acquisition of land by municipal authorities, for road widening,
on consent of landlord of a shop any notice is necessary to be
given to the tenant in the shop?. The Full Bench in
Ushodaya Publications (supra) considered almost similar
question and observed that a Municipal Corporation being
statutory authority has right to take possession of the land but
they must exercise their right within four corners of the
statute. It was further observed that it is one thing to say
that the provisions of the MCH Act for acquiring land are not
required to be taken recourse to as the owner thereof has
given consent but the same would not mean that the lessees
consent need not be taken. There cannot be any doubt
whatsoever that the consent granted by the lessor/owner
would not be binding upon a lessee and in that view of the
matter the Corporation has no right to take forcible possession
of the shop/land, such as in the present case, relying on the
purported consent obtained by it from the lessor, without
taking recourse to the provisions of the Land Acquisition Act,
thereby depriving the lessee of his valuable right. Thus,
according to the Full Bench, a notice to the lessee/tenant in
the shop is necessary in case of acquisition of land by the
municipal authorities for road widening on consent of landlord
of a shop.
HYDERABAD HIGH COURT
Order Dated;27-11-2015
Raisunna Begum & others Appellants/Petitioners
Vs
Premsukhai Jain & others Respondents
THE HONBLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE,
THE HONBLE SRI JUSTICE M.S.RAMACHANDRA RAO,
THE HONBLE SRI JUSTICE S.V.BHATT,
THE HONBLE SRI JUSTICE S.RAVI KUMAR
AND
THE HONBLE MRS. JUSTICE ANIS
W.A.No.453 of 2005, W.P.Nos.5135 of 2001 and 10106 of 2002
Citation;AIR 2016 Hyderabad 100
The question referred to this Bench is whether in case of
acquisition of land by municipal authorities, for road widening,
on consent of the landlord of a shop any notice is necessary to
be given to the tenant in the shop?. The question was
referred by a Full Bench by order dated 22.02.2007 in
W.A.No.453 of 2007.
2. Briefly stated the facts leading to reference, in the
writ appeal, are that the 1st respondent-Municipal Corporation
of Hyderabad in Writ Petition No.25333 of 2001, had issued a
notice dt.7.12.2001 to petitioner therein, who was a tenant of
the shop owned by the 3rd respondent therein, informing him
that the owner of the shop handed over some portion of site
under his occupation for road widening purpose to the
Municipal Corporation free of cost and that he obtained
permission for construction of fresh structure consisting of stilt
(row shops and partly parking)+three upper floors (residential
flats), and so the petitioner should vacate the shop in his
occupation in three days to enable them to remove the
structure affected in road widening in the interest of the
public.
2.1 The petitioner questioned it on the ground that a
tenant like him in occupation of the building cannot be forcibly
evicted from the rented premises merely on obtaining the
consent of a landlord. He placed reliance upon the judgment
of this Court in Ushodaya Publications, Hyderabad v.
Commissioner, MCH( ) wherein it was held that consent
granted to Municipal Corporation by the owner of premises for
taking his property for road widening would not be binding
upon the lessee, and that the Municipal Corporation had no
right to take forcible possession of the land in question relying
on the purported consent obtained by it from the petitioners
lessor without taking recourse to the provisions of the Land
Acquisition Act as thereby the petitioner would be deprived of
its own valuable right.
2.2 The learned Single Judge by order dt.07.09.2004
followed the Full Bench decision in Ushodaya Publications
(supra) and observed that since the Municipal Corporation did
not deny that it had not issued any notice to the petitioner
before issuing the impugned notice dt.07-12-2001, its action
was unsustainable. The Writ Petition was therefore disposed
of giving liberty to the Municipal Corporation of Hyderabad to
take necessary action after giving notice to the Writ Petitioner
and permitting the petitioner to raise all objections for taking
of the land for road widening as and when such notice is
served. It was further directed that till this exercise was
completed, the petitioner shall not be forcibly evicted if he was
still in possession as on the date of disposal of the Writ
Petition.
2.3 The landlord/owner of the premises of which the
petitioner in W.P.No.25222 of 2001 was the tenant, challenged
the order of learned Single Judge dt.07-09-2004 in
W.P.No.25222 of 2001 before a Division Bench consisting of
the then Chief Justice Sri Devender Gupta and Justice
B.Seshasayana Reddy.
2.4 Before the said Division Bench, it was contended
that the decision in Ushodaya Publications (supra) was
rendered by a Division Bench (when in fact it was rendered by
a Full Bench) and that the said decision was contrary to the
decision of another Division Bench of this Court in Ajit R
Jadhav v. The Municipal Corporation of Hyderabad and
others( ). It was pointed out that the Division Bench in Ajit
R. Jadhav (supra) had taken a view that the tenant in
possession of property cannot raise any objection if the owner
of the property had given his consent for taking of the
property by the Municipal Corporation for road widening.
2.5 By order dt.23-03-2003 in W.A.No.453 of 2005 the
Division Bench opined that Ushodaya Publications (supra)
was a decision of a Division Bench and that Division Bench
which decided it could not have overruled the decision of
another coordinate Bench of this Court in Ajit R. Jadhav
(supra), and therefore the decision in Ushodaya
Publications (supra) was rendered contrary to law. It
therefore referred the question whether a tenant has a right
to raise objection when the owner of the property has given
his consent for acquisition? to a Full Bench.
2.6 When the matter was listed before the Full Bench
presided over by Justice Bilal Nazki, the said Full Bench
noticed that the judgment in Ushodaya Publications (supra)
was in fact rendered by a Full Bench and not by a Division
Bench as mentioned in the reference order dt.23-03-2003 of
the Division Bench in W.A.No.453 of 2005. The Full Bench
then observed:
After hearing learned counsel for the parties, we are of
the view that the matter needs to be considered by a Larger
Bench, let the file be placed before the Honble the Chief Justice
for constitution of an appropriate Large Bench.
Learned Standing Counsel for the Municipal Corporation
of Hyderabad and learned counsel for the landlord stated that
the road widening project had been taken in the year 2001 and
for the last six years, the project could not be completed
because of pendency of this case. The tenant was the Writ
Petitioner, who filed the Writ Petition and succeeded in the Writ
Petition. Because of the shop which is in possession of the writ
petitioner the road widening project has been deferred for the
last six years. Learned counsel appearing for the tenant
submits that, according to him, the tenant has an interest in
the matter and if the shop is acquired in terms of the provisions
of the Land Acquisition Act, he will be entitled to compensation.
These contentions can be now decided only after the matter is
heard by a Larger Bench, but since public interest is suffering
for the last six years, and the road is not being widened
because of pendency of these proceedings, we allow the
Municipal Corporation of Hyderabad to widen the road and if the
writ petitioner is finally held entitled to any compensation, the
Court can order accordingly.
2.7 This Larger bench was, thus, constituted to
decide the above question referred to it.
3. In Ushodaya Publications (supra), a Full Bench
of this Court presided over by the then Chief Justice S.B.Sinha
held that a tenant cannot be deprived of his right to continue
to possess the lease hold land without taking recourse to the
provisions of Section 146 of the Hyderabad Municipal
Corporation Act, 1955 and/or the Land Acquisition Act, 1894.
It further held that a lessee derives an interest in the corpus
of the property by reason of the memorandum of lease
granted in his favour, that such rights of the lessee are also
enumerated in Section 108 of the Transfer of Property Act,
1882, and that the owner of the land had transferred his right
in relation to the properties in question subject to his right of
reversion to recover possession thereof. It observed that a
State within the meaning of Article 12 of the Constitution of
India can take over possession and acquire right, title and
interest in relation to the land only in exercise of its power of
eminent domain, that Article 300-A of the Constitution of India
mandates that nobody would be deprived of his right of
property except in accordance with law, and that the right of
the lessee to continue to occupy the leasehold premises
subject to the terms and conditions of the lease and/or any
statute governing the same, is a valuable right. It was further
held that in the event a property is acquired in terms of the
provisions of the Land Acquisition Act, 1894, the tenant would
come within the definition of the term person interested
under Section 3 (b) of the Land Acquisition Act, 1894. It then
referred to Section 146 of the Hyderabad Municipal
Corporation Act, 1955 which enables the Municipal Corporation
to acquire property by consent/agreement with the owner or
alternatively where the owner does not give consent, under
Section 147 through a process of acquisition as per the
procedure laid down in the Land Acquisition Act, 1894 and
held:
The 1st respondent is a statutory authority. Its right to
take possession of the land, therefore, must be exercised within
the four corners of the statute. It is one thing to say that the
provisions laid down under the said Act for acquiring the land
are not required to be taken recourse to as the owner thereof
has granted consent but the same would not mean that the
lessees consent need not be taken. There cannot be any doubt
whatsoever that the said consent granted by the owner would
not be binding upon the lessee and in that view of the matter
the 1st respondent had no right to take forcible possession of
the land in question, relying on the purported consent obtained
by it from the petitioners lessor without taking recourse to the
provisions of the Land Acquisition Act as thereby the petitioner
shall be deprived of its own valuable right.
3.1 The Full Bench relied upon decision dt.14-09-1987
in W.P.No.6294 of 1983 of Honble Justice K.Ramaswamy (as
he then was) wherein it was held:
Under the provisions of the Land Acquisition Act read
with the Hyderabad Municipal Corporations Act, the Corporation
has been given power to acquire the land for public purpose by
issue of notice under Section 4 (1) of the Land Acquisition Act,
unless the parties given consent to the acquisition. In this
case, in view of the above fact, it must be construed that the
petitioner has not consented to part with possession of their
land voluntarily.
(emphasis supplied)
4. Prior to the judgment in Ushodaya Publications
(supra), the same issue had come up for consideration before
a Division Bench consisting of the then Acting Chief Justice
A.Lakshmana Rao and Justice S.Dasaradha Rama Reddy in
1993 in Ajit R. Jadav (supra). By the judgment rendered on
05-08-1993 in W.A.No.795 of 1993, the Division Bench
observed that when the owner of a property gives consent,
the question of a tenant in possession of such property raising
any objection, does not arise. The relevant observations of
the Division Bench are as under:
In the instant case, the appellant is a tenant. His grievance is
that the landlord has given consent to deliver the land with an
ulterior motive to get rid off the tenant and the Corporation is
not justified in granting permission to the owner of the property
for constructing new building subject to condition of his
delivering vacant possession of the land in question. It is
contended by the learned counsel for the appellant that such a
recourse is not contemplated under the provisions of the
Hyderabad Municipal Corporation Act and the only power that is
vested in the Commission of the Corporation is either to enter
into an agreement with the owner of the property or to initiate
proceedings for the acquisition of the land. We are not inclined
to accept this contention. When the owner of the property
gives consent for surrendering a portion of the land for the
purpose of road widening, free of cost, the Corporation is quite
justified in accepting such a proposal, instead of entering into
an agreement with the owner or initiating proceedings for
acquisition of the land. When the owner of the property gives
consent, the question of raising any objection by a tenant in
possession of such property does not arise.
The view of this Division Bench is thus contrary to the
view in Ushodaya Publications (supra).
5. It is pertinent to note that the decision in Ajit
R.Jadhav (supra) was specifically overruled by the Full Bench
in Ushodaya Publications (supra) at paragraph 11 in the
following words:
11The decision of a Division Bench of this Court in Writ
Appeal No.795 of 1993 (Ajit R.Jadhav Vs. The Municipal
Corporation of Hyderabad and others) decided on 05-08-1993
wherein it has been held, When the owner of the property
gives consent the question of raising any objection by a tenant
in possession of such property does not arise does not lay
down the correct law. It is overruled accordingly.
6. That apart we also noticed that a 5-Judge Bench of
this Court in Repaka Bhyravamurthy and others v.
Muppidi Venkataraju and others( ) while dealing with the
question that fell for its consideration referred to the judgment
of the Full Bench in Ushodaya Publications (supra) and
observed in paragraph 50 as under:
50. In Ushodaya Publications (supra) the right of a lessee in a
case of land acquisition was recognized stating that:
There cannot be any doubt whatsoever that the said consent
granted by the owner would not be binding upon the lessee and in
that a view of the matter the 1st respondent had no right to take
forcible possession of the land in question, relying on the
purported consent obtained by it from the petitioners lessor
without taking recourse to the provisions of the Land Acquisition
Act as thereby the petitioner shall be deprived of its own valuable
right. The 1st respondent, in our considered opinion, deprived the
petitioner of the said right without taking recourse to law.
From the observations, made in the aforementioned
paragraph, it appears to us that the Larger Bench approved
the observations made by the Full Bench in Ushodaya
Publications (supra) holding that such a valuable right of the
tenant cannot be held to be non est only because of the
procedural and technical irregularities.
7. Mr.P.Gangaiah Naidu, learned Senior Counsel
appearing for the appellant, fairly conceded that a notice to
the tenant in the shop is necessary in case of acquisition of
land by the municipal authorities, for road widening, on
consent of the landlord of a shop. He further submitted that
such a notice is, however, necessary only to give the tenant a
breathing time to vacate the premises and handover to the
Municipal Corporation.
8. The question referred is limited whether in case of
acquisition of land by municipal authorities, for road widening,
on consent of landlord of a shop any notice is necessary to be
given to the tenant in the shop?. The Full Bench in
Ushodaya Publications (supra) considered almost similar
question and observed that a Municipal Corporation being
statutory authority has right to take possession of the land but
they must exercise their right within four corners of the
statute. It was further observed that it is one thing to say
that the provisions of the MCH Act for acquiring land are not
required to be taken recourse to as the owner thereof has
given consent but the same would not mean that the lessees
consent need not be taken. There cannot be any doubt
whatsoever that the consent granted by the lessor/owner
would not be binding upon a lessee and in that view of the
matter the Corporation has no right to take forcible possession
of the shop/land, such as in the present case, relying on the
purported consent obtained by it from the lessor, without
taking recourse to the provisions of the Land Acquisition Act,
thereby depriving the lessee of his valuable right. Thus,
according to the Full Bench, a notice to the lessee/tenant in
the shop is necessary in case of acquisition of land by the
municipal authorities for road widening on consent of landlord
of a shop. In the reference order, the Full Bench presided
over by Justice Bilal Nazki did not take either a differing view
or noted its dissent. It is not in dispute that there is no other
judgment of the Full Bench in the field taking differing view
than the one expressed by the Full Bench in Ushodaya
Publications (supra). None of the learned counsel for the
parties have made any attempt to persuade us to take a view
contrary to the one expressed in Ushodaya Publications
(supra).
9. In this backdrop, we are of the considered opinion
that the judgment of the Full Bench in Ushodaya
Publications (supra) states the correct position of law and
that we do not find any reason to take a differing view. The
question referred to the Larger Bench is, accordingly,
answered in the affirmative. In other words, we hold that a
notice to the tenant in a shop is necessary in case of
acquisition of land by Municipal authorities for road widening
even if the landlord/owner of the premises has given his
consent.
10. Office is directed to place the papers in Writ Appeal
as well as Writ Petitions before the appropriate Bench for its
decision on merits in the light of the opinion expressed by us.
_______________
Dilip B.Bhosale, ACJ
____________________
M.S.Ramachandra Rao, J
_____________
S.V.Bhatt, J
____________
S.Ravi Kumar, J
_____________
Anis, J
27th November, 2015
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