Andhra Pradesh High Court - Amravati
Smt. Uppaluri Eswaramma vs The State Of Andhra Pradesh, Rep. By Its ... on 29 April, 2022
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.15029 OF 2015
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"to a Writ, Order or direction, especially one in the nature of Writ of Mandamus declaring the action of the respondents in not considering the case of the petitioner for allotment of an alternative land in lieu of the land to an extent of Acres 5.00 cents in Sy.No.1/P of Yendada Village, Visakhapatnam (Rural) Mandal, Visakhapatnam District which was taken forcibly, as illegal, arbitrary and violation of Articles 14, 21 and 300-A of the Constitution of India and consequently direct the respondents to consider the case of the petitioner for allotment of alternative land in an extent of Ac.37.40 cents in Sy.No.1(old survey number) Sy.No.179/2 (new survey number) of Yendada Village, Visakhapatnam (Rural) Mandal, Visakhapatnam District in lieu of the land to an extent of Ac.5.00 cents in Sy.No.1/P of Yendada Village, Visakhapatnam (Rural) Mandal, Visakhapatnam District in favour of the petitioner and pass such other order or orders."
2. (a) The case of the petitioner is that, the petitioner‟s husband is an Ex-Serviceman and he was allotted an extent of Acers 5.00 cents of dry land in Sy.No.1/P of Yendada Village, Visakhapatnam (Rural) Mandal, Visakhapatnam District. The said assignment was made by the then Tahsildar on 22.05.1982 vide proceedings in Rc.No.389/82, issued D-Form 2 patta and from the date of assignment, she was in continuous possession and enjoyment of the said property.
(b) In the year 2007, when the respondents started interfering with the possession of the petitioner‟s property, the petitioner filed W.P.No.18432 of 2007 before the High Court of Andhra Pradesh at Hyderabad and this Court by order dated 11.09.2011, disposed of the writ petition with the following direction:
"The Writ Petition is disposed of, directing the petitioner to make a representation before the Tahsildar, Visakhapatnam (Rural), with reference to her claim and if such representation is made, the Tahsildar, Visakhapatnam (Rural) is directed to conduct enquiry as to the genuineness or otherwise of the assignment claimed by the petitioner and after ascertaining as to the genuineness, the Tahsildar is directed to take appropriate action. If the assignment is found to be true and genuine, the petitioner is entitled for the relief to which she is entitled under law either for payment of exgratia or compensation or for assignment of any alternative land in lieu of the land resumed by the Government. In case if it is found to be not genuine, the Tahsildar is also entitled to take appropriate legal proceedings against the petitioner. The petitioner is directed to make her representation within a period of four weeks from today and on such representation, the Tahsildar, Visakhapatnam (Rural) is directed to complete the enquiry within two months thereafter."
(c) Pursuant to the direction referred above, the petitioner made representation dated 22.04.2008 to the 3rd respondent and the 3rd respondent, by an order vide 3 Rc.No.425/2008/Spl RJ, dated 24.12.2008, rejected the representation of the petitioner holding that the patta is not genuine.
(d) Aggrieved by the order of the 3rd respondent/ Tahsildar, the petitioner preferred an appeal before the Revenue Divisional Officer, Visakhapatnam, the Revenue Divisional Officer in Appeal Case Rc.No.1996/2009/A dated 27.06.2011, allowed the appeal, after perusing the records furnished by the 3rd respondent, and set aside the order while remanding the matter to the 3rd respondent to conduct enquiry afresh, in accordance with material evidence available on record.
(e) On such remand, the 3rd respondent vide Rc.590/2011/A, dated 09.05.2012, issued proceedings holding that the subject land was allotted to the petitioner‟s husband, as he was an Ex-Serviceman and recommended the 2nd respondent to revoke the land given to the 4th respondent.
(f) Pursuant to the orders passed by the 3rd respondent dated 09.05.2012, the 2nd respondent, vide Rc.No.818/12 E1, dated 10.07.2012, addressed a letter to the 5th respondent stating that the petitioner‟s husband was assigned the land admeasuring an extent of Ac.5.00 of dry land in Sy.No.1/P of Yendada Village.
(g) In response to the said letter, the 5th respondent sent a reply on 01.03.2014 stating that there is no policy, rule or provisions for allotment of alternative land to the land taken from affected persons, however there is only provision for issue 4 of TDRs or setback relaxation or payment of compensation amount as per Government Memo No.433/M1/2013 dated 29.04.2013 and requested the 2nd respondent to take further action.
(h) After the proceedings issued by the 3rd respondent on 09.05.2012, the petitioner filed W.P.No.33592 of 2010 against respondent Nos. 3 and 4 and also Revenue Divisional Officer, Visakhapatnam, which is still pending, wherein this Court granted an order of status quo.
(i) After granting status quo, the subject land was handed over to Visakhapatnam Urban Development Authority (VUDA). Now, Visakhapatnam Metropolitan Region Development Authority (VMRDA) had utilised the land for their own purpose without payment of any compensation or without allotting alternative land to the petitioner, though the land was resumed from the petitioner‟s husband. Therefore, the petitioner sought a direction as stated supra.
3. No counter affidavit is filed by the respondents.
4. During hearing, learned Senior Counsel Sri Veera Reddy representing Kannegante Manasa instructing Counsel has drawn the attention of this Court to various orders passed by the 3rd respondent and RDO to establish the patta granted in favour of the petitioner as genuine; if the respondents intend to take possession of the property or resume the land, the petitioner is entitled to claim Ex-gratia or compensation or allotment of alternate site. But till date, no such site was allotted or no compensation was paid and thus, requested to 5 issue a direction for payment of compensation or allotment of alternate site.
5. The consistent case of the petitioner from the beginning is that an extent of land Ac.5.00 cents in Sy.No. 1/P of Yendada Village was assigned to the petitioner‟s husband under the Ex-Serviceman quota and when the respondents were trying to interfere with the possession and enjoyment, W.P.No.18432 of 2007 was filed, wherein, this Court issued a direction to enquire into the genuineness of the patta allegedly issued in favour of the petitioner‟s husband and accordingly, 3rd respondent conducted enquiry and found that the patta claimed by the petitioner is not genuine.
6. Aggrieved by the order, the petitioner‟s husband preferred an appeal before the Revenue Divisional Officer. The RDO vide order in Rc.No.1996/2009/A dated 27.06.2011 held that the order of the Tahsildar is not based on D.R. file of the appellant/ petitioner before the RDO and set aside the order passed by the 3rd respondent vide Rc.No.425/2008/Special RJ/ dt.24.12.2008, while remanding the matter to the Tahsildar/ 3rd respondent herein again to conduct an enquiry, afresh.
7. In pursuance of the direction issued in appeal case Rc.No.1996/2009/A dated 27.06.2011, the Tahsildar held an enquiry afresh and recorded the following findings:
"In view of the above the enquiry conducted which revealed that the individual was assigned land and that he has developed it and the land was proposed for allotment to VUDA on the 6 premise that it is a government land and the directions of the Hon'ble High Court, the available records and it is held that late Sri Uppaluri Appalaraju, an ex-serviceman has been assigned land measuring Ac.5.00 cents in S.No.1 part of Yendada Village in the past.
The above orders are subject to revoking of orders of handing over of land in S.No.1 part of Yendada in favour of VUDA by the District Collector, Visakhapatnam."
8. Despite the order passed by the Tahsildar/ 3rd respondent herein, it is found that the patta issued in favour of the petitioner‟s husband is genuine and recommended for withdrawal of the proposal for allotment of site to VUDA, the respondents raised a strange contention again that the assignment is not genuine. The documents produced by the respondents themselves disproved the contention and substantiated the contention of the petitioner in total, more particularly about the genuiness of the patta granted in favour of the petitioner‟s husband for the subject land admeasuring an extent of Ac.5.00 cents in Sy.No. 1/P of Yendada Village under the Ex-serviceman quota. The order passed by the Tahsildar dated 09.05.2012 attained finality and it is not open to the respondents to raise such contention that the patta granted in favour of the petitioner‟s husband is not genuine at this stage. Therefore, the contention of the respondents that the patta is not genuine is hereby rejected in view of the finding recorded by the 3rd respondent in the order dated 09.05.2012. 7
9. Once patta was granted in favour of the petitioner‟s husband for the land admeasuring an extent of Ac.5.00 cents in Sy.No. 1/P of Yendada Village under Ex-serviceman quota, unless the patta is cancelled or the land is resumed by following procedure, the respondents are disentitled to interfere with the possession and enjoyment and even if it is allotted to VUDA as admitted by the petitioner, still the petitioner is entitled to compensation atleast in terms of G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016. In Paragraph No.4 of G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016, it is specifically stated as follows:
"4. Accordingly, Government after careful examination of the issue and in supersession of the orders issued in the G.O.Ms.No.1307, Revenue (Assn.I) Department, dt: 23.12.1993, issue the following orders:
(i) Whenever the assigned lands are required for a public purpose for a project or for alienation to a Govt.
Department or Corporation, the lands shall be resumed as per conditions of Patta
(ii) The compensation for the resumed assigned lands shall be paid on par with Patta lands as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other L.A. Act in force in the State."
10. However, G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 is applicable only when the land is resumed for public purpose invoking clause 17 of the D-form patta, the beneficiary under the assignment is entitled to claim compensation on par with the private patta holder. But as on date, no amount is paid as compensation or ex-gratia.8
Therefore, such forcible dis-possession of the property by the respondents is not authorised by law and it is violative of Articles 300-A of the Constitution of India and Human Rights.
11. The major contention of the petitioner from the beginning is that the respondents are interfering with the petitioner‟s property without following due process of law is violative of Article 300-A of Constitution of India. What is meant by due process of law is a question to be decided by this Court.
"Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.
The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under:
The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the 9 person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
12. Article 300-A of the Constitution of India, the right of an individual is protected and no citizen of India can be deprived of his/her right to property, except by authority of law.
13. At this stage, it is relevant to refer the meaning of „authority of law‟.
The Apex Court while considering the word used 'law' under Article 13 and 300-A of the Constitution of India, 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 India (1987 2 SCC 469)" and "Edward Mills Co. Ltd. Vs. State of Ajmer (AIR 1955 SC 25)" 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.(1955 (1) SCR 599)") The Law does not, however, mean that an 10 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.35 and "Mervyn Coutindo Vs. Collector, Customs Bombay (AIR 1967 SC 52)") Therefore, whatever legislation made by the Legislature or Parliament 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 Pradesh (AIR 1982 SC 33)" 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 his property save by 32 AIR 1956 SC 479 33 AIR 1955 SC 25 34 1955 (1) SCR 599 35 AIR 1959 SC 149 36 AIR 1967 SC 52 37 AIR 1982 SC 33 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 fiat 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 300-A. The word 'law' in the context of Article 300-A 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.(AIR 2003 SC 250)" 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."
Thus, 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.
No doubt, as discussed above, right to livelihood of a person can be deprived by authority of law. Article 300-A of the Constitution of India, 38 AIR 2003 SC 250 protects right of an individual, but 11 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 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.(AIR 2013 SC 565)) 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 39 AIR 2013 SC 565 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 owners of either movable or immovable only from Executive fiat, imposing minimal restrictions on the power of the State. This is in sharp contrast to the language adopted in the Indian Constitution.
14. A bare look at Article 300-A of Constitution of India, any citizen of India cannot be deprived of their right to property, except by authority under law. That means a property of any 12 citizen of India cannot be taken unless the state is authorized to do so.
15. The Constitution of India permits the State to deprive any person‟s right in the property by authority of law, the respondents were unable to show any provision in any enactment which authorized the State to take possession of the property belonging to this petitioner. Taking possession of the property is nothing but a deprivation of the property of this petitioner by the respondents and it amounts to violation of constitutional right guaranteed under Article 300-A of the Constitution of India.
16. 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."
17. 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.
18. 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 13 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.
19. Hence, the only authority of law to deprive a person from his property is acquisition of land under the provisions of relevant law.
20. Recently the Apex Court in "Tukaram Kana Joshi V. Maharstra Industrial Development Corporation"1, held that 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 individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now, however, human rights are gaining an even greater mutli-faceted dimension. The right to property is considered, very much to be a part of such new dimension.
21. Relying upon the said judgment, the Apex Court in "D.B.Basnett (D) through L.Rs. vs. The Collector, East District, Gantok, Sikkim2, held that even though right in land is no more a fundamental right, still it remains a 1 (2013 1 SCC 353) 2 (AIR 2020 SC 1389) 14 constitutional right under Article 300-A of the Constitution of India.
22. In "Sukh Dutt Ratra vs. State of Himachal Pradesh (Civil Appeal No.2773 of 2022 (Arising out of Special Leave Petition (c) No.6335 of 2022 (Arising out of S.L.P. (c) Diary No.13202 of 2020) Decided on 06.04.2022" the Apex Court held that the forcible dispossession of a person of their private property without following due process of law, was violative of not only the fundamental right guaranteed under Article 21, 300-A of the Constitution of India but also the human right under Article 25(1) of the Universal Declaration of Human Rights.
23. Similarly in "P.T. Munchinkanna Reddy v. Revamma3, this court held that :
"There is no another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right. Declaration of the Rights of Man and of the citizen, 1789 emunciates right to property under Article 17; since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid. Moreover, the Universal Declaration of Human Rights, 1948 under Section 17(i) and 17 (ii) also recognizes right to property:
17 (i) Everyone has right to own property alone as well as in association with others.
(ii) No one shall be arbitrary deprived of his property. Human rights have been historically considered in the realm of individual rights such as, right to health, right to 3 (2007 6 SCC 59) 15 livelihood, right to shelter and employment, etc. But now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context.
Thus, by the act of respondents and their subordinates, they violated not only the constitutional right guaranteed under Article 21, 300-A of the Constitution of India but also a human right under Article 25(1) of Universal declaration human rights."
24. 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).
25. In view of the law, depriving the petitioner disposing her from the land is nothing but violation of 16 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.
26. 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" held that the assignees of the Government land 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 land is taken possession 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.
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27. In view of the law declared by the Hon‟ble Apex Court in the judgments referred supra, I find that, it is a fit case to declare the action of the respondents as illegal, arbitrary and violative of Articles 21 and 300- A of the Constitution of India and Article 25 (1) of Universal Declaration of Human Rights, consequently, directed to take appropriate action, subject to acquiring the property in terms of Act 30 of 2013 or in any other permissible mode authorized by law.
28. Hence, respondents are directed to initiate proceedings for acquisition of the property in terms of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) or pay compensation in terms of G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 or issue TDRs, within a period of eight (08) months from the date of receipt of a copy of this order.
With the above direction, the writ petition is disposed of. There shall be no order as to costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 29.04.2022 PGT 18 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.15029 OF 2015 29.04.2022 PGT