTS:- Sri P.Satyarajababu

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< Gist: > Head Note: ? CITATIONS:

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THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE S.V. BHATT

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C.C.C.A.No.43 of 2006

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JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)

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Defendants 1 and 2 in O.S.No.403 of 1997 on the file of the III Senior Civil Judge, City Civil Court, Secunderabad are the appellants. The deceased 1^st respondent (sole plaintiff) filed the suit claiming a sum of Rs.6,24,277/- as compensation for the land admeasuring 162.15 square yards, situated at Lalapet, Secunderabad with the boundaries mentioned therein and for a sum of Rs.45,000/- towards damages. A further prayer was made to declare that the document, dated 26.02.1996, insofar as it recorded the alleged undertaking of the 1^st respondent, as unenforceable and nonest in law.

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For the sake of convenience, the parties are referred to as arrayed in the suit.

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The plaintiff is the owner of the premises bearing No.12-14-23, Lalapet, Secunderabad. He submitted an application way back in the year 1987 for permission, to construct a house. After prolonged correspondence, the defendants rejected the application through order, dated 01.02.1986, by citing certain reasons. By that time, a proposal was existing for construction of a road over bridge in the area connecting Moulali and Tarnaka. The site of the plaintiff abuts the proposed road over bridge.

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On submission of an undertaking to the effect that the plaintiff would surrender about 162 square yards, free of cost, permission was accorded on 26.02.1996. The plaintiff filed the suit stating inter alia that the defendants have not acquired the land that is needed for construction of road over bridge and no benefit of additional Floor Space Index (F.S.I.) was extended to him. He contends that having rejected the application on 01.02.1986, on the ground that the sub-division was not properly mentioned, the defendants started insisting on submission of an undertaking to the effect that he would not claim compensation for the affected land. He submits that the undertaking was extracted almost under coercion by denying permission on totally irrelevant grounds and soon after the permission was granted by incorporating a condition, he made a protest on the next day itself. It was his further case that many persons, whose properties were affected in the construction of road over bride, were extended the benefit of F.S.I. and the same was denied to him.

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The defendants filed written statement opposing the suit. According to them, once the plaintiff has given an undertaking to surrender the land, without claiming any compensation, he is not entitled to file the suit claming compensation. They pleaded ignorance about the extension of benefit of additional F.S.I. to the other affected parties. The grounds of estoppel etc., were pleaded.

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Through its judgment, dated 15.11.2005, the trial Court decreed the suit. Hence, this appeal.

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Smt.A.Deepthi, learned Standing Counsel for the defendants, submits that in the permission, marked as Ex.A2, a specific condition to the effect that the plaintiff shall surrender the affected land, was incorporated and once that was done, he is not entitled to claim compensation. She further submits that in case the plaintiff wanted the benefit of additional F.S.I., he ought to have made a request, but was not entitled to ignore the specific condition. She submits that the trial Court committed error not only in awarding compensation, but also determining the amount straightaway.

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Sri P.Satyarajababu, learned counsel for the plaintiff, on the other hand, submits that as early as on 01.02.1996, the permission was denied only on the ground that the subdivision was not properly mentioned and within weeks thereafter, permission was accorded by extracting an undertaking which is not referable to any law. He submits that in case the widening was as per the master plan, things would have been different. According to him, the land of the plaintiff was taken for road over bridge, and that in respect of similar properties, the defendants have undertaken negotiations with the owners and extended the benefits of additional F.S.I. etc., whereas, in the case of the plaintiff, no such benefit was extended. He submits that the cost of the land was furnished as per the value maintained in the Sub-Registrar’s Office and neither there is any contradiction in the written statement nor there is any evidence to the contrary.

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The defendants do not dispute the ownership of the property in question with the plaintiff and the fact that it has been utilised for construction of road over bridge. The plaintiff prayed for a decree of compensation with necessary declaration as to the condition that was incorporated in Ex.A2. The trial Court framed the following issues for its consideration:

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1. Whether the undertaking, dated 26.02.1996, is valid and unenforceable?

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2. Whether the plaintiff is entitled to the suit claim?

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3. Whether the suit is bad for want of statutory notice under Section 685 of the Hyderabad Municipal Corporation Act?

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The plaintiff deposed as P.W.1 and Exs.A1 to A8 were filed. On behalf of the defendants, D.W.1 was examined and Exs.B1 and B2 were filed. As observed earlier, the suit was decreed.

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The points that arise for consideration before us are:

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(a) whether the defendants were entitled to extract an undertaking to the effect that the plaintiff shall not claim any consideration for the affected land or to incorporate the corresponding condition in Ex.A2?

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(b) whether the plaintiff was entitled to be paid compensation for the land taken over from him? and

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(c) whether the rate at which the compensation was granted, is excessive?

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The grant of permission for construction within the limits of Municipal Corporation of Hyderabad is governed by the Hyderabad Municipal Corporation Act and the Rules made thereunder. The plaintiff submitted an application seeking permission to construct, way back in the year 1987. Almost for a decade, unnecessary correspondence went on and it was only on 01.02.1996, that the defendants rejected the application through Ex.A15. The only ground mentioned therein is that sub-division of the property was not properly shown. In a way, this reflects the functioning of the Corporation. To reject an application on such slender ground, they took about one decade.

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By the time the plan was rejected in 1996, there existed a proposal for construction of a road over bridge, in the area. Whenever such projects or works are undertaken, the land that is needed for it is required to be acquired by invoking the provisions of the Land Acquisition Act or of the Hyderabad Municipal Corporation Act. There are also instances where the affected parties are extended the additional benefit of permission to construct extra space, as a result of negotiations. Even this is governed by certain regulations and norms. The plaintiff is desperate by that time to make construction, having lost precious one decade for no fault of him. He was virtually forced to submit an undertaking to the effect that he would not claim compensation for the area affected by the flyover, in his negotiations to get the sanction. The undertaking, dated 26.02.1996, is marked as Ex.B1 and the plan was sanctioned on 28.06.1996.This only shows the coercive and extortion tactics resorted to by the Corporation. On the next day itself, the plaintiff recorded his protest, through Ex.A2 stating that any land taken over from him must be in accordance with rules.

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In the plaint, a detailed account is furnished as to the extension of the extra benefits to the affected persons. The only reply given in the written statement is that it is for the plaintiff to substantiate the same. The defendants did not refer to any provision of law which enables them to take over any property from a citizen, free of cost. Therefore, the first point is answered in favour of the plaintiff.

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The second point is in a way connected with the first one. If the condition incorporated in Ex.A2 cannot be supported under any law, it naturally follows the defendants shall be under obligation to pay the compensation for the land taken over from the plaintiff. Not only the Land Acquisition Act makes it obligatory, but there are provisions, namely Sections 145 to 147 of the Hyderabad Municipal Corporation Act to the same effect. The doctrine of eminent domain, no bout, authorises the State to take over the property of a citizen if it is needed for a public purpose. That, however, is only subject

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to payment of compensation. It cannot be extended to the level of taking any property without payment of compensation. Hence, the second point is answered in favour of the plaintiff.

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Coming to the third point, in clear terms, the plaintiff claimed compensation at the rate of Rs.3,850/- per square yard. He paid Court fee on that amount. In his evidence, he indicated the basis for his plea. Not a word was suggested in the cross-examination to him to contradict the same, much less any oral or documentary evidence was adduced by the defendants. The trial Court was left with no alternative except to accept the figures furnished by the plaintiff. Even before this Court, the learned Standing Counsel for the defendants has not at all pointed out as to how the value furnished by the plaintiff is unacceptable. The process of determination of market value cannot be undertaken at this stage, under the Land Acquisition Act, particularly when no proceedings have been initiated thereunder. Hence, we do not find any merit in the appeal.

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Hence, the appeal is dismissed. There shall be no order as to costs.

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The miscellaneous applications filed in this appeal shall also stand disposed of.

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L. NARASIMHA REDDY,J

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S.V. BHATT,J

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Dt:14.06.2013

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Note: L.R. copy to be marked. kdl

The Commissioner and Spl. Officer v. C. Sreeramulu(died) per Lr Rr 2 to 4

Case brief

What is this about?

What did the court decide?

The Commissioner and Spl. Officer v. C. Sreeramulu(died) per Lr Rr 2 to 4

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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