Andhra HC (Pre-Telangana)
Birguban Singh And Others vs Land Acquisition Officer, Revenue ... on 10 July, 1989
Equivalent citations: AIR1990AP138, AIR 1990 ANDHRA PRADESH 138
Author: K. Ramaswamy
Bench: K. Ramaswamy
ORDER
1. The four petitioners impugn in this writ petition the validity of a reference under S. 30 of the Land Acquisition Act 1 of 1894. for short "The-Act", as illegal, without jurisdiction and arbitrary.
2. The indisputable facts are: An extent of Ac. 29.18 guntee of land in surveys Nos. 52, 2. 56, 2. 57 and 58 situated in Peerzadi-guda, Uppal Mandal, Ranga Reddy District was acquired by publication of a notification under S. 4(1) of the Act dt. March 29.1979 for construction of a bus-stand for the Andhra Pradesh State Road Transport Corporation. Enquiry under S. 5-A was dispensed with. A declaration under S. 6 was also published. Possession of the land was taken on July 4, 1979. The award was passed on Sept. 23. 1986. Therein, a reference was made under S.30 of the Act to the Civil Court and deposited the compensation amount awarded under the award. The Government in G.O.Ms. No. 2554 Revenue dt. Sept. 22,1986 directed the Land Acquisition Officer who. passed the award in respect of the lands covered under the Urban Land Ceiling and Regulation Act 33 of 1976, for short "Ceiling Act", and to deposit the amount of compensa: tion to the credit of the case and to keep the, matter pending finalisation of the proceedings under the Ceiling Act by. the Special. Officer. In pursuance thereof, the above, re-ferencewas made. Admittedly, the lands are situated within the Hyderabad Agglomeration. The Ceiling Act came into force on February 17, 1976. The petitioners filed declarations under S. 6. Computation of the excess ceiling area is pending adjudication;
3. The contention of Sri M. Jeevan Reddy, the learned counsel for the petitioner, after a thorough preparation of the case, is" that for invocation of S.30 of the Act the existence of a dispute of either title to or the entitlement to receive compensation in total or portion thereof is a condition precedent; that in this case there is no dispute as regards either title or apportionment or entitlement of the compensation awarded under S. 11 of the Act; and since possession of the land was taken on July 4, 1979, the land vested in the Government free of all encumbrances and thereby the petitioners are entitled to receive the compensation in total without any reference to the Civil Court. Those contentions are resisted, on notice given to Sri Subba Reddy, the learned Addl. Advocate General on the following contentions. Once adeclara-tion under S. 6 of the Ceiling Act has been made, there is no abatement of the proceedings consequent on the acquisition of the land under the Act; that the determination of the excess Vacant land is to be computed under the Ceiling Act; by interposition of the operation of law the excess area stands vested in the Government under S. 10(3); thereby the Government entitles itself to lay compensation for the excess land to be determined under the Ceiling Act; that by operation of the Act there arises a dispute whether the petitioners are entitled to the entire compensation or a portion thereof; that is a matter to be adjudicated by the Civil Court under S. 30 of the Act after the decision made under the Ceiling Act by the Special Officer or on an appeal thereon and till then the petitioners cannot claim absolute right to the compensation. Thereby the reference under S. 30 is clearly valid and is not vitiated by any error of law. He further contended that the writ-of mandamus or certiorari as sought for cannot be granted to defeat the provisions of the Act.
4. The primary question, therefore, is whether the reference under S. 30 is valid in law. . , :
5. Section 30 of the Act which deals with disputes as to apportionment of compensation postulates thus :
"When the amount of compensation has been settled under S. 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court."
Therefore, if there exists any dispute as to the title by necessary inference or as to the amount of compensation settled under S. 1-1 or any part thereof or as to the persons to whom the same or any part thereof is payable, the Collector is invested with the power to make a reference of such dispute to the decision of the Court. In Sudhansu Kumar Ghouse v. Land Acquisition Officer, Patna, . Ramaswamy, Chief Justice (as he then was), speaking for a Division Bench, held that the existence of a dispute as regards the apportionment of compensation is a question of jurisdictional fact and unless there is such a dispute existing, the Land Acquisition Officer has no authority or jurisdiction to make a reference to the Civil Court under S.30. The Ceiling Act admittedly came into force on Feb. 17,1976. As on that date, any excess land determined under S.9 in the final statement pursuant to the draft statement under S. 8 after consideration of the objections thereon would become final. The Special Officer shall determine the vacant land held by the person concerned in excess of the "ceiling limit" and cause the same to be served under S. 8(3) on the person concerned. Section 10 empowers the competent authority to cause a notification published giving particulars of the vacant land held by such person in excess of the ceiling limit such wouid be acquired by the concerned State Government. The Competent Authority shall declare the excess land by publication of the notification under sub-sec. (1) of S. 10 in the Official Gazette of the State and shall also notify the date specified in the declaration to take effect. Upon the publication of the declaration, such land shall be deemed to have been vested absolutely in the State free from all encumbrances with effect from the date so specified. Therefore, by operation of .Ss. 6,8,9 and 10 of the Ceiling Act, the vacant land which is declared to be in excess of the ceiling limit (one thousand matters in the limit in the Hyderabad Agglomeration) would eventually sta'nd vested in the' State. The question, thereby, emerges is'whether there arises a dispute as to the title of the land so determined and compensation payable to such land under the Act or protion thereof. By operation of S. 10(3) of the Ceiling Act, when the excess vacant land is vested in the State. from the specified date absolutely free from all encumbrances to that extent there arises a dispute between the State Government and the person concerned who makes a declaration under S.6 of the Ceiling Act for the entitlement to receive compensation. Until an adjudication is made in that regard, the decision of the Collector under S. 11 of the Act as to the person who is entitled to the compensation determined under S. 11 wholly or in part thereof, it is a dispute to be determined under the Act. Therefore, I have little hesitation in concluding that there exists a dispute as regards the entitlement of compensation in whole or in part with regard to the excess vacant land acquired under the Land Acquisition Act when the determination of the excess vacant land in the Hyderabad Agglomeration under the Ceiling Act is pending adjudication.
6. The question then is whether the petitioners entitled to payment of compensation by virtue of the acquisition made under the Act without reference to the pendency of the proceedings under the Ceiling Act. The con-l tention of Sri Jeevan Reddy is that by operation of S. 12 read with S. 16 of the Act the title to the property vests in the Government under the Act, free of all encumbrances and thereby the petitioners are divested of their title and to that extent the land covered under the award stands excluded from the purview of the Ceiling Act. Thereby the petitioners are entitled to the payment of compensation without any reference to the Civil Court. The resistance of the learned Additional Advocate-General has already been adverted to and needs no reiteration. It is true that by operation of S. 10(3) of the Ceiling Act when ' the Special Officer makes final declaration of excess, vacant land under S.9, and he may take possession of the land under S. 11 thereof which shall thereupon vest absolutely in the Government free of all encumbrances. Till then the excess vacant land continues to belong to the declarant. Equally by exercise of -S/17(4) read with S. 17(1) of the Land Acquisition Act, if enquiry under S. 5-A is dispensed with and the possession is taken under sub-sec. (5) thereof it shall vest absolute in the Govt. by operation of S. 16, free of all encumbrances. There is no specific provision under the Ceiling Act of the abatement of the pending proceedings when ihe excess land was acquired under the Act before determination of excess vacant land.
7. In writ Appeal No. 755/77 a contention was raised that by virtue of the compulsory acquisition concerned in that case the alienation therein would be an alienation under S.'17(3) of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and that therefore, the acquisition is hit by S. 17(3). In meeting that contention, Chinnappa Reddy, J. (as he then was) held thus:
"Sub-section (3) of S. 17 makes a little extension. It brings in transactions, which are not of a voluntary character but are the result of adjudicatioh by a Court arbitrator or other authority. In such cases, the transfer of property, though strictly involuntary, may yet be traced to the power given to the Court, arbitrator or other authority, impliedly to transfer the property on behalf of the party concerned. The case of compulsory acquisition of land, stands on an altogether different footing. There is no question of the owner of the land giving any implied authority to anyone to transfer the property. The award made by the Land Acquisition Officer is only in relation to the amount of compensation to be given. It is not the award that effects transfer of the property. Now is the award of the Land Acquisition Officer under the provisions of the Land Acquisition Act the award contemplated by S. 17(3) of the Land Reforms (Ceiling on Agricultural Holdings) Act. There is yet another fundamental difference between the compulsory acquisition of land under the provisions of the Land Acquisition Act and the category of transactions which are either of an entirely voluntary character or which are made pursuant to adjudication, owing their ultimate source of power to transfer property to the owners of the property. It is this, while in the one case IDS purchaser gets no larger or better title than that possessed by the transferor or that purported to be transferred on behalf of the transferor, in the case of compulsory acquisition the land vests absolutely in the Government, free of encumbrances. Once the acquisition is made the Government's title is perfect irrespective of the defects in title of the persons claiming to be owners. We do not therefore, have the slightest doubt that the provisions of S. 17 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act do not bar compulsory acquisition of land under the provisions of the Land Acquisition Act.
This view was reiterated by another Division Bench in Devarapalli Subbaraidu v. District Social Welfare Officer, East Godavari, Kaki-nada. (1979) 2 APLJ (HC) 146, wherein Madhava Reddy, J. as he then was speaking for the Division Bench held that the public purpose envisaged under the Land Acquisition Act is different from the public purpose envisaged under the Land Ceiling Act and when a land is acquired under the Land Acquisition Act, still the land is governed by the provisons of the Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 and therefore, they are not proceedings under S. 17( 1) of the Act and the acquisition thereby is not illegal.
8. In State of Gujarat v. Purshottam Das Ramdas Patel, , Venkata-ratnaiah (as he then was) speaking for the Court, while tracing the purpose of the provisions of the Ceiling Act and the effect of operation thereof, held that S. 42 provides that the provisions of the Act shall be effective notwithstanding anything inconsistent therewith in "any other law" for the time being in force or any custom, usage or agreement or decree or order of a Court, tribunal or other authority and thus the Act was given an overriding effect. In this case, the facts are that a compulsory acquisition of land was made under the provisions of the Land Ceiling Act for the purpose of a Housing Scheme. However, when a notification under S. 48(1) of the Act was issued withdrawing the land from the acquisition, it was challenged before the High Court which held that the Government had no power to withdraw the acquisition. In that context, the Supreme Court, while holding that the Ceiling Act has an overriding Act, held that the excess land governed by the provisons of the Ceiling Act has to be determined and that therefore, the Government is free to withdraw the land from the compulsory acquisition under S. 48(1) of the Land Acquisition Act.
9. It is true, as contended by Sri Jeevan Reddy that until the land is notified under S. 10(3) and vested in the State by operation thereof, the title in the excess land governed by the provisions of the Act does not vest in the Government and therefore, any inconsistency or overriding effect by operation of S. 42 does not arise. Though the contention appears to be plausible, 1 find it difficult to give effect to the same.
10. In State of Maharashtra v. Annapurna-bai, 1985 Supp SCC 273: (AIR 1985 SC 1403)` the facts are that the declarant died pending determination of excess ceiling area under the Bombay Land Ceiling Act. A contention was raised that consequently on his death the proceedings under the Act stand abated and that therefore, the authorities have no jurisdiction to proceed further with the determination of the excess land under the Act. That contention prevailed with the Bombay High Court. On appeal, their Lordships of the Supreme Court held that until the proceed-ings are completed, there is no abatement and the excess ceiling land has to be computed pursuant to the declaration under the provisions of the Land Ceiling Act and that therefore, the Tribunal continues to have jurisdiction to determine the excess land.
11. The same analogy applies to the facts of this case. Merely because the land is acquired by the State in exercise of the power of eminent domain for a public purpose, the land continues to be a vacant land governed by the provisions of the Ceiling Act. By passing an award under S. 11 of the Land Acquisition Act and taking over the possession of the land under S. 17(5) thereof, the land so acquired does not cease to be a vacant land. Though it statutorily stands vested in the Government by operation of S. 16 read with S. 17(5) of the Land Acquisition Act, the entitlement for compensation is to be determined after the excess land is determined by preparing a final statement under S. 9 and notification as contemplated under sub-sec. (3) of S. 10 of the Ceiling Act. The doctrine of inconsistency certainly comes into operation as engrafted under S.42 of the Ceiling Act. The purpose of the Ceiling Act is to prevent concentration of urban property in the hands of a few persons and speculation and profiteering therein to subserve the common good by its equitable distribution for the purpose of allotment for construction of houses by the poor or any other public purpose enumerated under the Act. Thus considered, I hold that by operation of the inconsistency under S.42, the Ceiling Act prevails over the operation of the law under the Land Acquisition Act and that therefore, there is no abatement of the proceedings under the Ceiling Act. The petitioners are not entitled to immediate payment of compensation until the proceedings under the Ceiling Act are finalised, excess vacant land is determined, and the dispute as to payment of compensation in whole or part thereof is1 decided under S. 30 of the Act.
12. It is next contended that the Civil Court has no jurisdiction to decide the dispute under the Ceiling Act. There is fallacy in the argument. What the Civil Court decides on reference under S. 30 is what is the amount of compensation to which the petitioners would be entitled. If it is ultimately found that there is specified excess vacant land acquired under the Land Acquisition Act and found to belong to the petitioners to that extent the State is entitled to lay claim for compensation. By operation of the provisions of S. 30 of the Act, the petitioners are disabled to receive the compensation to that extent.
13. In Dr. C. H. Grant v. State of Bihar, of the judgment, it, was held that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act. It was also held that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided to which power is entrusted, that the jurisdiction of the Court in this behalf is not restricted to a case of apportionment but extends to adjudication of disputes as to the persons who are entitled to receive compensation and that there is nothing in S. 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of the land has, since the award, devolved. In that case, the provisions of the Bihar Land Acquisition Act 30 of 1949 were enacted. A notification was issued on May 22, 1952 taking over in estate. Thereafter, the estate stood vested in the State free of all encumbrances.
14. It is true, as contended by Sri Jeevan Reddy, that in that case by statutory vested the pre-existing title of land wholly stands extinguished and thereby the State became entitled to payment of compensation. But the contention that the right of the State under the Ceiling Act to lay claim for compensation is only an expectancy or inchoate and'that there is no absolute right and it vested only by operation of S. 10(3) of the Act is not well-founded. It is a right vested in the State to receive compensation under the Act to the extent of the excess vacant land ultimately to be found by the Special Officer in computation of the excess vacant land under the Ceiling Act. To that extent, there is a right created in the State to lay compensation, his not expectancy of a right. But that is a right created in the State by statutory operation and gets crystallised only after a notification under S. 10(3) was published in the State Official Gazette with effect from a date to be specified in the notification. But still the State by operation of the statute, i.e. Act 33/76 has got the right. The decisions in State of U.P. v. District Judge, Meerut, and Roosi K. Modi v. Union of India, , relied upon by Sri Jeevan Reddy do not strictly apply to the facts of this case in view of the discussion made herein before. Therefore, the need to make express discussion became redundant. It is no doubt true that in the decision in P. Appalamurthy v. State of A.P., , Jeevan Reddy, J. held that the delay would defeat the rights of the parties and the notification rights of the parties and the notification under S. 4(1) was to be quashed for non-fmalisation of the award proceedings under S. 11. But the ratio also is of little assistance to the facts of the case. Equally the decision in W.P. No. 880/84 dt. April 6,1988 rendered by the Division Bench of this Court of which P. A. Choudary, J. is a member, is also of not much relevance to the facts of this case.
15. Thus, I hold that the reference made by the Civil Court under S. 30 of the Act is perfectly legal and valid and the petitioners are not entitled to immediate payment of compensation. The question whether the peti tioners would be entitled to receive com pensation and if so to what extent would be decided after the proceedings under the Ceil ing Act are finalised. It is needless to mention that the authorities under the Ceiling Act have to finalise the proceedings and deter mine the excess vacant land pursuant to the declaration made by the petitioners under S. 6 of the Ceiling Act, as expeditiously as pos sible. It is open to the petitioners to pursue the matter before the Special Officer who would give utmost expedition. He is directed to dispose of the proceedings within period. If not more than four months from the date of bringing to his notice the order passed" by this Court. In this view, it is Unnecessary to decide whether writ could be issued to defeat the Ceiling Act.
16. The writ petition is accordingly dismissed, but in the circumstances, without costs. Advocate's fee Rs. 350/-.
17. Petition dismissed.