Andhra HC (Pre-Telangana)
Pendyala Subrahmanya Sastry vs Revenue Divisional Officer And Land ... on 25 March, 2003
Equivalent citations: 2003(3)ALD358
ORDER V.V.S. Rao, J.
1. The petitioner's mother was absolute owner and possessor of agricultural land ad measuring Ac.1.02 cents comprised in Sy.No. 193/1 situated at Gudivada Town in Krishna District. The land was acquired by following due process of law as contemplated under the provisions of the Land Acquisition Act, 1894 ('the Act') and an award was passed by the Land Acquisition Officer, the first respondent herein on 31-8-1988 awarding an amount of Rs. 4,62,625/-. While publishing notification under Section 4(1) of the Act, invoking the powers under Section 17(4) of the Act, enquiry under Section 5-A was dispensed with and possession was taken on 11-11-1982.
2. The petitioner's mother sought a reference under Section 18 of the Act. Accordingly, the matter was referred to the Court of the Principal Senior Civil Judge, Gudivada as O.P.No. 55 of 1989. The same is pending. Be that as it is, the petitioner's mother died on 27-5-1996. The petitioner, therefore, filed the instant writ petition seeking a declaration that the notification issued by the first respondent under Section 4(1) of the Act on 5-5-1986 as illegal and arbitrary and for a consequential direction to the respondents to re-deliver possession of the land by accepting refund of compensation.
3. A counter-affidavit is filed on behalf of respondents 2 and 3. It is stated that the land was acquired by the first respondent for the Department of Telecommunications, Government of India, for a public purpose, to wit, for construction of a telephone exchange and staff quarters at Gudivada. Award No. 3 of 1988 was passed on 31-8-1988 and due to budgetary constraints, the work of construction of telephone exchange and staff quarters could not be taken up. It is also stated that some of the land owners whose lands were also acquired, filed writ petitions being W.P.Nos. 163 and 2989 of 1983 seeking re-delivery of land to them and the same were dismissed. It is also stated that the purpose for which the land was acquired has not been shelved and that drawings and building proposals are under active consideration of the Chief Architect, Hyderabad.
4. Sri T. Lakshminarayana, learned Counsel for the petitioner, submits that acquisition is a colourable exercise of power and is vitiated by mala fide exercise of power. He also submits that though the land was taken possession on 11-11-1982, for the last twenty years, the land was kept vacant and no construction was taken up. When public purpose for which the land was acquired was not fulfilled, the same amounts to colourable exercise of power to deprive the citizen of the right to property. Learned Counsel placed reliance on the judgment of the Supreme Court in State of Punjab v. Gurdial Singh, , in support of the submission that mala fide acquisition of land is unsustainable in law.
5. Learned Standing Counsel for Central Government, Sri T. Ramakrishna Rao, submits that even if the land acquired is not put to public purpose for which it was acquired, the petitioner has no right to seek re-conveyance of the land. He placed reliance on the judgment of the Supreme Court in Northern Indian Glass Industries v. Jaswant Singh, .
6. Initially, the notification under Section 4(1) of the Act was published in the A.P. Gazette dated 8-2-1982 and possession was taken on 11-11-1982. The mother of the petitioner filed a writ petition being W.P.No. 2989 of 1983 and obtained interim order of stay of land acquisition proceedings. Ultimately, the writ petition was allowed by this Court by order dated 13-12-1985 quashing the notification under Section 4(1) only on the ground that the substance of the notification was published beyond forty days which was the requirement of law at the relevant time. Be that as it is, the respondents again issued a notification under Section 4(1) of the Act on 2-5-1986, which ultimately culminated in the Land Acquisition Officer passing Award No. 3 of 1988 dated 31-8-1988. It is not denied that the petitioner's mother accepted the compensation and sought for a reference to the Civil Court and the O.P. is pending. In these background facts, two questions would arise for consideration. The first question is whether after long lapse of twelve years, land acquisition proceedings could be challenged under Article 226 of the Constitution? The second question is whether the petitioner can claim right of reconveyance of the land in respect of which award was already passed.
7. It is now well settled by a catena of decisions of this Court that when once award is passed and possession is taken pursuant to a notification published under Section 4(1) and declaration under Section 6 (1) of the Act, a writ petition under Article 226 of the Constitution questioning the land acquisition proceedings is not maintainable. A reference may be made to in Municipal Council, Ahmednagar v. Shah Hyder Baig, , wherein, after referring to earlier law, their Lordships laid down as under.
.....It is now a well settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period, the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law Courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, 'delay defects equity' has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-bye to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise.
8. Further, the petitioner's mother admittedly challenged the notification under Section 4(1) of the Act by filing W.P.No. 2989 of 1983. The same was allowed for the reason that the substance of the publication was published beyond forty days. As the notification under Section 4(1) was already challenged, in my considered opinion, it operates as constructive res judicata. It is needless to point out that the principles of res judicata are equally applicable to proceedings under Article 226 of the Constitution (See Satyadhyan v. Smt. Deorajin Debi, , Dayarao v. State of UP., and Amalgamated Coalfields v. Janapada Sabha, ). Be that as it may, when again the respondents issued notification under Section 4(1) of the Act on 2-5-1986, the petitioner's mother did not choose to challenge the same and she accepted the compensation of Rs. 4,62,625/-. She also sought for a reference under Section 18 of the Act to the civil Court. Therefore, after long lapse of twelve years, the petitioner cannot be heard to challenge the land acquisition proceedings as mala fide or colourable exercise of power.
9. The decision relied on by the learned Counsel for the petitioner in State of Punjab v. Gurdial Singh (supra) has no application to the facts of the case. In the said case, the land acquisition proceedings were challenged at the stage of notification on the ground that acquisition proceedings were initiated for the benefit of Sri Satnam Singh Bajwa, a former Minister who was arrayed as respondent No. 22 therein. The Punjab High Court countenanced the submission of the land owners and invalidated the acquisition proceedings. The Supreme Court, while affirming the view of the Punjab High Court, held thus:
..... Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfacations - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion.....
10. Except saying that the acquisition is vitiated by legal mala fides, no attempt is made to specify the instances of mala fide exercise or colourable exercise of power. Merely because the land acquired was not put to use, the same does not amount to mala fide or colourable exercise of power of acquisition of land.
11. Insofar as the question of reconveyance of land is concerned, the same need not detain us any further. It is now settled law that a person whose land is acquired is entitled to the benefits provided under the Act, especially Sections 23, 23(1)(A) and 30 of the Act. No owner is entitled for benefits which are not provided under the Act. In K. Jayaramaiah Chetty v. Special Deputy Collector and Land Acquisition Officer, TTD, , wherein after referring to the judgments of the Supreme Court in Chandragauda Ramgonda Patil v. State of Maharashtra, , State of Kerala v. Bhaskaran Pillai, , I have held as under:
.....Therefore, in case of either claim for higher rate of interest in respect of acquisition or claim for reconveyance of the acquired land which was found to be surplus, it is well settled that the common Law principles of Justice, equity and good conscience have no place. When once the Land Acquisition Officer determines the compensation and passes an award, the land vests absolutely in the Government or the authority for whom the land is acquired, free from all encumbrances. The owners of the land or the tenant have no right or legal entitlement to claim any other benefit, which is not provided for under the provisions of the Act.
12. In Koppula Narasaiah v. Govt. of Andhra Pradesh, , the question was whether the owner whose land is acquired under the provisions of the Land Acquisition Act, 1894 is entitled for reconveyance or licence to reuse the land which was not put to public purpose or fully utilised. Having regard to the law laid down by the Supreme Court in State of Kerala v. Bhaskaran Pillai (supra), C. Padma v. Deputy Secretary to Government of Tamil Nadu, , State of Punjab v. Sadhu Ram, and Chandragauda Ramagonda Patil v. State of Maharashtra (supra), I have summarised the law as follows:
(a) The land acquired under the provisions of the Act for one public purpose, after putting it to the said public purpose partly or fully, if surplus land remains, can be utilized either partly or fully for any other public purpose;
(b) When the land absolutely vests free from encumbrances, the same shall be treated as Government land subject to all legislations, rules and executive instructions touching upon the assignment of land for other purpose and for landless poor;
(c) The owners of the land whose land is acquired have no right, legal entitlement or legitimate expectation in seeking reconveyance of the land at the price at which compensation was paid under the award under Section 11 of the Act;
(d) If the Government, as a policy decides that the land acquired is not partly or fully utilised for the public purpose for which it was acquired, is no more required for any public purpose, either because it is not suitable or because it has become waste land, the Government is bound to deal the property like any other Government property and dispose of the same in the manner which subserves public interest. The sale of Government land by public auction or by calling for tenders and disposing of the same to the highest bidder is the most transparent and best method of subserving public interest;
(e) The power of the Government to dispose of the surplus land acquired by public auction also enables to permit original land owners to participate in the public auction and offer appropriate highest bid;
(f) In any event, any claim by the original land owners or their legal heirs for reconveying cannot be entertained after a long lapse of time, say 10 years, 20 years or 30 years;
(g) If the Government decides to assign the surplus acquired land to landless poor persons as a measure of poverty amelioration, the method of publication auction need not be adopted.
13. In K.P. Hussain Reddy v. Executive Engineer, M.I. Division, Nandyal, 2003 (1) ALD 435, the question was whether the Court exercising powers under Article 226 of the Constitution, can award damages and compensation over and above the compensation claimed by the owner of the land. After referring to the judgments of the Supreme Court in G.E. Board v. Giridharlal, , State of Gujarat v. Shantilal, , Ramchandra v. Govind, and Shiva Kumar Chadha v. Municipal Corpn. of Delhi, , it was observed that it is settled principle that when the authorities are entrusted with powers and functions under a statutory enactment, such powers and functions are to be exercised strictly in accordance with law and within the statute. In exercise of powers under Article 226 of the Constitution, it is not competent for the Court to confer extra benefits like allotment of alternate land, penal interest for delay in payment of compensation amount etc.
14. In Northern Indian Glass Industries v. Jaswant Singh (supra), after referring to Gulam Mustafa v. State of Maharashtra, , Chandragauda Ramgonda Patil v. State of Maharashtra (supra) and C.Padma v. Dy.Secy. to the Govt. of T.N. , the Supreme Court declared the law as under:
If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land.....
15. In view of the settled legal position, even if the land was not utilized by respondents 2 and 3 for construction of telephone exchange and staff quarters, the same does not give any enforceable right to the petitioner. Be it noted, the power under Article 226 of the Constitution can be exercised only for enforcing a right or compelling a statutory authority to discharge their duties (See Director of Settlements v. M.R. Appa Rao, ). A writ petition for enforcing a non-existing right is not maintainable.
16. Further, as observed by the Supreme Court in State of Kerala v. Bhaskaran Pillai (supra), when the land acquired by the Government for any public purpose is no more required for any public purpose and the Government intends to sell the same, such sale should be resorted to only through public auction and not by way of reconveyance or sale by negotiation.
17. For the above reasons, the Writ Petition is wholly misconceived and is accordingly dismissed with exemplary costs quantified at Rs. 5,000/-.