Andhra HC (Pre-Telangana)
Nakkana Pentaiah And Ors. vs The Special Tahsildar (Land ... on 14 June, 1994
Equivalent citations: 1994(2)ALT319
ORDER Motilal B. Naik, J.
1. The petitioners seek a writ of certiorari or any other appropriate writ calling for records pertaining to the proceedings in R.C.No. 44/91-RI-1 dated 9-11-1992 of the first respondent and the proceedings in R.C.No. 5607/85-G2, dated 14-11-1992 of the second respondent on the ground of illegal exercise of power not vested in them and violation of principles of natural justice.
2. This case is an exposer of typical administrative excesses meted out to common citizens while dealing with their valuable rights by the Civil Servants of the State. The petitioners are owners of the land to an extent of 3,198.11 square yards covered by Survey No. 368/2, situated at China Waltair of Visakhapatnam Municipal Corporation. The said land is held by them as joint owners. The land was proposed to be acquired by the second respondent- District Collector, Visakhapatnam, for the purpose of creating Recreation Complex known as 'Bay View' planned to be developed by the Visakhapatnam Urban Development Authority. Pursuant to the proposed purpose, Section 4(1) Notification of the Land Acquisition Act, hereinafter referred to as 'the Act', was issued on 11-6-1991 through proceedings in R.C.No. 5607/85-G2, which was published in the extraordinary Andhra Pradesh Gazette dated 7-8-1991. Draft Declaration under Section 6 of the Act in R.C.No. 5607/85-G2 was issued on 27-3-1992, which was also published in the Andhra Pradesh Gazette on 6-4-1992. Though the acquisition proceedings including the publication of Section 4(1) notification and Section 6 declaration of the Act were effected in June, 1991, and March, 1992, respectively, advance possession of the land, subject-matter of the acquisition, was taken on 16-3-1984 i.e., over seven years prior to initiation of the land acquisition proceedings.
3. Consequent upon issuance of Section 6 declaration, notices under Section 9(3) and 10 of the Act were issued by the first respondent calling upon the petitioners to make their claims. Accordingly, the petitioners submitted their claims seeking compensation at the rate of Rs. 1,000/- to Rs. 1,200/- per square yard as per the prevailing market rate in that area. The first respondent conducted the regular award enquiry and passed the award No. 3 of 1992 on 12-10-1992 fixing the market value at Rs. 300/- per square yard. This market value of Rs. 300/- per square yard includes the solatium and interest. However, no additional market value was given to the petitioners in terms of Section 23(1-A) of the Act. Each of the petitioners got an amount of Rs. 9,25,542-00 towards their snare of compensation. The passing of the award on 12-10-1992 was intimated he petitioners requiring them to receive the compensation. Accordingly, the petitioners attended the office of the first respondent and collected the compensation under protest contending that the compensation awarded is less than their claim. While receiving the compensation tinder protest the petitioners made a representation on 20-10-1992 to the respondents seeking reference of the award under Section 18 of the Act to the Civil Court. It is stated that, this representation of the petitioners, despite being reminded of by the petitioners, has neither been accepted nor rejected by the respondents till today for unknown reasons.
4. The petitioners, from out of the compensation received by them kept an amount of Rs. 6.5 lakhs each in fixed deposit for a period of six months, which would expire in April, 1993. While the matter stood thus, the first respondent issued demand notice on 9-11-1992 to the petitioners stating that due to certain irregularities in arriving at interest, an amount of Rs. 2,14,947.90 has excessively been paid to each of the petitioners and, therefore, demanded the petitioners to refund the said amount. To the said notice the petitioners made a representation on 12-11-1992 stating that there is no mistake in calculating the interest, taking into account the period of advance possession of land by the respondents. They, therefore, requested the respondents to consider their representation and drop the matter. The petitioners have not received any reply from the respondents either accepting or rejecting their representation. It is on the contrary the claim of the petitioners that they are entitled to additional market value over and above the compensation awarded by the respondents, in terms of Section 23(1-A) of the Act.
5. In the wake of the demand notice dated 9-11-1992 and the representation to the notice by the petitioners on 12-11-1992, the petitioners expected that the respondents would at least furnish the details as to how they have arrived at the figures and give them an opportunity of personally hearing in this regard, so that the controversy could be resolved amicably. While the matter stood thus, adding insult to the injury, the second respondent issued proceedings in R.C.No. 5607/85-G2 dated 14-11-1992 invoking powers under Section 52-B(1) of the Andhra Pradesh Revenue Recovery Act, directing the third respondent- Bank - The Chief Manager, Andhra Bank, Dwarakanagar, Visakhapatnam, to pay a sum of Rs. 6,44,843.97 or such other lesser amounts available with the Bank from out of the amounts held by the third respondent-Bank by way of fixed deposit made by the petitioners. The second respondent sought recovery of Rs. 2,14,947.99 from each of the petitioners. In the proceedings dt. 14-11-1992 of the second respondent, it was pointed out to the third respondent-Bank that when notice under Section 52-B(3) of the Andhra Pradesh Revenue Recovery Act is issued, the third respondent-Bank is bound to comply with the notice, failing which the third respondent-Bank would be personally exposed to the consequences as enumerated in sub-sections (5), (6) and (7) of Section 52-B of the Andhra Pradesh Revenue Recovery Act. This notice was issued under the name and seal of Mr. K. Pradeep Chandra, IAS, the then District Collector-CMm- District Magistrate, Visakhapatnam. Pursuant to issuance of notice, it is stated, that the third respondent paid the amount as directed by the second respondent from out of the amounts kept in fixed deposit without the knowledge of the petitioners. It is this act of the second respondent, prompted the petitioners to move this Court under Article 226 of the Constitution of India seeking justice.
6. Shri Raja Rao, Counsel appearing on behalf of the petitioners, states that the land acquisition proceedings were initiated by the first respondent1 following the procedure and the award was passed basing on the claims made by the petitioners. It is not as if the petitioners had not claimed the amount and the award was passed. Though the petitioners claimed a sum of Rs. 1,000/- to Rs. 1,200/- per square yard, the first respondent fixed the compensation only at Rs. 300/- per square yard, which includes solatium and interest. Whereas the first respondent has failed to award the additional market value at 12% in terms of Section 23 (1-A) of the Act. It is further stated that the petitioners while receiving the compensation under protest sought reference under Section 18 of the Act, to the appropriate Civil Court for enhancement of the compensation, which is still pending before the first respondent for reasons unknown. It is also stated that from out of the compensation awarded to the petitioners a sum of Rs. 6.5 lakhs had been kept in fixed deposit by each of the petitioners in the Andhra Bank, Dwaraka Nagar Branch, Visakhapatnam.
7. It is contended that, to the notice issued by the first respondent the petitioners have filed a representation on 12-11-1992. In that representation they pointed out that no mistake has crept in, while arriving at the interest which the petitioners are entitled to as these lands were taken possession in advance by the respondents. It is further contended that no details have been furnished to the petitioners as to how the present figures have been arrived of and what is the rate of interest fixed by the respondents. Yet, the petitioners represented to the respondents to drop the proceedings since they are not liable to refund any amount. It is further contended that without as curtaining whether the petitioners herein are liable to refund or have refused to refund the amounts demanded by the first respondent through notice dated 9-11-1992, the second respondent issued the proceedings dated 14-11-1992 invoking the powers under Section 52-B(1) of the Andhra Pradesh Revenue Recovery Act arid withdrawn the amounts from the third respondent-Bank without the knowledge of the petitioners. It is further contended that this action of the second respondent amounts to arbitrary exercise of power not vested in him. Therefore, it is stated, the highhandedness with which the second respondent has acted, has not only caused mental agony to the petitioners but also has caused loss of reputation in the society.
8. The Standing Counsel, appearing on behalf of respondents justifies the action of the second respondent. She contends that since the second respondent apprehended that the petitioners may withdraw the amounts lying in fixed deposit with the third respondent-Bank, in order to safeguard the interests of the Department, the second respondent has initiated proceedings under the Andhra Pradesh Revenue Recovery Act.
9. The facts enumerated by the learned Counsel on behalf of the petitioners and the submissions made on behalf of the respondents, it looks to me that the petitioners are victims of circumstances and are made scape-goats for the (sic)"partental lapses. The respondents, in their wisdom, have come to the inclusion that there were some irregularities in arriving at the rate of interest said to the petitioners on account of taking over the lands in advance from the petitioners and have felt that they have power to recover such amount as held to be excess without following the procedure contemplated under Section 13-A of the Act, which is abstracted hereunder:
"Correction of clerical errors, etc.:- (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under Section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes, in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority:
Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter.
(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested.
(3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue."
10. What Section 13-A of the Act contemplates is that the second respondent shall give a reasonable opportunity to the petitioners for making representation ^gainst the correction of the mistake to be made by the respondents, that the second respondent shall give immediate notice of any correction to the petitioners and that if any excess amount is proved to have been paid to the petitioners as a result of the correction, the second respondent shall direct the petitioners to refund such excess amount. Failure to refund the excess amount, the procedure contemplated under the Andhra Pradesh Revenue Recovery Act shall be initiated against the petitioners. When a specific provision under the Act is contemplated, ignoring the said provision the second respondent resorted to such a hasty act of issuing proceedings dated 14-11-1992 directing the third respondent-Bank to pay the amount which was lying in fixed deposit of the petitioners, as if the petitioners are culprits and have fraudulently holding the money in fixed deposits. Nothing has been placed before me on behal f of the respondents to show that the procedure contemplated under Section 13-A of the Act has been followed by the respondents.
11. It has to be remembered that the petitioners herein are the owners of the land in question acquired by the respondents. The petitioners had participated in the award enquiry held by the first respondent. While receiving the compensation under protest the petitioners sought reference of the award under Section 18 of the Act on the ground that the compensation amount is insufficient. Pursuant to the notice dated 9-11-1992 of the first respondent, the petitioners have given representation, which has neither been accepted nor rejected by the respondents. From out of the compensation amount awarded, each of the petitioners kept an amount of Rs. 6.5 lakhs in fixed deposit with the third respondent-Bank for a period of six months which would expire in April, 1993. Further, the first respondent has not furnished the details as to how they are seeking recovery of an amount of Rs. 2 lakhs and odd from each of the petitioners.
12. These circumstances indicate that the petitioners have no reason to act with mala fide intention to cheat the Government. Therefore, I am of the v*iew that the petitioners cannot be held to be of dubious character. Even assuming for a moment that the respondents have detected mistake in the calculation of interest, a specific procedure is contemplated under Section 13-A of the Act. It is always open to them to initiate proceedings for recovery of alleged excess amount paid to the petitioners. Nothing prevented the respondents from initiating the proceedings under Section 13-A of the Act. Instead of initiating the proceedings under Section 13-A of the Act, the second respondent invoked powers vested in him under Section 52-B of the Andhra Pradesh Revenue Recovery Act, and issued proceedings dated 14-11-1992 directing the third respondent-Bank to pay an amount of Rs. 6 lakhs and odd lying in fixed deposit in the names of the petitioners with the third respondent-Bank. It is also intimated to the third respondent-Bank to comply with the direction. Failure to comply with the proceedings by the third respondent-Bank, it is mentioned in the proceedings dated 14-11-1992, action would be taken against the third respondent-Bank.
13. The above action of the second respon dent, in my view, is nothing but "an act of administrative excess". In other words it is to be termed as "an irresponsible act by the second respondent amounting to administrative harassment". In a democratic set-up where the administrative wing is a link between the Government and the citizens, this type of highhanded actions of the executive may have far-reaching repercussions over the citizens, who may dare to revolt against such highhanded acts of such an administrator, which may result in a tug of war between the Government and the citizens.
14. In the light of above discussion and in the facts and circumstances of the case, I have no hesitation to hold that the notice and proceedings of the first and second respondents dated 9-11-1992 and 14-11-1992 respectively cannot sustain and accordingly they are quashed.
15. Since I have quashed the proceedings of the first and second respondents, in the facts and circumstances of the case, I consider it appropriate to direct the first and second respondents to deposit the amount withdrawn from the third respondent-Bank from the fixed deposit of the petitioners, within three weeks from the date of receipt of a copy of this order along with interest as per the bank rate calculated from the date of withdrawal to the date of deposit with the third respondent-Bank. It is, however, made clear that the petitioners would not venture to withdraw the amount that would bfedeposited by the respondents herein, for a period of six months from the date of such deposit. In the meanwhile, if the respondents are so advised, it|s open to them to proceed in accordance with law for recovery of any excess amount which is alleged to have been paid.
16. Pursuant to the notice and the proceedings of the first and second respondents dated 9-11-1992 and 14-11-1992 respectively, the petitioners have not only suffered mental agony, loss of reputation in the society but also have incurred expenditure on account of litigation in the High Court for redressal of their grievance. I am, therefore, of the view that the petitioners are entitled to reasonable costs to be recovered from the first and second respondents. In my view an amount of Rs. 4,000/- (Rupees four thousand only) would be a reasonable amount which the petitioners are entitled to receive from the first and second respondents, who are instrumental in issuing the notice dated 9-11-1992 and the proceedings dated 14-11-1992 respectively. Accordingly, the first and second respondents are directed to pay a sum of Rs. 2,000/- (Two thousand only) each towards costs to the petitioners, within four weeks from the date of receipt of a copy of this order.
17. The writ petition is accordingly allowed. .