Andhra HC (Pre-Telangana)
Government Of A.P., Rep. By Its ... vs Naganaboina Venkataiah And Ors. on 26 April, 1996
Equivalent citations: 1996(3)ALT352, 1996 A I H C 4529, (1996) 1 LS 524, (1996) 2 ANDHLD 809, (1997) 1 ICC 505, (1996) 3 ANDH LT 352
JUDGMENT Y. Bhaskar Rao, J.
1. Aggrieved by the order dated 30-7-1993 passed by the single Judge in Writ Petition Nos. 11296 and 10357 of 1990, Writ Appeal Nos. 1532 and 1533 of 1995 are filed by the Government and Writ Appeal Nos. 1383 and 1384 of 1993 are filed by the claimants.
2.Writ Petition No. 11296 of l990 is filed by the Government questioning the award of the Land Acquisition Officer in granting interest at the rate of 6% per annum from 29-6-1979 to 29-4-1982 and at the rate of 15% per annum from 30-4-1982 to 2-4-1990. Writ Petition No. 10357 of 1990 is filed by the claimants to declare that they are entitled to interest at the rate of 9% per annum for one year and 15% per annum from 29-6-1989 to 29-4-1992 and additional market value at the rate of 12% per annum on the compensation awarded.
3. The facts of the case are that the lands measuring Ac. 10-04 1/8 guntas in S.Nos. 174, 177, 181, 191 to 193, 195 to 198, 326 and 334 of Desaipet Village and 0-19 1/2 guntas in S.No. 412 of Palavelpula Village belonging to the claimants were acquired for the purpose of construction of filter beds, service reservoir and staff quarters of water works department. The notification Under Section 4(1) of the Land Acquisition Act (for short 'the Act') was published on 3-8-1978. Enquiry Under Section 5-A of the Act was dispensed with by invoking urgency clause. Possession of the acquired lands was taken over on 29-6-1979. Again, notification Under Section 4(1) was issued on 1-10-1987 for acquisition of Ac. 14-23 5/8 guntas of land and the declaration Under Section 6 was published on 9-9-1988. After conducting enquiry, the Land Acquisition Officer passed the award on 2-4-1990. The Land Acquisition Officer fixed the market value at Rs.87/- per square yard for the lands at Desaipet Village and Rs. 13-30 ps., for the land at Pulavelpula Village. He granted solatium of 30% and interest at the rate of 6% from the date of taking possession i.e., 29-6-1979 to 29-4-1982 and at the rate of 15% from 30-4-1982 to the date of award i.e., 2-4-1990. He did not grant additional market value. Assailing the award, the writ petitions filed by the Government and the claimants.
4. It was contended on behalf of the Government before the single Judge that the Land Acquisition Officer awarded excess amount of interest, which is in contravention of the provisions of the Act. The claimants contented that they are entitled to solatium, interest and additional market value as per the provisions of the Amended Act 68 of 1984 and that the Land Acquisition Officer erred in not awarding proper rate of interest.
5. The single Judge after considering rival contentions held that the possession delivered by the claimants on 29-6-1979 is not under the Act, that the claimants are entitled to equitable compensation for deprivation of their possession at the rate of 71/2 per annum on the market value determined by the Land Acquisition Officer for the period from29-6-1979 to30-9-1987 and that the claimants are entitled to additional compensation at the rate of 12% per annum from 1-10-1987 to 2-4-1990 and in all other respects the award of the Land Acquisition Officer stands. Against the said order, these writ appeals are filed.
6. The learned Government Pleader contended that the claimants are entitled to interest on the market value prevalent on me date of first 4(1) notification i.e, 3-8-1978 and not as on the date of later 4(1) notification i.e., 1-10-1987, that the claimants have to approach the Civil Court for recovery of mesne profits from the date of taking possession till the date of issuance of next 4(1) notification and the limitation period for filing the suits also expired and that the single Judge erred in awarding equitable compensation at the rate of 71/2% per annum on the market value to the claimants from 29-6-1979 to 30-9-1987 and additional market value of 12% per annum from 1-10-1987 to 2-4-1990.
7. Sri M.V. Ramana Reddy, the learned counsel for the claimants contended that due to lethargy of the Government officials the first 4(1) notification was lapsed and so the second 4(1) notification was issued, that the claimants have not questioned the 4(1) notification, that the claimants have delivered possession to the Government voluntarily and that they are entitled to interest and additional market value as per the provisions of the Amended Act on the compensation amount awarded by the Land Acquisition Officer.
8. In view of the above contentions, the first question that arises for consideration is whether the possession of property taken after the notification Under Section 4(1) of the Land Acquisition Act, even though another notification Under Section 4(1) was issued later, is the possession under the Land Acquisition Act.
9. The land was acquired for public purpose and the notification Under Section 4(1) of the Act was published on 3-8-1978 and possession of the land was taken on 29-6-1979. We have perused the file produced by-4he-Government Pleader. In the file there is a letter dated 19-6-1979 addressed by the Executive Engineer, P. A., Sub-Division, to the Special Land Acquisition Officer, Warangal requesting him to hand-over the site formally pending approval in view of urgency and Collector asked them to enter into the land when they met him. In pursuance of the letter, a request was made to the claimants to hand-over possession and the claimants have handed-over possession. In a letter of one of the claimants i.e., P. Ram Mohan Rao, it is stated that he is handing over the possession land in S.Nos. 326 and 334 measuring about 251/2 guntas and he retains the claim on the condition that he will be paid compensation along with interest from that date. From a perusal of the file, it is evident that the authorities themselves asked the claimants to deliver possession of the acquired land and the claimants voluntarily delivered possession. Thereafter, the authorities did not take any action and did not ask the claimants to take back possession. The authorities have issued another notification Under Section 4(1) of the Act on 1-10-1987 under the impression that the earlier 4(1) notification has lapsed. The declaration Under Section 6 of the Act was issued on 9-9-1988 and the award was passed on 2-4-1990. It is to be noticed that after issuance of the 4(1) notification, possession was handed over by the claimants to the authorities oh their request. Section 17 empowers the authorities to take possession of the acquired lands before initiating acquisition proceedings under the Act where there is urgency. A Full Bench of this Court in Rev. Divn. Officer, Guntur v. Vasireddy, (F.B.) while interpreting the expression 'taking possession of the land' occurring in Section 28 of the Land Acquisition Act, held that taking of 'possession' even prior to acquisition proceedings and with the consent of owner would be possession of land under the Act and that interest is payable from the date of taking possession, whether taken under the Act or by private negotiations or otherwise in anticipation of valid proceedings under the Act. Thus, the possession of the acquired land taken on 29-6-1979 pursuant to Section 4(1) notification dated 3-8-1978 is the possession taken under the provisions of the Act. Even testing the matter from another, we hold that the possession taken pursuant to the notification Under Section 4(1) of the Act is deemed to be possession taken even in the case where due to lapse of Section 4(1) notification another Section 4(1) notification was issued.
10. The second question for our consideration is whether the notification Under Section 4(1) of the Act will lapse if no declaration Under Section 6 of the Act is published within three years or one year as provided in the first proviso to Section 6 where urgency clause is invoked Under Section 17(4) and the enquiry Under Section 5-A is dispensed with.
11. Section 17 of the Act deals with the special powers as to taking possession of the land by the Collector before the award is made in cases of urgency and unfore seen emergency. Section 17(4) of the Act reads:
"In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not/apply, and, if it does so direct, a declaration may be made Under Section 6 in respect of the land at any time after the date of publication of the notification Under Section 4, Sub-section (1)."
Declaration Under Section 6 of the Act is to intimate the decision of the appropriate Government that a particular land is needed for a particular existing public purpose. The first proviso to Section 6 reads:
"Provided that no declaration in respect of any particular land covered by a notification Under Section 4, Sub-section (1), -
(i) published after the commencement of the Land Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification."
Section 17(4) of the Act says that where urgency clause is invoked and the enquiry Under Section 5-A is dispensed with, it is open to the authorities to publish the declaration Under Section 6 of the Act at any time after notification Under Section 4(1) of the Act. The first proviso to Section 6 of the Act says that where the notification Under Section 4(1) of the Act is published before the Amended Act of 1984, no declaration shall be made after expiry of three years from the date of 4(1) notification and where the notification Under Section 4(1) is published after the commencement of Amended Act of 1984, no declaration Under Section 6 shall be made after expiry of one year from the date of 4(1) notification. By reading Section 17(4) and the first proviso to Section 6, it is clear that when the urgency clause is not invoked, the notification Under Section 4(1) will lapse if the authorities did not publish the declaration Under Section 6 within three years and one year, as the case may be, from the date of publication of 4(1) notification. Where urgency clause is invoked, the authorities are empowered to publish the declaration Under Section 6 at any time. Thus, the Parliament specifically empowered the authorities to publish declaration Under Section 6 at any time after 4(1) notification in cases where urgency clause is invoked. In the present case, the authorities have erred in assuming that the first 4(1) notification published on 3-8-1978 has lapsed.
12. The third question that arises for our consideration is whether the claimants are entitled to the additional market value of twelve per cent per annum from the date of publication of the notification Under Section 4(1) of the Land Acquisition Act to the date of award of the Collector or the date of taking possession, whichever is earlier.
13. Section 23(1-A) of the Land Acquisition Act provides that the Court shall, in addition to the market value, in every case award an amount at the rate of twelve per cent per annum on such market value for the period from the date of publication of the notification Under Section 4(1) in respect of such land to the date of award of the Collector or the date of taking possession of land, whichever is earlier. The Supreme Court while considering the object of introduction of Section 23(1-A) by Act 68 of 1984 and interpreting the expression 'whichever is earlier' appearing in the said provision in Asstt. Commr., Gadag Sub-Division v. Mathapathi Basavannewwa, (D.N.) held:
"The object of introducing Section 23(1-A) is to mitigate the hardship caused to the owner of the land, who has been deprived of the enjoyment of the land by taking possession from him and using it for public purpose, because of considerable delay in making the award and offering payment thereof. To obviate such hardship, Section 23 (1-A) was introduced..............If the possession is taken earlier and notification is issued later but the award is subsequently made, the owner or the claimant is entitled to the additional compensation from the date of taking possession till date of the award, though possession was taken before the notification Under Section 4(1) was published. The expression 'whichever is earlier' has to be construed in that backdrop and the claimant would be entitled to additional amount by way of compensation for loss of enjoyment of the land from the date of taking possession."
The Supreme Court further held that the claimants are not entitled to additional compensation if they themselves question the notification and its invalidity is upheld by the Court. In the present case, the claimants have not challenged the acquisition proceedings and on the other hand they have handed over the possession at the request of the Government. We, therefore, hold that the claimants are entitled to the additional market value of 12% per annum from the date of notification Under Section 4(1) of the Act to the date of the award.
14. The learned Government pleader relied on a decision of the Supreme Court in Executive Engineer v. Laghubhai Nanubhai, 1995 Supp. (4) SCC 583 contending that the claimants are not entitled to additional market value of 12%.
15. In the said decision, the Supreme Court did not consider nor interpret the provision Under Section 23(1-A) of the Land Acquisition Act The facts in mat decision were possession of land was taken over by Government under an agreement in the year 1963 and the notification Under Section 4(1) was issued in the year 1989. When the claimants sought for compensation for the period between the date of agreement to the date of notification, their Lordships held that the claimants are entitled to mesne profits only for the said period and to no other amount
16. In State of H.P. v. Dharam Das, (D.N.) the Supreme Court while considering Section 23 (1-A) of the Act, held that if possession of land is taken in advance of publication of 4(1) notification and validity of Section 4(1) notification is not challenged, the claimant is entitled to additional amount from the date of taking possession till the date of making the award. Therefore, the decision cited by the Government Pleader is not helpful to the present case.
17. The above discussion reveals that the notification Under Section 4(1) of the Act was published on 3-8-1978, which did not lapse as the urgency clause was invoked. The authorities could have published the declaration Under Section 6 and proceeded with accordingly. The authorities under the mistaken notion that the first Section 4(1) notification issued on 3-8-1978 has lapsed, have issued another notification Under Section 4(1) on 1-10-1987 and fixed the market value prevailing as on the date of second Section 4(1) notification. Thus, compensation amount was paid to the claimants as per the market value prevailing as on 1-10-1987 instead of 3-8-1978. The learned single Judge taking all the above circumstances into consideration awarded equitable amount at the rate of 71/2% per annum on the market value determined by the L.A.O. from 29-6-1979 to 30-9-1987 and additional compensation at the rate of 12% per annum from 1-10-1987 to 2-4-1990. It is settled principle of law that where the claimants are not satisfied with the amount of compensation, solatium and additional amount awarded, they have to seek reference to the civil Court Under Section 18 of the Act In this case, the claimants did not seek a reference to the civil Court and approached this Court by filing writ petition. The authorities also have not taken care to conduct the proceedings carefully with regard to determination of market value. We have held supra that the claimants are entitled to additional market value of 12% per annum from the date of notification Under Section 4(1) of the Act or from the date of taking possession whichever is earlier. The claimants are paid compensation at the market value prevailing as on 1-10-1987 though they are entitled to market value prevailing as on 3-8-1978. It is known that the prices have increased in geometrical progression from 1978 to 1987. Thus, the claimants are paid already more amount. The single Judge directed payment of equitable compensation of 71/2% per annum on the market value and 12% additional market value as stated supra on the principle of equity. Therefore, we do not think just and proper to award additional interest and more additional amount of compensation in this case keeping in view the facts and circumstances of this case. It is also to be noticed that public money has to be awarded by strictly adhering to the provisions of the Land Acquisition Act. The Court while exercising the power of judicial review under Art 226 of the Constitution has to exercise its jurisdiction to uphold the law in public interest and public finance.
18. In view of the above stated facts and circumstances and the reasons stated, we dismiss all the writ appeals. There will be no order as to costs.