Andhra Pradesh High Court - Amravati
Boddu Jaganmohini vs The State Of Andhra Pradesh on 13 May, 2020
Author: D Ramesh
Bench: D Ramesh
<" IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE THIRTEENTH DAY OF MAY TWO THOUSAND AND TWEN :PRESENT: THE HONOURABLE SRI JUSTICE D RAMESH IA No. 1 OF 2020 IN WP NO: 8390 OF 2020 Between: 1. Boddu Jaganmohini, W/o. Boddu Bhaskara Rama Rao, Age: 65 Years, Occ: Businesswoman, R/o. Door No. 2-123, Peddada Village, Pedapudi Mandal, East Godavari District, Andhra Pradesh-533344 2. Boddu Surekha, W/o. Boddu Venkata Ramana Chowdhary, Age 40 Years, Occ: Businesswoman, R/o. Door No. 2-123, Peddada Village, Pedapudi Mandal, East Godavari District, Andhra Pradesh-533344 ...Petitioner(s) (Petitioner in WP 8390 OF 2020 on the file of High Court) AND 1. The State of Andhra Pradesh, Rep. by its Secretary, Revenue (Land Acquisition) Andhra Pradesh Secretariat Buildings, Velagapudi, Amaravati- 522503. The District Collector, Kakinada, East Godavari District The Revenue Divisional Officer, Kakinada, East Godavari District The Tahsildar/Mandal Revenue Officer, Kakinada Rural, East Godavari District Myadam Venkat Rao, S/o. Late Myadam Janardhan Rao, R/o. Flat No.122, Daisy Block, Serene County, Telecom Nagar, Gachibowli, Hyderabad- 500046, Telangana Myadam Rajashekhar, S/o. Late Myadam Janardhan Rao, R/o.133, Srila Heights, St. John s Church Road, East Maredpally, Secunderabad- 500026, Telangana M/s. Costa Projects Private Limited, Registered Corporate Office at Amrutha Ville, Flat No.210, Right Wing, II Floor, Somajiguda, Raj Bhavan Road, Hyderabad- 500082, Telangana ne wb nS ... Respondent(s) (Respondents in-do-) Counsel for the Petitioner : Ramesh Babu Talluri Counsel for the Respondent : Additional Advocate General, High Court of A.P. Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay ail further proceedings under the §.11 Notification dated 03.03.2020 including dispossession of the petitioner from the land admeasuring 125 Acres and 81 Centssituated in Survey No.34/1, Survey No.38/2, Survey No.38/3, Survey No.38/4, Survey No.39/2, Survey No.39/3, Survey No.40, Survey No.43/1, Survey No.43/2, Survey No.44/1, Survey No.44/2, Survey No.44/3, Survey No.44/4, Survey No.44/5, Survey No.44/6, Survey No.44/7, Survey No.44/8, Survey No.45, Survey No.46, Survey No.47/1, Survey No.50/2, Survey No.50/4, Survey No.50/5, Survey No.50/6, Survey No.50/7, Survey No.51/3, Survey No.53/1, Survey No.54, Survey No.55/1, Survey No.55/2, Survey No.55/3, Survey No.56/1, Survey No.56/2, Survey No.56/3, Survey No.56/4, Survey No.56/5, Survey No.56/6, Survey No.57, Survey No.58/1, Survey No.58/2, Survey No.58/3, Survey No.59, Survey No.60/2, Survey No.60/3, Survey No.60/5, Survey No.61/1, Survey No.61/2, Survey No.61/3, Survey No.62/1, Survey No.62/2, Survey No.62/3, Survey No.62/4, Survey No.62/5, Survey No.62/6, Survey No.62/7, Survey No.62/8, Survey No.63, Survey No.64/1, Survey No.64/2, Survey No.64/4, Survey No.65/5, Survey No.64/6, Survey No.64/7, Survey No.64/8, Survey No.65, Survey No.67/2, Survey No.71/7, Survey No.72/3, Survey No.69/3, Survey No.69/4, Survey No,74/1, Survey No.74/2, Survey No.74/3, Survey No.74/4, Survey No.74/5, Survey No.74/6, Survey No.75/6, Survey No.149/1, and Survey No. 149/3 of Nemam Village, Kakinada Mandal, East Godavari District, pending disposal of the above Writ Petition No. 8390 of 2020, on the file of the High Court. The petition coming on for hearing, upon perusing the Petition and the affidavit filed in support thereof and the order of the High Court dated 11.05.2020 made herein and upon hearing the arguments of Sri Ramesh Babu Talluri, Advocate for the Petitioners and of the Additional Advocate General, High Court of A.P., appeared on behalf of the GP for Revenue, High Court of A.P. for the Respondents, the Court made the following: ORDER
THE HON'BLE SRI JUSTICE D.RAMESH I.A.No.O1 of 2020 in W.P.No.8390 of 2020 1, Learned Senior Counsel Sri D.Srinivas, representing Sri Talluri Ramesh Babu, counsel on record for petitioners and the learned Additional Advocate General appeared for the State.
2. The present writ petition is filed praying the Hon'ble Court to call for the record pertaining to the acquisition of land admeasuring Ac.125.8lcents situated in different survey numbers of Nemam village, Kakinada Mandal, East Godavari District and to declare the notification dated 03.3.2020, issued under section 11 of 2013, Land Acquisition Act, and to declare all the consequent proceedings relating to acquisition of land admeasuring Ac.125.81cents situated in Survey No.34/1, Survey No.38/2, Survey No.38/3, Survey No.38/4, Survey No.39/2, Survey No.39/3, Survey No.40, Survey Nc.43/1, Survey No.43/2, Survey No.44/1, Survey No.44/2, Survey No.44/3, Survey No.44/4, Survey No.44/5, Survey No.44/6, Survey No.44/7, Survey No.44/8, Survey No.45, Survey No.46, Survey No.47/1, Survey No.50/2, Survey No.50/4, Survey No.50/5, Survey No.50/6, Survey No.50/7, Survey No.51/3, Survey No.53/1, Survey No.54, Survey No.55/1, Survey No.55/2, Survey No.55/3, Survey No.56/1, Survey No.56/2, Survey No.56/3, Survey No.56/4, Survey No.56/5, Survey No.56/6, Survey No.57, Survey No.58/1, Survey No.58/2, Survey No.58/3, Survey No.59, Survey No.60/2, Survey No.60/3, Survey No.60/5, Survey No.61/1, Survey No.61/2, Survey No.61/3, Survey No.62/1, Survey No.62/2, Survey No.62/3, Survey No.62/4, Survey No.62/5, Survey No.62/6, Survey No.62/7, Survey No.62/8, Survey No.63, Survey No.64/1, Survey No.64/2, Survey No.64/4, Survey No.65/5, Survey No.64/6, Survey No.64/7, Survey No.64/8, Survey No.65, Survey No.67/2, Survey No.71/7, Survey No.72/3, Survey No.69/3, Survey No.69/4, Survey No.74/1, Survey No.74/2, Survey No.74/3, Survey No.74/4, Survey No.74/5, Survey No.74/6, Survey No.75/6, Survey No.149/1 and Survey No.149/3 of Nemam Village, Kakinada Mandal, East Godavari District, are contrary to the provisions of 2013 Act, Act 22 of 2018 and the 2018 Rules, without any jurisdiction whatsoever, and violative of Articles 14 of 300-A of the Constitution of India, and consequently, stay all further proceedings including dispossession of the petitioners from the land.
3. The petitioners filed 1.A.01 of 2010 praying the Hon'ble Court to stay all further proceedings under section 11 Notification dated 03.3.2020 including dispossession of the petitioners from the land admeasuring Ac.125.8lcents situated in different survey numbers of Nemam village, Kakinada Mandal, East Godavari District pending disposal of the writ petition.
4, The petitioners filed the present writ petition assailing the notification dated 03.3.2020 issued under section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short Act, 2013) relating to acquisition of land admeasuring Ac.125.8lcents situated in Nemam village, Kakinada Mandal, East Godavari District.
3. The petitioners entered into a memorandum of understanding in form of MoU dated 09.3.2013 to purchase land admeasuring a total extent of Ac.140.87cents in Nemam village of Kakinada Rural Mandal in East Godavari District from respondent no.7. The petitioners contended that while issuing section 11 notification Ady»?
under the Act that no preliminary survey was conducted as ° contemplated under section 12 of the Act 2013, to asses the extent of land, and its suitability, for the mentioned public purpose, prior to or after issuance of the preliminary notification. The petitioners contended that they are the persons interested in acquisition process as per the definition of the Act 2013. The petitioners stated that they are unable to trace the paper publication as mandated by section 11(1}(a) of the Act 2013. With great difficulty they could able to secure the copy of preliminary notification dated 03.3.2020.
6G, While the things stood thus, the respondents 5 and 6, on behalf of respondent no.7, entered into private negotiation with official respondent no.3 and 4 and entered into an agreement for voluntarily acquisition of land under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement (Andhra Pradesh Amendment) Act, 2018 (for short Act, 2018) and the rules framed thereunder. Accordingly the respondents have entered into for voluntary acquisition of land admeasuring Ac.125.8lcents in Nemam Village, Kakinada Mandal, East Godavari District without following procedure contemplated under the Act and the Rules thereunder. They further contended that the agreement which was entered by the respondents relating to fixation of compensation, hearing of objections, and the negotiations before the District Level Negotiations Committee are totally vitiated as they are contra to the 2018 Rules, and the Act, 2013.
7. The main contention in the present writ petition is that the authorities have constituted a negotiations committee with respondents 3 and 4 i.e. Revenue Divisional Officer, Kakinada, East Godavari District and the Tahsildar/Mandal Revenue Officer, Kakinada, East Godavari District for negotiations is contrary to the rules, and the District Collector cannot delegate powers to the Revenue Divisional Officer as authorized officer and the same is illegal and contrary to the Rules 2018. To support this contention the learned Senior Counsel has mainly relied on section 30({A)(ii) which reads as follows:
"The State Government or its Authorized Officer shall pass an order in terms of agreement under sub-section (1} for acquisition, and the substance of the order shall be notified in the Gazette. On such publication of notification, the title, ownership and all interests of the land owner who enters into agreements, shall vest with the State, free from all encumbrances".
8. The learned Senior Counsel has also relied on Chapter III Rule 6, 7 and 8 which are relevant and the same is extracted below for ready reference.
Chapter -- II Rule 6. The District Collector shall issue a notification in Form-C and may, at any stage of the land acquisition proceedings invoke the provisions of the Act for settlement of the proceedings by negotiation.
Rule 7. (a) The District Collector shall, for such proceedings issue notice to all the persons interested in the land under acquisition in Form-D for their willingness to settle their claims through negotiation.
({b) fi} The persons interested may submit their willingness in Form --- E-I (Land owners}; and {i} The persons interested other than land owners may submit their willingness in Form-E-II fc) The District Collector will issue a nottfication after finalizing the rightful land owners in Form-F Rule 8. Negotiation shall be carried out by a Negotiation Committee consisting of the following officials:-
{i} District Collector (ii) Joint Collector fii) Revenue Divisional Officer/Deputy Collector - Convener of the Committee. (iv) Executive Engineer of a Works Department fother than the _ requisitioning Department) (v} Representative of Requisitioning Department.
9. Sri D.Srinivas, learned Senior Counsel further contended that for entering into an agreement as per section 30(A)(ii), the District Collector shall issue a notification in form-C as per Rule 6, and he shall issue notice to all persons interested in the land as per Rule 7, 7a in Form-D, and according to Rule 7 ({b)(i} the persons interested may - submit their willingness in form-E-I, and the persons interested other than land owners may submit their willingness in Form-E-Il, then only the District collector will issue a notification after finalizing the rightful land owners in Form-F. After willingness offered by the land owners as well as the interested persons, other than the land owners, the notification shall be carried out by negotiations committee consisting of the District Collector, Joint Collector, Revenue Divisional Officer /Deputy Collector, Executive Engineer of Works Department and Representative of Requisitioning Department. Rule 8 clearly contemplates the constitution of the Negotiation Committee, according to which the District Collector, Joint Collector, Revenue Divisional Officer and Executive Engineer of Works Department and a_ representative of requisitioning department.
10. But in the instant case, the negotiations committee was constituted with Revenue Divisional Officer, Kakinada and Officer appointed as authorized officer for land acquisition, Tahsildar, Kakinada Rural and acquisition authority. The said constitution of the negotiation committee is contrary to the rules more specifically Rule 8 of the Rules 2018.
11. Further he has contended that as per section 11(4) of the Act "No person shall make any encumbrance of such land from the date of publication of such notification till such time as the proceedings under this Chapter are completed", So inview of the above provision, when there is a specific prohibition of transactions of land, which are included in Section 11 notification, that itself clearly shows the agreement entered prior to -
the notification is permissible. Hence the petitioners are within the definition of section 3(10)(1) of the Act.
12. He further contended that section 15 of the Act specifically stated that any person interested in any land which has been notified under section l{c) of section 11 has been required or likely to be required for public purpose may within 60 days from the date of publication of preliminary notification, can file objections with regard to constitution of land proposed or justification offered for public purpose. If any objections are filed under section 15(1) the same shall be made to the Collector in writing and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him onbehalf or by an Advocate and shall, after hearing all such objections and after making such further enquiry, should submit a report to the appropriate Government containing his recommendations on the objections.
13. In the instant case, the petitioners have filed their objections to the respondents in their letter dated 17.3.2020 and the same was acknowledged by the respondents. And the petitioners have also issued a legal notice dated 19.3.2020 which are placed on record. But the proceedings of the Revenue Divisional Officer/respondent no.3 dated .03.2020, stated "that the land owners/interested persons neither attended nor filed any objection for the proposed acqutsition/ notification of land. Hence it is construed that there is no objection for the proposed acquisition/notification of land". The above said statement is contrary to the facts and despite receiving objections from the interested persons/ petitioners and a legal notice onbehalf of the petitioners. It is the mandatory duty on the part of the respondents to dispose of each and every objection received under Ory, section 15 of the Act. The Hon'ble Supreme Court as well as various High Courts have interfered in the land acquisition proceedings only on the ground of non-compliance of section 15(ii) of the Act. Inview of the above contentions, notification issued under section 11 and subsequent proceedings initiated under section 30(A) are contrary to the Rules more specifically Rule 6,7 and 8 of Rule 2018. Hence requested to stay of all further proceedings under section 11 notification dated 03.3.2020 including the dispossession of the petitioners from the land admeasuring Ac.125.8lcents situated in different survey numbers as stated in the petition.
14. Finally learned Senior Counsel has pointed out that in the counter uploaded by respondent no.3 on 11.5.2020 in paragraph no.2{[X), has stated that "the LAO & RDO, Kakinada has passed award on 22.4.2020 and bill for payment of compensation has been presented for payment". Inview of the above statement made in the counter makes it clear that the amounts were not paid and the possession was not taken by the authorities.
15. Learned Additional Advocate General appearing onbehalf of the State has submitted his arguments that the writ petition itself is not maintainable because the petitioners have no locus-standi to file the present writ petition and because no rights are accrued to them and they are not the owners of the land. As per the memorandum of understanding entered by the petitioners dated 09.01.2013 is only a MoU and no legal rights are transferred to them as per section 54 of the Transfer of Property Act.
16. Further he has contended that the validity of the document itself is doubtful. Because stamp is purchased on 12.3.2013 but the recitals in MoU entered on 09.3.2013. Hence the document itself is vague and fictitious, and further he contended that as per section 54 of Transfer of Property Act 'sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and _part- promised. Unless the sale is completed, the rights will not get accrued to the transferee. At the most they are entitled only protection under section 53(a) of the Act for the part performance. Hence the writ petitioners have no locus-standi to file the present writ petition and to undo the notification. To support the said proposition, he has relied on the judgment which was reported in Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana! wherein the Hon'ble Apex Court recited that:
Therefore, a SA/GPA/ WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M, Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance.
Transactions of the nature of "GPA sales' or "SA/GPA/ WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/ WILL transactions known as GPA sales.
As per the ratio laid down by the Hon'ble Supreme Court in the above said decision, the petitioners are not the owners, and the sale ') (2012) 1 SCC 656 72&pz is not concluded and no sale has been taken place as per the MoU ' dated 09.3.2013. And the document itself is invalid. Hence they are not entitled to point out the violations if any with regard to notification issued dated 03.3.2020 and requested to dismiss the writ petition.
17. Reply to the said arguments, the learned Senior Counsel submitted that the petitioners will fit into the definition of 3(x). The definition of 3(x) is a vide and an inclusive definition. The definition starts with all persons claiming, an interest to the compensation to be made is an inclusive wider definition which includes all the persons who are interested in the land. Nowhere in the Act specifies that it applies only to the land owners. According to the definition, the petitioners have every right to file a writ petition as well as question the notification on the grounds of violation of Rules.
18. It is not in dispute that the petitioners are in possession and they have entered a memorandum of understanding (MoU) with the respondent no.7 with certain conditions, and the parties are unable to fulfill the conditions in MoU, they could not able to conclude the sale. The petitioners have filed objections as per section 15 bringing these facts to the notice of the land acquisition authorities. Instead of considering the objections filed by the petitioners and to pass an order under section 15(2) of the Act, the negotiations committee which was constituted as per Rule 8 has stated in their report that the land owners/interested persons neither attended nor filed any objections for the proposed acquisition/ notification of land which is a misconceived and false statement. Apart from that in the counter affidavit filed by respondent no.3, in paragraph number 8 has stated that as the objections filed by the petitioners/interested persons is 10 dealt with in a manner that as contemplated and required by the 2013 LA Act and the petitioners were given proper opportunity to represent their objections. After considering the objections filed by petitioners through representations, the respondent no.2 has issued necessary proceedings as per the Act. The above said two statements are contrary to each other.
19. Considering the rival submissions and on perusing the record, I find that there is a glaring illegality in constitution of negotiations committee, and which is not in accordance with Rules more specifically Rule 8 of the Rules 2013. Apart from that there is a contrary statement of the land acquisition officer, with regard to consideration of objections as per Section 15 of the Act.
90. In view of the above findings, the I.A.No.01 of 2020 is allowed by staying all further proceedings under section 1] Notification dated 03.3.2020 including dispossession of the petitioner from the land admeasuring Ac.125.81 cents in Survey (No.34/1, Survey No.38/2, Survey No.38/3, Survey No.38/4, Survey No.39/2, Survey No.39/3, Survey No.40, Survey No.43/1, Survey No.43/2, Survey No.44/1, Survey No.44/2, Survey No.44/3, Survey No.44/4, Survey No.44/5, Survey No.44/6, Survey No.44/7, Survey No.44/8, Survey No.45, Survey No.46, Survey No.47/1, Survey No.50/2, Survey No.50/4, Survey No.50/5, Survey No.50/6, Survey No.50/7, Survey No.51/3, Survey No.53/1, Survey No.54, Survey No.55/1, Survey No.55/2, Survey No.55/3, Survey No.56/1, Survey No.56/2, Survey No.56/3, Survey No.56/4, Survey No.56/5, Survey No.56/6, Survey No.57, Survey No.58/1, Survey No.58/2, Survey No.58/3, Survey No.59, Survey No.60/2, Survey No.60/3, Survey No.60/5, Survey No.61/1, Survey No.61/2, Survey No.61/3, Survey No.62/1, Survey No.62/2, Survey No.62/3, Survey No.62/4, Survey zz "223m To,
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aD WRN
8. 9 No.62/5, Survey No.62/6, Survey No.62/7, Survey No.62/8, Survey ° No.63, Survey No.64/1, Survey No.64/2, Survey No.64/4, Survey No.65/5, Survey No.64/6, Survey No.64/7, Survey No.64/8, Survey No.65, Survey No.67/2, Survey No.71/7, Survey No.72/3, Survey No.69/3, Survey No.69/4, Survey No.74/1, Survey No.74/2, Survey No.74/3, Survey No.74/4, Survey No.74/5, Survey No.74/6, Survey No.75/6, Survey No.149/1 and Survey No.149/3 of Nemam Village, Kakinada Mandal, East Godavari District, as prayed for.
SD/- E.KAMESWARA RAO ASSISTANT REGISTRAR For ASSISTANT Lek kear The Secretary, Revenue (Land Acquisition), State of Andhra Pradesh, A.P. Secretariat Buildings, Velagapudi, Amaravati- 522503.
The District Collector, Kakinada, East Godavari District, A.P, The Revenue Divisional Officer, Kakinada, East Godavari District, A.P, The Tahsildar/Mandal Revenue Officer, Kakinada Rural, East Godavari District, A.P. Sri Myadam Venkat Rao, S/o. Late Myadam Janardhan Rao, R/o. Flat No.122, Daisy Biock, Serene County, Telecom Nagar, Gachibowli, Hyderabad- 500046, Telangana Sti Myadam Rajashekhar, S/o. Late Myadam Janardhan Rao, R/o.133, Srila Heights, St. John s Church Road, East Maredpally, Secunderabad- 500026, Telangana.
M/s. Costa Projects Private Limited, Registered Corporate Office at Amrutha Ville, Flat No.210, Right Wing, II Floor, Somajiguda, Raj Bhavan Road, Hyderabad- 500082, Telangana One CC to SRI Ramesh Babu Talluri, Advocate [OPUC] Two CCs to the Advocate General, High Court of A.P. [OUT] HTRUE COPyYis
10. Two CCs to the GP for Revenue. High Court Of A.P, [OUT]
11. One spare copy MSR f, HIGH COURT DRJ DATED: 13/05/2020 ORDER 1A NO. 1 OF 2020 IN WP.No.8390 of 2020 STAY ALLOWED