WP/28220/1995 of K.MARY MANOHARAM Vs SECY. SCHOOL EDUCATION DEPT. HYD.AND ORS on 11 December 2000

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction)

WEDNESDAY, THE THIRTY FIRST DAY OF JANUARYTWO THOUSAND AND SEVEN

PRESENT

THE HON'BLE MR JUSTICE J.CHELAMESWAR

WRIT PETITION Nos.27827 OF 1995 AND 28220 of 1996

WRIT PETITION No.27827 OF 1995

Between:Syed AfzalThe Commissioner,MCH, Near Tank Bund,Hyderabad and another.

AND

..... PETITIONER

....RESPONDENTS

WRIT PETITION No.28220 OF 1996

Syed AfzalThe Commissioner,MCH, Near Tank Bund,Hyderabad and others.

AND

..... PETITIONER

....RESPONDENTS

THE HON'BLE MR JUSTICEJ.CHELAMESWAR

W.P.Nos.27827 OF 1995 AND 28220 of 1996

C O M M O NO R D E R

Writ Petition.No.27827 of 1995 is filed with a prayer as follows:

“… Honourable Court may be pleased to issue a Writ ofMandamus declaring the Notification dated 2-8-1995published in A.P. Gazette No.336, Part-I Extraordinary atpages 2 and 3 as void and declaring as null and void andthe further notification dated 23-11-95 published in A.P.Gazette No.41 at page 1040 issued by the Respondentsacquiring my land to an extent of 418 Sq. Yards Ward No.7,Block No.I situated at Srinivasanagar Colony East,Ameerpet, Hyderabad and bounded by NORTH: 40’ FeetWide Road from Saradhi Studios to Balkampet; SOUTH:Building on Plot No.11 on of East Srinivas Nagar Colony;EAST: Open filed and fancing; West: Building of Md.Afzal;or to issue any other Writ or Direction as may be deemedappropriate and pass such other order or orders as aredeemed fit and proper.

Writ Petition.No.28220 of 1996 is filed with a prayer as follows:

“… Honourable Court may be pleased to issue a Writ ofMandamus declaring the A.P.Slum Improvement(Acquisition of Land) Act of 1956 (A.P. Act 33 of 1956) andthe Notification dated 2-8-1995 published in A.P. GazetteNo.336, Part-I Extraordinary at pages 2 and 3 as void anddeclaring as null and void and the further Notificationdated 23-11-1995 published in A.P. Gazette No.41, at page1040 issued by the Respondents acquiring petitioner’sland to an extent of 418 Sq. yards in Ward No.17, BlockNo.I situated at Srinivasanagar Colony East, Ameerpet,Hyderabad and bounded by :

North : 40’ wide road from Saradhi Studios to Balkampet.South : Building on Plot No.11 of East Srinivasa Nagar Colony.East : Open field and fencing.West : Building of Md.Afzal.

and to set aside the Patta Certificates issued by the 4[th]Respondent to Respondents 6 to 36 or to issue any otherwrit or direction as may be deemed appropriate and passsuch other order or orders as this Honourable Court maydeem fit and proper in the circumstances of the case.”

The petitioner is same in both the writ petitions. He claims to be theowner of an extent of 1,000 square metres of land in Sy.Nos.25, 26 and 30situated in Ameerpet Village, Hyderabad, having derived the title from oneSmt.Rahmat Khatoon. The fact that the abovementioned Rahmat Khatoon isthe owner of the property is admitted by the first respondent in para 4 of thecounter-affidavit dated 9[th] December, 1997, which was filed in W.P.No.28220 of1996. The respondents issued a Notification under Section 3(1) of A.P. SlumImprovement (Acquisition of Land) Act, 1956 (for short ‘the Act’) declaring thatan extent of 418 square yards to be a slum, which is a part of theabovementioned property of the petitioner. The said notification was publishedin the A.P.Gazette, Part-I, Extraordinary, dated 2[nd]August, 1995. Subsequently, a notification under Section 3(2) of the Act came to be publishedin the Gazette on 23[rd] November, 1995. Challenging the said two notifications,Writ Petition No.27827 of 1995 came to be filed. From the record, it appearsthat while admitting Writ Petition No.27827 of 1995, this Court granted interimstay in WPMP No.34348 of 1995 on 11.12.1995, which reads as follows:

“Pending further orders in this petition, there shall be stayof all further proceedings including allotment of thepetitioner’s land admeasuring 418 Sq. Yards in Ward No.7,Block No.I situated at Srinivasanagar Colony (East),Ameerpet, Hyderabad, pursuant to the notification dated 2-8-95 published in A.P. Gazette Part-I Extra-ordinary No.336at pages 2 and 3 and also notification dt.23-11-95published in A.P.Gazette 41 at page 1040”

Writ Petition No.28220 of 1996 is filed in substance challenging theissuance of pattas to Respondent Nos.6 to 36 herein in the abovementionedextent of 418 square yards acquired pursuant to the notifications referred to above. The admitted fact is that the abovementioned respondents have beenresiding in that piece of land, which is sought to be acquired. It is the assertionof the petitioner that the respondents are the licencees of the petitioner. All therespondents are served by virtue of substituted service pursuant to an orderdated 14.10.2004 and proof of substituted service was recorded by this Courton 30.11.2004. Inspite of such service, the respondents 6 to 36 never chose toappear and contest the matter.

Be that as it may, learned counsel for the petitioner submitted that thenotifications issued under Sections 3(1) and 3(2) of the Act are wholly illegal forthe reason of non-application of mind. The notifications do not specify thereason for which the abovementioned extent of property of the petitioner issought to be acquired.

Section 3(1) of Act authorizes the Government to declare any area to beslum, if the Government is satisfied that such an area is or may be a source ofdanger to the public health, safety or convenience of such neighbourhood byreason of the area being low lying or insanitary or squalid. Obviously beforetaking a decision to notify any area to be a slum under Section 3(1) of the Act,the Government is required to necessarily examine and place on record thereasons for notifying the area. The Government may come to the conclusionthat the area is a source of danger to the public health or source of danger tothe safety for the neighbourhood or convenience of neighbourhood. Such aconclusion must be based on the existence of one of the factors like the areabeing a low-lying one or insanitary or squalid. Both the notifications underSections 3(1) and 3(2) of the Act simply repeated the language of the Sectionwithout any specific conclusion as to the particular clause of Section 3 underwhich the area is required to be declared as slum. Therefore, in my opinionthere is a total non-application of mind in notifying the area in dispute as a slumand deciding to acquire the property under Section 3(2) of the Act. Apart fromthat, under Section 4 of the Act the purpose of such acquisition can only betwo fold; that the Government holds such property acquired under its controland undertakes to clear or improve the slum area or in the alternative, theGovernment may transfer such land to the municipal council concerned for thepurpose of undertaking either the clearance or improvement of the said slum.

Section 4(1) of the Act reads as follows:

4. Transfer of land in a slum area by Government

(1) Where any land in a slum area has been acquired underthis Act, the Government may either hold the land undertheir own control and management and undertake theclearance or improvement of the slum area or transfer theland to the municipal council concerned for the purpose ofundertaking the clearance or improvement of the slumarea and in the latter case, the land shall vest in suchmunicipal council.

From the facts narrated above, obviously the Government neverintended to clear the slum as admittedly after the acquisition of the property indispute, the Government decided to grant pattas in favour of the RespondentNos.6 to 36 herein. There is no whisper in the counter-affidavits filed by anyone of the officials of the respondents as to the proposed steps towardsimprovement of the conditions in the slum. On the other hand, the counter-affidavits filed by respondents indicated that the respondents believed that theland in dispute is excess land held by the petitioner under the provisions of theUrban Land (Ceiling and Regulation) Act, 1976 and that the petitioner has notestablished his title over the disputed extent of property.

In view of the admission of the respondents that Smt.Rahmat Khatoon isthe original owner of the property in dispute, it does not lie in the mouth of therespondent Nos.1 to 5 to dispute the title of the petitioner. The otherrespondents never disputed the possession of the petitioner in the counter-affidavits filed by them. In such case, the dispute regarding the title of thepetitioner’s property, if any, can only be raised by the abovementionedSmt.Rahmat Khatoon. The petitioner, who is a person in possession of theproperty, is certainly a person interested within the meaning of the saidexpression in the proviso to Section 3-A.

It appears from the pleadings and the material available on record that therespondents acquired the property of the petitioner for the benefit ofRespondent Nos.6 to 36, which exercise the State is legitimately entitled toundertake, if such exercise is done in accordance with law. The A.P. Slum Improvement (Acquisition of Land) Act, 1956, in my view, is not the law, whichauthorises such exercise of power for the benefit of Respondent Nos.6 to 36. The purpose of the Act as can be culled out from the scheme of the Act iswholly different. It is essentially meant for clearance of the slums. If theGovernment is satisfied on the rationale application of mind that the existenceof such a slum is a source of danger to the public health or safety or source ofinconvenience to neighbourhood, the Act does authorize the Government notto clear the slum even after acquisition, provided the Government undertakesto improve the area by taking appropriate remedial measures in the context ofprimary conclusion reached by the State while deciding to notify it as a slum.Appropriate remedial measures would depend upon the primary conclusionwhether the existence of sum is a source of danger to the public health, safetyor convenience of its neighbourhood. Unless the reason for notification isclearly established, it is not possible for the Government to take any remedialmeasure for improvement of the slum and remove the objectionable clause,which prompted the acquisition of the slum.

As already recorded, both the notifications under Sections 3(1) and (2) ofthe Act are omnibus in their proclamation. They do not specify what exactlythe factors which prompted the State to take a decision to notify an area andacquire it nor does the counter-affidavits specify what are the remedialmeasures, which the State proposed to take to improve the slum. Looked fromany angle, this is a case where there is a total non-application of mind on thepart of the Respondent Nos.1 to 5 herein and it is only a colourable exercise ofthe power under the Act for the benefit of Respondent Nos.6 to 36.

I hasten to add here that the State in its proclaimed zeal for providingthe necessary amenities to down trodden personssuch as Respondent Nos.6 to36 herein has the necessary authority of law to make appropriate provision forgranting house sites for the respondents even by way of acquiring the privateproperty, but such acquisition must necessarily be in accordance with law andthe procedure established by law.

In view of the facts recorded above, I am of the opinion that there is aclear violation of the procedure established by law in acquiring the property ofthe petitioner, and therefore, the writ petitions are accordingly allowed as prayed for. There shall be no order as to costs.

However, it is made clear that the result of these writ petitions does notin any way decide the title of the property, nor the right of the RespondentNos.6 to 36 herein in the disputed piece of land. The question whetherRespondent Nos.6 to 36 are only licencees of the petitioner or they have anyother legal claim over the property in dispute, is a matter which is required tobe decided by an appropriate Forum as and when either of the parties decide toapproach such Forum.

-----------------------------------JUSTICE J.CHELAMESWAR

31[st] JANUARY, 2007PGS

THE HON'BLE MR JUSTICEJ.CHELAMESWAR

W.P.Nos.27827 of 1995 & 28220 of 1996

31[st] JANUARY, 2007