Judgment:
ORDER
S.B. Sinha, CJ
1. The question which arises for consideration in this writ petition is as to whether the possession of a land in occupation of a lessee can be acquired by the Municipal Corporation of Hyderabad without recourse to compulsory acquisition only on the basis of the consent given by the landlady. The petitioner herein is a company. It is a tenant of the premises No.6-3-569 and 570 Somajiguda, Hyderabad. One Suit M. Ramanamma is the landlady of the said premises. The petitioner was granted lease in respect of the aforementioned premises for establishing a printing press in respect whereof it obtained licence from the Municipal Corporation of Hyderabad. The Inspector of Factories has also granted licence in favour of the petitioner. The petitioner herein had also been publishing two dailies 'Eenadu and News Time' from the said premises. The building structures, hoards and the watchman room allegedly were constructed by the petitioner on leasehold land at its own cost. With a purpose of widening the road the 1st respondent threatened to take possession of the said premises purported to be on the basis of an alleged consent of the landlady without invoking the provisions of the Land Acquisition Act. A writ petition was filed by the petitioner which was marked as Writ Petition No.6294 of 1983 and by the judgment and order dated 14-9-1987 K. Ramaswamy, J (as His Lordship then was) directed the respondent not to take possession except upon invoking the provisions of the Land Acquisition Act. The 1st respondentthereafter gave a notice on 9-9-1995 to the petitioner to surrender the land covered under the said premises in public interest free of cost whereupon the aforementioned direction of this Court was brought to his notice in terms of a letter dated 20-9-1995. Despite the same, on 9-1-1996 the 2nd respondent replied that its lessor Smt M. Ramanamma gave consent and thereby the petitioner was called upon to vacate 144.16 sq yards of land adjoining the road after removing the compound wall and structures belonging to the petitioner. In the said letter they referred to the judgment passed by a Division Bench of this Court in Writ Appeal No.795 of 1993 disposed of on 5-8-1993 by way of justification of their action. According to the petitioner, however, the said judgment is not binding upon it having regard to the decision of K. Ratnaswamy, J in its case. The petitioner also asked for a copy of the purported consent letter issued by its landlady which was denied to it by the respondent in terms of his letter dated 30-1-1996. The petitioner thereafter issued another letter on 22-2-1996. In this writ petition the petitioner inter alia has prayed for the following reliefs:
'The petitioner prays the Honourable Court to be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the Notice No.94/TPS/ACP-V/MCH/W6/ 96 dated 25-3-1996 of the 2nd respondent depriving the possession of site admeasuring 144-16 sq. yards in premises No.6-3-569 and 570, Somajiguda, Hyderabad including compound wall, security rooms and sign boards as null and void and to restrain the respondents from proceeding further except in accordance with the Land Acquisition Act as already held in WP No.6294/1983 dated 14-9-1987 and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the interests of justice.
It is therefore prayed that this Honourable Court may be pleased to stay all further proceedings in pursuance of notice issued, by the respondents in Proc. No.94/TPS/ ACP-V/MCH/W6/196, dated 25-3-1996 pending disposal of the above writ petition and pass such other order or orders in the interests of justice.'
2. The factual matrix of the matter as referred to herein is not denied and disputed.
3. Having regard to the importance of the question the matter was referred to a larger Bench.
4. The learned Counsel appearing on behalf of the petitioner inter alia submitted that the provisions of Section 146 of the Hyderabad Municipal Corporation Act, 1955 lays down the procedure for acquisition of the land for the purposes referred to therein and thus the respondent-Corporation cannot make any attempt to dispossess the petitioner without acquiring the land in question.
5. The only question which arises for consideration in this writ petition is as to whether the petitioner can be deprived of its right to continue to possess its leasehold land without taking recourse to the provisions of the said Act and/or the Land Acquisition Act. The answer to the said question must be rendered in negative. A lessee, as is well known, derives an interest in the corpus of the property by reason of the memorandum of lease granted in his favour. Such rights of the lessee are also enumerated in Section 108 of the Transfer of Property Act. The owner of the land has transferred her right in relation to the properties in question subject to her right of reversion to recover possession thereof.
6. A State within the meaning of Article 12 of the Constitution of India can take over possession and acquire title, rightand interest in relation to the land only in exercise of its power of Eminent Domain. In Jilubhai Nanbhai Khachar v. State of Gujarat, : AIR1995SC142 , the Apex Court has clearly held that the power of the State to acquire a property in exercise of its power of Eminent Domain remains. Article 300A of the Constitution of India mandates that nobody would be deprived of his right of property except in accordance with law.
7. Having regard to the aforementioned constitutional protection granted to a person, the respondents were not statutorily entitled to take forcible possession of the land in question purported to be in terms of the alleged consent granted by its landlady. By reason of the provisions of the Transfer of Property Act the lessee derives a right to continue to occupy the leasehold premises subject of course to the terms and conditions of the lease and/or any statute governing the same.
8. Such a right of the lessee is a valuable right. In the event the property is acquired in terms of the provisions of the Land Acquisition Act, 1894 the petitioner, as a lessee, comes within the definition of 'person interested' under Section 3(b) of the Land Acquisition Act, as it is liable to be evicted otherwise than the provisions of law governing its lease.
9. The Hyderabad Municipal Corporation Act, 1955 is a self-contained code. At this juncture, it is appropriate to note the following provision of the said Act.
'S.2(28). 'land' includes land which is being built upon or is built upon or covered with water, benefits to arise out of land, things attached to earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street.
S.2 (39) 'owner' means-
(a) when used with reference to any premises, the person who receives, the rent of the said premises, or who would be entitled to receive the rent thereof if the premises were let and includes-
(i) an agent or trustee who receives such rent on account of the owner,
(ii) an agent or trustee who receives the rent of, or is entrusted with, or concerned for, any premises devoted to religious or charitable or educational purposes;
(iii) a receiver, sequestrator or manager appointed by any Court of competent jurisdiction to have the charge of or to exercise the rights of an owner of the said premises; and
(iv) a mortgage-iii-possession; and
(b) when used with reference to any animal, vehicle or boat includes the person for the time being in charge of the animal, vehicle or boat;
S.146. Acquisition of immovable property by agreement:-- Whenever it is provided by this Act that the Commissioner may acquire, or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms at such rates or prices not exceeding such maximum as shall be approved by the Standing Committee, either generally for any class of cases or specially in a particular case.
(2) And whenever, under any provisions of this Act, the Commissioner is authorised to agree to pay the whole or any portion of the expenses of acquiringany immovable property, he shall do so on such terms and at rates or prices not exceeding such maximum as shall be approved by the Standing Committee as aforesaid.
(3) Subject to the provisions of this Act, it shall be lawful for the Commissioner on behalf of Corporation to agree with the owner of any land or of any interest in loan needed by the Corporation for the purposes of any Scheme under Chapter XII or with the owner of any right which may have been created by legislative enactment over any street forming part of the land so needed, for the purchase of such land or of any interest in such land or for compensating the owner of any such right in respect of any deprivation thereof or interference therewith.
(4) No contract for the acquisition of any immovable property or of any interest therein or any right thereto or the payment of any compensation under sub-sections (1), (2) or (3) shall be valid, if the price of compensation to be paid for such property or interest or right exceeds rupees five thousand unless and until such contract has been approved by the Corporation.
(5) Every contract or other instrument relating to the acquisition of immovable property or any interest therein or any right thereto shall be executed by Commissioner, shall have the common seal of the Corporation affixed thereto in the presence of two officers nominated by the Commissioner and shall also have the signature of the said two members, in the manner provided in Section 125.
(6) No contract for the acquisition of immovable property or any interest therein or any right thereto not executed as provided in sub-section (4) shall be binding on the Corporation.(7) The foregoing provisions of this section which apply to an original contract relating to the acquisition of immovable property, or any interest therein, or any right thereto, shall be deemed to apply also to any variation or discharge of such contract.
Section 147. Procedure when immovable property cannot be acquired by agreement:--(1) Whenever the Commissioner is unable to acquire any immovable property under the last preceding Section by agreement, the Government may, in their discretion, upon the application of the Government may in their discretion, upon the application of the Commissioner, made with the approval of the Standing Committee and subject to the other provisions of this Act, order proceedings to be taken for acquiring the same on behalf of the Corporation in accordance with the provisions of the Land Acquisition Act, 1984 as amended for a public purpose within the meaning of the provisions of the said Act.
(2) The amount of compensation awarded and all other charges incurred in acquisition of any such property shall, subject to all other provisions of this Act, be forthwith paid by the Commissioner and thereupon the said property shall vest in the Corporation.'
10. The 1st respondent is a statutory authority. Its right to take possession of the land, therefore, must be exercised within the four comers 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 lessee's 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 thatview 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 petitioner's 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. K. Ramaswamy, J., in his order dated 14-9-1987 in writ petition No.6294 of 1983 held:
'Under the provisions of the Land Acquisition Act read with the Hyderabad Municipal Corporation 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 give consent to the acquisition. In this case, in view of the above facts, it must be construed that the petitioner has not consented to part with possession of their land voluntarily, (emphasis is ours).'
11. The said decision is binding upon the respondents herein and would operate as res judicata. The decision of a Division Bench of this Court in Writ Appeal No.795 of 1993 (AJIT R. Jadhav v. The Municipal Corporation of Hyderabad and others) decided on 5-8-1993 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.
12. For the reasons aforementioned this writ petition is allowed. Let a writ in the nature of mandamus issue directing the respondents to forbear from taking possession of the land in question without taking recourse to the provisions of the Hyderabad Municipal Corporation Act, 1955 or theLand Acquisition Act, 1894. In the facts and circumstances of this case the petitioner is also entitled to costs. Advocate's fee assessed at Rs.2,000/- (Rupees two thousands only).