Andhra Pradesh High Court - Amravati
Nagam Sivarami Reddy, Y.S.R.Kadapa ... vs Prl Secy, I Cad Dept, Hyderabad 4 Others on 22 April, 2022
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.39963 OF 2015
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"To issue Writ of Mandamus, declaring the action of the respondent authorities 1 to 5 in not paying compensation to the petitioners DKT pata lands submerged in back waters of Somasila project, in Sy.No.255/4, 0.86cents Ac.2-43cents in Sy.No.365/1,an extent of Ac.2-58cetns in Sy.No.343, an extent of Ac.1-43 cents in Sy.No.355/2, an extent of 0.92cents in Sy.No.402/5, an extent of 0.34cents in Sy.No.235, an extent of 0.40cents in Sy.No.249/2, an extent of 0.78cents in Sy.No.347/1, an extent of Ac.3-98cents in Sy.No.348,an extent of Ac.2-39cents in Sy.No.274/2, an extent of 0.82cents 0-44cents in Sy.No.311 & 311/2, an extent of 0-25cents in Sy.No.345/3, an extent of 0.92cents in Sy.No.259, an extent of 0- 64 & Ac.1-64 cents in Sy.No.270/1 & 273, an extent of Ac.1- 20cents in Sy.No.300/1, an extent of 0-62cents in Sy.No.247 & 248, an extent of 0.36cents in Sy.No.402/2, an extent of Ac.4-85cents in Sy.No.255/3, an extent of Ac.5-00 cents in Sy.No.255/1, an extent of 0-93cents in Sy.No.362/2, an extent of Ac.2-75cents in Sy.No.53, an extent of Ac.3-30cents in Sy.No.22, an extent of 0.26cents & 0.68cents in Sy.No.9/1 & 9/2A, an extent of 0.77cents in Sy.No.9/2B, an extent of 0-90 and 058 cents in Sy.No.14/1 &14/8B, an extent of 0-34cents, Ac.1-34cents and 048cents in Sy.No.14/2B, & 14/8A, and 14/5, an extent of 0.68cents and 0-76 in Sy.No.14/4, and 14/9B, an extent of 0.53 & 0-34cents in Sy.No.14/6 & 14/7, an extent of 0-67cents in Sy.No.14/11, an extent of 0.74cents and Ac.2-53cents in Sy.No.9/2 and 9/3, an extent of Ac.2-06cents in Sy.No.255/2, an extent of 0.86cents in Sy.No.255/4,an extent of Ac.2-90cents in Sy.No.257, an extent of Ac.1-02cents, Ac.1-02cents and 0-21cents in Sy.No.23, 87 & 88, an extent of 0.76cents in Sy.No.405/4, an extent of Ac2-15 cents in Sy.No.363, an extent of Ac.3-00cents in Sy.No.252/3, an extent of Ac.2-30cents in Sy.No.252/2, an extent of Ac.1-15cents in Sy.No.350, an extent of 0.97cents in Sy.No.153/1, and an extent of Ac.1-47 and Ac.1-38cents Sy.No.14/8C and 14/9A etc., of Chanduvoi village, Atluru Mandal Kadapa District, is illegal arbitrary unjust and unconstitutional and contrary to Articles 14, 21, 31-A & 300-A of constitution of India and consequently direct the respondents 1 to 5 to initiate requisition and acquisition proceedings as stated in letter Ref. No.C/91/2015 dt.14/09/2015, and pass award and pay compensation to the DKT patta lands of the petitioners under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and pass such other or further orders as the Hon‟ble Court may deem fit and proper in the circumstances of the case."
The petitioners are residents of Chanduvoi village of Atluru Mandal, Kadapa District. They were assigned small extents of agricultural lands referred above in Chanduvoi Village, Atluru Mandal by the then Tahsildar, Atluru. After the said assignment by issuing DKT pattas, petitioners and their forefathers brought the MSM,J WP_39963_2015 2 land under cultivation by investing huge amount and the petitioners have been cultivating the said lands.
While so, the respondent authorities had started acquisition of lands in Chanduvoi village and other surrounding villages for the purpose of Somasila project and fixed the level up to 330 contour (FRL). Accordingly, the respondent authorities acquired patta lands in the village in the year 1992 and passed an award in the year 1994 and paid compensation to the patta land holders. The respondent authorities have also started resumption of the assigned land and promised to pay the ex-gratia, but the requisition and acquisition authorities had not resumed the DKT patta lands of the petitioners and had not initiated any action for payment of compensation/ex- gratia to the petitioners.
In the year 2007, due to good monsoon and inflow of flood water, the Somasila project impounded up to 70.600 TMC for the first time in the history of Somasila project in the month of October/2007, the flood water entered into the DKT lands of the petitioners and the entire area was submerged in the back waters of Somasila Project. Then the petitioners submitted representation dated 28.11.2007 to the respondent authorities with a request to acquire/resume the assigned DKT land and pay compensation as per the judgment of this Hon'ble Court in Land Acquisition Officer- cum-Revenue Divisional Officer, Chevella and others vs Mekala Pandu and others1 wherein this the Hon'ble Court held that even assignees are entitled for compensation as owners of land with all consequential benefits as contemplated under the provisions of the Land Acquisition Act.
1 AIR 2004 AP 250 MSM,J WP_39963_2015 3 Based on the representation of the petitioners dated 28.11.2007 the respondents visited our village and addressed a letter vide Ref. No.RC/51/2008 dated 23.02.2008 and Ref. No. A/90/96, dt.26/02/2008 to the 5th respondent, i.e the Executive Engineer S.P.Division, Somasila Nellore, with a request to inspect the submerged DKT land in Sy.No.255/2 etc., and send requisition for acquisition of submerged DKT land, if the land is below the full reservoir level.(FRL). Accordingly the 5th respondent inspected the submerged land in the village and re-conducted FRL contour survey and fixed the FRL boundary stones and submitted a report vide Ref. No. S.P.D.No.I/ F.R.L. Survey/ Foreshore.L.A/ camp-2, dated 22.10.2008 along with the copy of village map to the acquisition authorities of respondents 2 to 4 and requested to assess the survey number wise extent of lands submerged below FRL contour with reference to the FRL contour plan and FBM sketches.
Based on the report of the 5th respondent, the respondent authorities of 3 and 4 called for the extracts of RSR ,Fair Adangal, D.Register, D.File and 1(B) register and genuineness of DKT assignment pattas and eligibility of the petitioners, from the Tahsildar, Atluru, vide proceedings Ref. No.C/128/07 dt.05/12/2008 and Ref. No. A/90/2009 dt.29/12/2009. Accordingly, the then Thasildar, Atluru Mandal, verified the records of the DKT pattas of the petitioners and issued genuineness certificates vide Ref. No.B/292/2009 dt.30/03/2010 and the same was counter signed by the Revenue Divisional Officer, Rajampet, Kadapa District, vide proceedings No.H/801/2009 dt.07/04/2010 and dt.16/04/2010. Thereafter the respondent authorities has not initiated any steps for resumption of the petitioners assignment DKT MSM,J WP_39963_2015 4 patta lands and payment of compensation. The respondents authorities herein without initiating any acquisition proceedings had taken over the petitioners DKT land by storing the back waters of Somasila project and forcefully evicted the petitioners and their forefathers without paying any compensation as per the Land Acquisition Act. The petitioners are entitled compensation as per the land acquisition Act., but the respondent authorities failed to initiate any action for payment of compensation to DKT patta land. Then the petitioners herein had approached the respondent authorities on several occasions and requested for payment of compensation as per the Full Bench judgment of this Court in Land Acquisition Officer- cum-Revenue Divisional Officer, Chevella and others vs Mekala Pandu and others (referred supra), but the respondents authorities neither considered the petitioners request nor passed any order and further informed to the petitioners that the matter i.e Mekala Pandu case is pending in the Apex Court, postponed the resumption orders and payment of compensation to DKT patta land. It is the contention that, though the petitioners made several requests, but the authorities herein had not initiated any action for requisition and acquisition for payment of compensation to DKT patta lands till date and finally requested to grant the relief as urged in the writ petition.
Respondent No. 5 filed independent counter affidavit, admitting about submersion of land pertaining to different survey numbers as stated above, addressing letters to concerned departments for submitting report to the concerned officials and finally contended that the allegations does not relate to requisition authority and they are related to Land Acquisition Authorities and requested to dismiss the writ petition.
MSM,J WP_39963_2015 5 Respondent No.4 also filed counter affidavit, reiterating the contentions urged by Respondent No.5 and requested to dismiss the writ petition.
Heard learned counsel for the petitioners and learned Assistant Government Pleader for Land Acquisition and learned Government Pleader for Irrigation.
As seen from the material on record, submersion of the land of these petitioners in different survey numbers in Chanduvoi Village of Atluru Mandal, Kadapa District is not in dispute. But, on the representations of these petitioners, Respondent Nos. 3 & 4 have initiated steps and called for reports from Respondent No.5 and also from the Mandal Revenue Officer. Accordingly, the Mandal Revenue Officer submitted report(s), including genuineness certificate and DKT pattas were granted in favour of the beneficiaries i.e the petitioners herein. After receipt of the report, no action was initiated till date and thereby, the petitioners sought the direction referred above.
Though the petitioners are beneficiaries under assignment, as per B.S.O.15 being „landless poor persons‟ in terms of G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016, the beneficiaries are entitled to claim compensation on par with private patta holders. In Paragraph No.4 of G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016, it is specifically stated as follows:
"4. Accordingly, Government after careful examination of the issue and in supersession of the orders issued in the G.O.Ms.No.1307, Revenue (Assn.I) Department, dt: 23.12.1993, issue the following orders:
(i) Whenever the assigned lands are required for a public purpose for a project or for alienation to a Govt.
Department or Corporation, the lands shall be resumed as per conditions of Patta
(ii) The compensation for the resumed assigned lands shall be paid on par with Patta lands as per the provisions of the Right to Fair Compensation and MSM,J WP_39963_2015 6 Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 or any other L.A. Act in force in the State."
However, G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 is applicable only when the land is resumed invoking Clause 17 of the conditions of Patta for public purpose. In the instant case, the land was not resumed based on Condition No.17 of the D-Form Patta. But, the land was submerged in the backwaters of Somasila Project. In these circumstances, the course open to the respondents is to acquire the land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ( Act 30 of 2013) and pay compensation in accordance with law. Therefore, when the petitioners are deprived of their land, it is nothing but depriving their source of livelihood without following due process of law in violation of fundamental right guaranteed under Article 21 of the Constitution of India.
When a specific procedure is prescribed under Act 30 of 2013 to deprive the person from property, such procedure is to be strictly adhered to deprive any citizen of India who is enjoying the rights in the property. Such citizen cannot be deprived of property except by authority of law, vide Article 300-A of the Constitution of India. So, the law made by the Parliament is Act 30 of 2013 and the authorities are bound to follow the procedure prescribed under law, while depriving a citizen of India to enjoy the property. But, without following such procedure, the third respondent passed the impugned order.
MSM,J WP_39963_2015 7 The Constitutional Bench of erstwhile High Court of Andhra Pradesh at Hyderabad in "LAO-cum-Revenue Divisional Officer, Chevella Division and Others Vs. Mekala Pandu and Others2"
referred to a judgment of Supreme Court in "Jilubhai Nanbhai Khachar Vs. State of Gujarat3". In the said judgment, the Supreme Court observed as follows:
"Those without land suffer not only from an economic disadvantage, but also a concomitant social disadvantage. In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land. Agrarian reforms therefore require, inter alia, the reduction of the larger holdings and distribution of the excess land according to social and economic consideration. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual.......Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to them dignity of their person by providing to them a near decent means of livelihood."
It is further held:
"Property, therefore, accords status. Due to its lack man suffers from economic disadvantages and disabilities to gain social and economic inequality leading to his servitude. Providing facilities and opportunities to hold property furthers the basic structure of egalitarian social order guaranteeing economic and social equality. In other words, it removes disabilities and inequalities, accords status, social and economic and dignity of person........Property in a comprehensive term is an essential guarantee to lead full life with human dignity, for, in order that a man may be able to develop himself in a human fashion with full blossom, he needs a certain freedom and a certain security. The economic and social justice, equality of status and dignity of person are assured to him only through properly."
(Emphasis is supplied).
The purpose of assignment of land either under the Board Standing Orders or under the land reforms legislations to the weaker sections of the society by the State is obviously in pursuance of its policy to empower the weaker sections of the society. Having assigned the land, the State cannot deprive him of the welfare benefit or public assistance. Deprivation of assignee's right to enjoy the 2 AIR 2004 AP 250 3 1995 Supp (1) SCC 596 MSM,J WP_39963_2015 8 property assigned to him may affect his dignity and security. It may adversely affect the equality of status and dignity.
Article 21 of the Constitution of India guarantees right to life. The right to life includes the right to livelihood. Time and again the Courts in India held that Article 21 is one of the great silences of the Constitution. The right to livelihood cannot be subjected to individual fancies of the persons in authority. The sweep of the right to life conferred by Article 21 is wide and far reaching. An important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
In Re: Sant Ram4 a case which arose before "Maneka Gandhi vs. Union of India5", the Supreme Court ruled that the right to livelihood would not fall within the expression "life" in Article
21. The Court observed:
"The argument that the word "life" in Article 21 of the Constitution includes "livelihood" has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21."
In "Olga Tellis vs. Bombay Municipal Corporation6" the Apex Court held as follows:
"If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life.
4 AIR 1960 SC 932 5 AIR 1978 SC 597 6 AIR 1986 SC180 MSM,J WP_39963_2015 9 The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."
(Emphasis is supplied).
The right to live with human dignity, free from exploitation is enshrined in Article 21 and derives its life breadth from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at least, therefore, it must include the right to live with human dignity, the right to take any action which will deprive a person of enjoyment of basic right to live with dignity as an integral part of the constitutional right guaranteed under Article 21 of the Constitution of India.
In "Delhi Transport Corporation Vs. D. T. C. Mazdoor Congress7", the Supreme Court while reiterating the principle observed that the right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. Income is the foundation of many fundamental rights. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them.
The Apex Court in various judgments interpreted the right to livelihood is a part of right to life under Article 21 of the Constitution of India. However, if a person is deprived of such a right according to the procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is 7 (1991)ILLJ395SC MSM,J WP_39963_2015 10 unsustainable. The Court opined that the state acquires land in exercise of its power of eminent domain for a public purpose. The landowner is paid compensation in lieu of land, and therefore, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.
Thus, in view of the law laid down by the Apex Court in various judgments (referred supra), widening the meaning of word „right to life‟ includes „right to livelihood‟, right to livelihood is a fundamental right, and it is a part of right to life guaranteed under Article 21 of the Constitution of India.
The Constitutional Bench of erstwhile High Court of Andhra Pradesh at Hyderabad in "LAO-cum-Revenue Divisional Officer, Chevella Division and Others Vs. Mekala Pandu and Others"
(referred supra) held that the assignees of the Government lands are entitled to compensation equivalent to the full market value of the land and other benefits on par with full owners of the land even in cases where the assigned lands are taken possession of by the State in accordance with the terms of grant or patta, though such resumption is for a public purpose. Even in cases where the State does not invoke the covenant of the grant or patta to resume the land for such public purpose and resorts to acquisition of the land under the provisions of the Land Acquisition Act, 1894, the assignees shall be entitled to compensation as owners of the land and for all other consequential benefits under the provisions of the Land Acquisition Act, 1894. No condition incorporated in patta/deed of assignment shall operate as a clog putting any restriction on the right of the assignee to claim full compensation as owner of the land.
MSM,J WP_39963_2015 11 No doubt, as discussed above, right to livelihood of a person can be deprived in accordance with law.
Article 300-A of the Constitution of India, protects right of an individual, but such right in the property can be deprived of save by authority of law.
The right to property is now considered to be not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the constitution or a fundamental right, human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension (Vide: Tukaram Kanna Joshi Vs. M.I.D.C.8) Right to property of a private individual, though, permitted to be deprived of, it must be by authority of law. Still, Article 25 (1) of the Universal Declaration of Human Rights recognized such right in property as human right, which reads as follows:
"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
India is a State Party to the declaration, but the right to property is not being considered as human right till date by many Courts.
8 AIR 2013 SC 565 MSM,J WP_39963_2015 12 Right to property in India at present protected not only under Article 300-A of the Constitution of India, but also recognized as human right under Article 25 (1) of the Universal Declaration of Human Rights. A liberal reading of these two provisions, the intention to protect the land owners only from Executive fiat, imposing minimal restrictions on the power of the State to acquire land. This is in sharp contrast to the language adopted in the Indian Constitution.
Hence, the only authority of law to deprive a person from his property is acquisition of land under the provisions of relevant law.
Earlier, the Land Acquisition Act, 1894 permits acquisition of land of a private individual for various purposes. The land Acquisition Act, 1894 is repealed, enacting the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The said Act is a complete code governing the procedure for acquisition of land of a private individual and for payment of compensation to the private land owners. Therefore, by invoking the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the right of a private owner in property can be deprived of and the violation of fundamental right guaranteed under Article 21 i.e. right to livelihood will not come in the way of State to acquire such land in view of the law laid down by the Apex Court in "Chameli Singh Vs. State of Uttar Pradesh" (referred supra).
Therefore, depriving the petitioners‟ livelihood by stocking backwaters of Somasila Project is nothing but violation of fundamental right guaranteed under Article 21 of the Constitution of MSM,J WP_39963_2015 13 India and such deprivation of right in land is also violation of Article 25 (1) of Universal Declaration of Human Rights. Such deprivation is permissible only by authority of law like the Land Acquisition Act, 1894 or the Act, 2013.
In view of the law declared by the Hon‟ble Apex Court in the judgments referred supra, I find that, it is a fit case to declare the action of the respondents as illegal, arbitrary and violative of Articles 21 and 300-A of the Constitution of India and Article 25 (1) of Universal Declaration of Human Rights, consequently, directed to take appropriate action, subject to acquiring the property in terms of Act 30 of 2013 or in any other permissible mode authroized by law, within six months from today.
The writ petition is disposed of, declaring the action of the respondents as illegal, arbitrary and violative of Articles 21 and 300- A of the Constitution of India and Article 25 (1) of Universal Declaration of Human Rights; while directing the respondents to take appropriate action, subject to acquiring the property in terms of Act 30 of 2013 or in any other permissible mode authroized by law, within six months from today.
Consequently, miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 22.04.2022 SP