Andhra HC (Pre-Telangana)
The Managing Director, Apsrtc vs M. Kamalakumari And Ors. on 24 December, 2001
Equivalent citations: 2002(2)ALT180
ORDER S.R. Nayak, J.
1. Writ Appeal Nos. 621 of 1993 and 1475 of 1995 arise out of the order made in W.P. No. 18061 of 1989 whereas Writ Appeal Nos. 622 of 1993 and 1543 of 1995 arise out of the order made in W.P. No. 734 of 1992. Both the writ petitions were heard and disposed of by the learned single Judge by a common judgment dated 20.11.1992. In W.P. No. 18061 of 1998, the owners of the land acquired assailed the validity of the Notification issued under Section 4 of the Land Acquisition Act, 1894 (for short "the Act") whereas in W.P. No. 734 of 1992, the land owners assailed the validity of the award proceedings dated 23.7.1992.
2. Although several contentions were pressed into service while assailing the validity of the Notification and the award, the learned single Judge, without dealing with all those contentions, thought it appropriate to allow the writ petitions on the short ground that 80% of the compensation was not tendered to the owners as required under sub-section (3-A) of Section 17 of the Act and therefore the action of the State could not be sustained. Hence, these four writ appeals by the State as well as by the beneficiary viz., Andhra Pradesh State Road Transport Corporation.
3. Heard the learned Government Pleader for Land Acquisition, the learned Standing Counsel for the APSRTC as well as the learned counsel for the owners of the acquired land.
4. The learned Government Pleader for Land Acquisition would contend that the reason assigned by the learned single Judge to allow writ petition No. 18061 of 1989 is no longer a good ground in view of the judgment of the Apex Court in Satendra Prasad Jain and Ors v. State of U.P and Ors., and a Division Bench Judgment of this Court in Government of A.P., represented by its Principal Secretary, Municipal Administration & Urban Development, Hyderabad v. Mohd. Moinuddin Hussain & Ors., The learned Government Pleader would also contend that the learned single Judge has seriously erred in law in allowing the Writ Petition No. 734 of 1992 which was directed against the award in the light of the judgment of the Supreme Court in State of Haryana and Ors v. Dewan Singh and Ors.,
5. The learned Standing Counsel for the APSRTC would adopt the arguments of the learned Government Pleader for Land Acquisition.
6. On the other hand Sri P.M. Gopal Rao, learned counsel for the land owners would maintain that even though the impugned order cannot be sustained on the ground stated by the learned single Judge, no ground is made out by the appellants to interfere with the order of the learned single Judge inasmuch as the same could be sustained on other grounds. According to the learned counsel, the other grounds are:- (i) that the State authorities seriously erred in dispensing with the enquiry under Section 5A of the Act; (ii) that before issuing Section 6 Declaration, the three mandatory steps envisaged under the Act viz., (a) Gazette publication, (b) Newspaper publication, and (c) publication in the locality were not effected. To be specific, the learned counsel would submit that the requirements (b) and (c) were not complied with; (iii) that the State is guilty of practising an invidious discrimination by choosing the land of the petitioners; (iv) that the award enquiry notice was not served on the owners as envisaged under Section 45 of the Act and, therefore, the award passed by the Land Acquisition Officer on 23.7.1991 is invalid. Elaborating the last contention, the learned counsel would point out that on an earlier occasion when the acquiring authority had issued notification under Section 4(1) on 12.4.1985 proposing to acquire a total extent of Ac.1.20 cts of land and initiated further steps, this Court by order dated 29.11.1988 made in WP No. 18356 of 1987, quashed the same, and that in the fresh notification issued under Section 4(1) of the Act dated 20.4.1989, the acquiring authority had proposed to acquire only 0-90 cents of land and gave up acquisition of the remaining 0-30 cents of land and that the left out 0-30 cents of land is more suitable than 0-90 cents of the land acquired now, for the purpose for which it is acquired.
7. We find force in the contention of the learned Government Pleader for Land Acquisition. The judgment of the Supreme Court in Satendra Prasad Jain's case (supra 1) and also the judgment of the Division Bench of this Court in Mohd. Moinuddin Hussain's case (2 supra) are the authorities to state that the failure on the part of the Land Acquisition authorities in tendering 80% of the estimated compensation under Section 17(3-A) of the Act before taking over possession would not vitiate the land acquisition proceedings as such and despite that failure, the land would vest in the State. In that view of the matter, the impugned order of the learned single Judge cannot be sustained.
8. This takes us to the contentions raised by the learned counsel for the owners of the land. The purpose for which the land was sought to be acquired is, undoubtedly, for a public purpose and it relates to the extension of the existing APSRTC bus depot. It cannot be said that there is no element of urgency. Be that as it may, as held by the Apex Court in Union of India v. Praveen Gupta, , decision of urgency is an administrative decision, and a matter of subjective satisfaction and there is no need for the acquiring authority to pass any reasoned order to record such satisfaction. This Court while reviewing the satisfaction recorded by the land acquisition authority, cannot act like an appellate authority and interfere with the subjective satisfaction arrived at by it, unless the materials placed before the Court would demonstrate that the land acquisition authority without reason or rhyme, irrationally invoked the urgency clause under Section 17 of the Act. That is not the situation obtaining in the instant case.
9. Adverting to the second contention advanced by the learned counsel for the land owners, suffice it to state that the notification under Section 4(1) was published in the Official Gazette on 20.4.1999, published on 9.5.1989 and 15.5.1989 in two local dailies, namely, Andhra Jyoti and Andhra Prabha respectively, and that the local publication of the draft notification was effected in the locality on 10.5.1989, whereas the draft declaration under Section 6 dated 5.5.1989 was published in the official gazette on 17.6.1989 and published in the locality on 24.7.1989. The second contention is totally misconceived and untenable contention. Suffice it to state that since the State has thought it fit to invoke the urgency clause under Section 17 of the Act, the only requirement that is required to be complied with by the land acquisition authority, as set out by the Apex Court A.P. Sareen v. State of U.P., is as follows:
"When Government forms an opinion that lands are urgently required for public purpose, notice under Section 4(1) could be issued and published in official gazette while dispensing with Section 5-A enquiry. Giving a gap of one day, declaration under Section 6(1) could be published. Notice under Section 9(1) should be given and on the expiry of 15 days thereafter, possession could be taken. "
10. Similarly, we do not find any merit in the ground of discrimination urged by the learned counsel for the owners. In the first instance, it is well settled that the suitability of the land cannot be a justiciable issue unless in a given case, the land acquisition authority wantonly and for extraneous and collateral considerations, chooses the land for acquisition. In the instant case, it is true that initially the land acquisition authority wanted to acquire Ac.1.20 cts of land for the same purpose. However, after that acquisition was subjected to judicial review at the hands of this Court and acquisition proceedings dated 12.4.1985 were quashed by order of this Court in W.P. No. 18356 of 1987 dated 29.11.1988, the land acquisition authorities, in their wisdom and having regard to their then existing need, thought it necessary to acquire only 0-90 cents of land, and thought that 0-90 cents of land belonging to the petitioner is suitable for the purpose of extension of the existing bus depot. No materials are placed before us that the acquisition of 0-90 cents of land belonging to the petitioners was wantonly done by the land acquisition authorities for any collateral and extraneous consideration. There is neither pleading nor proof to establish malice in fact or malice in law on the part of the land acquisition authority. Therefore, that contention also fails. However, we find considerable force in the last contention of the land owners. Section 45 of the Act deals with Service of notices. It reads :
45. Service of notices : Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under Section 4, by the officer therein mentioned, and, in the case of any other notice, by or by order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.
(3) When such person cannot be found, the service may be made on an adult male member of his family residing with him; and, if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired.
Provided that, if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last-known residence, address or place of business and registered under Section 28 and 29 of the Indian Post Office Act, 1898, and service of it may be proved by the production of the addressee's receipt."
11. At the time of hearing, the learned Government Pleader for Land Acquisition placed before us the original records. We have perused the same. Admittedly and as reflected from the original records, the award enquiry notice was not served on the owners in person. In that view of the matter, it was permissible for the land acquisition authorities to resort to affixation of the notice as provided under sub-section (2) of Section 45 of the Act. But, quite curiously, instead of affixing the notices on the doors of the houses/huts of the land owners, such notices were claimed to have been affixed on a pole erected in the site. Therefore, it cannot be said that the provisions of Section 9(4), 10 and Section 45 of the Act are complied with by the land acquisition authority.
12. In the result and for the foregoing reasons, we allow Writ Appeal Nos. 621 of 1993 and 1475 of 1995 and dismiss W.P. No. 18061 of 1989. Further, Writ Appeal Nos. 622 of 1993 and 1543 of 1995 are allowed in part and the award No. 4/91, dated 23.7.1991 is set aside. We direct the Land Acquisition Officer to pass appropriate award after issuing notices as envisaged under Sections 9(3) and 10 and serving the same in accordance with the procedure envisaged under Section 45 of the Act, within a period of three months from the date of receipt of a copy of this order. No costs.