Andhra Pradesh High Court - Amravati
N Ananda Reddy vs The State Of Andhra Pradesh, on 1 September, 2021
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.12144 OF 2021
ORDER:
The petitioner - N. Ananda Reddy filed this writ petition is filed under Article 226 of the Constitution of India, questioning the action of Respondent No.3 in issuing non-statutory proceedings vide „Order‟ in Rc.No.K/1389/2019 dated 11.05.2021 instead of an „Award‟ under Section 23 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as illegal, arbitrary, violative of principles of natural justice and not in consonance with the provisions of the said statute as violative of Articles 14, 19(1)(g), 21 and 300-A of the Constitution of India and consequently direct Respondent Nos. 1 to 4 to pay compensation and all statutory benefits to the petitioner by strictly adhering to the provisions of the said statute in respect of an extent of Ac.1-69 cts of land in Sy.No303/2 of Gollapuram Village, Hindupur Mandal, Ananthapuramu District.
The petitioner is the absolute owner of a total extent of Ac.5.05 cts of agricultural land, situated in Sy.No.303/2 of Gollapuram Village, Hindupur Mandal, Ananthapuramu District. The petitioner purchased the said land from one K.H. Muniappa under a registered sale deed bearing Document No.3037/2011 dated 14.03.2011. His vendor, K.H. Muniappa purchased the aforesaid extent of land, in an auction conducted by the Deputy Registrar/Officer on Special Duty, Ananthapuramu District Cooperative Central Bank Ltd, to recover the dues to the said bank, in EP No.734/95-96, and a certificate of sale dated 2 MSM,J WP No.12144 of 2021 03.07.1996 (Regd. Doc. No.734/1996) was issued in favour of petitioner's vendor, K.H.Muniappa.
The said land was originally "assigned land" and had mortgaged by the then owner, with the aforesaid bank, as security for payment of loan obtained by him. It is permissible in law for assigned land to be mortgaged in favour of such banks/financial institutions and it is also permissible to purchase such mortgaged land, when the same is sold to recover the dues to such banks/financial institutions. A Division Bench of the High Court of Andhra Pradesh at Hyderabad in "Sub Registrar, Srikalahasthi, Chittoor District and another vs K. Guruvaiah1", held that the bar contained in Section 5 of the A.P. Assigned Land (Prohibition of Transfers) Act, 1977, does not apply in respect of assigned land which are sold for recovery of cooperative loans. This aspect was taken note of again by the High Court, while disposing of W.P.No.29731 of 2010, by order, dated 29.11.2010. The said Writ Petition, was filed by petitioner's vendor, K.H. Muniappa, when Governmental authorities were treating the subject land (an extent of Ac.5.07 cts in Sy.No.303/2 of Gollapuram Village) as assigned land, consequently resulting in non-acceptance of documents presented for registration. Pursuant to the order in W.P.No.29731 of 2010, the aforementioned sale deed, dated 14.03.2011 was registered in favour of the petitioner, the said document having been executed by K.H.Muniappa, his vendor, who was the Writ Petitioner in W.P.No.29731 of 2010. 1 2009 (2) ALD 250 (DB) 3 MSM,J WP No.12144 of 2021 Pursuant to the execution of aforesaid registered document dated 14.03.2011, in favour of the petitioner, he was in possession of the subject land; his name was mutated in the revenue records and obtained Pattadar Pass Book, vide Khata No. 1161. The aforementioned transactions, on behalf of the bank and thereafter by petitioner's vendor, are also reflected in the statement of encumbrance of property issued by Registration and Stamps Department.
Certain land in Gollapuram Village was handed over to the APIIC (R-4) sometime during 2008-2009, for formation of a new Industrial Park. However, insofar as petitioner's land is concerned, i.e. an extent of Ac.5.05 cts in Sy.No.303/2 of Gollapuram Village, no land acquisition proceedings were initiated. Out of Ac.5-05 cents, an extent of Ac. 1.69 cts of the petitioner in Sy.No.303/2 of Gollapuram Village was illegally taken over by the revenue authorities and possession thereof was handed over to the APIIC (R-4), who in turn allotted the same, including it in the schedule of a registered agreement for sale, dated 05.09.2018 (Doct. No.8275 of 2018) in favour of a private entity (R-6). The recitals in the said agreement for sale, dated 05.09.2018 would indicate that, possession of the land covered therein was also handed over to the said private entity (R-6). The recitals in the said document would also indicate that for an extent of Ac.2.25 cts (9106.00 sq.mtrs), which includes petitioner's land, the said private entity (R-6) paid a total sale consideration of Rs. 1,35,13,304/-, @ Rs.60,05,912/- per acre.
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MSM,J WP No.12144 of 2021 The petitioner filed W.P.No.13586 of 2019 before this Court. This Court, by order, dated 16.09.2019 in W.P.No.13586 of 2019, directed to maintain status-quo. Further, by order, dated 06.11.2020, this Court directed the matter to be referred for negotiations before the Negotiations Committee as per the statutory rules, framed under the Land Acquisition Act. 2013. The negotiations for voluntary acquisition failed. Despite this, Minutes of the meeting of the Negotiations Committee, were issued vide Rc.No.G1/734/2008, dated 08.01.2021. While so, the total extent of petitioner's land i.e. Ac.5.05 cts was included, even though an extent of Ac.1-69 cents was actually taken from the petitioner. In the said Minutes, dated 08.01.2021, it was also stated that "the matter is being referred to LARR authority", even though no award was passed, under Section 23 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ("Land Acquisition Act, 2013).
W.P.No. 13586 of 2019 was finally heard and an order was passed on 08.03.2021, allowing the writ petition with a direction to the official respondents to pay compensation to the petitioner in respect of the land of an extent of Acs.1-69 cents, strictly adhering to the provisions of the Land Acquisition Act, 2013.
This Court, while allowing W.P.No. 13596 of 2019, observed and held as follows:
"Apropos the submissions of the learned counsel for the petitioner that the negotiations failed and therefore, the respondents have to put possession of Acs.1-69 cents back to the petitioner or compensation in terms of the Act has to be paid, it is to be appreciated that once the negotiations have not been fructified before the District Level Negotiations Committee, the authorities are required to initiate proceedings under the Act, more particularly, in view of the undertaking dated 06.11.2020 as also in the light of the specific stand by A.P.I.I.C in the additional counter affidavit"5
MSM,J WP No.12144 of 2021 After disposal of W.P.No.13586 of 2019 by this Court, without initiating proceedings for land acquisition and without issuing any notification under Section 11 of the Land Acquisition Act, 2013, without conducting an award enquiry under Section 23 thereof, without permitting the petitioner to participate in an award enquiry, an "ORDER" in Rc.No:K/1389/2019, dated 11.05.2021 was passed by the R.D.O./Sub-Collector, Penukonda (R-3), fixing compensation, styled as "payment of ex-gratia @ Rs.34,60,636/- per acre", in respect of petitioner's private land that was taken by the authorities. The total compensation awarded thereunder is Rs.58,48,475/- for an extent of Ac. 1.69 cts of land belonging to the petitioner. No award under Section 23 of the said statute was passed.
The "ORDER" in Rc.No:K/1389/2019, dated 11.05.2021, is a non-statutory order, which is not in consonance with the provisions of the Land Acquisition Act, 2013 and the same is challenged in the present writ petition. A plain reading of the "ORDER" dated 11.05.2021 passed by the R.D.O./Sub-Collector, Penukonda (R-3), would clearly reveal that the directions of this Court in W.P.No.13586 of 2019, was not complied with. This Court directed to pay compensation strictly adhering to the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013". The directions of this Court have been violated by the respondent herein, by issuance of the "ORDER" in Rc.No:6/1389/2019, dated 11.05.2021.
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MSM,J WP No.12144 of 2021 It was the mandate, contained in the order of this Court, the provisions of the Act i.e. the Land Acquisition Act, 2013 are to be strictly adhered to. Further, the said statute prescribes a particular procedure, which was not followed by the R.D.O./Sub- Collector, Penukonda (R-3). The R.D.O./Sub-Collector, Penukonda (R-3), who is discharging statutory functions as the Land Acquisition Officer, should have first caused initiation of Land Acquisition Proceedings by issuance of a notification under Section 11 of the Act, which was not done. Further, Section 23 which speaks of "enquiry and land acquisition award by Collector" was not complied with. No award enquiry was conducted, no notice of any such award enquiry was issued to the petitioner, thereby resulting in his non-participation in such an award enquiry stipulated by the statute. No "award" was passed in terms of the said provision. Further, Section 26 of the Act which speaks of "Determination of market value by Collector" and also the other provisions contained in Sections 27 and 28 were not followed i.e. statutory determination of amount of compensation and parameters to be considered by Collector in determination of award. Section 30, which speaks of "award of solatium" was not adhered to, inasmuch as no award enquiry was conducted to enable determination of compensation and no award was passed in terms of the said statute. The purported solatium granted is also incorrect, as the procedure prescribed in the statute was not followed.
Further, in the impugned "ORDER", dated 11.0.2021 of the R.D.O./Sub-Collector, Penukonda (R-3), Section 80 of the Land Acquisition Act, 2013 was not complied with. Section 80 deals with 7 MSM,J WP No.12144 of 2021 „payment of interest‟ and the petitioner is entitield to be awarded interest on the compensation amount.. The statutory rate of interest @ 9% per annum for the first year and further, @ 15% per annum after the expiry of first year, from the time of taking possession, has not been complied with. About 3 years have elapsed since illegal taking of possession by the authorities and the direction of this Court to strictly adhere to the provisions of the Act has been totally violated, as the provisions of the statute have not been followed.
A reading of the impugned "ORDER" in Rc.No:K/1389/2019, dated 11.05.2021, issued by the R.D.O./Sub-Collector, Penukonda (R-3) would show that what was purportedly awarded in the said proceedings is "ex-gratia", as mentioned therein. Further, the "clarifications" that have been sought for by the R.D.O./Sub- Collector, Penukonda (R-3), as shown in the aforesaid proceedings, would by itself, constitute contempt of court. Also, the respondent herein has again fallen back on the failed negotiations and the calculation of the purported compensation is taken into account for the period preceding 3 years from the date of publication of Form-C, while referring to the constitution of the committee, for negotiations. The same would constitute violation of the order in the writ petition. The question of falling back on the failed negotiations for voluntary acquisition would not arise. The only option left for the authorities is to initiate Land Acquisition Proceedings by invoking and strictly adhering to the mandatory provisions of the Act 30 of 2013. However, this was not done. No notification under Section 11 was issued. No award enquiry was conducted and no award was passed in terms of Section 23. The 8 MSM,J WP No.12144 of 2021 other mandatory provisions such as Sections 26, 27 and 28, in the matter of determination of market value and determination of amount of compensation, etc., were not followed. Further, Section 30 thereof, which deals with award of solatium was not adhered to by conducting an award enquiry and passing an award in terms of Section 23 thereof. Section 80 of the statute was not complied with and interest from the date of taking possession was not calculated, as such, Award enquiry was not conducted and statutory award was not passed in terms of Section 23 of the Land Acquisition Act, 2013.
It is also contended that, land was taken away from the petitioner for the purpose of establishment of industrial Park and other land in the immediate vicinity, that had been sold by the APIIC, were subject matter of allotments, for which, payment was made by the purchasers at about Rs.57,00,000/- to Rs.60,00,000/- per Acre during the year 2018. However, in pursuance of the impugned "ORDER", the basic land value has been fixed at Rs.34,60,636/-, which is absolutely arbitrary. If an award enquiry had been conducted and if an opportunity had been accorded to the petitioner to participate in the same, as per statute, he would have put-forth his claim. However, this was not done, resulting in grave injustice to the petitioner, apart from violation of the provisions of the statute. If a statutory award is passed and if the petitioner is not satisfied with the grant of compensation, he can seek a reference for enhancing the compensation. As no statutory award under Section 23 of the Land Acquisition Act, 2013 is passed, the petitioner was deprived of this 9 MSM,J WP No.12144 of 2021 statutory remedy, which provides for enhancement of compensation awarded.
The provisions of the Land Acquisition Act, 2013 deal with exercise of the power of eminent domain by the State, which is ex- proprietary in nature. While initiating land acquisition proceedings and determining the market value/compensation payable, the provisions of the statute have to be strictly followed. The impugned "ORDER" in Rc.No:K/1389/2019, dated 11.05.2021 had been issued in transgression of the mandatory procedure prescribed in the statute. When a statute prescribes a particular thing to be done in a particular manner, it has to be done in that manner alone and in no other manner.
The expression "Law" in Article 300-A of the Constitution means, legislation i.e. in the instant case, the Land Acquisition Act, 2013. The petitioner is now sought to be deprived of his property by issuing a non-statutory "ORDER" in Rc.No:K/1389/2019, dated 11.05.2021 of the R.D.O./Sub- Collector, Penukonda (R-3). The payment therein has been described as "ex-gratia". The procedure followed is unknown to law and by virtue of the impugned order, the proceeding of the Land Acquisition Act, 2013 are sought to be bypassed and short- circuited. It is not permissible in law, for a statutory authority to render otiose or nugatory the provisions of the Land Acquisition Act, 2013, by passing a non-statutory order, which is not contemplated under the statute, and this is what has been done in the instant case.
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MSM,J WP No.12144 of 2021 Land acquisition compensation can never be determined by issuance of non-statutory proceedings, such as the "ORDER" in Rc.No:K/1389/2019, dated 11.05.2021, issued by the R.D.O./Sub-Collector, Penukonda (R-3). The said authority has no jurisdiction to issue a non-statutory "ORDER", instead of passing a statutory award under Section 23 of the Land Acquisition Act, 2013, by conducting an award enquiry, with the participation of the land owner.
The R.D.O./Sub-Collector, Penukonda (R-3) had abdicated statutory discretion vested in the said authority under the provisions of the Land Acquisition Act, 2013 by simply relying on the report of the Tahsildar, Hindupur and also by requesting the District Collector, Ananthapuramu to issue instructions in the matter. The impugned "ORDER" was passed, under the "oral instructions received from the APIIC Head Office to pass order for Ac.1-69 cents immediately to avoid contempt.....". Statutory discretion can never be surrendered nor can a statutory authority act under the directions of an extraneous authority, such as APIIC or the Tahsildar. Therefore, the impugned order in Rc.No.K/1389/2019 dated 11.05.2021 issued by the Revenue Divisional Officer/Sub-Collector, Penukonda is not an „Award‟ within the meaning of the provisions of Section 23 of the Land Acquisition Act, 2013 and the same is illegal, arbitrary, violative of principles of the Land Acquisition Act, 2013 and violative of Articles 14, 19(1)(g), 21 and 300-A of the Constitution of India.
Respondent No.3 filed counter affidavit, admitting taking over an extent of Ac.1-69 cents out of Ac.5.05 cents in Sy.No. 303-2 of Gollapuram village which was originally assigned 11 MSM,J WP No.12144 of 2021 to one Hakeem Modin Sab S/o Buden Sab vide D.A.RDis No. 32/84 dated 25.10.1974. It is the specific assertion of the third respondent that the land was resumed by the then Tahsildar, Hindupur vide RC. No. 51/2007/B, dated 2.1.2008 and handed over to the APIIC on 20.11.2008.
It is contended that the petitioner's vendor K.H.Muniappa has filed WP No. 29731 of 2010 before this Court which is disposed of the writ petition, based on the judgment of the Division Bench in 'Sub Registrar, Srikalahasti, Chittor District and another vs K.Guruvaiah' (referred supra). In view of the undisputed legal position, writ petition is allowed. Respondent No.3 (Sub Registrar) was directed to receive the document that may be presented by the petitioner in respect of the above mentioned land and register the same. Further K.H. Muniappa has not obtained pattadar pass book even though he purchased the land in auction sale in the year 1997. During field inspection of the land in question for initiation of proposals for Resumption of the land also revealed that, he was not in possession of the land. The said purchase was not brought to the notice of the then Tahsildar, Hindupur while passing resumption orders. Therefore, the resumption orders were passed in the name of the assignee on 02.01.2008.
It is contended by the third respondent that the land was already resumed by the Government by the then Tahsildar during the year 2008 and handed over to the Zonal Manager on 20.11.2008 itself for establishment of SEZ. But the present writ petitioner purchased the land vide document No. 3037/2011, dated 14.3.2011. By the time of purchase of the land by the petitioner, it is in possession of the APIIC/Respondent No.4, as the 12 MSM,J WP No.12144 of 2021 possession was already handed over during the year 2008. It is further submitted that, though the registration of the land in favour of the writ petitioner took place during the year 2011, but he approached the Revenue authorities for ROR 1B webland entries during the year 2019 i.e. after lapse of 9 years. Thus, the petitioner was not in possession of the property.
It is submitted that, land of an extent of Ac 964.27 cents situated in Gollapuram Village of Hindupur Mandal was not handed over to the APIIC during the year 2008 - 2009 out of total extent of Ac.1075.87 cents of Gollapuram village, for which resumption orders were issued by the then Tahsildar vide Rc 51/2017/B dated 2.1.2008.
The subject land of an extent of Ac.5.05 in Sy.No. 303-2 is also part and parcel of Ac.1075.87 cents of Gollapuram village handed over to APIIC - Respondent No.4. Exgratia is approved in the name of the Assignee, but not paid for the subject land by the then Tahsildar, noting that shares are not settled. At the time of taking action for resumption of the subject land, no information filed before the then Tahsildar in respect of the sale of the land by the Bank authorities. Therefore, the resumption orders were passed in the name of the Assignee as per the available records.
The third respondent also admitted about filing of W.P.No.13586 of 2019 and issue of directions by this Court and placing of the matter before the District Level Negotiation Committee, Ananthapuramu duly issuing Form-C Notice. The petitioner has also appeared before the Committee and after hearing the petitioner, the District Level Negotiation Committee 13 MSM,J WP No.12144 of 2021 opined that, as the petitioner repeatedly demanded Rs.70,00,000/- per acre which is not in accordance with Section 26 of LARR Act, the matter is being referred to LARR Authority under Act 30 of 2013.
In pursuance of the order in W.P.No.13586 of 2019 filed by petitioner, the District Collector, Ananthapuramu, agreed for payment of compensation amount in respect of land of an extent of Ac.1-69 cents in Sy.No.303-2 of Gollapuram village of Hindupur Mandal, acquired for the purpose of establishment of Industrial Park in favour of APIIC @ Rs.34,60,636/- per acre, including all benefits in favour of petitioner.
Though the petitioner has been directed to submit details of Bank Account for transfer of above compensation amount i.e. (i) Bank Account Number, (ii) Branch Name & (iii) IFSC code or to receive cheque for above compensation amount duly submitting acknowledgement of the cheque, though letter was served through registered post and also through Tahsildar, he has not complied the request made by the third respondent.
In the above circumstances and in pursuance of orders of this Court in W.P.No.13586 of 2019 filed by petitioner, Demand Draft bearing No.824178, dated. 24.05.2021 drawn on Union Bank of India, Krikera for Rs.58,48,475/- in favour of petitioner towards compensation amount for land of an extent of Ac.1-69 cents in Sy.No.303-2 of Gollapuram village of Hindupur Mandal, acquired for Industrial Park by Respondent No.4 vide proceedings Rc.No:K/1389/2019, dated 2-6-2021. But the petitioner has not received the said Demand Draft and again the petitioner filed the 14 MSM,J WP No.12144 of 2021 present Writ Petition with an intention to drag the proceeding without any substance in his contention. On this ground alone, writ petition is liable to be dismissed.
It is further contended that the order was passed duly following the directions issued by this Court in W.P.No.13586 of 2019, where the Court has ordered to "to pay compensation to the petitioner in respect of the land of an extent of Acs. 1.69 Cents referred to above strictly adhering to the provisions of the Act, as expeditiously as possible, in any event, not later than four weeks from the date of receipt of a copy of this order. After following the due process of law and in accordance with the procedure prescribed under Act 30 of 2013, the compensation amount in respect of subject land fixed @ Rs.34,60,636/- per Acre. Therefore, the third respondent passed the order only in strict compliance of the directions issued by this Court and not violated any of the provisions or directions issued by this Court.
It is submitted that, the matter has been placed before the District Level Negotiation Committee, Ananthapuramu duly issuing Form-C Notice. The petitioner has also appeared before the Committee. And After following the due process of law and in accordance with the procedure prescribed in RFCTLARR Act the compensation amount in respect of subject land is fixed @ Rs.34,60,636/- per Acre including all benefits, in favour of petitioner.
It is also submitted that, during enquiry before the District Level Negotiations Committee, the petitioner appeared and 15 MSM,J WP No.12144 of 2021 demanded Rs.70,00,000/- lakhs compensation which is not based on any material.
Finally, it is contended that, the amount payable to the petitioner is styled as ex-gratia in the order, which is in lieu of the compensation only and that the respondents never violated any directions issued by this Court either willfully or wantonly and strictly adhered to the provisions of Act 30 of 2013, the order was passed awarding compensation in the name of ex-gratia to this petitioner @ Rs.34,60,636/- per acre. Therefore, the writ petition is not maintainable and liable to be dismissed and finally requested to dismiss the writ petition against Respondent No.3.
Respondent No.4/APIIC filed separate counter affidavit, admitting abut handing over of land to an extent of Ac.1-69 cents in Sy.No.303-2 of Gollapuram village of Hindupur Mandal, belonging to this petitioner. It is contended that, the Joint Collector, Ananthapuram has approved the provisional value statement for an extent of Acs.1075.87 cts in collector's proceedings vide Rc.No G/734/2008, dated 2.04.2008 which includes Survey No.303-2 admeasuring land of an extent of Ac.5.05 cts in Gollapuram Village in Hindupuram Mandal, and an ex-gratia of Rs.16,59,48,974/-. In pursuance of the request of the revenue authorities, APIIC has deposited the amount towards compensation for the land. Subsequent to the disbursement of compensation the Tahasildar, Hindupur has handed over the possession of the land admeasuring Ac.1075.84 cents (Which includes land covered under Act 9/1977) to the APIIC on 4.4.2008, which also includes Sy.No.303-2 admeasuring Ac.5.05 cents in Gollapuram Village , Hindupur Mandal, Anathapuram District. The 16 MSM,J WP No.12144 of 2021 Tahsildar, Hindupur, subsequently also issued revised possession certificate on 20.11.2008 to an extent of Acs.964.26 cts after deleting Acs.111.58 cts of land. The subject matter land situate in Sy. No.303/2 of Gollapuram village, was handed over to APIIC in the month of November 2008 itself and subsequently the subject matter of land admeasuring Ac.5.05 was subjected to sale transaction vide sale deed dated 14.03.2011 by which time possession was with APIIC. The fourth respondent after taking possession of the said land, developed a layout and started allotting plots for establishment of industries on the request of interested entrepreneurs.
It is submitted that, the private party/Respondent No.6 applied for allotment of Plot Nos. 59-C and 59-D for establishment of recycling unit vide Application ID No.28172 dated 22.05.2018. The said application was placed before State Level Allotment Committee meeting and provisional allotment orders were issued vide Lr.No.28172/APIIC/IP/Gollapuram, Anantapuram,2018 dated 04.06.2018 duly allotting Plot Nos. 59-C and 59-D admeasuring 9106 sq.mts/2.25 cents. Subsequently, agreement for sale was executed on 05.09.2018 and was registered vide Document No.8275/2018 dated 09.05.2018. The physical possession of the plot was also handed over to the company on 05.09.2018 and Respondent No.7 company after taking possession of the plots started civil works by duly obtaining the building plan approvals and also constructed the buildings.
Respondent No.3 passed the order in pursuance of the directions issued by this Court in W.P.No.13586 of 2019 without following any order and the claim of this petitioner is contrary to 17 MSM,J WP No.12144 of 2021 the law laid down by the Apex Court in Indore Development Authority v. Manoharlal and others2 and finally prayed for dismissal of the writ petition.
During hearing, learned counsel for the petitioner mainly contended that the petitioner cannot be deprived of the property, except under the authority of law as per Article 300-A of the Constitution of India. But, the respondents adopted a different procedure and passed non-statutory order, awarding Ex-gratia instead of compensation by following the procedure prescribed under Act 30 of 2013 and in pursuance of the directions of this Court in W.P.No.13586 of 2019. Such deprivation of the property by non-statutory order which is impugned in the writ petition is contrary to the law laid down by the Apex Court in D.B. Basnett (dead) through legal Legal Representatives v. Collector, East District, Gangtok, Sikkim3. On the strength of this principle only, learned counsel for the petitioner sought to set-aside the impugned order.
Whereas, Sri K.V. Raghuveer, learned counsel attached to the office of learned Additional Advocate General would contend that the nomenclature of compensation is changed into Ex-gratia only in view of the order dated 11.05.2021 and the authorities followed Rule 8 of the Rules framed under Act 30 of 2013 and passed the order dated 11.05.2021 and strictly adhered to the procedure prescribed under law and the directions issued by the High Court and finally requested to dismiss the writ petition against Respondent No.3.
2 AIR 2020 SC 1496 3 (2020) 4 SCC 572 18 MSM,J WP No.12144 of 2021 Whereas, Sri J. Ugra Narasimha, learned counsel appearing for Respondent No.2 vehemently contended that, though possession was taken long ago, the petitioner did not raise his little finger claiming right in the property and by the time of handing land possession, he was not the owner of the property. Since the amount was resumed under the provisions of Act 9 of 1977 and having purchased the property after settlement of possession of property of this petitioner, he is said to be an illegal claimant and that, Respondent No.3 passed the order strictly adhering to the procedure prescribed under law and requested to dismiss the writ petition finally against Respondent No.2.
Other respondents did contest the matter by filing counter affidavits.
Considering rival contentions, perusing the material available on record, the point that arises for consideration is:
"Whether the order impugned in this writ petition i.e. Rc.No.K/1389/2019 dated 11.05.2021 passed by Respondent No.3 is based on non-statutory provisions. If not, whether the order depriving the petitioner to enjoy the property of land of an extent of Ac.1-69 cents in Sy.No303/2 of Gollapuram Village, Hindupur Mandal, Ananthapuramu District, is in violation of Articles 14, 21 and 300-A of the Constitution of India. If so, whether the impugned order is liable to be set- aside?
P O I N T:
Since the facts are not in dispute, it is unnecessary to delve upon the facts once again and suffice it to decide the issue involved in this matter with reference to various orders passed by this Court and the law laid down by the Apex Court. 19
MSM,J WP No.12144 of 2021 The subject property was assigned to one Hakeem Modin Sab, who mortgaged the property with Cooperative Bank to obtain loan and later, committed default, consequently, the property was brought to sale in the public auction.
One K.H. Muniappa purchased the property in public auction conducted by the Deputy Registrar/Officer on Special Duty, Ananthapuramu District Cooperative Central Bank Ltd, to recover the dues to the said bank, in E.P No.734/95-96 and obtained Certificate of Sale dated 03.07.1996 vide Doc. No.734/1996. Whereas, this petitioner purchased the same from K.H. Muniappa under registered sale deed bearing Document No.3037/2011 dated 14.03.2011. But, possession of land to an extent of Ac.1-69 cts in Sy.No303/2 of Gollapuram Village, Hindupur Mandal, Ananthapuramu District was allegedly handed over to Respondent No.4/A.P.I.I.C, who in turn allotted the same, in favour of a private entity/Respondent No.6 .Though it was an assigned land, as mortgage of the assigned land is permissible with the Cooperative Bank, the original assignee mortgaged the property for realization of the debt, the land was sold in the public auction. The petitioner purchased the property from K.H. Muniappa under Registered Sale Deed Doc.No.3037/2011 dated 14.03.2011.
As the registering authority did not register the property, K.H. Muniappa filed W.P.No.29731 of 2010 and the High Court passed order on 29.11.2010 directing the Registrar to accept the documents for registration on its presentation. Later, the petitioner purchased the property, mutated his name, obtained pattadar passbooks and title deed in his favour.20
MSM,J WP No.12144 of 2021 The main grievance of this petitioner before this Court is that, without following due process of law, the property was acquired and awarded ex-gratia under a non-statutory order which is impugned in the writ petition i.e. Rc.No.K/1389/2019 dated 11.05.2021 was passed. Before deciding the legality of the non-
statutory order impugned in the writ petition, it is necessary to advert to the orders passed by this Court in the earlier round of litigation filed by this petitioner against the respondents.
W.P.No.13586 of 2019 was filed by this petitioner against the respondents including Respondent No.7 therein, who is arrayed as Respondent No.6 in the present writ petition. This Court vide order dated 06.11.2020 issued an interim direction, directing the authorities to complete the process as per Rule 8 of the Rules framed under Act 30 of 2013. Later, it appears that the negotiations with the Committee failed and a report was submitted to the concerned authority i.e Sub-Collector-cum-Land Acquisition, Rehabilitation and Resettlement Authority. However, the matter was finally heard by the learned single Judge, the petition was allowed on 08.03.2021. The learned single Judge made clear observations which are apposite to decide the controversy between the parties and they are extracted hereunder:
―Apropos the submissions of the learned counsel for the petitioner that the negotiations failed and therefore, the respondents have to put possession of Acs.1.69 cents back to the petitioner or compensation in terms of the Act has to be paid, it is to be appreciated that once the negotiations have not been fructified before the District Level Negotiations Committee, the authorities are required to initiate proceedings under the Act, more particularly, in view of the undertaking dated 06.11.2020 as also in the light of the specific stand by A.P.I.I.C. in the additional counter-affidavit. As contended by the learned counsel for the petitioner, the question of referring the matter to the L.A.R.R. Authority would arise only in the event any person interested who has not accepted the ‗award' (emphasis supplied) seeks reference of the same to the 21 MSM,J WP No.12144 of 2021 authority constituted under Section 51 of the Act. It is profitable to extract Section 64 of the Act, which deals with reference to the Authority, for ready reference, and the same reads as under:
64. Reference to Authority.-
(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested:
Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority: Provided further that where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days.
(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made--
(a)person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector‗s award;
(b)in other cases, within six weeks of the receipt of the notice from the Collector under section 21, or within six months from the date of the Collector‗s award, whichever period shall first expire: Provided further that the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso.‖ In Paragraph No.10, the Court observed that, no award has been passed in terms of the provisions of the Act 30 of 2013.
Therefore, the Court opined that, "in the absence of an award in terms of the provisions of the Act, the reference has been made to the L.A.R.R. Authority as was done by the District Level Negotiations Committee would have no legal efficacy. Therefore, the submissions of the learned counsel for the petitioner in this regard needs acceptance. However, in the opinion of this Court, the petitioner in the facts and circumstances of the case, can be 22 MSM,J WP No.12144 of 2021 granted appropriate relief, instead of a direction to restore possession".
In Paragraph Nos. 12 and 13, the learned single Judge concluded as follows:
―12. In the light of the foregoing conclusions, this Court is required to consider the reliefs to be granted in the facts and circumstances of the case, more particularly, in view of the construction of the factory and commencement of operations by respondent No.7 in the subject matter land and the additional counter-affidavit of A.P.I.I.C. offering to pay compensation in terms of the Act, for the reasons specified therein. But for the above position, perhaps, the relief as sought for by the petitioner to restore possession of the land merits acceptance. However, the reliefs can be moulded by this Court on an overall appreciation of relevant aspects and in the interest of Justice. Therefore, keeping in view the undisputed fact that respondent No.7 established factory in the subject matter land and commenced its operations, the relief sought for to restore the land to the petitioner in its original condition, is disallowed. 13. Accordingly, the Writ Petition is allowed with a direction to the official respondents to pay compensation to the petitioner in respect of the land of an extent of Acs.1.69 cents referred to above strictly adhering to the provisions of the Act, as expeditiously as possible, in any event, not later than four weeks from the date of receipt of a copy of this order.‖ In view of the specific direction issued by the learned single Judge vide order dated 08.03.2021, the official respondents were directed to pay compensation to the petitioner in respect of the land of an extent of Ac.1-69 cents, strictly adhering to the provisions of Act 30 of 2013, as expeditiously as possible, in any event, not later than four weeks from the date of receipt of copy of the said order.
In view of the directions issued by the learned single Judge of this Court in W.P.No.13586 of 2019 dated 08.03.2021, the present non-statutory award is passed. Even a bare look at the impugned non-statutory order dated 11.05.2021, it is clear that, negotiations by the Committee were failed, but still passed a non-
statutory order fixing ex-gratia, instead of payment of 23 MSM,J WP No.12144 of 2021 compensation of Rs.58,48,475/- in terms of provisions of Act 30 of 2013, totally in violation of the order passed by this Court in W.P.No.13586 of 2019. On the other hand, it is evident that, to avoid Contempt of Court, the order of the learned single Judge.
The last lines in fifth page of the order of the Land Acquisition Officer & Sub-Collector, Penukonda, vide Proceedings Rc.No.K/1389/2019 dated 11.05.2021 reads as follows:
―Further, as per the oral instructions received from the APIIC Head Office to pass order for 1.69 Acres immediately to avoid contempt of the case and to comply with the directions of the Hon'ble High Court, sales occurred ..........‖ From the above, it is clear that the impugned order was passed on the oral instructions received from APIIC to pass an order fixing ex-gratia over an extent of Ac.1-69 cents immediately to avoid contempt of the court and to comply with the directions of the High Court. Thus, it is clear that the order was passed totally in contravention of the directions issued by the learned single Judge of this Court in W.P.No.13586 of 2019 dated 08.03.2021. Therefore, the order impugned in the writ petition is passed without any statutory basis. Even otherwise, to acquire the land under the provisions of Act 30 of 2013, thee must be a notification for acquisition of the property under Section 11 i.e. publication of preliminary notification, proposing to acquire the land, calling for objection for the proposed acquisition and to call for impact assessment report and declaration shall be filed under Section 19 of the Act, the objections in terms of Section 15 of the Act and later, declaration has to be published under Section 19 after considering the report, if any made under Sub-section (2) of 24 MSM,J WP No.12144 of 2021 Section 15 of the Act. Later, an award enquiry shall be conducted under Section 23 of the Act and pass an appropriate award, awarding compensation together with statutory benefits. Even to invoke Rule 8 of the Rules, there must be a preliminary notification proposing to acquire the land and only after hearing the objections, the authorities may resort to the procedure under Rule 8 to constitute negotiations committee for awarding compensation by consent award. But, no such preliminary notification, as mandated under Section 11 was issued and failed to follow the procedure under Act 30 of 2013, but passed the non-statutory order without any legal basis awarding ex-gratia instead of payment of compensation for the land acquired, strictly adhering to the procedure prescribed under Act 30 of 2013. Thus, the third respondent being the competent authority under the Act, an officer in the cadre of Sub-Collector is supposed to follow the procedure prescribed under the Act and Rules framed thereunder and the directions issued by this Court. But, obviously for different reasons, in utter deviation of the procedure prescribed under Act 30 of 2013, blatant violation of directions issued by this Court in W.P.No.13586 of 2019 dated 08.03.2021, passed the impugned order without any source of authority serendipitously. When the act of the respondents is to expropriate, the authorities have to follow the procedure strictly, otherwise the act is vitiated by any irregularity and such order passed by the authorities is liable to be set-aside.
When the learned single Judge issued a direction in W.P.No.13586 of 2019 dated 08.03.2021 to follow the procedure prescribed under Act 30 of 2013 and award compensation by 25 MSM,J WP No.12144 of 2021 passing appropriate award, it is to be strictly adhered to by the authority. But, the authority adopted a different procedure which is unknown to law and passed the impugned order. Such non- statutory order is nothing but an arbitrary exercise of power without any source of authority by the third respondent. The act of the third respondent itself indicates callousness in expropriation of the petitioner‟s land for an extent of Ac.1-69 cts in Sy.No303/2 of Gollapuram Village, Hindupur Mandal, Ananthapuramu District. Therefore, the act of the respondents is wholly arbitrary and without any authority of law, since the order impugned in the writ petition is not based on any source or based on law.
The other contention of this petitioner is that, when a specific procedure is prescribed for awarding compensation by acquiring the land under Act 30 of 2013, such act must be done in accordance with the procedure and not in any other manner. But the third respondent, obviously for reasons best known to him passed the present impugned non-statutory order and instead of awarding compensation; granted ex-gratia.
Even payment of ex-gratia, invoking G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 is impermissible under law, as it is not made by Parliament or State Legislature. Therefore, taking aid of G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 passed by the State for resumption of the assigned land for public purpose is another illegality and it is in contravention of the direction issued by this Court in W.P.No.13586 of 2019 dated 08.03.2021. Therefore, when the petitioner was deprived of agricultural land of an extent of Ac.1-69 26 MSM,J WP No.12144 of 2021 cents, it is nothing but depriving him his source of livelihood without following due process of law in violation of fundamental right guaranteed under Article 21 of the Constitution of India.
When a specific procedure is prescribed under Act 30 of 2013 to deprive the person from property, such procedure is to be strictly adhered to by any citizen of India who is enjoying the rights in the property. Such citizen cannot be deprived of property except by authority of law, vide Article 300-A of the Constitution of India. So, the law made by the Parliament is Act 30 of 2013 and the authorities are bound to follow the procedure prescribed under law, while depriving a citizen of India to enjoy the property. But, without following such procedure, the third respondent passed the impugned order.
The Constitutional Bench of erstwhile High Court of Andhra Pradesh at Hyderabad in "LAO-cum-Revenue Divisional Officer, Chevella Division and Others Vs. Mekala Pandu and Others4"
referred to a judgment of Supreme Court in "Jilubhai Nanbhai Khachar Vs. State of Gujarat5". In the said judgment, the Supreme Court observed as follows:
"Those without land suffer not only from an economic disadvantage, but also a concomitant social disadvantage. In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land. Agrarian reforms therefore require, inter alia, the reduction of the larger holdings and distribution of the excess land according to social and economic consideration. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual.......Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to 4 AIR 2004 AP 250 5 1995 Supp (1) SCC 596 27 MSM,J WP No.12144 of 2021 them dignity of their person by providing to them a near decent means of livelihood."
It is further held:
"Property, therefore, accords status. Due to its lack man suffers from economic disadvantages and disabilities to gain social and economic inequality leading to his servitude. Providing facilities and opportunities to hold property furthers the basic structure of egalitarian social order guaranteeing economic and social equality. In other words, it removes disabilities and inequalities, accords status, social and economic and dignity of person........Property in a comprehensive term is an essential guarantee to lead full life with human dignity, for, in order that a man may be able to develop himself in a human fashion with full blossom, he needs a certain freedom and a certain security. The economic and social justice, equality of status and dignity of person are assured to him only through properly."
(Emphasis is supplied).
The purpose of assignment of land either under the Board Standing Orders or under the land reforms legislations to the weaker sections of the society by the State is obviously in pursuance of its policy to empower the weaker sections of the society. Having assigned the land, the State cannot deprive him of the welfare benefit or public assistance. Deprivation of assignee's right to enjoy the property assigned to him may affect his dignity and security. It may adversely affect the equality of status and dignity.
Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Article 21 is wide and far reaching. An important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the 28 MSM,J WP No.12144 of 2021 constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
In Re: Sant Ram6 a case which arose before "Maneka Gandhi vs. Union of India7", the Supreme Court ruled that the right to livelihood would not fall within the expression "life" in Article 21. The Court observed:
"The argument that the word "life" in Article 21 of the Constitution includes "livelihood" has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21."
In "Olga Tellis vs. Bombay Municipal Corporation8" the Apex Court held as follows:
"If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."
(Emphasis is supplied).
The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and
(f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right 6 AIR 1960 SC 932 7 AIR 1978 SC 597 8 AIR 1986 SC180 29 MSM,J WP No.12144 of 2021 to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.
In "Delhi Transport Corporation Vs. D. T. C. Mazdoor Congress9", the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. Income is the foundation of many fundamental rights. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
The Apex Court in various judgments interpreted the right to livelihood is a part of right to life under Article 21 of the Constitution of India. However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable. The Court opined that the state acquires land in exercise of its power of eminent domain for a public purpose. The landowner is paid compensation in lieu of land, and therefore, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.
Thus, in view of the law laid down by the Apex Court in various judgments (referred supra), widening the meaning of word „right to life‟ includes „right to livelihood‟, right to livelihood is a fundamental right, and it is a part of right to life guaranteed under Article 21 of the Constitution of India.
9(1991)ILLJ395SC 30 MSM,J WP No.12144 of 2021 The Constitutional Bench of erstwhile High Court of Andhra Pradesh at Hyderabad in "LAO-cum-Revenue Divisional Officer, Chevella Division and Others Vs. Mekala Pandu and Others"
(referred supra) held that the assignees of the Government lands are entitled to compensation equivalent to the full market value of the land and other benefits on par with full owners of the land even in cases where the assigned lands are taken possession of by the State in accordance with the terms of grant or patta, though such resumption is for a public purpose. Even in cases where the State does not invoke the covenant of the grant or patta to resume the land for such public purpose and resorts to acquisition of the land under the provisions of the Land Acquisition Act, 1894, the assignees shall be entitled to compensation as owners of the land and for all other consequential benefits under the provisions of the Land Acquisition Act, 1894. No condition incorporated in patta/deed of assignment shall operate as a clog putting any restriction on the right of the assignee to claim full compensation as owner of the land.
No doubt, as discussed above, right to livelihood of a person can be deprived in accordance with law.
Article 300-A of the Constitution of India, protects right of an individual, but such right in the property can be deprived of save by authority of law.
The right to property is now considered to be not only a constitutional or a statutory right, but also a human right.
Though, it is not a basic feature of the constitution or a fundamental right, human rights are considered to be in realm of 31 MSM,J WP No.12144 of 2021 individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension (Vide: Tukaram Kanna Joshi Vs. M.I.D.C.10) Right to property of a private individual, though, permitted to be deprived of, it must be by authority of law. Still, Article 25 (1) of the Universal Declaration of Human Rights recognized such right in property as human right, which reads as follows:
"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
India is a State Party to the declaration, but the right to property is not being considered as human right till date by many Courts.
Right to property in India at present protected not only under Article 300-A of the Constitution of India, but also recognized as human right under Article 25 (1) of the Universal Declaration of Human Rights. A liberal reading of these two provisions, the intention to protect the land owners only from Executive fiat, imposing minimal restrictions on the power of the State to acquire land. This is in sharp contrast to the language adopted in the Indian Constitution.
10
AIR 2013 SC 565 32 MSM,J WP No.12144 of 2021 Hence, the only authority of law to deprive a person from his property is acquisition of land under the provisions of relevant law.
Earlier, the Land Acquisition Act, 1894 permits acquisition of land of a private individual for various purposes. The land Acquisition Act, 1894 is repealed, enacting the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The said Act is a complete code governing the procedure for acquisition of land of a private individual and for payment of compensation to the private land owners. Therefore, by invoking the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the right of a private owner in property can be deprived of and the violation of fundamental right guaranteed under Article 21 i.e. right to livelihood will not come in the way of State to acquire such land in view of the law laid down by the Apex Court in "Chameli Singh Vs. State of Uttar Pradesh" (referred supra).
Therefore, depriving the petitioners‟ livelihood by resuming the land based on conditions of patta is nothing but violation of fundamental right guaranteed under Article 21 of the Constitution of India and such deprivation of right in land is also violation of Article 25 (1) of Universal Declaration of Human Rights. Such deprivation is permissible only by authority of law like the Land Acquisition Act, 1894 or the Act, 2013.
The next question is "What is authority of law?". Whether G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 or 33 MSM,J WP No.12144 of 2021 any order passed without any authority under law be construed as law?
Time and again, the Apex Court construed the meaning of word "Law" not only with reference to Article 13 of the Constitution of India, but also with reference to Article 300-A and 31C of the Constitution of India. The Apex Court in "Bidi Supply Co. Vs. Union of India11" and "Edward Mills Co.Ltd. Vs. State of Ajmer12" held that the law, in this Article, means the law made by the legislature and includes intra vires statutory orders.
The orders made in exercise of power conferred by statutory rules also deemed to be law. (Vide: State of M.P. Vs. Madawar G.C.13"
The Law does not, however, mean that an administrative order which offends against a fundamental right will, nevertheless, be valid because it is not a "law" within the meaning of Article 13 (3) of the Constitution of India (Vide: Basheshar Nath Vs. C.I.T.14 and "Mervyn Coutindo Vs. Collector, Customs Bombay15") Therefore, whatever legislation made by the legislature alone can be said to be law within the meaning Article 13 (3) of the Constitution of India. At the same time, the Apex Court in "Bishambhar Dayal Chandra Mohan Vs. State of Uttar Pradesh16" while deciding the issue with reference to Article 300-A of the Constitution of India defined the word "authority of law", held that Article 300-A provides that no person shall be deprived of 11 AIR 1956 SC 479 12 AIR 1955 SC 25 13 1955 (1) SCR 599 14 AIR 1959 SC 149 15 AIR 1967 SC 52 16 AIR 1982 SC 33 34 MSM,J WP No.12144 of 2021 his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive flat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300A. The word 'law' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law.
In "Hindustan Times Vs. State of U.P.17" the Apex Court while referring to "Bishambhar Dayal Chandra Mohan Vs. State of Uttar Pradesh" (referred supra) held as follows:
―By reason of the impugned directives of the State the petitioners have been deprived of their right to property. The expression 'law', within the meaning Article 300A, would mean a Parliamentary Act or an Act of the State Legislature or a statutory order having the force of law.‖ In view of the law laid down by the Apex Court in the judgments (referred supra), law means the legislation passed by the parliament or State Legislation or Statutory rules or orders.
Thus, the Apex Court candidly held that, deprivation of a person from the property would constitute violation of right to live, as guaranteed under Article 21 of the Constitution of India.
In addition to the law laid down by the Apex Court in the judgments referred above, learned counsel for the petitioner has drawn attention of this Court to recent judgment of the Apex Court 17 AIR 2003 SC 250 35 MSM,J WP No.12144 of 2021 in D.B. Basnett (dead) through Legal Representatives v.
Collector, East District, Gangtok (referred supra), wherein, the Supreme Court under the scheme of Land Acquisition Act, 1977, concluded as follows:
13. That brings us to the question whether the process of acquisition had been followed in accordance with law. No notification has been shown to us of the intent to acquire land Under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the Respondent State in a difficult situation, which was sought to be got over by only relying on a consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. We have also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if we look at the year of acquisition. We even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20.3.1980 of late Man Bahadur Basnett is no doubt a no-objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. There cannot be a presumption of acquisition without following the due process as envisaged Under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspects, except the willingness of late Man Bahadur Basnett to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/Respondent No. 1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence.
14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right Under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed1.
15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 18942 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful3. The law being expropriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire 36 MSM,J WP No.12144 of 2021 the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.
16. We find a detailed discussion about the law as it evolved and the rationale for the said purpose in Vidya Devi4 of which the relevant paragraphs read as under:
10.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution.
Article 31 guaranteed the right to private property (The State of West Bengal v. Subodh Gopal Bose and Ors.
MANU/SC/0018/1953 : AIR 1954 SC 92), which could not be deprived without due process of law and upon just and fair compensation.
10.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors. MANU/SC/0933/2012 : (2013) 1 SCC 353) in a welfare State, and a Constitutional right Under Article 300A of the Constitution. Article 300A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article (K T Plantation Pvt. Ltd. v. State of Karnataka MANU/SC/0914/2011 : (2011) 9 SCC 1). To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right Under Article 300A of the Constitution.
Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai MANU/SC/0610/2005 : (2005) 7 SCC 627, wherein this Court held that:
6. ... Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.
In N. Padmamma v. S. Ramakrishna Reddy MANU/SC/7731/2008 : (2008) 15 SCC 517, this Court held that:
21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed.
In Delhi Airtech Services Pvt. Ltd. and Ors. v. State of U.P. and Ors. MANU/SC/0956/2011 : (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words:
30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long 37 MSM,J WP No.12144 of 2021 subsist without the support of property." Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.
In Jilubhai Nanbhai Khachar v. State of Gujarat, MANU/SC/0033/1995 : (1995) Supp. 1 SCC 596 this Court held as follows:
48. ...In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession Under Article 300A. In other words, if there is no law, there is no deprivation.
10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
10.4. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.
10.5. In a democratic polity governed by the Rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors.
MANU/SC/0933/2012 : (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the Rule of law cannot arrogate to itself a status beyond what is provided by the Constitution. This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension."
As discussed above, the Apex Court succinctly held that, when the citizen is to be deprived of a property by the authority of law, the authorities have to follow the procedure prescribed under the statute and any deviation from the procedure prescribed under the statutes vitiates the act of the authorities.
Apart from that, even assuming that originally the land is an assigned land, sold in the auction by Cooperative Bank, executing 38 MSM,J WP No.12144 of 2021 a registered sale deed in favour of K.H. Muniyappa and later, the petitioner purchased the property from K.H. Muniyappa, still in view of "LAO-cum-Revenue Divisional Officer, Chevella Division and Others Vs. Mekala Pandu and Others" (referred supra), the authorities are under the legal statutory obligation to follow the procedure for fixing compensation payable to the petitioner under the provisions of Act 30 of 2013. But, the third respondent in utmost haste and with a view to avoid contempt being initiated against the third respondent by the petitioner for violation of the order passed by this Court in W.P.No.13586 of 2019 dated 08.03.2021, passed the non-statutory award which is in clear violation of Articles 21 and 300-A of the Constitution of India. Though the order was passed by learned single Judge directing the third respondent to follow the procedure and a contempt case is allegedly filed against the third respondent, therefore, I am not recording any specific finding as to violation of the order either intentionally, deliberately or wilfully, since the issue is seized by the learned single Judge who disposed of W.P.No.13586 of 2019. Therefore, the observations whatever made in the earlier paragraphs are limited for the purpose of disposing of the present writ petition and the learned single judge may decide the wilful, deliberate or intentional violation of the order in the contempt case, if any pending before the learned single Judge, uninfluenced by the observations made in this writ petition. 39
MSM,J WP No.12144 of 2021 It is evident from the record that, various orders were passed including a final order in W.P.No.13586 of 2019 directing the authorities to follow the procedure under Act 30 of 2013. Despite it, the respondents passed non-statutory order which is impugned in the present writ petition and drove this petitioner to this Court again. Thus, the respondents exhibiting their callousness, passed a non-statutory order contrary to the directions issued by this Court in W.P.No.13586 of 2019 and also contrary to the provisions of Act 30 of 2013. The third respondent being Sub-Collector is expected to know the purport of the order and the procedure to be complied under Act 30 of 2013, being a Land Acquisition Officer. But, for the reason best known to him, this order was passed in utmost haste to avoid contempt being initiated against this petitioner for violation of the order in W.P.No.13586 of 2019. Such haste, illegal and arbitrary action cannot be sustained and therefore, the order of the respondents impugned in the writ petition is liable to be set-aside. The respondents/authorities drove this petitioner unnecessarily again to this Court by their negligent action in passing this order and made him to incur huge amount as costs. Therefore, the writ petition is to be allowed with costs of Rs.50,000/- (Rupees Fifty Thousands only) payable to this petitioner by the respondents.
In view of my foregoing discussion, the order impugned in this writ petition is illegal, arbitrary and violative of the procedure prescribed under Act 30 of 2013 and Articles 14, 21 and 300-A of the Constitution of India. Accordingly, the order in Rc.No.K/1389/2019 dated 11.05.2021 is declared as illegal, 40 MSM,J WP No.12144 of 2021 arbitrary, consequently set-aside the same, while directing the third respondent to follow the procedure prescribed under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 strictly and pass appropriate orders for passing award. Any deviation from the procedure prescribed under the Act may result in serious consequences.
In the result, writ petition is allowed, with costs of Rs.50,000/- (Rupees Fifty Thousands only) declaring the non- statutory order Rc.No.K/1389/2019 dated 11.05.2021 as illegal, arbitrary, consequently set-aside the same, while directing the third respondent to strictly adhere to the procedure prescribed under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Re-settlement Act, 2013 and pass appropriate award, in accordance with law, within three months from the date of receipt of copy of this order.
Consequently, miscellaneous applications, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:01.09.2021 Note: Issue copy by today SP