Andhra HC (Pre-Telangana)
Dr.Adusumilli Venkata Subba Rao,S/O ... vs The District Collector (La), Nizamabad ... on 14 November, 2014
Author: A.V.Sesha Sai
Bench: A.V.Sesha Sai
THE HONBLE SRI JUSTICE A.V.SESHA SAI
W.P.No.27436 of 2008
14-11-2014
Dr.Adusumilli Venkata Subba Rao,S/o late Venkata Ramaiah. Petitioner
The District Collector (LA), Nizamabad District at Nizamabad and another.
Respondents
Counsel for the Petitioner: Sri N.Subba Reddy, learned counsel
representing Sri V.Ramchander Goud,
counsel for the petitioner
Counsel for the Respondents: Government Pleader for Revenue.
<Gist:
>Head Note:
? Cases referred:
(2013) 1 SCC 353
2 2011 (1) ALT 588=2011 (1) ALD 719
3 2006 (2) ALT 569
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION No.27436 of 2008
O R D E R:
This Writ Petition is filed under Article 226 of the Constitution of India, questioning the action of the respondents in acquiring the land in Sy.Nos.1615, 1616, 1617, 1622/1, 1623/1, 1623/2 and 1624/2 admeasuring Ac.7-08 gts, Ac.8-08 gts, Ac.6-04 gts, Ac.11-01 gts, Ac.4-17 gts, Ac.0-29 gts and Ac.0-22 gts, respectively, situated at Mallaram village, Nizamabad Sivar of Nizamabad District without recourse to due process of law and without initiating any proceedings under the Land Acquisition Act and without paying any compensation as being illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and consequently this writ petition seeks a direction to initiate appropriate proceedings under the provisions of the Land Acquisition Act and to pay the compensation.
2. The facts in nutshell, which arise for consideration of this Court as per the writ affidavit, are as follows:
One Dr.Adusumilli Venkata Subba Rao purchased the lands situated in Sy.Nos.1615, 1616, 1617, 1622/1, 1623/1, 1623/2 & 1624/2 to an extent of Acs.7-08 guntas, 8-08 guntas, 6-04 guntas, 11-01 guntas, 4-17 guntas, 0-29 guntas and 0-22 guntas respectively totalling to an extent of Ac.38-09 guntas situated at Mallaram village, Nizamabad Sivar of Nizamabad District from one Sri Bhugromal and another by virtue of a registered Sale Deed bearing Doc.No.509/1962 dated 20.06.1962 for a valid consideration and he continued to be in peaceful possession and enjoyment of the same up to 1980 and his son one Mr.late Nageshwar Rao passed away and at that time the deponent of the writ affidavit and other children of the said Mr.Nageshwar Rao were minors and in view of absence of anybody to look after their welfare, the said Dr.Adusumilli Venkata Subba Rao, the paternal grandfather of the deponent migrated to Gudiwada, Krishna District and whenever he felt convenient, used to visit Nizamabad and found the property intact without any encroachment.
3. On coming to know that the Governmental authorities occupied the said lands and allotted to various organs of the State Government without following the due process of law or without giving compensation or in the alternative the land, contending that the said action as being illegal and violative of Article 21 of the Constitution of India and contrary to the constitutional mandate, Dr.Adusumilli Venkata Subba Rao filed this writ petition initially. The said Dr.Adusumilli Venkata Subba Rao passed away pending the writ petition and the grand children of the said Dr.Adusumilli Venkata Subba Rao are now prosecuting the present writ petition.
4. The counter affidavit is filed by the respondents 1 and 2, stating that the District Collector, Nizamabad vide Gazette No.22 dated 16.12.1982 took the possession of the lands admeasuring Ac.32-06 gts after calling for claims from the persons interested by giving three months time from the date of publication of notice in Form-II under the Andhra Pradesh Excheats and Bona Vacantia Act, 1974 (hereinafter called the Act). Counter further states that as no objections were received from any interested persons, the said lands were handed over to the Executive Engineer (R&B), PWD, Nizamabad for construction of stadium for the Sports Council, Nizamabad and for various Governmental Institutions in the year 1981 and 1991 itself. It is further stated in the counter affidavit that the rest of the land in Sy.Nos.1993, 1994 and 1995 were not declared as Escheat under the Act. It is further stated in the counter that the writ petition is time barred and deserves dismissal.
5. Heard Sri N.Subba Reddy, learned counsel representing Sri V.Ramchander Goud, counsel for the petitioner on record and the learned Government Pleader for Revenue and perused the material available on record.
6. It is contended by the learned counsel for the petitioner that the action of the respondent authorities is totally one without jurisdiction and opposed to the very spirit and object of the provisions of the Act. It is further contended by the learned counsel that the impugned action is in total violation of the fundamental rights guaranteed for the petitioner herein under Chapter-III of the Constitution besides being opposed to Article 300-A of the Constitution of India which mandates that no citizen shall be deprived of his/her property except in accordance with the procedure established by law. It is further contended that having admitted that the petitioner purchased the properties from Sri Bhugromal and Dhanomal son of Kalu Mal, it is not open for the respondent authorities to sustain their action under the garb of invoking the provisions of the Act. It is further contended that no enquiry as contemplated under Section of the Act was held by the Local Officer as stipulated under the Act. It is further contended that there is absolutely no dispute with regard to the title of the property. It is further contended that even as per the counter of the respondents, there is still an extent of Ac.27-20 gts of land which is not declared as Escheat under the provisions of the Act, which is in possession of the respondents herein. It is further contended that the respondents herein have given a go-bye to the mandatory provisions of Sections 7, 11 and 12 of the Act.
In support of his contentions and submissions, learned counsel for the petitioner relies upon the judgments of the Honble Apex Court in TUKARAM KANA JOSHI AND ORS. THR. POWER OF ATTORNEY HOLDER v. M.I.D.C. AND ORS and the Judgments of this Court in DEEPATHI AVENUES PVT. LTD. V. STATE OF A.P and TASLEEM BEE v. DISTRICT COLLECTOR, MEDAK DISTRICT .
7. In order to resolve the controversy in the present writ petition, it is appropriate for this Court to refer to the relevant provisions of the legislation i.e., Andhra Pradesh Escheat and Bona Vacantia Act, 1974.
8. The State of Andhra Pradesh brought in the legislation for determination, custody and disposal of property vested in the in the State of Andhra Pradesh by escheat or lapse or as Bona Vacantia for want of a rightful owner and of unclaimed property and for matters connected therewith.
9. Section 2 (i) of the Act defines the term Bona Vacantia and Section 2 (iv) defines the term Escheat and the same read as under:
Bona vacantia includes any property, situated in the State, of which there is no rightful owner, but does not include an escheat or any movable property found in a public place.
Escheat means any property the owner of which dies intestate and without leaving legal heir.
Section 3 of the Act declares that all property situated in the State, which is vested in the State by escheats or lapse or as bona vacantia for want of a rightful owner, shall belong to the Government and the Government shall be the owner of such property.
10. Section 4 of the Act stipulates that the general superintendence of all escheats and bona vacantia shall be vested in the Board of Revenue or in such other officer or authority as may be empowered by the Government, who shall be the chief controlling authority in all matters connected with the escheats and bona vacantia.
11. Section 5 of the Act empowers the State by notification, to appoint the District Collector or such other officers as deemed to be the local officers for each district to exercise the powers and perform the functions assigned under this Act, subject to general control and directions of the competent authority and the Government is also empowered to appoint such number of other officers to assist the local officer.
12. Section 7 of the Act stipulates that when the local officer receives information from any source that any property of the nature of an escheat or bona vacantia is situated or lying within his jurisdiction, shall cause an enquiry to be made in respect thereof.
13. Section 8 of the Act contemplates that if the local officer is satisfied, after enquiry that the property of the nature of an escheat or bona vacantia is in the possession of a person, who has no authority to claim it and if such person resists to surrender such possession on demand, the local officer may after obtaining the sanction of the competent authority, institute a suit in a Court for determination of Government's right to the property and for recovery of possession of such property. The said Section further stipulates that where the Court declares that the property is an escheat or bona vacantia, the local officer shall obtain the possession thereof through the Court and manage it or dispose it of in such manner as may be prescribed.
14. Section 9 of the Act authorises the local officer to take the property into his custody and to arrange for its care and maintenance until the claim is settled under Section 11, where the property of the nature of an escheat or bona vacantia is not in possession of any person or where the person is in possession surrenders such possession when demanded.
15. Section 10 of the Act obligates the local officer to prepare an inventory of the property taken into custody under Section 9 on the site and in the presence of not less than five respectable persons of the locality and to send a report forthwith in the prescribed form in Form V together with a copy of the inventory.
16. Section 11 of the Act imposes obligation on the local officer to publish a notice as soon as the property is taken into custody under Section 9 in such a manner as may be prescribed, calling upon the person who may have any claim to such property to prefer their claims to such property in the prescribed form within three months from the date of publication of the notice. The said Section further stipulates that if no claims are preferred within the said period of three months, the local officer shall declare the property to be an escheat or bona vacantia and dispose it of in such a manner as may be prescribed. The said section further stipulates that if any person prefers a claim within the said period of three months, the Local Officer shall refer the claim to the Court for its decision as to whether or not the person making the claim is entitled to the property and the Court shall thereupon, after giving notice to the Local Officer and to the claimant, decide the reference as if it were a suit. Where the Court decides that the property taken into custody under Section 9 or any part thereof rightfully belongs to the claimant, the Local Officer shall deliver the same to him, and where the Court decides that it does not belong to the claimant, it shall declare the property as escheat or bona vacantia, as the case may be.
17. Section 12 of the Act stipulates that as soon as the declaration is made by the Local Officer under sub-section (2) of Section 11 or by the Court under clause (b) of sub-section (3) of that Section, the Local Officer shall publish a notification thereof in the A.P. Gazette in a local news paper of the district where the property is situated or lies.
18. A careful analysis of the above provisions of the legislation would make it manifest that where there is no rightful owner or the owner of the property dies intestate and without leaving legal heir, such property gets vested in the State. As per the legislation such vesting shall be preceded by an elaborate procedure which includes causing enquiry, taking up of possession, publication of notice and referring to the Court for declaration of property as an Escheat or bona vacantia. The Act provides for distinct procedure to be followed, depending upon the factum of possession. As the first step, the Act provides for holding an enquiry by the Local Officer on the nature of an Escheat or Bona vacantia. As per section 7, if on such enquiry the Local Officer is satisfied that the property is an escheat or bona vacantia and is in possession of the person who has no authority to claim it, the Act imposes obligation on the Local Officer to institute a suit in a Court for declaration of Government rights in the property and for declaration thereof as per Section 8.
19. Another procedure is also envisaged in the cases where an Escheat or Bona vacantia is not in possession of any person or where the person in possession surrenders such possession when demanded in such contingency, the Local Officer is authorised to take possession and to publish notice, calling upon the persons to prefer their claims to such property and if no such claims are preferred, the Act imposes obligation on the Local Officer to declare the property to be an Escheat or Bona vacantia and to dispose of the same in the manner prescribed. In the event of any claims being preferred, the Local Officer shall refer the same to the Court for its decision as to whether or not the person making the claim is entitled to the property.
20. Now the question which falls for consideration of this Court is whether the respondent authorities adhered to the provisions of the Act while resorting to the impugned action.
21. There is absolutely no dispute with regard to the fact that originally the writ petitioner had purchased the property by virtue of a Registered Sale Deed dated 20.06.1962 bearing Doc.No.509/1962 from one Sri Bhogormal and another. As per the counter affidavit, the District Collector vide Gazette No.22 dated 16.11.1982 took possession of the properties of the petitioner herein into Government custody after calling for claims from the persons interested by giving three months time from the date of publication of notice in Form II for declaring the lands as an Escheat under the Act. The respondents further seek to justify their action by contending that no objections were received from any interested persons and as such the lands were taken over by the Government for construction of stadium for the Sports Council, Nizamabad and for various Governmental Institutions in the year 1981 and 1991 itself. Counter further states that the rest of the lands in Sy.Nos.1993, 1994 and 1995 have not been declared as an Escheat.
22. Right to property is a constitutional right as enshrined under Article 300-A of the Constitution of India which, in vivid and unequivocal terms, mandates that no citizen of this country shall be deprived of or divested of his/her property except in accordance with the procedure established by law. The legislations are made by the legislature obviously keeping in view the betterment of the society and for safeguarding and protecting the citizens and their rights guaranteed under the Constitution, as such, a sacred duty is cast on the authorities discharging the functions under the relevant statutes. The authorities who are entrusted with such holy duties are required to be highly cautious in discharging their statutory functions and meticulous in performing their actions and the same necessarily be transparent and completely free from arbitrariness and unreasonableness. The authorities are required to conduct themselves as model for the society and their actions should be in the direction of creating confidence in the people is our democratic system and they must scrupulously adhere to and meticulously follow the mandatory provisions of law, otherwise the very constitutional mandate and legislative intent would be frustrated.
23. In the present writ petition, it is the case of the petitioner that the respondent authorities took possession of the subject lands in a high handed and arbitrary manner and without following the mandatory provisions of the Act.
24. A perusal and through verification of the material before this Court reveals that there is absolutely no evidence placed on record by the respondents to show that they adhered to the mandatory procedure stipulated under the statute. Except a gazette notification bearing No.22 dated 16.12.1982 issued by the District Collector, Nizamabad and notice in Form-II under Section 11 (1) of the Act and a Memo dated 27.11.1990 of the Mandal Revenue Officer, Nizamabad, no other material could be produced by the respondents to show that they followed indispensable statutory requirements. A perusal of the said gazette notification shows that the same has absolutely nothing to do with the subject property. The notice in Form-II does not bear any date and the memo dated 27.11.1990 of the Mandal Revenue Officer shows the handing over of the property, but there is no evidence to show that the notice was published as per the provisions of Section 11 (1) of the Act read with Rule 7 of Andhra Pradesh Excheats and Bona Vacantia Rules, 1975 (for short the Rules). The State Government, in exercise of the powers conferred under Section 16 of the Act framed the Rules. Rule 7 of the said Rules obligates the authorities to publish a notice under sub-section (1) of Section 11 of the Act and it stipulates as under:
7. Publication of notification:
Every notice under sub-section (1) of Section 11 of the Act shall be published:
(a) in the District Gazette where the property is situated.
(b) at the office of the Collector and Tahsildar within whose jurisdiction the escheat or bona vacantia is situate;
(c) at the village chavidi or at some conspicuous place in the village in which the property is situated; and
(d) by beat of tom-tom in the village where the property is situate.
25. In the instant case, there is no evidence to show that Rule 7 was adhered to. There is also no evidence to show that the respondents complied with the provisions of Section 12 of the Act by way of publication in the State gazette. There is non-adherence to Section 13 of the Act which prohibits sale or grant till expiry of 12 years from the date of taking possession by the Government. The said stipulation of 12 years has its own significance and the same is stipulated by the legislation obviously in the interest of owners of the properties. Such a provision of law cannot be brushed aside and its object cannot be lost sight of by the authorities. The memo of the Mandal Revenue Officer, Nizamabad dated 27.11.1990 shows that the lands were handed over to the Executive Engineer, R & B Department on 20.10.1981 i.e., long prior to the alleged gazette notification in the year 1982. This clearly shows the high handedness on the part of the respondent authorities. It is also significant to note that the counter filed by the respondents also does not dispute the ownership of late Sri A.Venkata Subba Rao. In the opinion of this Court, the impugned action tantamount to highhandedness on the part of the respondents and unlawful enrichment and the welfare State cannot be a party to the same because of the actions of the authorities, discharging the functions of the State under the statutes. If this kind of actions of the authorities are allowed to stand and sustain, there is every threat of the citizens losing faith and confidence in the society which will never be in the interest of the nation at large. As per the counter of the respondents, survey was conducted and a copy of the report of the Deputy Inspector of survey, Nizamabad and location sketch are filed before this Court along with the letter of the Assistant Director, Survey and Land Records, Nizamabad to the District Collector dated 16.07.2014. It is also the case of the respondents that the department in whose favour lands have been allotted are not arrayed as parties nor the State is made as a party to the writ petition.
26. In the considered view of this Court, the said stand of the respondents in the facts and circumstances of the case is highly preposterous and liable to be rejected. The procedural aspects are intended for advancement of justice and not for frustrating the same and in the name of feeble, lame, unsustainable excuses and explanations and untenable technicalities, the respondents cannot escape from their statutory responsibilities and the constitutional mandates. In fact, the plea touching the aspect of non-impleadment of the State is no longer available to the respondent authorities since the State Government has been impleaded as third respondent vide orders in WPMP.No.35835 of 2014.
27. In TUKARAM KANA JOSHIs case (supra 1), the Honble Apex Court at paragraphs 12 to 15, held as follows:
12. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports and Ors.
AIR 1970 SC 769; Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. AIR 1987 SC 1353; Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur and Ors. AIR 1993 SC 802; Dayal Singh and Ors. v. Union of India and Ors. AIR 2003 SC 1140; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar and Ors. AIR 2011 SC 2161)
13. In the case of H.D Vora v. State of Maharashtra and Ors. AIR 1984 SC 866, this Court condoned a 30 year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed.
14. The High Court committed an error in holding the Appellants non-suited on the ground of delay and non-availability of records, as the court failed to appreciate that the Appellants had been pursuing their case persistently. Accepting their claim, the Statutory authorities had even initiated the acquisition proceedings in 1981, which subsequently lapsed for want of further action on the part of those authorities. The claimants are illiterate and inarticulate persons, who have been deprived of their fundamental rights by the State, without it resorting to any procedure prescribed by law, without the court realising that the enrichment of a welfare State, or of its instrumentalities, at the cost of poor farmers is not permissible, particularly when done at the behest of the State itself. The Appellants belonged to a class which did not have any other vocation or any business/calling to fall back upon, for the purpose of earning their livelihood.
15. Depriving the Appellants of their immovable properties, was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfillment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.
28. In DEEPATHI AVENUES PVT. LTD. case (supra 2), this Court at paragraphs 31 to 39, held as follows:-
31. As noted above, while it is the pleaded case of the Petitioner that Respondent No. 5 has no power or authority to direct taking of possession as he is not the designated local officer, in their counter affidavit, the Respondents have averred that Respondent No. 5 is the designated local officer. But, neither notification has been filed nor at least the details of the proceedings under which Respondent No. 5 has been designated as local officer have been given out in the counter affidavit. Be that as it may, assuming that Respondent No. 5 is the designated local officer, in the first place, he has to hold an enquiry and thereupon he can proceed either under Section 8 or Section 9, as the case maybe, depending upon the factum of possession over the land in dispute. Except letter dated 26.07.2010 addressed by Respondent No. 4 to Respondent No. 2 and the purported direction of Respondent No. 5 issued to Respondent No. 4, the Respondents have not pleaded in the counter affidavit that any enquiry, as envisaged in Section 7, has been held before proceeding under Section 9 and publishing notice under Section 11(1). In paragraph 3 of the counter, it is averred "after examining the case, the Joint Collector, Hyderabad, directed the Tahsildar to take over possession of the land". Mere examination of the case, as pleaded by the Respondents, does not satisfy the requirements of Section 7,as the said provision contemplates an 'enquiry' to be made. The obvious purpose of such enquiry is to determine the status of the property and whether the property is in possession of any one or vacant so as to enable the local officer to decide as to which are the two procedures envisaged under Section 8 and Section 9 read with Section 11 to be followed.
32. In my considered view, failure to undertake this mandatory procedure by Respondent No. 5 vitiated all further steps taken by his subordinate officers.
33. There is yet another serious statutory violation committed by the Respondents in purportedly taking the property into their custody. Even if the Respondents had justification to proceed under Section 9 instead of under Section 8, it is the local officer, who shall take the property into his custody and arrange for its care and maintenance until the claim is settled under Section 11.
No provision under the Act or the Andhra Pradesh Escheats and Bona Vacantia Rules, 1975 or any other statutory provision has been brought to my notice by the learned Special Government Pleader that the powers and functions of the local officer have been delegated to any of his subordinate officers. It is not the Respondents' pleaded case that Respondent No. 5, who is stated to be the local officer, has ever visited the property in question. Even if the contents of the two panchanamas, referred to above, are taken on their face value, they disclose that both on 10.08.2010 and 12.08.2010 it was only the Deputy Tahsildar, Sheikpet Mandal, Hyderabad, who visited the property along with the panch witnesses and that the land was taken possession on the direction of Respondent No. 4 i.e., the Tahsildar, Sheikpet, issued in exercise of his power under Section 9 of the Act. Interestingly, panchanama dated 12-8-2010 has not referred any order of Respondent No. 5, who is stated to be the local officer, for taking possession. While neither Respondent No. 4 nor the Deputy Tahsildar is the local officer, neither of them has any power or authority to take possession even if the property was found to be vacant. Section 9 of the Act in unequivocal terms authorized only the local officer to take the property into his custody and arrange for its care and maintenance until the claim is settled under Section
11.
34. Where a statute declares a particular thing to be done in a particular manner, it must be done in that manner or not at all See: Gujarat Electricity Board v. Giridharlal Motilal and Anr. AIR 1969 S.C. 267, Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Limited AIR 1972 S.C. 2563 and Commissioner of Income Tax, Mumbai v. Arjun M.H. Ghaswala and Ors. (2002) 1 SCC 633 : 2001 (8) S 145.
35. On the admitted facts of this case, Respondent No. 5, who is pleaded to be the local officer, has not taken the property into his custody and therefore even if the contents of the panchanama dated 12.08.2010 are accepted as correct, the purported taking of possession by the Deputy Tahsildar is in blatant infraction of the mandatory statutory procedure prescribed by the Act. Such taking of possession even if true, does not pass muster and is illegal and invalid.
Conclusion:
36. What are the consequences of the findings rendered hereinabove remain to be considered.
37. If the property is in possession of a person, who has no authority to claim it, the local officer shall institute a suit in a Court for declaration of the Government's right to the property and for recovery of possession of such property. This procedure is in contrast with the one prescribed under Section 11 where in respect of the property, which was found vacant and taken into custody by the local officer, if any person prefers a claim within the prescribed period, the same shall be referred as to whether or not the person making the claim is entitled to the property. While in both the events, it is the Court of competent jurisdiction, which is to adjudicate on the dispute relating to the right over the property, the burden of proof varies in each of these events. Under Section 8, the initial burden is on the Government to establish its right while it is converse in case of Section 9.
38. In the light of the findings and conclusions drawn hereinabove that the purported act of taking the property into custody is not valid, the notification issued under Section 11(1) stands nullified and Respondent No. 5 shall recommence the proceedings from the stage of Section 7 by holding an enquiry after due notice to the Petitioner and affording it an opportunity of being heard in the enquiry. If, after enquiry, Respondent No. 5 is satisfied that the property is an escheat or a bona vacantia, he shall pass an appropriate order and proceed either under Section 8 or Section 9 depending upon his finding as to whether the property is vacant or in possession of the Petitioner. The decision so taken shall be communicated to the Petitioner before proceeding further. Till this exercise is completed, the order of status quo granted by this Court during the pendency of the Writ Petition shall be continued. Epilogue:
39. The facts of this case unravel a rather overzealous attitude on the part of the revenue officials involved in the case. This Court has no hesitation to hold that in their anxiety to outwit the Petitioner and overreach the statutory procedure, the Respondents have gone to the extent of fabricating two panchanamas with concocted versions. While it is absolutely necessary for the executive apparatus to zealously guard the public properties, they shall not overstep their power and authority by indulging in unethical acts of creating material solely with a view to defeat the claims of a citizen. By indulging in such acts, they not only loose the confidence of people, but also mislead the Courts. Such conduct on the part of the public functionaries is reprehensible and liable to be denounced the in strongest possible terms. As this Court is fully convinced that the Respondents have come out with a blatantly false claim that possession was taken on 12.08.2010 and that the Petitioner has unlawful lyre-entered the land thereafter by erecting a compound wall overnight, they are saddled with costs of Rs. 25,000/-, which shall be paid to the Andhra Pradesh High Court Legal Service Authority within a period of four weeks from today. The District Collector, who shall pay this amount at the first instance, shall identify the officers responsible and recover the same from them after following due procedure.
29. In TASLEEM BEE case (supra 2), this Court at paragraph 4, held as follows:
4. A persual of the said order goes to show that no enquiry has been done and no notice has been issued giving reasonable opportunity to the petitioner before passing the said order. It is the case of the petitioner that an enquiry relating to Escheats and Bona Vacantia Act has to be made by the local officer and in the instant case, no enquiry has been made whether the land in possession of petitioner is escheat or bona vacantia land and without conducting enquiry as contemplated under Section 7 of the Act basing on the report of the Mandal Revenue Officer only, the order has been passed. Section 8 goes to show that after conducting enquiry and if the local officer found that the said land is a escheat or bona vacantia land and is in possession of the petitioner or others claiming the said property, then only, the local officer may have to institute a suit for recovery of the said amount as contemplated under Section 8 and declare that the said property is a escheat or bona vacantia and also entitled to obtain possession thereof. After obtaining the possession, it is open for the local officer to dispose of the same under the provisions of the said Act. In the instant case, without following any procedure, the impugned order has been passed for taking possession of the said agricultural land.
30. The Judgments cited supra by the learned counsel for the petitioner in TUKARAM KANA JOSHI AND ORS. THR. POWER OF ATTORNEY HOLDER (supra 1), DEEPATHI AVENUES PVT. LTD. (supra 2) and TASLEEM BEE (supra 3) are squarely applicable to the case on hand. The contention with regard to the delay and laches advanced by the learned Government Pleader is of no significance in view of the law laid down by the Honble apex Court in the case of TUKARAM KANA JOSHI AND ORS. THR. POWER OF ATTORNEY HOLDER (supra 1).
31. For the aforesaid reasons and having regard to the law laid down in the above referred judgments, writ petition is allowed, declaring the action of the respondents in taking possession of the subject lands without following the mandatory provisions of Andhra Pradesh Escheats and Bona Vacantia Act, 1974 and the Rules framed thereunder as illegal, arbitrary and iniquitous and presumptuous and violative of Articles 14 and 300-A of the Constitution of India and opposed to the very spirit and object of the provisions of the Act. The respondents are further directed to initiate proceedings under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in respect of the subject lands and pay compensation, and this entire exercise including passing of award and payment of compensation, shall be completed within a period of three months from the date of receipt of this order, after giving notice and opportunity of hearing to the petitioner. Miscellaneous Petitions pending, if any, shall stand disposed of. No order as to costs.
_______________ A.V.SESHA SAI, J Date:14.11.2014