Andhra HC (Pre-Telangana)
K. Peda Venkataiah vs Government Of Andhra Pradesh And Ors. on 8 December, 2003
Equivalent citations: 2004(1)ALD1, 2004(3)ALT78
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy, K.C. Bhanu
JUDGMENT B. Sudershan Reddy, J.
1. The unsuccessful petitioners in W.P. No. 2128 of 2003 are the appellants in this writ appeal. The learned Single Judge dismissed the said writ petition filed by them questioning the award passed by the third respondent-Revenue Divisional Officer, Warangal under the provisions of the Land Acquisition Act, 1894 (for short 'the Act').
2. In order to appreciate whether the order under appeal suffers from any infirmities requiring our interference, a few relevant facts leading to filing of this writ appeal may have to be noticed:
3. The appellants herein are the true and absolute owners of the land admeasuring Ac.1-17 guntas in Survey No. 146 of Somidi Village, Hanamkonda Mandal, Warangal District. In the revision of survey of the village, new survey numbers 154 and 155 were assigned to old Survey No. 146.
4. Be it as it may, (he second respondent-Joint Collector submitted acquisition proposals to the first respondent-Government of Andhra Pradesh for acquisition of lands in various survey numbers including Survey Nos. 154 and 155 of Somidi Village for construction of Food Corporation of India godowns. Draft notification under Section 4(1) of the Act was issued on 1-4-1982 seeking to acquire the lands situated in various survey numbers of Somidi Village. However, the land in Survey No. 154 admeasuring Ac.1-17 guntas was not included in the said notification. On verification, it was found that during the revision of survey, the land in Survey No. 154 was wrongly classified as Billa Dhakhala (Chervu Shikam). On 2-6-1983, the first respondent-Government had taken possession of the said land from the appellants and delivered the same to the second respondent-Joint Collector. The appellants having realised that on account of mistake during the revision of survey, the land was classified as Government land, preferred an appeal under Section 87 of the Andhra Pradesh (Telangana Area) Land Revenue Act before the District Revenue Officer, Warangal for rectification of survey error. The said appeal was allowed by order dated 31-12-1988 upholding the claim of the appellants and accordingly orders were issued to rectify the mistake and change the classification from Billa Dhakla (Cheruvu Shikam) to Rytuwari patta of land to an extent of Ac.1-17 guntas. After disposal of the appeal, several representations were made by the appellants for initiating proceedings under the provisions of the Act and for payment of compensation. There has been no response from the respondents.
5. The appellants, aggrieved by the inaction on the part of the respondents in initiating land acquisition proceedings, filed W.P. No. 10336 of 1993 in this Court. The said writ petition was allowed by this Court vide order dated 14th July, 1999 directing the respondents to take immediate steps to acquire the lands of the appellants in Survey No. 154/2 of Somidi Village, Warangal District admeasuring Ac.1-17 guntas and conclude the proceedings, including payment of compensation to the appellants, within a period of four months from the date of receipt of a copy of the said order.
6. Thereafter, the 5th respondent-Food Corporation of India filed a requisition for acquisition of the said land in Survey No. 154/ 2 admeasuring Ac.1-17 guntas duly informing that the advance possession of the land under acquisition has been taken over by them on 2-6-1983. The draft notification/draft declaration proposals under Sections 4(1) and 6 of the Act were submitted to the Collector, Warangal on 21-10-1999 dispensing with the enquiry under Section 5-A of the Act invoking the urgency clause in view of the orders passed by this Court. The draft notification was published in the Gazette dated 10-7-2000 followed by the draft declaration under Section 6 of the Act dated 2-8-2000. The Land Acquisition Officer passed award on 24-12-2002 and the notice under Section 12 (2) was served on the appellants on the same day. The appellants received the compensation under protest on the very same day. Thereafter, an application under Section 18 of the Act was filed on 31-1-2003 with a request to refer the matter to the Civil Court for determining the true and correct market value of the acquired land.
7. The case set up by the appellants is that the third respondent-Revenue Divisional Officer (Land Acquisition Officer) while fixing the market value of the acquired land has taken into account different sale transactions of the relevant period and found that the sale price ranged from Rs. 400/- to Rs. 1,366/- per square yard. That after considering the comparable sales, the third respondent-Land Acquisition Officer fixed the market value of the acquired land at Rs. 240/- per square yard and accordingly prepared the draft award. It is alleged that the second respondent-Joint Collector in order to wreck vengeance against the appellants for their having moved this Court to punish him for the contempt of Court, pressurised the third respondent to reduce the market value and fix the same at Rs. 30/-per square yard instead of at Rs. 140/- per square yard. The third respondent did not agree for the same. Then the second respondent himself altered the figures of the market value in the draft award and accordingly compelled the third respondent to pronounce the same.
8. It is under those circumstances, the appellants invoked the jurisdiction of this Court with a prayer to issue an appropriate writ more particularly one in the nature of certiorari and to quash the award dated 24-12-2002 and consequently direct the respondents to pay the compensation by taking the market value as on the date of issue of notification under Section 4(1) of the Act into consideration.
9. In the counter-affidavit filed by the third respondent-Revenue Divisional Officer, it is conceded that an Award was passed on 24-12-2002 fixing the market value at Rs. 30/- per square yard, in view of the fact that this Court in respect of the lands which were taken possession along with the lands in question has fixed the market value at Rs. 30/- per square yard. The reasoning is that the possession of the land in question was taken over along with the other lands in respect of which draft notification was issued on 4-9-1982 and, therefore, the appellants herein are also entitled for similar compensation as was paid to the other claimants whose lands were also acquired for the very same purpose and the possession of which was also taken over along with the lands of the appellants herein. It is farther stated that while receiving the compensation, the appellants have expressed their protest in writing and thereafter submitted a joint application under Section 18 of the Act seeking a reference to the Civil Court for proper fixation of market value and a reference was accordingly made to the Civil Court vide the proceedings dated 27-2-2003 requesting the Principal Senior Civil Judge, Warangal to entertain and adjudicate the reference in accordance with law.
10. The sum and substance of the defence set up by the respondents is that the appellants have already availed alternative and effective remedy available to them in law and in such view of the matter they cannot be permitted to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
11. It is interesting to notice that in the counter-affidavit filed by the Revenue Divisional Officer for and on behalf of respondents 1 to 3 there is no denial of allegation that the second respondent-Joint Collector pressurised him to make necessary alterations correcting the figure from that of Rs. 240/- to Rs. 30/- per square yard in the draft award prepared by him.
12. However, in the counter-affidavit filed by the Joint Collector (present incumbent), it is stated that the Land Acquisition Officer and Revenue Divisional Officer, Warangal himself corrected the typographical error of market value as approved by the second respondent at Rs. 30/ - per square yard in the draft award proceedings submitted by him to the second respondent. No corrections were made in the draft award submitted by the Land Acquisition Officer. The corrections were made by the Land Acquisition Officer himself and the draft award was approved by the second respondent, the then Joint Collector, Warangal.
13. It is further stated that pursuant to the notification issued under Section 4(1) of the Act dated 4-9-1982 whereunder the lands belonging to the other claimants were acquired, an award dated 23-9-1986 was passed by the Land Acquisition Officer in respect of those lands acquired for the purpose of Food Corporation of India fixing the market value of the land at Rs. 8/-per square yard. On reference, the Civil Court enhanced the market value of the land from Rs. 8/- to Rs. 20/- per square yard. On further appeal, the High Court in A.S.No. 833 of 1993, dated 29-12-2000 further enhanced the compensation from that of Rs. 20/- to Rs. 30/- per square yard and the Honourable Supreme Court in SLP No. 18212 of 2001 confirmed the same. Hence the same market value at the rate of Rs. 30/- per square yard has been adopted for fixing the compensation in respect of the lands acquired in the instant case, though draft notification under Section 4(1) of the Act was published on 10-7-2000 i.e., after a long delay of taking possession of the said land on 2-6-1983 along with other lands acquired under draft notification dated 1-4-1982.
14. In the counter-affidavit filed by the then Joint Collector, Warangal, at the time of passing of the award, it is explained that in all an extent of Ac.28-09 guntas of land situated in Survey Nos. 251, 252 and 165 of Somidi Village, Hanamkonda Mandal, Warangal District was acquired for Food Corporation of India through the notification issued under Section 4(1) of the Act dated 4-9-1982 for construction of food grain godowns. The present land admeasuring Ac.1-17 guntas was not notified for the reason that it was recorded as a Government land in the revenue records. However, pursuant to the directions of this Court, a fresh notification was issued under the provisions of the Act on 10-7-2000 and an award dated 24-12-2002 was passed thereon. It is further stated that the Food Corporation of India has taken physical possession of the land, including the land covered in the present writ petition on 2-6-1983 itself along with the other lands in respect of which a proper notification under Section 4(1) of the Act was issued and published in the Official Gazette. It is further stated that he was "under the bona fide impression that interest is being paid from the date of taking over possession on the land value put up at Rs. 30/- per square yard......I acted bona fide and in discharge of my duties as an approval authority and not prejudiced in any manner towards the writ petitioners".
15. An analysis of the averments made in the affidavit filed in support of the writ petition and the averments made in the counter-affidavits referred to hereinabove reveals that the Revenue Divisional Officer-cum-Land Acquisition Officer did not deny the assertion made by the appellants in the affidavit filed in support of the writ petition that the Land Acquisition Officer fixed the market value of the acquired land at Rs. 240/- per square yard, but the second respondent vindictively pressurised him to reduce the market value to Rs. 30/- per square yard. This assertion is also not denied either by the present incumbent (Joint Collector) or by the then Joint Collector, at the time of passing of the award though separate counter-affidavits have been filed by them. All that is stated in the counter-affidavit filed by the present incumbent is that the corrections with regard to market value and alteration of figures were made by the Land Acquisition Officer himself as approved by the Joint Collector. The then Joint Collector, who is alleged to have pressurised the Land Acquisition Officer did not say anything about the same in his counter-affidavit filed in the writ appeal. The facts speak for themselves.
16. The record made available for our perusal, including the preliminary valuation report and the draft award, discloses that the Land Acquisition Officer fixed the market value of the acquired land at Rs. 250/-per square yard, which according to him, to be fair and reasonable. In the draft award, it is clearly stated that the draft notification under Section 4(1) of the Act is dated 10-7-2000 and the sale transactions relied upon relate to the period between 25-6-1998 and 2-10-1999. Since there is no time gap, no time lag allowance is allowed. As the acquisition is of a large extent of land, there is a settled rule to deduct l/3rd towards layout charges and after deducting the same the, market value works out to Rs. 266.69 per square yard. The land under acquisition is in the middle of F.C.I, godowns and there is no approach road except FCI internal road. Owing to the stated disadvantage, an amount of Rs. 16/- is to be deducted, after which the net market value comes to Rs. 250/- per square yard. That is how the Land Acquisition Officer arrived at the net market value of the acquired land.
17. Then what are the reasons for not paying the compensation at the rate fixed by the Land Acquisition Officer?
18. The reasons are obvious and evident from the counter-affidavits filed by both the Joint Collectors, viz., the present incumbent and the then Joint Collector at the time of passing of the award. The then Joint Collector was "under bona fide impression" that the land value should be fixed at Rs. 30/- per square yard, since interest is being paid from 2-6-1983 i.e., from the date of taking possession of the land. Reliance is placed upon the judgment of this Court in A.S.No. 833 of 1993, dated 29-12-2000 whereunder compensation with regard to other lands, which were acquired for the same purpose under the notification dated 4-9-1982, was fixed at Rs. 30/- per square yard.
19. The short question that falls for consideration is as to whether the award dated 24-12-2002 suffers from any error apparent on the face of the record?
20. It is clearly admitted in the counter-affidavits filed by the respondents that the Land Acquisition Officer has not fixed the value of the land at the date of the publication of the notification under Section 4, Sub-section (1) of the Act. But, on the other hand fixed the value of the land with reference to the draft notification dated 4-9-1982 under which the adjoining lands were acquired on the ground that the possession of the land in question was also taken over along with those lands. Such a course, so obviously adopted by the Revenue Divisional Officer-cum-Land Acquisition Officer under the obvious directions of the then Joint Collector who was "under the bona fide impression" that interest is being paid to the appellants from the date of taking possession of the land along with the other lands, is not permissible in law. For a while, we shall assume that it was a bona fide act on the part of the Joint Collector in directing the Revenue Divisional Officer-cum-Land Acquisition Officer to fix the market value of the acquired land with reference to the date of taking possession of the land and not with reference to the date of draft notification issued on 10-7-2000 under the directions of this Court, but the question that falls for consideration is whether the course adopted by the respondents is in accordance with law?
21. Section 11 of the Act, which provides for the enquiry into measurements, value and claims and award by the Collector, inter alia, mandates that the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurement made under Section 8, "and into the value of the land at the date of the publication of the notification under Section 4, Sub-section (1), and make an award awarding compensation which in his opinion should be allowed for the land".
22. The enquiry into the value of the land is with reference to the date of publication of notification under Section 4, Sub-section (1) of the Act. It is a statutory requirement. The Land Acquisition Officer is under obligation to make an enquiry into the value of the land as on the date of publication of notification under Section 4(1) of the Act. No other course is permissible in law. Therefore, the plea taken by the respondents that the market value of the land in question has been determined with reference to the date of taking possession of the land is totally untenable and unsustainable. The decision is clearly ultra vires and void.
23. The next question that falls for consideration is whether the writ petition deserves dismissal on the ground that the appellants have already availed alternative remedy available to them in law by seeking reference to the Civil Court under Section 18 of the Act?
24. It is fairly well settled and needs no restatement in our hands that existence of a statutory remedy does not effect the jurisdiction of the High Court to issue a writ. It may be one of the factors, which may have to be taken into consideration in the matter of granting writs.
25. A Division Bench of this Court, to which one of us is a member (B. Sudershan Reddy, J), in Estate Officer and Manager (Recoveries), A.P.I.I.C.L v. Recovery Officer, (DB), held:
"It is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law. The Court in exceptional cases can always issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been exhausted. There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice."
26. In the similar manner, the existence of a statutory remedy shall have no application in a case where the impugned order is a void one.
27. It is a true and very well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court under Article 226 of the Constitution of India. Ordinarily, an award made under Section 11 of the Act after making enquiry under Section 9 of the Act determining (a) the true area of the land; (b) the compensation which should be allowed for the land; and (c) the apportionment of the said compensation among all the persons known or believed to be interested in the land, may not be interfered with by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India since the aggrieved persons have an alternative and effective remedy under Section 18 of the Act by way of a reference to competent Court of civil jurisdiction, where objections, be it to the measurement of the land, amount of compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested etc., can be raised and decided. This Court cannot elect to decide for itself the said questions in a proceeding under Article 226 of the Constitution of India. Adequacy or otherwise of the compensation cannot be gone into by this Court in a judicial review proceeding. Nor this Court can undertake to decide what is the true area of the land and as to what would be the market value of the acquired land.
28. But the case on hand is a case where an award has been passed in utter disregard to the mandatory provisions of the Act. The crucial date for assessing the market value of the land is the date of publication of notification under Section 4, Sub-section (1) of the Act. This mandatory requirement has been given a total go bye while actually awarding compensation to the appellants.
29. That apart, we have already noticed the facts and circumstances under which the Revenue Divisional Officer-cum-Land Acquisition Officer had taken such decision awarding actual compensation at the rate of Rs. 30/- per square yard though having fixed the market value of the acquired land at Rs. 240/- per square yard from the date of notification. The award makes an interesting reading, which speaks for itself. The compensation awarded to the first appellant herein is in the following manner:
"Sri K. Peda Venkataiah, S/o. late K. Pullaiah has appeared before me and deposed that the land is his (Grandfather property) ancestral property and prayed to pay compensation and claimed the market value @ Rs. 900/- per square, yard but failed to produce any documentary evidence in support of his claim. The value of the lands has been fixed (a), Rs. 240/- per square yard from the date of notification as discussed in the valuation. (Emphasis is of ours).
Value of the land @ Rs.30/- per square yard. Ac.0.05 Rs.18,150-00 guntas (605 square yards) of Sy.No. 154/2 of Sornidi Village Solatium @ Rs.30/-
Rs.5,445-00 Additional Market value @ 12%, from date of notification to Award i.e., 10-7-2000 to 24-12-2002 - 2 years 5 months 14 days Rs.5,348-20 Interest 4% from 2-6-1983 to 29-4-1984 - 10 months 27 days Rs.659-00 Interest 9% from 30-4-1984 to 1-6-1984 - 1 month 1 day Rs. 141-21 Interest 15% from 2-6-1984 to 24-12-2002 - 18 years 6 months 22 days.
Rs.50,532-62 Grant Total Rs.80,275-93
30. It is a peculiar case where the value of the land has been fixed by the Land Acquisition Officer himself at Rs. 240/- per square yard with reference to the date of notification proposing to acquire the land i.e., 10-7-2000, but the actual amount of compensation is calculated at the rate of Rs. 30/- per square yard, which is totally untenable and unsustainable. This Court in A.S.No. 833 of 1993 assessed the market value of the adjoining lands at Rs. 30/- per square yard, which were acquired for the very same purpose under notification dated 4-9-1982. The same has been adopted by the Land Acquisition Officer, obviously, under the directions of the then Joint Collector. It is under these extraordinary circumstances, we have arrived at the conclusion that the award passed by the Land Acquisition Officer is ex facie illegal and suffers from errors apparent on the face of the record.
31. For the aforesaid reasons, the award dated 24-12-2002 is quashed. Consequently, there shall be a direction to the third respondent-Revenue Divisional Officer, Warangal to pass an award and pay compensation by making an enquiry into the value of the land at the date of publication of notification under Section 4, Sub-section (1) of the Act. The process in this regard shall be completed within four weeks from the date of receipt of a copy of this judgment.
32. In the result, the order under appeal is set aside. The writ appeal is accordingly allowed with costs.