Andhra HC (Pre-Telangana)
Ch. Madhusudhan Reddy And Ors. vs The Revenue Divisional Officer ... on 26 February, 1993
Equivalent citations: 1993(2)ALT244
JUDGMENT Motilal B. Naik, J.
1. In this petition, the petitioners seek a writ of mandarnus directing respondents 1 to 4 to complete land acquisition proceedings, including passing of award, in respect of notification issued under Section 4(1) of the Land Acquisition Act, published in Gazette No. Wgl/2A/68/91 dated 11-12-1991 acquiring the lands of the petitioners measuring an extent of Ac.11-09 guntas in S.No. 24; Ac.4-00 in S.No. 26 and Ac.9-05 guntas in S.No. 465 situated at Jangaon village, Warangal district.
2. It is stated that the petitioners are owners and possessors of lands in question. The A.P. Housing Board, the 4th respondent, conducted survey in the year 1979 for providing houses to general public in Jangaon town. Pursuant to the survey and identification of lands of the petitioners in the said survey numbers, the Vice-Chairman & Housing Commissioner, A.P. Housing Board sent proposals for acquiring the lands of the petitioners. The Government of Andhra Pradesh approved the proposals of the A.P. Housing Board. Thereafter, notification under Section 4(1) of the Land Acquisition Act (hereinafter referred to as 'the Act') was published in Part-I Extraordinary A.P. Gazette No. 499 dated 21-9-1980 acquiring lands in S.Nos.24, 26 and 465 situated at Jangaon town. Pursuant to the issuance of Section 4 (1) notification, enquiry under Section 5-A of the Act was held on 5-2-1987. Thereafter, declaration under Section 6 of the Act was published. On 18-5-1987 the Land Acquisition Officer and Assistant Collector, Warangal issued notices directing the petitioners to participate in the award enquiry on 28-5-1987 with all the documentary evidence in support of their claims and award enquiry was held on 28-5-1987. It is stated that though award enquiry was held on 28-5-1987, no award was passed and, therefore, the entire land acquisition proceedings were allowed to be lapsed for non-passing of the award within the stipulated time.
3. It is further stated that the Regional Housing Engineer, Warangal requested the Revenue Divisional Officer through letter No. 2015 / A-8 /R.H.E. /Warangal/ 79, dated 23-4-81 to direct the Tahsildar, Jangaon to handover possession of lands under acquisition. The Collector, Warangal district also directed the Revenue Divisional Officer, Warangal, through letter dated 8-4-1981, to handover possession of lands to the Housing Board within 15 days. The Collector, Warangal district gave a telegram on 22-6-1981 to the Tahsildar, Jangaon referring letter No. A/902/80dated 18-6-1981 of the Revenue Divisional Officer, Warangal, directing him to handover possession of lands under acquisition urgently to the Regional Housing Engineer, A.P. Housing Board, Warangal. The Regional Housing Engineer also requested the Tahsildar through letter No. 2015/RHE/Warangal/RES/81 dated 26-6-1981 to handover possession of lands to Sri P. Veeraswamy, Junior Housing Engineer, Warangal Division on 27-6-1981 duly conducting a panchanama. Pursuant to these consistent efforts, a panchanama regarding handing over possession of lands measuring Ac.12-23 guntas in S.No. 24/2; Ac.4-00 in S.No. 26/4; Ac.4-29 guntas in S.No. 464 and Ac.12-39 guntas in S.No. 465 was conducted on 27-6-1981 by the Revenue Inspector, Jangaon in the presence of three panchas and Sri P. Veeraswamy, Junior Engineer of the Housing Board, Warangal and possession of lands was handed over to Sri P. Veeraswamy. The said panchanama was prepared by one K. Narayana, Patwari, Jangaon. Sir Veeraswamy signed the panchanama affirming that possession of lands was taken on 27-6-1981. Pursuant thereto, the Revenue Inspector, Jangaon submitted the panchanama along with his report to the Tahsildar, Jangaon. The Tahsildar through letter No. A2/3392/79 dated 6-7-1981 informed the Revenue Divisional Officer, Warangal that possession of lands was handed over to Sri P. Veeraswamy on 27-6-81. Thereafter, the A.P. Housing Board erected a board on the lands under acquisition mentioning that lands to an extent of Ac.34-11 guntas in S.Nos.26/A, 23/2, 464 and 465 belong to them and the tresspassers would be prosecuted. Thus it is stated by the petitioners that pursuant to Section 4(1) notification dated 21-9-1980, possession of lands was taken by duly conducting panchanama on 27-6-1981 by the A.P. Housing Board.
4. While things thus stood, it is stated, the 4th respondent again sent letter No. l0991/JA/90, dated 23-5-1991 to the Government of Andhra Pradesh for getting approval for acquisition of the above lands of the petitioners. On 24-10-1991 the Government cleared the acquisition of Ac.24-14 guntas of patta land of the petitioners for construction of houses for general public. The Regional Housing Engineer, A.P. Housing Board, Warangal issued a scheme of proposed colony to be taken up with the assistance HUDCO and it was specifically mentioned in the scheme in respect of category of the house, plinth area, plot area and cost of the house. It is further stated that though land acquisition proceedings were initiated in 1980 and possession of lands was taken in 1981, the award could not be passed in time and, therefore, by efflux of time the entire land acquisition proceedings lapsed. In order to overcome the difficulties, the respondents have once again issued fresh notification under Section 4(1) of the Act, which was published on 11-12-1991 seeking to acquire lands in S.Nos. 24, 26 and 465 to an extent of Ac.24-14 guntas belonging to the petitioners. The said notification was published in the Indian Express English daily. Thereafter, Section 5-A enquiry was sought to be held on 6-2-1992 in the office of the Mandal Revenue Officer, jangaon. The 1st respondent herein issued a memo dated 10-3-1992 directing the petitioners to file written consent for finalisation of land acquisition proceedings and to pass consent award under Section 11(2) of the Act. The petitioners, it is stated, gave a reply on 19-3-1992 explaining the circumstances and the value of the acquired lands. It was also brought to the notice of the first respondent that possession of lands was taken in the year 1981 and that they already submitted written claims showing the market value of lands and requested the 1st respondent to complete the land acquisition proceedings without further delay. It is also stated that the petitioners have been deprived of lands for more than 12 years and, therefore, sought the 1st respondent to complete the further proceedings taking into account the cost of the land and the loss the petitioners sustained on account of the lands being taken possession by the respondents.
5. The petitioners further state that though land acquisition proceedings were originally initiated in 1980 and possession of lands was taken by the 4th respondent on 27-6-1981 under a panchanama, they have not been paid compensation so far and the authorities allowed the proceedings to lapse. While so, a fresh notification under Section 4(1) has been issued on 11-12-1991 seeking to acquire the lands in question. The petitioners, therefore, apprehend that the authorities would once again allow the land acquisition proceedings to lapse on one ground or the other, resulting in umpteen hardships to the petitioners. The present writ petition is, therefore, filed seeking appropriate direction to the respondents to complete the land acquisition proceedings and pay the compensation within a reasonable time.
6. Respondents 1 to 3 and respondent No. 4 filed separate counters. It is stated in the counter filed on behalf of respondents 1 to 3 that land acquisition proceedings were initiated and possession of lands was taken, but such possession is only a paper possession; in fact physical possession was not taken. It is also stated that during the pendency of land acquisition proceedings, pursuant to Section 4(1) notification issued on 21-9-1980, writ petitions were filed in the High Court by some persons, who were in possession of lands, and the High Court quashed the notification on various grounds and, therefore, the land acquisition proceedings could not be completed in time. The other plea taken in the counter is that pursuant to filing of Writ Petition Nos. 7288/82, 207/82, 1943/82, 4124/81, 16139/86 and 6397/82,therewasaninterirndirection by this Court not to dispossess the petitioners therein. Therefore, it is stated, though lands in question were acquired, physical possession was never taken as contended by the petitioners. The further allegation in the counter is that land owners are still in possession of the lands and, therefore the delivery of the land is only symbolic.
7. In the counter filed by the 4th respondent, at para 9 it is categorically stated that the Housing Board had decided to withdraw the entire land acquisition proposals to an extent of Ac.24-14 guntas in S.Nos.24, 26 and 465 due to abnormal rise in the price of the lands in that area. It is also stated that the Housing Board has alternatively identified an extent of Ac.10-00 in S.No. 326/ 2 part of jangaon for construction of houses. Accordingly, the District Collector, Warangal was requested to withdraw the entire land acquisition proceedings No. B(3)/969/91 dated 11-12-1991, as the cost of the land is high and the Housing Board could not afford to go for those lands.
8. In the wake of the above pleadings by the parties, the questions which fall for consideration are:
(1) Whether the petitioners are entitled to the compensation for the lands now sought to be acquired by the issuance of Section 4(1) notification dated 11-12-1991 to the extent of Ac.24-14 guntas in S.Nos.24, 26 and 465 of Jangaon?
(2) Whether the stand taken by the respondents that handing over possession of lands was only symbolic and physical possession was. with the land owners could be accepted?
(3) Whether respondent No. 4 could be permitted to withdraw land acquisition proceedings as stated at para 9 of his counter?
9. The history of the case would indicate that land acquisition proceedings were originally initiated by publication of Section 4(1) notification on 21-9-1980 seeking to acquire an extent of Ac.12-23 guntas in S.No. 24/2; Ac.4-00 in S.No. 26/4; Ac.4-29 guntas in S.No. 464 and Ac.12-39 guntas in S.No. 465. Pursuant to the said notification, possession of lands was handed over to Sri P. Veeraswamy, Junior Housing Engineer, Housing Board on 27-6-1981 under a panchanama, which was drafted by K. Narayana, Patwari, Jangaon. While so, third parties filed various writ petitions in this Court and this Court directed the respondents not to dispossess them from the lands in question. The respondents in their counters state that in view of direction of this Court, physical possession of the lands was not taken and taking possession was only symbolic. To meet this allegation, the petitioners filed a reply affidavit contending that insofar as lands, which were in possession of third parties who filed six writ petitions, the High Court directed the respondents not to disturb those writ petitioners. It is further stated that if the lands which were in possession of third parties are excluded, the remaining land would come to Ac.24-14 guntas, of which possession was taken by the Government and a fresh notification under Section 4(1) of the Act was also issued and published in Gazette on 11-12-1991 in respect of that land in S.Nos.24, 26 and 465. It is also stated that the Regional Housing Engineer requested the Revenue Divisional Officer, Warangal through letter No. 3405/A5/RHE/WR/81 dated 5-7-1982 to take necessary steps against the father of petitioner N6.4, who was ploughing the land under acquisition. The Revenue Divisional Officer gave a complaint to the police. It is, therefore, contended that if possession of the lands was not taken by the respondents, there was no necessity for the Revenue Divisional Officer to give a complaint to the police. The pahani-patrikas for several years would indicate that the 4th respondent is in possession of the lands.
10. The question as to whether possession was symbolic or actual, fell for consideration before the Supreme Court in B.N. Bhagde v. M.D. Bhagwat, . The Supreme Court held that whether delivery of the property is symbolic or actual could all depend upon the facts and circumstances of the case. In the instant case, possession of lands was taken under a panchanama dated 27-6-1981, to which one P. Veeraswamy, Junior Housing Engineer of the 4th respondent was also a party. Further, a board indicating that the property belongs to the Housing Board was also erected on the land. The letter dated 5-7-1982 addressed by the Regional Housing Engineer to the Revenue Divisional Officer to take action against the father of the 4th petitioner, who was ploughing the land, and pursuant to such letter the Revenue Divisional Officer lodging a complaint with the police, indicate that possession of lands was taken. It is necessary to note that when a panchanama for delivering possession of the lands was conducted and the panchanama was signed by one of the officers of the 4th respondent, it is not open to the respondents to dispute about taking possession of the lands. It is commonsense that lands cannot be physically put in possession of anybody. It is only a paper delivery by duly conducting a panchanama on the spot, wherein handing over possession is recorded. When once an officer of the 4th respondent-Corporation signed the panchanama evidencing delivery of possession of lands; the Revenue Inspector and the Patwari participated in the panchanama and the panchas witnessed the preparation of panchanama, could it be open to the respondents to say that physical possession was not taken, but it was only paper possession? The categorical statement at para 4 of the counter filed by respondents 1 to 3 is "possession of the lands under acquisition, as detailed below, were taken over and delivered to the requisitioning department, through a panchanama on 27-6-1981". The extent of land, which was delivered possession to the 4th respondent, is shown in the counter as Ac.34-11 guntas. This assertion would undoubtedly go to show that possession of lands was taken by the 4th respondent. May be, there was some infringement by tresspassers - even by some of the land owners - but that cannot be said that possession was in the hands of the petitioners. In the decision cited supra, the Supreme Court held that even a party's resuming possession of the land, after once it was validly taken by the Government, would not have the effect of undoing the fact of the vesting of the land in the Government. Viewed from any angle, I am of the view that possession of lands in question was taken by the respondents.
11. It is evident that land acquisition proceedings, including passing of award, could not be completed pursuant to proceedings initiated in the year 1980 and, therefore, the entire land acquisition proceedings were allowed to lapse. However, in the year 1991, a fresh notification under Section 4(1) of the Act was published on 11-12-1991 seeking to acquire an extent of Ac.24-14 guntas after conducting survey. This aspect would go to show that the respondents are interested in seeking to acquire these lands. May be, the petitioners sought to get these lands deleted from acquisition proceedings - it is a right which is conferred on the land owners. If the respondents are insisting despite repeated requests, to go for acquisition proceedings, they cannot keep the land owners under their mercy for an indefinite period. As discussed above, I have no doubt in my mind to hold that the petitioners are entitled to compensation for the lands in question within a reasonable time. Thus, questions 1 & 2 are answered in favour of the petitioners.
12. As regards question No. 3, the argument advanced on behalf of respondent No. 4 is that the Housing Board is initiating proceedings under Section 48 of the Act for withdrawal of acquisition proceedings. In order to examine whether respondent No. 4 is obliged to issue notification under Section 48 of the Act, it is necessary to have a look at the provisions of Sub-section (1) of Section 48:
"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed:- Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken."
The provision is categorical that the Government can withdraw from acquisition, provided possession of the land has not been taken. In the instant case, as I have categorically held, possession of lands in question was taken by the respondents on 27-6-1981 by conducting a panchanama in the presence of Revenue Inspector, Patwari of the village, an officer of the 4th respondent and three panchas. The Supreme Court in Bhagde's case (1 supra) (at para 29) has categorically held as follows:
"The appellant's resuming possession of the land after once it was validly taken by the Government had not the effect of undoing the fact of the vesting of the land in the Government. The Government or the Commissioner was not at liberty to withdraw from the acquisition of any portion of the land of which possession had been taken, under Section 48(1) of the Act."
13. In Lt. Governor, H.P. v. Avinash Sharma, the Supreme Court considered the authority of the land acquisition officer in issuing proceedings under Section 48 of the Act when possession of lands was taken. Their Lordships held that when once possession of the land is taken, the land vests in the Government. Their Lordships also construed the provisions of Section 48 at paras 6 and 7 and referred to the decision in State of Madhya Pradesh v. Vishnu Prasad Sharma, wherein it was held;
"Section 48(1) is a special provision for those cases where proceedings for acquisition have gone beyond the stage of the issue of notice under Section 9(1)and it provides for payment of compensation under Section 48(2) read with Section 48(3). We cannot xxxx accept the argument that without an order under Section 48(1) the notification under Section 4 must remain outstanding. It can be cancelled at any time by Government under Section 21 of the General Clauses Act and what Section 48(1) shows is that once Government has taken possession it cannot withdraw from the acquisition under Section 48(1). If no notice has been issued under Section 9(1) all that the Government has to do is to pay for the damage caused as provided in Section 5; if on the other hand a notice has been issued under Section 9(1), damage has also to be paid in accordance with the provisions of Section 48(2) and (3)."
The Supreme Court, after quoting the above decision, held:
"But these observations do not assist the case of the appellant. It is clearly implicit in the observations that after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification."
14. Thus, it is clear from the above decision that when once possession of the land has been taken, the Government is even prevented from invoking the provisions under the General Clauses Act for cancellation of land acquisition proceedings.
15. Having discussed the entire contentions and in view of the decisions of the Supreme Court, I am convinced that the petitioners have rightly made out a case for indulgence by this Court. The petitioners cannot be made to suffer right from 1980 for getting compensation for their lands, which were acquired, due to the callous attitude of the respondents. The respondents cannot escape from their liability to pay the compensation to the land owners in terms of notification issued on 11-12-1991 to the extent of Ac.24-14 guntas of land in S.Nos.24, 26 and 465. Though the fresh notification was published on 11-12-91 and we are in 1993, no further proceedings have been forthcoming. The apprehension of the petitioners that the respondents may adopt the same mod us-operandi by allowing the proceedings to have a natural death, cannot be ignored. The present writ petition was filed on 4-9-1992 seeking a mandamus directing the respondents to complete the entire land acquisition proceedings, including passing of award, as the petitioners are deprived of lands right from 1980.
16. Under these circumstances, I direct the respondents to complete the land acquisition proceedings from the stage of publication of Section 6 declaration and pay the compensation to the petitioners for the lands in question, within three months from the date of receipt of this judgment.
17. Counsel for the petitioners prayed for imposing heavy costs on the respondents for their deliberate acts of keeping the petitioners under tremendous stree and strain, depriving them of their lands for more than 12 years and not paying compensation amount within a reasonable time. The request though looks to be genuine and reasonable, but in order to meet the ends of justice, I have directed the respondents to complete the land acquisition proceedings, including passing of award and payment of compensation, within three months and, therefore, the request of the petitioners' counsel is rejected under these circumstances.
18. The writ petition is accordingly allowed. No order as t6 costs.