Andhra Pradesh High Court - Amravati
Kundrapu Yarrayyamma, vs The State Of Andhra Pradesh, on 17 October, 2023
Author: R.Raghunandan Rao
Bench: R.Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE R.RAGHUNANDAN RAO
WRIT APPEAL Nos.677 & 678 of 2023
Kundrapu Yarrayyamma,
W/o. Late Satyanarayana,
Aged about 50 years, R/o. Y B Patnam,
Nathavaram Mandal,
Visakhapatnam District,
Andhra Pradesh & Five others
Appellants/Petitioners
Vs.
The State of Andhra Pradesh,
Land Acquisition Department,
Secretariat Buildings, Secretariat,
Velagapudi, Guntur District,
Rep. by its Principal Secretary & two others.
...Respondents
The Bhimavarapukota Gram Panchayat,
Bhimavarapukota, Kotanandur Mandal,
East Godavari District,
Rep. by its Chief Executive Officer.
The Mandal Development Officer,
Kotanandur Mandal,
East Godavari District.
...Respondents in W.A.No.677 of 2023
The Tahsildar,
Kotanandur Mandal,
East Godavari District.
... 6th Respondent in W.A.No.677 of 2023
& 4th Respondent in W.A.No.678 of 2023
Mr. V.V.N. Narayana Rao, Counsel for the Appellants/Petitioners
Learned Government Pleader for Land Acquisition, Counsel for
respondent Nos.1 & 3.
HCJ & RRR, J
2 W.A.Nos.677 & 678 of 2023
Learned Government Pleader for Revenue, Counsel for respondent
Nos.2,5 & 6 in W.A.No.677 of 2023 and respondent Nos.2 & 4 in
W.A.No.678 of 2023.
Mr. N. Srihari, Standing Counsel for Gram Panchayat, for the 4th
respondent in W.A.No.677 of 2023.
COMMON JUDGMENT:
Dt: 17.10.2023 (per Hon'ble Sri Justice R. Raghunandan Rao) As both these appeals arise out a common order, they are being disposed of by a Common Judgment.
2. Heard, Sri V.V.N. Narayana Rao, Counsel for the Appellants and the Learned Government Pleader for Land Acquisition, for the respondents and Sri N. Srihari, Standing Counsel for the 4th respondent.
3. An extent of Ac.7.78 cents of land in certain Survey Numbers of Bhimavarapukota Village, Kotanandur Mandal, East Godavari District were acquired, in the year 1983, for the purposes of allotment of house sites to weaker sections of society. These proceedings, under the Land Acquisition Act, 1894, culminated in award No.12/1983 passed, on 08.11.1983, by the 3rd respondent- Land Acquisition Officer & Revenue Divisional Officer, Peddapuram, East Godavari District.
4. The appellants in both these appeals, claiming that they are the legal heirs of the owners of part of the lands, which have HCJ & RRR, J 3 W.A.Nos.677 & 678 of 2023 been acquired and approached this Court, by way of W.P.No.353 of 2018, contending that the authorities did not pay the compensation for the acquisition of the land nor did they take possession of the land due to which the land acquisition proceedings, resulting in the award No.12/1983 have to be set aside, in view of the Section-24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, "the RFCTLARR Act"). Subsequently, W.P.No.1779 of 2018 was also filed for declaring the award No.12 of 1983, dated 08.11.1983 as unenforceable and lapsed in view of Section-24(2) of the RFCTLARR Act and consequently, to direct the Revenue authorities to issue pattadar pass books and title deeds in favour of the appellants in respect of the lands claimed by them.
5. It is the case of the appellants, in both the appeals that the respondent authorities, despite having passed an award in the year 1983, had not paid any compensation to the predecessors in title of the appellants nor had they had taken possession of the said land. It is further contended that the appellants continued in possession of the land and have approached this Court due to the action of the Bhimavarapukota Gram Panchayat which sought to lay a road through the land in occupation of the appellants in the year 2017. The appellants also contended that they had sought HCJ & RRR, J 4 W.A.Nos.677 & 678 of 2023 information relating to payment of compensation, under the Right To Information Act, and no information of any nature had been given to them till date and the same substantiates their contention that no compensation was paid to them.
6. The official respondents filed their counter stating that compensation was paid to the predecessors in title of the appellants and possession of the land was taken and handed over to the beneficiaries who had been allotted the house sites in the said land. It was further stated that the records relating to the acquisition proceedings culminating in the award No.12/1983 had been misplaced on account of movement of all the files from the old office to the new office of the Revenue Divisional Officer, Peddapuram, East Godavari. It is further contended that steps were taken to ascertain the details of payment into the bank account of the predecessor and title of the appellants. However, the respondents, after diligent search, could produce proof of payment of only a part of the compensation. The State Bank of India has stated that the details of the accounts of the predecessors in title of the appellants could not be retrieved on account of passage of time.
7. The respondents would contend that the factum of payment of the compensation and taking of the possession of the land can be demonstrated on the basis of the documents available to HCJ & RRR, J 5 W.A.Nos.677 & 678 of 2023 show part payment of the compensation as well as the revenue records, which had been changed, to reflect the nature of the land as house sites patta and also by producing the patta given to one Sri Avasarala Venkata Kamaraju apart from the list of 137 beneficiaries to whom the house site pattas have been granted.
8. Section 24(2) of the RFCTLARR Act reads as follows:-
Section-24:- Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases:-
(1) .........
(a) ......
(b) .....
(2) Notwithstanding anything contained in sub-
section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
9. There were different interpretations the purport and effect of this provision of law. The controversy has now been settled by a Constitution Bench of the Hon'ble Supreme Court of India in HCJ & RRR, J 6 W.A.Nos.677 & 678 of 2023 the case of Indore Development Authority Vs. Manoharlala & Ors1. In paragraph No.366, of the said Judgment, the Constitution Bench had held that there would be a lapse of proceedings conducted under the Land Acquisition Act, 1894, only when the twin conditions of non payment of compensation and taking over the possession of the land by the acquisition authorities is demonstrated.
10. The Learned Single Judge after consideration of this Judgment had held that the taking over of the possession of the land had been demonstrated by the respondent authorities and consequently, dismissed the Writ Petitions by way of a Common Order dated 13.06.2023.
11. Aggrieved by the said order, the present appeals have been moved before this Court.
12. Sri V.V.N. Narayana Rao, learned counsel for the appellants would submit that the respondent authorities, to demonstrate taking of the possession would have to be produce the proceedings under which the possession of land had been taken over. He relies upon the Judgment of the Hon'ble Supreme Court of India in the case of Tamil Nadu Housing Board Vs. A. Viswam2. He 1 2020 8 SCC 129 2 1996 8 SCC 259 HCJ & RRR, J 7 W.A.Nos.677 & 678 of 2023 relies upon the Paragraph No.9 of the said Judgment is reads as follows:-
"It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land."
13. He would further rely upon the Judgment of the Hon'ble Supreme Court of India in the case of D.B. Basnett Vs. Collector, East Godavari3, where the Hon'ble Supreme Court of India, in Paragraph No.13 of the said Judgment, had held that there cannot be a presumption of acquisition without following due process as envisaged under the provisions of the Land Acquisition Act, 1894 and the burden to prove compliance of the process, as envisaged under the said Act, would be on the State.
14. He submits that no evidence, as required under the above Judgments of the Hon'ble Supreme Court of India had been placed before this Court and consequently, the stand of the respondents that the compensation been paid and that possession of the land had been taken would have to be negatived. 3 2020 (4) SCC 572 HCJ & RRR, J 8 W.A.Nos.677 & 678 of 2023
15. The learned Government Pleader for Land Acquisition would submit that there can be dispute with the principles laid down by the Hon'ble Supreme Court of India. However, the respondent authorities, having set out their difficulties in retrieving and producing the records, which are more than 40 years old, cannot be shut out on the ground that the said documents have not been placed before the Court. She would further submit that the Court can always look into surrounding circumstances as well as other documents produced by the respondent authorities to determine whether compensation had been paid and whether possession of the land had been taken over. The learned Government Pleader would rely upon the Judgment in the case of Tamil Nadu Housing Board Vs. A. Viswam4 and more specifically Paragraph No.11 which reads as follows:-
"From the facts in this case, it would be clear that possession must have been taken of the land consisting of 339 acres including 1.33 acres in Survey No. 140/4. It is seen that when the land was acquired for planned development of the city and a large chunk of buildings has already been built up and the land admeasuring about 1 acre 32 cents has been set apart for park purpose, obviously along with other lands, the disputed land was taken possession of and construction was made as per plans. Would it be possible for the appellant, without delivery of possession to the Housing Board, to construct such massive constructions and leave out only this part of the land bearing Survey No.140/4 which was set apart for public purpose, namely, public amenity of park? The making of the plan would emerge only after the land is taken possession of and demarcation thereof is 4 1996 8 SCC 259 HCJ & RRR, J 9 W.A.Nos.677 & 678 of 2023 made and constructions are carried out. It is erroneous to believe that possession still remained with the respondents and the LAO had not taken possession only of this piece of land. It is not the case of the respondent that he resisted taking possession of the land by LAO and thereafter the LAO took no action to have him dispossessed. The Single Judge has not adverted to these material facts and the circumstantial evidence available from the established facts. He proceeded to consider on the premise that since the acquired land was not used for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by the District Judge. The High Court is wholly illegal in its conclusion. The District Judge proceeded on the premise that the revenue records do not show the name of the appellant mutated and the land was not registered in the name of the appellant. These circumstances are wholly illegal and unjustified. Section 11 [4] read with Section 51 of the Act itself exempts registration of the land acquired under the Act. The District Judge had obviously ignored the statutory provisions. It was unnecessary for the Housing Board to have the lands mutated in the revenue records and have its name entered therein. It was not for its purpose. It was for public purpose, i.e., for construction of the houses and allotment thereof to the needy persons. After the construction of the houses, the public park stood vested in the acquisition. Obviously, at this stage the Municipality would have come to take possession exercising its jurisdiction when illegal encroachment was found on the land. At this stage, notice was given to the respondents and the respondents filed the suit for perpetual injunction."
16. The Learned Single Judge had held that the respondent authorities had not proved the payment of the compensation for the land acquired by them.
17. The Learned Single Judge had held that the primary evidence that ought to have been placed before the Court by the respondent authorities, are the documents cited by the petitioners. However, in a situation where the said documents are HCJ & RRR, J 10 W.A.Nos.677 & 678 of 2023 not traceable, it would be open to the respondent authorities to demonstrate the payment of compensation and taking over the possession of the land by any other alternative means.
18. We are in agreement with the views of the Learned Single Judge. This view is fortified by the observations of the Hon'ble Supreme Court of India in the case of Tamil Nadu Housing Board Vs. A. Viswam5 set out above. In the present case, the revenue records produced by the respondent authorities showing the classification of the land as house sites and the removal of the land from the revenue records as it has ceased to be agriculture land etc., goes to demonstrate that possession had been taken over by the respondent authorities. As the revenue records, the list of beneficiaries produced by the respondent authorities and the changes in the revenue records clearly probabalize the taking over the possession of the land, by the respondent authorities, on account of the acquisition of the land.
19. Though the common order disposed of W.P.Nos.353, 1779 & 17691 of 2018, appeals have been filed only against the orders passed in W.P.Nos.353 & 1779 of 2018. No appeal has been filed against the order in W.P.No.17691 of 2018. However, 5 1996 8 SCC 259 HCJ & RRR, J 11 W.A.Nos.677 & 678 of 2023 the said non-filing of an appeal in relation to W.P.No.17691 of 2018 would not be relevant as, these Writ Appeals have been dismissed.
20. In that view of the matter, there are no merits in the present appeals and they are dismissed. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ R.RAGHUNANDAN RAO, J BSM HCJ & RRR, J 12 W.A.Nos.677 & 678 of 2023 HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE R.RAGHUNANDAN RAO WRIT APPEAL Nos.677 & 678 of 2023 (per Hon'ble Sri Justice R.Raghunandan Rao) Dt: 17.10.2023 BSM