Andhra Pradesh High Court - Amravati
The vs Secretary on 30 September, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT APPEAL Nos.177 AND 261 OF 2019
COMMON JUDGMENT:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) These intra Court appeals are filed under Clause 15 of Letters Patent, challenging the order dated 27.09.2018 passed in W.P.No.27188 of 2016 by the learned Single Judge of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, whereby the learned Single Judge quashed the entire acquisition proceedings on the ground of violation of Sub- Section (2) of Section 41 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the Act 30 of 2013") while observing that issue of notification without consent of Grama Panchayat under Section 11 of the Act 30 of 2013 and failure to pass resolution in terms of Section 4 (i) of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (for short "the Act 40 of 1996") is not sustainable.
The appellant in Writ Appeal No.177 of 2019 is the respondent No.5 in the writ petition No.27188 of 2916, whereas the other Writ Appeal No.261 of 2019 filed by the State represented by Principal Secretary, Land Acquisition Department and two others, who were arrayed as respondent Nos.1 to 3 in the writ petition and they challenged the order passed by the learned Single Judge on various grounds.
The parties hereinafter will be referred to as they are arrayed in the writ petition.
2
HACJ & MSMJ was_177 and 261_2019 Daraboina Durga Rao, Daraboina Venkateswara Rao, Karam Venkatesu and Beti Venkateswara Rao filed writ petition under Section 226 of the Constitution of India for issue of writ of Mandamus to declare the notification issued by the respondent No.2 bearing ROC No.E-136089/2016/R&R dated 02.07.2016 expressing its intention to acquire the petitioners' land in all admeasuring Ac.08.48 cents in Sy.No.47/2 Mulagalampalli Village, Jeelugumilli Mandal, West Godavari District as illegal, arbitrary, violative of Articles 14, 21 and 300-A of the Constitution of India as well as the provisions of the Act 30 of 2013 and the provisions of the Act 40 of 1996, consequently set aside the said notification, alleging that erstwhile Government of Andhra Pradesh issued D-Form Patta in favour of the petitioners vide proceedings bearing R.O.C.No.359/2003 (A), dated 12.10.2003. Thus, they became owners of the property. The petitioners were given Ac.2.00 of land each in Sy.No.47/2 of Mulagalampalli Village, Jeelugumilli Mandal, West Godavari District. The petitioners are tribals and the land for which D-Form pattas granted falls within the scheduled area itself. While so, respondent Nos.2 and 3 issued notification dated 02.07.2016 in exercise of power under Section 11 of the Act 30 of 2013, which is impugned in the writ petition.
It is specifically contended that as per the provisions of Act 30 of 2013, Government may acquire land for public private partnership projects, where the ownership of the land continues to vest with the Government for public purpose as defined in Sub-Section (1) of Section 2 of the Act 30 of 2013, provided that in case of acquisition for private companies, the prior consent of at least 80% of those affected families, as defined in Sub-Clauses (i) and (v) of clause (c) of Section 3; and public private partnership projects, the prior consent 3 HACJ & MSMJ was_177 and 261_2019 of at least 70% of those affected families, as defined in sub-clauses (i) and (v) of clause (c) of Section 3, shall be obtained through a process as may be prescribed by the appropriate Government. As per Sub- Section (2) of Section 2 of Act 30 of 2013 even to acquire the land in schedule areas, the procedure prescribed under Section 41 (2) of the Act 30 of 2013 is to be followed and Section 4 (i) of the A.P.Act 40 of 1996, which mandates holding of Gram Sabha or Panchayat at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas, the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level.
The Government of Andhra Pradesh passed rules under the Act 40 of 1996, which are known as the Andhra Pradesh Panchayats Extension to Scheduled Areas (PESA) Rules, 2011. Rule 5 of the PESA Rules deals with acquisition of land in scheduled areas. In the writ petition, it is urged that the procedure prescribed under Section 41 of Act 30 of 2013, Section 4 (i) of the A.P. Act 40 of 1996 and Rule 5 of PESA Rules was not followed by the Government, consequently, acquisition proceedings are illegal, irregular and prayed to set aside the notification issued under section 11 of the Act 30 of 2013.
At the stage of admission, learned Single Judge allowed the writ petition setting aside the impugned notification issued under Section 11 of the Act 30 of 2013.
Aggrieved by the order passed by the learned Single Judge, respondent No.5, who is the rival claimant, claiming title over the property, filed Writ Appeal No.177 of 2019 raising a specific contention that grandfather of respondent No.5 purchased the land 4 HACJ & MSMJ was_177 and 261_2019 in dispute in the writ petition, on 12.07.1948 from Mukku Tataya and others for valuable consideration. The Special Deputy Collector, Eluru on 25.02.1983 issued proceedings stating that there is no violation of the provisions of Agency tracts interest and Land Transfer Act, 1970. Learned Single Judge did not consider the material available on record, but observed in paragraph No.9 of the order that "the land of the petitioners" was proposed to be acquired, for which notification under Section 11 of the Act 30 of 2013 was issued. The Said finding is erroneous on the face of the record. It is also contended that D-Form pattas filed by the petitioners are not genuine and without considering the genuineness of Pattas, learned Single Judge recorded such finding in paragraph No.9 of the order, illegally. When there is a dispute between respondent No.5 and the petitioners as to the title, learned Single Judge ought not to have recorded such finding in paragraph No.9 of the order and requested to set aside the order to the extent of the land purchased by the petitioners.
Respondent Nos.1 to 3 filed separate Writ Appeal No.261 of 2019, as stated above, raising a specific ground that setting aside the entire proceedings including notification under Section 11 of the Act 30 of 2013 is illegal, since claim in the petition is limited to Ac.8.48 cents in S.No.47/2 of Mulagalampalli village, Jeelugumilli Mandal, apart from that during pendency of the writ petition, entire land acquisition proceedings were completed, award was passed, paid compensation to the owners of the land acquired for the project. Therefore, the order passed by the learned Single Judge setting aside the entire award is prejudicial to the interest of the State and other land owners. When the State parted with huge amount, paid compensation to various owners of the land, the order passed by the 5 HACJ & MSMJ was_177 and 261_2019 learned Single Judge cannot be sustained, and prayed to set aside the impugned order passed in the writ petition by the learned single Judge and allow the appeal.
During hearing, learned counsel for the appellant in Writ Appeal No.177 of 2019 Sri S.Subba Reddy contended that recording of finding in paragraph No.9 of the impugned order passed by the learned Single Judge is without any basis, more particularly, when the appellant herein is claiming interest in the property by virtue of registered sale deed dated 12.07.1948, later Special Deputy Collector, Eluru issued proceedings dated 25.02.1983, the erroneous finding recorded in paragraph No.9 of the order cannot be sustained. In addition to the above, learned counsel also contended that setting aside the entire land acquisition proceedings on the ground of non- compliance of Section 41 (2) of the Act 30 of 2013, Section 4 (i) of the A.P. Act 40 of 1996 read with Rule 5 of the PESA Rules is another serious illegality for the simple reason that the respondent No.5 and the petitioners are non-tribals, for acquisition of land of the petitioners or respondent No.5, the procedure contemplated under Section 41 (2) of the Act 30 of 2013, Section 4 (i) of the A.P.Act 40 of 1996 read with Rule 5 of the PESA Rules has no application. When the respondent No.5 set up a rival claim and the writ petitioners claimed title based on D-Form pattas, which are not genuine, the petitioners are disentitled to claim discretionary relief of writ of Mandamus. When Section 41 of the Act 30 of 2013 deals with special provisions for Scheduled Castes and Scheduled Tribes, entire section must be read and record its conclusions, but the learned Single Judge did not consider the entire provision and passed an order contrary to the law since Section 41 of the Act 30 of 2013 is applicable only to acquire the land belonging to Scheduled Castes 6 HACJ & MSMJ was_177 and 261_2019 and Scheduled Tribes, but not others who owned and possessed land in scheduled areas. The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words. In support of the said contention, he placed reliance on judgment of Apex Court in "Bhinka v. Charan Singh1". He further contended that in the absence of any pleading that the petitioners are members of Scheduled Caste or Scheduled Tribe, the order passed by the learned Single Judge setting aside entire land acquisition proceedings on the ground of non-compliance of above provisions is serious illegality and requested to set aside the order passed by the learned Single Judge.
Learned Government Pleader for Land Acquisition appearing for respondent Nos.1 to 3 contended that the finding of the learned Single Judge that the State issued land acquisition proceedings in violation of Section 41 of the Act 30 of 2013, Section 4 (i) of the A.P. Act 40 of 1996 read with Rule 5 of the PESA Rules, is a grave illegality committed by the learned Single Judge, more particularly when the State paid entire compensation to the persons interested in the land, acquired by the Government in terms of the Act 30 of 2013, prayed to set aside the impugned order passed by the learned Single Judge.
Sri Raja Reddy Koneti, learned counsel for the petitioners, supported the order in all respects while reporting no objection to set aside the order of the learned single Judge in respect of the property other than the disputed land of an extent of Ac.8.48 cents in Sy.No.47/2 Mulagalampalli Village, Jeelugumilli Mandal, West Godavari District. He further contended that the petitioners are 1 AIR 1959 SC 960 7 HACJ & MSMJ was_177 and 261_2019 landless poor, obtained D-Form pattas from the Government for small extent of Ac.2.00 each. The land is admittedly situated in scheduled area. Therefore, acquisition of their land without compliance of mandatory requirement under Section 41 of the Act 30 of 2013, Section 4 (i) of A.P.Act 40 of 1996 read with Rule 5 of PESA Rules is a grave illegality. Even if, there is any dispute with regard to the title as respondent No.5 and the petitioners set up rival claim, there is a separate procedure to be followed under Section 76 of the Act 30 of 2013, such questions cannot be decided by the Courts while exercising power under Clause 15 of Letters of Patent in intra Court appeal and requested to dismiss the Writ Appeal No.177 of 2019 filed by the respondent No.5.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
(1) Whether consent of Grama Sabha for acquiring the land in schedule areas belonging to land owners other than Scheduled Caste and Scheduled Tribe persons and procedure prescribed under Section 41 (2) of the Act 30 of 2013, under Section 4 (i) of the Act 40 of 1996, Rule 5 of PESA Rules is mandatory? If not, whether the entire acquisition proceedings are liable to be set aside, sustaining the order of learned single Judge in W.P.No.27188 of 2016?
P O I N T:
It is an undisputed fact that respondent Nos.1 to 3 proposed to acquire large extent of land belonging to various land owners in Mulagalampalli Village, Jeelugumilli Mandal, West Godavari District, for public purpose i.e. rehabilitation and resettlement of persons, 8 HACJ & MSMJ was_177 and 261_2019 who lost their land in Polavarm Irrigation Project construction at Katkuru village, Velarupadu Mandal they are all tribal people.
Land proposed to be acquired is large extent in different survey numbers. As per notification under Section 11 of the Act 30 of 2013, respondent No.5 - M.S.S.Chakravarthi owned Ac.8.48 cents in Sy.No.47/2 vide Serial No.40 and Ac.0.48 cents in Sy.No.47/3 vide Serial No.41 in the notification, but the names of the writ petitioners were not shown in pattadar column of notification in Form No.VI (A) issued under Section 11 (1) of the Act 30 of 2013. The writ petitioners claiming that they are owners of land in an extent of Ac.8.48 cents in Sy.No.47/2 shown at Serial No.40 of the notification, the respondent No.5 is the enjoyer of the said property and it is classified as Dry land in column No.5 of the notification.
Writ petitioners are claiming that pattas were issued in their favour assigning Ac.02.00 cents to each of them being landless poor persons. Therefore, they became owners of an extent of Ac.8.48 cents vide proceedings R.O.C.No.359/2003 (A), dated 12.10.2003. There is a dispute as to the title of the property acquired by issuing notification under Section 11 of the Act 30 of 2013 and the award was passed by the State after following necessary procedure. When there is a dispute with regard to payment of compensation setting up rival claims based on title, necessary procedure to be followed is prescribed under Section 76 of the Act 30 of 2013. Section 76 of the Act 30 of 2013 is in pari materia to Section 30 of the Land Acquisition Act, 1894.
According to Section 76 of the Act 30 of 2013 when the amount of compensation has been settled, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the 9 HACJ & MSMJ was_177 and 261_2019 Collector may refer such disputes to the Authority, which is in pari materia to Section 30 of the Land Acquisition Act 1894. But recording a finding by the learned Single Judge in paragraph No.9 of the order that notification issued under Section 11 (1) of the Act, acquiring property of the petitioners amounts to giving a positive finding that the writ petitioners are owners of the property, more particularly respondent No.5 contending that his grandfather purchased the property under registered sale deed dated 12.07.1948. Therefore, the finding recorded by the learned Single Judge in paragraph No.9 in line No.8 "issuance of Section 11 Notification acquiring petitioners' land" is hereby set aside since the dispute as to the ownership is to be resolved by a competent authority in reference made under Section 76 of Act 30 of 2013 and the learned Single Judge ought not to have recorded such finding at the stage of admission.
The major ground for setting aside the entire acquisition proceedings is non-compliance of Section 41 (2) of the Act 30 of 2013, Section 4 (i) of the A.P.Act 40 of 1996 and Rule 5 of the PESA Rules, 2011.
Section 41 of the Act 30 of 2013 prescribes special procedure to acquire land belonging to owners of Scheduled Castes and Scheduled Tribes. The purport of the section is that as far as possible, no acquisition of land shall be made in the Scheduled areas. According to Section 41 (2) of the Act 30 of 2013, where such acquisition does take place it shall be done only as a demonstrable last resort. As per Section 41 (3) of the Act 30 of 2013, in case of acquisition or alienation of any land in the Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils. at the appropriate level in Scheduled 10 HACJ & MSMJ was_177 and 261_2019 Areas under the Fifth Schedule to the Constitution, as the case may be, shall be obtained. in all cases of land acquisition in such areas, including acquisition in case of urgency, before issue of a notification under this Act, or any other Central Act or a State Act for the time being in force.
At the same time, Section 4 (i) of the A.P.Act 40 of 1996, reads thus:
"The Gram Sabha or the Panchayats at the appropriate level shall be consulted before making the acquisition of land in the Scheduled Areas for development projects and before re-setling or rehabilitating persons affected by such projects in the Scheduled Areas; the actual planning and implementation of the projects in the Scheduled Areas shall be coordinated at the State level"
It is an undisputed fact that the Mulagalampalli Village is a scheduled area and to acquire the property in schedule area, the procedure prescribed under Section 4 (i) of the A.P. Act 40 of 1996 is mandatory. Section 41 (1) of the Act 30 of 2013 prohibits acquisition of land in the scheduled area. As per Section 41 (2) of the Act 30 of 2013, where such acquisition does take place it shall be done only as a demonstrable last resort.
Sarpanch of Gram Panchayat issued certificate stating that no Grama Sabha has been conducted and no Panchayat resolution has been passed to acquire the land in schedule area under Section 41 (1) of the Act 30 of 2013. On the basis of such certificate, learned Single Judge concluded that the State failed to comply with the mandatory requirement under Section 41 (3) of the Act 30 of 2013 and Section 4 (i) of the A.P. Act 40 of 1996 read with Rule 5 of PESA Rules and set aside the entire proceedings.
A bare look at the notification issued under Section 11 (1) of the Act 30 of 2013, entire land is situated in Mulagalampalli Village, 11 HACJ & MSMJ was_177 and 261_2019 which is scheduled area and to acquire the land in the scheduled area, consent of Grama Sabha is necessary depending upon the nature of the project. Letter undated issued by Beti Durgamma, Sarpanch of the village disclosed that no Grama Sabha was held for obtaining consent to acquire the land in scheduled area. One D.Durga Rao made an application dated 05.07.2018 under the provisions of Right to Information Act for furnishing information of holding Grama Sabha and resolution dated 23.09.2016 to give consent for acquisition of land in the scheduled area, obtained copy of the resolution of the Grama Sabha dated 23.09.2016 duly signed by the then Sarpanch of Grama Sabha. The subject of agenda is to give consent for acquisition of land in Mulagalampalli.
Resolution No.2 dated 23.09.2016 furnished to D.Durga Rao disclosed that the Ryots of land to an extent of Ac.8.48 cents in Sy.No.47/2, and Ac.0.48 cents in Sy.No.47/3 raised objection for acquisition of property in the scheduled area. Therefore, Grama Sabha gave consent for acquisition of land except for acquisition of Ac.8.48 cents in Sy.No.47/2 and Ac.0.48 cents in Sy.No.47/3.
Even assuming for a moment that the Grama Sabha passed resolution dated 23.09.2016, setting aside the entire acquisition proceedings by the learned Single Judge on the ground of non- compliance of Section 41 (2) of the Act 30 of 2013 and Section 4 (i) of A.P. Act 40 of 1996 read with Rule 5 of the PESA Rules ex facie illegal.
Accepting the resolution passed by the PESA committee Grama Sabha dated 23.09.2016 on its face value, no consent was obtained for acquisition of an extent of Ac.8.48 cents in Sy.No.47/2 and Ac.0.48 cents in Sy.No.47/3, which is disputed property between the petitioners and respondent No.1 and acquisition of such property by 12 HACJ & MSMJ was_177 and 261_2019 State is blatant violation of mandatory provisions i.e. Section 41 of the Act 30 of 2013 and Section 4 (i) of the Act 40 of 1996 read with Rule 5 of the PESA Rules. At best, learned Single Judge ought to have set aside the acquisition proceedings to the extent of Ac.8.48 cents in Sy.No.47/2 and Ac.0.48 cents in Sy.No.47/3 only for non- compliance of mandatory provisions referred supra.
Hence, setting aside entire land acquisition proceedings, more particularly when the other land owners or the interested persons and did not raise any objection as to compliance of various provisions referred above is a serious illegality. Consequently, the order of the learned single Judge setting aside acquisition proceedings relating to Mulagalampalli Village, Jeelugumilli Mandal is limited to land of an extent of Ac.8.48 cents in Sy.No.47/2 and Ac.0.48 cents Sy.No.47/3 of Mulagalampalli Village, Jeelugumilli Mandal while setting aside the order passed by the learned Single Judge for remaining extent of land acquired by issuing notification under Section 11 (1) of the Act 30 of 2013.
Though the learned counsel for the respondent No.5 contended that Section 41 of the Act 30 of 2013 is applicable only for acquiring the land belonging to Scheduled Caste and Scheduled Tribe persons and not for acquisition of land of others, the same cannot be accepted in view of the language used in Section 41 of the Act. Even otherwise, the principle laid down in "Bhinka v. Charan Singh"
(referred supra) that the headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words.
In fact, there is no ambiguity in Section 41 of the Act 30 of 2013. Since the heading of Section 41 of the Act 30 of 2013 specifies 13 HACJ & MSMJ was_177 and 261_2019 "special provisions for Scheduled Castes and Scheduled Tribes".
Sub-Section (1) of Section 41 refers to scheduled areas, but not to scheduled caste or scheduled tribe persons, Sub-Section (6) of Section 41 of the Act 30 of 2013 refers to acquisition from the members of Scheduled Caste and Scheduled Tribe and special procedure is contemplated therein for payment of compensation and settlement. Therefore, Section 41 of the Act 30 of 2013 applies both for acquisition of land in scheduled area and mode of payment of compensation for the lands acquired from scheduled caste and scheduled tribe persons. There is no ambiguity in the language used in Section 41 of the Act 30 of 2013. Consequently, heading of Section 41 of the Act 30 of 2013 need not be taken in aid for interpretation of Section. Hence, we find no merit in the contention of the learned counsel for the respondent No.5-appellant in Writ Appeal No.177 of 2019, except to an extent of setting aside the finding at paragraph No.9 of the order.
In view of our foregoing discussion, we find that it is a fit case to modify the order passed by the learned Single Judge. Accordingly, Writ Appeal No.261 of 2019 filed by the State is allowed in part excluding the land to an extent of Ac.8.48 cents in Sy.No.47/2 and Ac.0.48 cents in Sy.No.47/3 of Mulagalampalli Village, Jeelugumilli Mandal and the Writ Appeal No.177 of 2019 is allowed in part setting aside the finding of the learned single Judge in paragraph No.9 to the effect that "issuance of Section 11 notification acquiring petitioners' land", leaving it open to respondent No.5 and the writ petitioners to redress their grievance before the competent Civil Court or authority as per law.
In the result, the Writ Appeal No.261 of 2019 filed by the State is allowed in part excluding the land to an extent of Ac.8.48 cents in 14 HACJ & MSMJ was_177 and 261_2019 Sy.No.47/2 and Ac.0.48 cents in Sy.No.47/3 of Mulagalampalli Village, Jeelugumilli Mandal and the Writ Appeal No.177 of 2019 is allowed in part setting aside the finding of the learned single Judge in paragraph No.9 to the effect that "issuance of Section 11 notification acquiring petitioners' land", leaving it open to respondent No.5 and the writ petitioners to redress their grievance before the competent Civil Court or authority as per law. No costs.
Consequently, miscellaneous applications pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 30.09.2019 Ksp