Andhra HC (Pre-Telangana)
Tuljaram Singh And Ors. vs The District Collector And Ors. on 20 August, 2004
Equivalent citations: 2004(5)ALD660, 2004(6)ALT211
JUDGMENT V.V.S. Rao, J.
1. This writ petition is filed seeking a writ of mandamus declaring the action of the respondents in acquiring 1,400 square metres of land at Baghlingampalli in Mushirabad Mandal, Hyderabad as null and void. The petitioner alternatively prays for a direction to the respondents to handover physical possession of the land. When the writ petition is pending before this Court, the petitioner died, and petitioners 2 and 3 were brought on record as legal representatives by reason of the orders passed by this Court in W.P.M.P.No.3547 of 1996, dated 19.03.1996. When the matter was pending, one Pranav Kumar, who also claims to be a successor to the property, filed application, being W.P.M.P.No.15418 of 2001, for impleadment in the proceedings. The same was also ordered by this Court on 30.06.2004, impleading Sri Pranav Kumar as party respondent No.6.
2. The petition allegations may be noticed in brief. The land in Survey Nos. 63 and 64 originally belong to petitioner's maternal grandfather, late Balaram Singh Pantulu. The property was allegedly bequeathed to the petitioner in 1982. After the death of his maternal grandfather on 28.10.1982, the petitioner took possession of the property and cultivating the same by raising para grass and fruit bearing trees like thirty six coconut trees, one mango tree, two jamun trees, two gulmohar trees, and two subabul trees and getting a monthly income of Rs.2,000/- (Rupees two thousand only). So as to construct a high level causeway across Musi River near Chaderghat, the respondents approached the petitioner to give his consent for advance possession as the causeway was to be constructed partly in the land, allegedly belonging to the petitioner. Petitioner gave consent on 17.05.1993 and causeway was constructed. It is alleged that in spite of request and legal notice, compensation was not paid for the land admeasuring 1,700 square yards. The land value is Rs.2,500/- (Rupees two thousand and five hundred only) per square yard besides the compensation for the fruit bearing trees. Therefore the present writ petition is filed.
3. It is a case of the sixth respondent (subsequently impleaded) that Tuljaram Singh, who originally filed the writ petition is elder brother of sixth respondent's father, that Balaram Singh, who is original owner died leaving behind him Smt.Badi Bai as lone legal heir, who is none other than paternal grandmother of the sixth respondent, that brother of the sixth respondent also participated in the proceedings under Urban Land (Ceiling and Regulation) Act, 1976 that the children of the original petitioner as well as father of sixth respondent are entitled to a share in the compensation for the land acquired. The writ petitioners have filed a detailed counter affidavit in W.P.M.P.No.15418 of 2001 (application for impleadment) denying the right of sixth respondent.
4. The respondent No.3, namely, Special Deputy Collector, Land Acquisition (General); filed counter affidavit on behalf of respondents 2 and 3, which is to the following effect. The fifth respondent made request for acquisition of lands in Survey Nos.62, 63 and 64 of Baghlingampally village, Mushirabad Mandal, Hyderabad. The survey staff inspected the land and reported that the land admeasuring 856 square metres in T.S.No.4/part (old Survey No.63), land admeasuring 224 square metres in T.S.No.7/part (old Survey No.62) is effected by the proposed acquisition. Even before notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, the Act) is issued, the writ petition is filed. The Deputy Tahsildar has also conducted Panchanama on 08.06.1993 and found that there are Coconut, Mango, Jamun, Sapota, Gulmohar, Badam, Ramseetapal and Babul trees in the land. The respondents have not taken advance possession of the requisitioned land and that the third respondent is not aware of the action taken by fifth respondent regarding advance possession of the land with consent of the petitioner given on 17.05.1993. The land acquisition proceedings are not yet completed, and the compensation would be paid as and when the market value is determined by the Land Acquisition Officer. It is also stated that after completing all statutory formalities, award will be passed as expeditiously as possible in due course of time.
5. The writ petition was admitted by this Court on 03.10.1994. Though the counter affidavit was filed some time in June, 1998, when the matter was heard, the latest position regarding the acquisition was not known. Therefore when the matter was listed before this Court on 22.06.2004, this Court directed the learned Government Pleader for Revenue to get instructions in the matter. After getting instructions, the learned Government Pleader made submissions on 28.06.2004 and 30.06.2004. It is now stated that the land admeasuring 856 square metres in T.S.No.4 (part) and T.S.No.7 (part) was taken possession, that the same was utilised for public purpose, namely, for the construction of causeway across Musi river and award will be passed in due course of time. The learned Government Pleader also prayed to grant six months time to respondents to pass award under Land Acquisition Act, 1894.
6. Even according to the respondents 1 to 3, the fifth respondent requisitioned the land some time in 1993. The land was taken possession for public purpose and the purpose for which the land was acquired has already been accomplished by the construction of causeway. It would be grossly arbitrary and violative of Article 300-A of the Constitution of India if a person is deprived of his property without paying compensation as required under Law i.e. Land Acquisition Act, 1894. If a public authority takes advance possession even before issue of notification under Section 4(1) of the said Act, it may be justified having regard to the provisions of Section 17(1)(4) of the Act. But, there cannot be any Constitutional propriety, if the compensation is not paid within a reasonable time. In such case, the fact that persons are entitled to claim additional compensation under Section 23(1-A) of the Act, and also interest as per provisions of the Act is no answer nor it is a solace because the person who really owns the land may not survive to enjoy the compensation.
7. It is settled principle of law that the public authorities have to exercise and discharge functions strictly in accordance with the provisions of the Statute under which they derive the power (See G.E. Board v Giridharlal, and Shiva Kumar Chadha v Municipal Corporation of Delhi, . Article 300A of the Constitution of India is the lone provision in Chapter IV of Part XII of the Constitution of India. The Chapter is titled as "Right to Property". Article 300A mandates that no person shall be deprived of his property save by authority of law. The law, under which, a person can be deprived of his immovable property, is Land Acquisition Act. The said Act provides an elaborate procedure for notifying the person to be deprived of the land for conducting enquiry, for determination of market value of the land and for payment of such amount and other things. If the public authorities acquire land without following the procedure contemplated under the Land Acquisition Act, the same would ex facie violate Article 300A of the Constitution of India. Indeed as observed by the Apex Court, the Right to Property is now a valuable constitutional right though it does not form part of basic structure of the Constitution of India. (See M.K. Kachar v State of Gujarat, . Therefore, if the procedure contemplated for depriving a citizen of immovable property is not followed or such deprivation is by mala fide exercise of power for extraneous reasons, the Court can always nullify such State action and put back the person in possession of the property. In such case, the Court can even award compensation or damages. Such damages or compensation are not by way of damages for constitutional tort but for illegal and unlawful deprivation of the property.
8. In Jaundoo v Attorney General of Guyana, 1971 AC 972 (PC) the Privy Council applied the above principle. In the said case, the appellant, who was the owner of the land on apprehension that her land will be occupied by the Ministry of Works and Hydraulics for construction of new road in violation of her fundamental right under the Constitution of Guyana applied to High Court for redress under Article 19 of the Constitution of Guyana. A question arose before the High Court whether her application was properly made and whether High Court has jurisdiction to grant motion. The High Court held that an application for redress under Article 19 ought to be made by writ of summons and not by notice of motion and accordingly dismissed the application of the appellant. The land owner's appeal was also dismissed by a majority of the Court of appeal. The Privy Council set aside the order of the Court of Appeal and remanded the matter to High Court of Guyana to hear and determine whether the appellant is entitled or not by virtue of Articles 8 and 19 of the Constitution of Guyana for payment of compensation or damages. These Articles provided that State shall not compulsorily take possession of property (a) without paying adequate compensation, (b) without giving the person remedy for determination of compensation, and (c) that if the provision is contravened a person can seek redress in the High Court.
9. By the time the Court of Appeal heard the matter, construction of new road on appellant's land was completed. Therefore, the Privy Council observed:
By the time when the land owner's appeal was heard by the Court of Appeal, the circumstances had changed. Construction of the new road on the land had been completed. What had been done, even it were unlawful, could not be undone. In those circumstances, a money payment to the landowner by way of compensation or damages for the loss caused to her by the Government's action was an appropriate and, indeed, the only practicable form of "redress".
10. It was also observed:
Both of the Justices of Appeal who held that an originating motion was an appropriate procedure for applications for redress under article 19 of the Constitution appear to have accepted that the High Court had jurisdiction to assess and award compensation or damages to be paid by the Government of Guyana to the landowner for any contravention of her fundamental rights under the Constitution ......... Their Lordships accept that if the landowner is successful on the merits in establishing her claim that her fundamental rights under article 8 of the Constitution have been contravened, any order for redress to be made by the High Court against "the Government of Guyana" ought not to be made in form, as it cannot be in substance, coercive. There is more than one way in which this could be avoided. The order could be declaratory in form and declare the right of the landowner to be paid by the Government of Guyana the amount assessed by the court as appropriate redress by way of compensation or damages.
11. The learned Government Pleader made a strenuous plea to grant six months time to respondents 1 to 3 to pass appropriate award for the land acquired and which was already taken possession. Therefore, it cannot be proper at this stage to adjudicate the inter se rights of the petitioners and the fifth respondent. As and when such an award is passed, the contesting parties may appear before the Land Acquisition Officer and claim compensation or apportionment thereof. However, as this Court has taken a view that non-payment of compensation for the land acquired does not amount to a constitutional tort, the issue cannot be adjudicated in that perspective. However, as petitioners have been deprived of the compensation for the last eleven years, it is a fit case where this Court should award exemplary costs and damages to the petitioners payable by respondents 1 to 3.
12. The writ petition is therefore accordingly allowed directing the respondents 1 to 3 to pass appropriate award in relation to the land acquired in Survey Nos.62, 63 and 64 belonging to petitioners within a period of six months from the date of receipt of this order duly completing all formalities under the Act. It shall be open to the petitioners and the fifth respondent to approach the third respondent for adjudication of their claims at the time of passing award or seeking a reference under Section 30 of the Act. The respondents 1 to 3 shall pay exemplary costs quantified at Rs.20,000/- (Rupees twenty thousand only) to the petitioners and also pay an amount of Rs.1,00,000/- (Rupees one lakh only) by way of damages for depriving the petitioners' right to enjoy the property for a period of about fifteen years.