Andhra HC (Pre-Telangana)
Pothapi China Penchalaiah And Ors. vs The Government Of Andhra Pradesh ... on 12 November, 2007
Equivalent citations: 2008(1)ALD651, 2008(2)ALT180
ORDER P.S. Narayana, J.
1. Heard Sri N. Vasudeva Reddy, the learned Counsel representing the writ petitioners and the learned Assistant Government Pleader for Land Acquisition.
2. This Court issued Rule Nisi on 11-09-2007. Counter-affidavit and reply affidavit also had been filed. Records had been produced before this Court. The writ petitioners filed the present writ petition praying for a Writ of Certiorari calling for the records relating to proceedings No. D/12/2007, dated 21-08-2007 of the Special Deputy Collector, Land Acquisition, Telugu Ganga Project, Unit-II, Cuddapah (3rd respondent herein) and quash the same as arbitrary, illegal and without jurisdiction and consequently direct the respondents to consider the petitioners' applications under Section 28A of the Land Acquisition Act, dated 12-08-2002, and pass award in terms of judgment in L.A.O.P. No. 890 of 1999 dated 25-02-2002 and pass such other orders.
3. The relevant portion of the said proceedings dated 21-08-2007 reads as hereunder:
On verification it is found that no 28-A applications are received from the Writ Petitioners, but entries are found in the 28-A register maintained by the Land Acquisition Officer, and as the register is found genuine, the point of finding the applications may not be a cause for rejecting compensation. Even if the filing of applications is taken as genuine, the certified copy of the LAOP orders produced by the applicants does not bear the stamp of the Court and it doesn't reveal the date on which the claimants filed the copy applications in the Hon'ble District Judge Court, Kadapa. As per the 28-A register and the affidavit filed in the Writ Petitions, there is no dispute regarding filing of applications under Section 28A i.e., 12-08-2002. The Judgment in the said LAOP's was produced on 25-02-2002. The claimants stating that immediately after knowing the same a copy application was filed and certified copy of the same was received on 21-05-2002. Since the LAOP orders are pronounced on 25-02-2002, the 28-A reference would have been filed by 26-05- 2002. But the 28-A applications filed on 12-08-2002. The certified copy said to have been received on 21-05-2002 as per the affidavit in the Writ Petition. This means the petitioners should have filed copy applications before the Hon'ble District Judge Court, Kadapa on 05-03-2002. But as verified from the certified copy produced, there is no entry on which date the petitioners filed the copy application. The date of stamps affixed on the copy application is initialed with 21-05-2002. In the above circumstances it is decided that the 28-A applications said to have been filed are barred by limitation. Hence rejected.
4. Sri N.Vasudeva Reddy, the learned Counsel representing the writ petitioners, had taken this Court through the respective stands taken by the parties in the affidavit filed in support of the writ petition, in the counter- affidavit and also the reply affidavit and would maintain that the only objection is that these applications are made beyond time, but it is not a sustainable stand in the light of the dates relating to the filing of the copy application and furnishing of the certified copies. The learned Counsel also had drawn attention of this Court to the relevant material papers and would maintain that in the light of the facts and circumstances and for the reasons best known, this stand is being taken, may be to deprive the petitioners of the advantage which otherwise the petitioners may be entitled to under the provisions of the Land Acquisition Act (hereinafter in short referred to as 'Act' for the purpose of convenience). On the contrary, the learned Assistant Government Pleader for Land Acquisition had placed a record before this Court and would maintain that there was some difficulty in tracing the records because of the transfer of files from one office to another office, but, however, in the light of the specific stand taken in the counter-affidavit and also the records placed before this Court, since the relevant dates are not available, it may have to be taken that the applications are beyond time and hence such applications made beyond time need not be considered. The relevant portion of the impugned order already had been specified supra.
5. The 96th petitioner had sworn to the affidavit filed in support of a writ petition. It is averred that the respondents acquired the lands belonging to them and also other people in the village for Somasila Project and the respondents also acquired the houses and other structures at Rekalakunta village, Gopavaram Mandal, Cuddapah District, for the purpose of foreshore submergence under 330 contour of Somasila Project. Accordingly, the respondents issued 4 (1) notification on 11-02-1994 and 03-03-1994, vide Gazette No. 4/TGP/94 and Gazette No. 8/TGP/94 respectively. The petitioners' houses and structures are part and parcel of the said notification and covered by reach 1 & 2. Further it is averred that the Land Acquisition Officer passed award vide Award Nos. 1/94-95 and 2/94-95, on 03-06-1994, fixing the compensation. The respondents subsequently passed supplementary award Nos. 6/94-95 and 7/95-96 on 31-08-1995. Ultimately compensation was paid to all the claimants including the petitioners. It is further stated that aggrieved by the award of the Land Acquisition Officer, some of the claimants filed applications under Section 18 of the Act praying for reference for enhancement of the compensation with regard to structures. But somehow the petitioners herein who are illiterate and due to lack of proper advice could not file applications under Section 18 of the Act for reference in respect of their structures. The applications filed by some of the claimants under Section 18 of the Act were numbered as originally L.A.O.P. Nos. 890 of 1999 and 891 of 1999 and referred to the District Judge, Cuddapah. The learned District Judge, Cuddapah, after conducting detailed trial and enquiry vide its judgment dated 25-02-2002 in the said O.Ps. answered the reference by enhancing the compensation for houses and structures for square meter by 100% over and above the market value awarded by the Land Acquisition Officer. It is stated that after the disposal of the said O.Ps. on 25-02-2002 the petitioners came to know about the same from the villagers and accordingly they filed applications through their counsel Sri G.Jayachandra Raju on 27-02-2002 vide C.A. No. 1641 of 2002 for obtaining certified copy of the judgment in O.P. No. 890 of 1999 and the stamps were called for in the said C.A. on 13-05-2002 and the stamps were deposited on 15-05-2002. The copy was made ready on 21-05-2002. Ultimately, the certified copy of the judgment in O.P. No. 890 of 1999 was received by the counsel of the petitioners on 22-05-2002. Further it is stated that on receipt of the said certified copy, petitioners filed applications under Section 28A of the amended Act 68 of 1984 through their counsel Sri G.Jayachandra Raju on 12-08-2002 enclosing certified copy of the judgment in O.P. No. 890 of 1999 before the Special Deputy Collector, Land Acquisition Officer, Somasila Project, Athmakur, Nellore District, i.e., third respondent herein for re-determination of the amount of compensation amount on the basis of the award of the reference Court in O.P. No. 890 of 1999, dated 25-02-2002. The application under Section 28A of the Act was filed within time i.e., on 12-08-2002 after excluding the time taken for obtaining the certified copy within three months as provided under Section 28A of the Act. The same was acknowledged by the third respondent herein and entries were also made in the 28-A register, and objection with regard to limitation had never been raised by the third respondent. It may be appropriate to have a glance at Section 28A of the Act and the said provision reads as hereunder:
28-A. Redetermination of the amount of compensation on the basis of the award of the Court.- (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, Sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the Court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
6. Further it is stated that the petitioners made several representations to the respondents to dispose of their application under Section 28-A of the Act and pass award in terms of O.P. No. 890 of 1999. But, the respondents went on postponing the matter on the ground that appeals L.A.A.S. No. 113 of 2006 and L.A.A.S. No. 3903 of 2003, are pending in this Hon'ble Court against the judgment in O.P. Nos. 890 of 1999 and 891 of 1999. A Division Bench of this Court allowed the said appeals in part filed by the Land Acquisition Officer, vide its Judgment and Decree dated 18-04-2006 reducing the compensation from 100% to 80% and awarded all statutory benefits such as interest on solatium and additional market value. After the disposal of the said appeals by this Court, the petitioners made representation on 27-11-2006 to the respondents by registered post and the same was acknowledged by the respondents and even after receipt of the said representation, no action had been taken. Since the respondents failed to dispose of the applications, the petitioners filed W.P. No. 27219 of 2006 praying for Writ of Mandamus and the said writ petition was disposed of by this Court on 29-12-2006 directing respondents therein to dispose of the 28-A applications within four weeks from the date of the receipt of the order. Subsequent thereto, the petitioners made another representation on 05-01-2007 to the respondents renewing the request, but there was no response from the respondents. The petitioners got issued a legal notice on 19-02-2007 through their counsel by registered post. But even after receipt of the same, there was no action taken by the respondents.
7. Further it is stated that the third respondent on 28-02-2007 issued a notice fixing the date of enquiry on 09-03-2007 at 11 A.M. in the village. All the petitioners were present in the village on the said date, but the 3rd respondent herein had not turn up and consequently the enquiry could not go on on 09-03-2007. After waiting for two weeks, the petitioners submitted all the details on 26-03-2007 to the third respondent. Even after receiving the details, there was no further action in the matter by the third respondent. It is also stated that after waiting for considerable period, the petitioners got issued second legal notice on 11-06-2007 through their counsel giving all the details by a registered post and the same had been acknowledged by the respondents. When even after receipt of the said notice there had been no action taken by the respondents, the petitioners filed contempt case No. 635 of 2007 on 25-07-2007 in this Court for violating the orders of this Court in W.P. No. 27219 of 2006. The said contempt application came up for admission on 30-07-2007. The Government Pleader appeared and at their instance the matter had been adjourned to 13-08-2007 and thereafter to 20-08-2007. Since there had been no counter filed by the respondents, this Court ordered for compliance of the order and posted the matter to 20-09-2007 for reporting compliance and in default the contemnors had been directed to be present in the court on the said date. It is also stated that after the orders of this Court on 20-08-2007 in C.C. No. 635 of 2007 the third respondent only with a view to get over the contempt proceedings without any further notice and enquiry, passed orders on 21-08-2007 rejecting the application under Section 28-A of the Act on frivolous and baseless grounds. The copy of the said judgment was received by the petitioners on 23-08-2007. The said action is being challenged on several grounds which are been specified in paras 18 to 22 of the affidavit filed in support of the writ petition as well.
8. In the counter-affidavit filed by the third respondent it is averred in para 4 that it is a fact that a notification under Section 4(1) and 6 of the Act for acquiring the structures of Rekalakunta village had been published in Gazette No. 4/T.G.P./94 Dated 11-02-1994 and Gazette No. 8/94 Dated 03-03-1995 respectively. Awards had been passed for reach 1 and 2 vide Award Nos. 1/94-95, 2/94-95 dated 03-06-1994 and Award Nos. 6/95-96, 7/95-96 dated 31-08- 1995 and compensation paid to all the awardees. It is further averred in para 5 that it is a fact that as the awardees have taken the compensation amount under protest and Section 18 references had been made before the Principal District Court, Kadapa, and they were numbered as L.A.O.P. Nos. 890 of 1999 and 891 of 1999, the District Judge, Kadapa, enhanced the market value by 100% over and above the market value awarded by the Land Acquisition Officer. Further it is stated that the said L.A.O.P. Nos. 890 of 1999 and 891 of 1999 had been disposed of on 25-02-2002 in the Court of District Judge, Kadapa. It is submitted that as verified from the Xerox copies produced by the petitioners in L.A.O.P. No. 890 of 1999, there is no mention about filing of applications before the District Judge, Kadapa, on 27-02-2002 for obtaining certified copies of the judgment. Since the copy application stamp was not available on the Xerox copy produced by the petitioners, the particulars of the date of filing of applications on 27-02- 2002, the date of calling for stamps by the Court on 13-05-2002 and the date of depositing of stamps on 15-05-2002 and the date of certified copy made ready on 21-05-2002 and delivered on 22-05-2002 could not be ascertained. The writ petitioners had not mentioned about the particulars of certified copies for L.A.O.P. No. 891 of 1999. The writ petitioners filed Xerox copy of the judgment and it does not contain the stamp from which the date of filing application for obtaining certified copy could be ascertained.
9. Further it is stated that Rekalakunta is one of the villages belonging to Gopavaram Mandal of Kadapa District. The land acquisition work of this village had been originally attended to by the then Special Deputy Collector, (L.A.) S.S.P., Badvel up to the year 1986 and after its abolition, the work was attended by the Special Deputy Collector, (L.A.) S.S.P., Atmakur of Nellore District. The Government by virtue of its Memo No. 18338/Projects Wing I & CAD Department Dated 27-05-2005 has transferred the L.A. work relating to the above village along with other villages of Kadapa District to this unit. The Xerox copy of the 28-A register and the related records were actually had been received in this office during 10/2006 from the Special Deputy Collector, (L.A.) S.S.P., Atmakur. As verified from the Xerox copy register, it was found that the 28-A application had been filed on 12-08-2002. It is submitted that entering into 28-A register itself cannot make the application as filed within the limitation. As verified from the Xerox copies of the judgments in L.A.O.P. Nos. 890 of 1999 and 891 of 1999, there was no stamp by which it could be ascertained the date of application made for obtaining certified copies before the District Judge, Kadapa, so as to exclude the time taken for obtaining the certified copy while calculating the limitation. In reply to para 10 of the affidavit filed in support of the writ petition it is stated that it is a fact that the applications said to have been filed before the then Special Deputy Collector, (L.A.) S.S.P., Atmakur, on 12-08-2002 have not been examined by the then Land Acquisition Officer till the orders by the division bench of this Court allowed the said appeals in part filed by the Land Acquisition Officer vide its judgment and decree in L.A.A.S. No. 113 of 2006 and L.A.A.S. No. 3903 of 2003 dated 18-04-2006 reducing the compensation from 100% to 80%. It is submitted that then thier office addressed a letter to the Special Deputy Collector, (L.A.) S.S.P., Atmakur vide Ref. No. D/12/06 dated 31-01-2007 after receiving the order of this Court in W.P. No. 27219 of 2006 dated 29-12-2006. The Special Deputy Collector, (L.A.) S.S.P., Atmakur, had informed that he had sent the record during 10/2006. As per that record it is revealed that a Xerox copy of 28-A register along with certain other Section 18 applications had been sent by the Special Deputy Collector, (L.A.) Atmakur during 10/2006. No applications of 28-A had been transferred to this office, but as per the orders of this Court in W.P. No. 27219 of 2006 dated 29-12-2006, the fresh applications had been taken from the Writ Petitioners to examine the genunity of claims, as Xerox copies of the judgment enclosed to 28-A applications does not contain the stamp by which the date of filing applications for obtaining certified copy before the District Judge, Kadapa could be ascertained.
10. Further it is stated that the respondents are not in the knowledge of the petitioners' representation dated 27-11-2006 said to have been sent by registered post, as that office file started with the orders of this Court in W.P. No. 27219 of 2006. After receipt of the orders of this Court, a correspondent had been made to obtain the original record from the Special Deputy Collector, (L.A.) S.S.P., Atmakur, but the then Land Acquisition Officer had sent attested Xerox copy of 28-A register and no 28-A applications were sent. It is also averred that it is a fact that a representation dated 05-1- 12007 was received by the respondents along with the copy of the judgment of this Court in W.P. No. 27219 of 2006 dated 29-12-2006. It is also stated that the legal notice dated 19-02-2007 had also been received by the respondent No. 3. An enquiry notice was issued to the writ petitioners to attend enquiry on 09-03- 2007 in the village. As the 28-A applications had not been forwarded by the then Special Deputy Collector, (L.A.) S.S.P., Atmakur, the Writ Petitioners were informed to file fresh 28-A applications for the purpose of verification of genunity. Further it is stated that after receipt of the orders of this Court in W.P. No. 27219 of 2006, dated 29-12-2006, the Special Deputy Collector, (L.A.) S.S.P., Atmakur, was addressed vide Ref. No. D/12/2006 dated 31-01-2007 for sending the material papers. The Special Deputy Collector, (L.A.) S.S.P., Atmakur, vide his Lr.E/31/07 Dated 27-04-2007 replied that a Xerox copy of 28-A register along with certain other files connected to Rekalakunta and Boddecherla villages were sent along with that letter. As verified from the registers, no 28-A applications pertaining to the Writ Petitioners found available. It is a fact that the Land Acquisition Officer could not able to take a decision immediately basing on the Xerox copy of 28-A register given by the Special Deputy Collector, (L.A.) Atmakur, since the Land Acquisition Officer could not rule out mischief in that case. In the meanwhile, the Special Deputy Collector, (L.A.) T.G.P., Unit-II Sri K.Gangadhar Reddy was transferred on 31-05-2007 and Sri Guruprasad Special Deputy Collector, (L.A.) T.G.P., Unit-I is holding additional charge from 01-06-2007. The regular Special Deputy Collector, (L.A.) T.G.P., Unit-II Smt.G.Anjamma joined on 08-08-2007. It is submitted that since Xerox copy of 28-A register was attested by Special Deputy Collector, (L.A.) S.S.P., Atmakur, even though the applications under Section 28-A were not received, the date of filing of applications were considered to be made on 12-08-2002 as per the entry available in the Xerox copy of 28-A register. It is submitted that the disposal of 28-A applications would be done after verification on two aspects. (1) The Limitation (2) The genunity of the application duly verifying the signatures and thumb impressions of the applicants with that of the acquittance in which the signatures of the awardees could be available. It is true that for examining the point of limitation, no enquiry with the Writ Petitioners is required. The Xerox copies of the judgments in L.A.O.P. Nos. 890 of 1999 and 891 of 1999 enclosed to the fresh 28-A applications does not contain the stamp by which the date of filing of application for obtaining certified copy of judgment before the District Judge Court could be ascertained. The date of judgment of the District Judge Court in the said L.A.O.Ps. is 25-02-2002 and the date of 28-A applications said to have been filed is on 12-08-2002 and thus obviously the limitation expires, particularly in the absence of communication of date of filing of application before the District Judge, Kadapa, for obtaining certified copy of the judgment in L.A.O.P. Nos. 890 of 1999 and 891 of 1999. It is submitted that there was no mollified intention in rejecting the applications under Section 28-A by way of orders of the 3rd respondent vide Progs.D/12/07 dated 21-08-2007.
11. A reply affidavit was also filed again reiterating the stand taken in the affidavit filed in support of the writ petition and also denying the several of the averments made in the counter-affidavit taking a specific stand that to get over the contempt proceedings, the third respondent made the impugned order on 21-08-2007 rejecting the applications under Section 28-A of the Act with a mala fide intention to deprive the petitioners of their due compensation. It is also pertinent to note that at para 8 of reply affidavit it is stated that the Land Acquisition Officer, the third respondent, issued notice on 20-02-2007 calling upon the petitioners to produce evidence in support of their claim under Section 28-A and participate in the enquiry to be held on 09-03-2007 at Needurupalli Village. In spite of the said notice, the third respondent did not turn up, consequently all the petitioners went to the office of the third respondent and submitted the details including the Xerox copy of the judgment along with 28-A applications on 26-03-2007. But, the third respondent, even after receiving the said details and documents, did not pass any award nor inform the petitioners that the applications filed by them are not within time. On careful examination of the contentions of the 3rd respondent, this Court is satisfied that the plea of limitation is being put-forth only with a view to make an order of rejection, that too in the light of the contempt proceedings and this is the only conclusion at which this Court can arrive at in the facts and circumstances of the case. Instead of considering the applications of the writ petitioners in accordance with law, making such an order only with a view to deprive the petitioners of having their due compensation, in the considered opinion of this Court, will be totally unjust, both in law and also on the ground of equity. Further, the respondents cannot take advantage of their mistake, if any, in relation to the transit of records or the misplacement or loss of records, if any, and in the light of the positive assertions made by the writ petitioners in the affidavit filed in support of the writ petition and also in the light of the prior orders made by this Court in W.P. Nos. 27219 and 27220 of 2006 and also taking into consideration the event of filing C.C. No. 635 of 2007, this Court is thoroughly satisfied that inasmuch as the applications made being within time, the impugned order cannot be sustained and the same is liable to be quashed and is accordingly hereby quashed.
12. The writ petition is hereby allowed, but, however, the controversy between the parties being relating to the fixation of due compensation in the light of Section 28-A of the Act and also in the light of the records produced before this Court, this Court directs the parties to bear their own costs.