Andhra HC (Pre-Telangana)
Jaladi Sita Rama Koteswara Rao And ... vs Govt. Of Andhra Pradesh And Others on 8 September, 1998
Equivalent citations: 1998(6)ALD18, 1999 A I H C 437, (1998) 2 LS 370, (1998) 6 ANDHLD 18, (1998) 4 ICC 566, (1998) 3 ANDHWR 511
Author: V. Rajagopala Reddy
Bench: V. Rajagopala Reddy
ORDER
1. The petitioners filed the writ petition seeking a writ of mandamus directing the respondents to determine the compensation payable to the petitioners under the provisions of the Land Acquisition Act (for short 'the Act') and to pay the same to the petitioners for the lands acquired by the Government from the petitioners, under the -Act, for the benefit of A.P. State Electricity Board (for short 'the Board'), the 4th respondent herein.
2. For the purpose of construction of a Sub-Station by the Board in Tenali, the Board requested the petitioners that their lands bearing TS Nos.211, 214 & 209, would be acquired and for that purpose the petitioners should give their consent to hand over the lands pending finalisation of the acquisition proceedings by the Revenue authorities. All the petitioners have given their consent to the Board, subject to certain conditions. Accordingly, on 22-10-1990 the lands of the petitioners were measured by the surveyor of the Board and the Board has taken over possession of the said lands. Again subsequently for certain lands in TS No.210 of 4 in Tenali, the petitioners have given their consent and they were also taken over possession by the Board. The 1st respondent published in the Gazette dated 30-9-1991 the notification under Section 4(1) of the Act proposing to acquire the property mentioned therein, for the purpose of construction of a Sub-Station and staff quarters in Tenali, in respect of first stage of acquisition. Another notification dated 15-10-1992 issued under Section 4(1) of the Act was published in the Gazette in respect of the second stage of acquisition. Declaration under Section 6 of the Act was also published on 15-10-1992, The petitioners were given notices under Sections 9(3) and 10 of the Act and in response to the same the petitioners filed statements. The petitioners claimed between Rs.600 and 800 per Sq. Yd., as compensation. But, it is stated that no award was passed under the Act so far determining the compensation. As per Section 11-A of the Act, the Award should have been passed within two years from the dates of declarations, viz., 29-9-1993 in respect of 1st phase and 14-10-1994 in respect of 2nd phase of acquisitions. However, at the instance of the Board the petitioners filed their statements seeking market value at the rate of Rs.400 and 800 per Sq.Yd. Several negotiations took place between the petitioners and the Board. But the Board offered only Rs. 1,00,000/- per acre as compensation, which was refused by the petitioners. The Board, however, thereafter offered Rs.33,46,200/-per acre for the second stage and Rs.34,94,700/-per acre for the first stage. The petitioners declined the same claiming Rs.50,62,500/- per acre for both the stages, subject to the condition that the amount should be paid on or before 31-8-1996. The Board has declined to accept the offer, nor paid any amount towards compensation. The petitioners filed this writ petition stating that the notifications lapsed as no awards were passed within two years from the date of publications, as required wider Section 11-A of the Act. On the taking of the possession of the lands by the Board and having constructed electrical sub-station and staff quarters, the lands stood vested with the Government. It is, therefore, obligatory for the Government to issue fresh notification under Section 4(1) of the Act and pay compensation at the market value prevailing at the time of such notifications. Alternately, it is the case of the petitioners that even if the notifications did not lapse, as possession was taken by the respondents and the lands stood vested in the Government, the RDO should have passed an award in accordance with law, after holding an enquiry and paid compensation.
3. Counter affidavits were filed on behalf of the respondents. The basic facts pleaded by the petitioners were not, however denied. It is the case of the respondents that possession was taken by the Board with the consent of the petitioners even prior to the approval of the notifications under the Act. For various reasons that were narrated in the counter affidavit it was admitted by the respondents that notifications stood lapsed under Section. 11-A of the Act. The negotiations for arriving at agreed rate of compensation held between the petitioners and the Board prior to the notifications and even after the notifications lapsed, did not fructify. The main reason given by the respondents for the failure of the negotiations was the exorbitant amounts of compensation that was claimed by the petitioners miming into crores of rupees for an extent of about four acres. The Board, however, specifically stated in its counter affidavit that it requested the Government to issue fresh notification, but the Government did not oblige.
4. On 24-1998 the Executive Engineer of the Board filed additional counter affidavit on behalf of respondents 4 to 6, stating that the funds as required for the 2nd phase of acquisition were deposited by the Board. But inspite of protracted correspondence, the RDO, Tcnali failed to intimate the amount to be deposited for the lands acquired under phase-I. Finally, the RDO, Tenali, in his letter dated 19-2-1996 requested the Board to deposit Rs.511 lakhs, stating that the notifications stood lapsed in both the cases as sufficient funds were not provided for, to meet the cost of acquisition and hence fresh notifications have to be issued. Disputing the allegations made in the letter of the RDO, it was averred in the additional counter affidavit that the compensation assessed by the RDO, was highly abnormal and excessive and the Board was not prepared to accept the same. It was also stated that it was not acceptable to the Board to take up fresh land acquisition proceedings. As the earlier negotiations failed, the question of initiating fresh negotiations would not arise. The Board, however, was prepared to shift the Sub-Station to another place within a particular time frame and hand over the land to the owners.
5. The petitioners filed reply affidavit reiterating their claim for compensation under the Act and that the respondents having admitted that the notifications stood lapsed, it was not permissible under law to go back upon their own admissions. It was also clearly stated that the petitioners were not prepared to take back the lands or receive any compensation for the period for which they were kept out of possession and enjoyment of the lands.
6. The contention of the learned Counsel for the petitioners is that in view of the clear and categorical admission in the counter affidavits that the notifications stood lapsed under Section 11-A of the Act and that fresh acquisition proceedings would be initiated by issuing notifications afresh under Section 4(1) of the Act, the writ petition has to be allowed and a direction should follow that the Government should issue fresh notifications for the lands already taken possession of. The averments made resiling the facts stated and admitted should be ignored. On the other hand, learned Advocate General appearing for the Board and the learned Government Pleader appearing for the respondents 1 to 3, seriously contended mat possession was given and it was taken by the Board with the full consent of the petitioners prior to the issuance of notification under Section 4(1) of the Act and negotiations were held between the Board and the petitioners to arrive at the agreed compensation. But the negotiations failed because the petitioners had claimed exorbitant and wholly unreasonable amounts as compensation. Though it was admitted that the notifications stood lapsed, it was only by misconception as to the true legal position. Since possession was already taken, the notifications did not lapse. If the petitioner so wish, their lands would be returned after shifting the Sub-Station and suitable compensation would be paid for the use and occupation of the land from the date of taking possession till the date of shifting.
7. In this case most of the facts are not in dispute. The respondent-Board wanted to construct Sub-Station of 132 KVA in Tenali. For that purpose, the Divisional Engineer of the Board wrote a letter dated 25-9-1990 to the petitioners intimating that it was necessary to acquire the lands of the petitioners for the said purpose and the petitioners were agreeable to give their consent to hand over their lands, pending finalisation of the land acquisition proceedings by the Revenue authorities. Accordingly, after giving consent, the possession was delivered in 1990 to the Board. In 1991 and 1992 notifications under Section 4(1) of the Act were published proposing to acquire the lands for the purpose of construction of Sub-Station and Staff quarters. As per the Board, the land was sought to be acquired on the assumption that the entire four acres would not cost more than Rs. 1,00,000/-. After the notifications the Board has deposited sufficient funds as regards the second phase of acquisition; but it could not deposit the amount in regard to first phase of acquisition as, according to the Board, no amount was asked for by the RDO to be deposited. But as per the counter affidavit filed by the respondents 1 to 3, the Board authorities requested the Revenue authorities to revise the draft notification and draft declaring changing "the extent in Acres and Cents instead of Acres and Sq.Ft" as published in the notifications. However, after prolonged correspondence, the Board had agreed to maintain Acres and Sq.Ft, in the notification. Due to this prolonged correspondence the awards in both the phases could not be passed by the Land Acquisition Officer. Thus, as per the Government and the Board the notifications stood lapsed as per Section 11-A of the Act. Therefore, the RDO requested the Board to deposit Rs.511 lakhs to issue fresh proposals for land acquisition. However, subsequently, the Board came forward with a different story that it was not responsible for the awards not being passed within two years from the date of notifications and that the amounts of compensation suggested were highly abnormal and that the Board was not prepared to take up the lands of the petitioners. But in view of the staggering amount of compensation the Board declined to deposit the amount as requested. It comes with an offer to the petitioners for return of the land giving suitable compensation for its use and occupation.
8. The point that arises for consideration is whether the notifications issued under Section 4(1) of the Act lapsed in view of the provisions of Section 11-A of the Act?
9. The relevant notifications were issued on 30-9-1991 and 15-10-1992 and declarations were published on 29-9-1993 and 14-10-1994. Admittedly no award has been passed. Section 11-A of the Act clearly mandates that the award should be passed under Section 11 of the Act within a period of two years from the date of publication of declaration. The consequence of not passing the award within the said period is that the entire proceedings of acquisition would lapse. Hence the above notifications should be treated as having lapsed and the only course open to the respondents for acquisition of the land is to issue fresh notification. The Government also has conceded that the notifications lapsed. However, it is the contention of the Board that as possession was taken by the Board, the notifications should not lapse and that they are prepared to return the land to the petitioners giving suitable compensation. The Board has taken over possession of the land during 1990 and 1991, even prior to the issuance of the notifications. Thereafter, on deposit of compensation amount by the Board, the notifications have been issued under the Act for the purpose of construction of Sub-Station and staff quarters. The Sub-Station and quarters have in fact been constructed. Thus the lands of the petitioners are in use and occupation of the Board. Whether the land has been given by the petitioners with their full consent or whether the Government has taken over the possession via the Board, is, however, not material, as the land vested with the State and the petitioners lost ownership of the land as well as the use and occupation of the same. Under Section 11 of the Act the Land Acquisition Officer, after enquiry into the objections, if any, should make an award. Thereafter he is entitled to take possession of the land, which would then vest absolutely in the Government. Thus, the normal course for taking over possession is after passing the award. But in case of urgency, even before passing the award, after publication of the notification, as per Section 17 of the Act, possession can be taken, if the land is needed for public purpose. The land then vested absolutely in the Government. This is the taking over of possession by the Government in cases of urgency. As per Section 48 of the Act the Government will be at liberty to withdraw from the acquisition of any land of which possession has not been taken and the land did not vest with the Government. Hence, the Government is precluded from denotifying after taking over the possession of the land. It should automatically follow that Section 11-A is not applicable to the cases where possession was taken over and the land already vested with the Government.
10. Learned Advocate General cited the following decisions with regard to the question of lapsing of the notification after the land vested with the Government:
Satendra Prasad Jain v. State of U.P. ;
P. Chinnanna v. Slate of A.P., ;
Awadh Bihari Yadav & Ors. v. The State of Bihar & Qrs with Sita Ram Gope & Ors. v. The State of Bihar & Ors., ;
Pratap v. State of Rajasthan with Chanda v. State of Rajasthan with Sheo Narain v. State ofRajasthan, .
11. In Satendra Prasad Jain 's case (supra) it was held that, "The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period of two years from the date of the Section 6 declaration. In the ordinary case, therefore, when Government fails to make an award within two years of the declaration under Section 6, the land has still not vested in the Government and its title remains with the owner, the acquisition proceedings are still pending and, by virtue of the provisions of Section 11-A, lapse. When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award under Section 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases of acquisitions under Section 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner."
I do not propose to discuss the other decisions as a Division Bench of this Court in Govt. of A.P. rep. by its Principal Secretary, to Govt. Municipal Administration Urban Development (A3) Department v. Mohd. Moinuddin Hussain, , has elaborately discussed and reiterated the ratio laid down in the above cases observing tliat Section 11-A of the Act has no application to a case where possession was taken under Section 17 and the land stood vested in the State.
12. In the instant case the urgency clause under Section 17(1) of the Act was not, however, invoked in both the notifications, as the land was already taken over possession by the Board prior to the notifications itself. It is contended by the learned Counsel for the petitioners that as the possession was not taken invoking the provision of Section 17(1) of the Act, the decisions of the Supreme Court cited supra will have no application to the facts of the case and the notifications should be held as lapsed under Section 11-A of the Act. 1 do not find any force in this contention. The land was taken possession by the Board expressly stating that it would take sonic time for initiating acquisition proceedings and there was urgency in the construction of Sub-Station. In all the letters written by the petitioners it was clearly stated that their consent for handing over the land will be given subject to the payment of compensation as per the provisions of the Act. The letter written by the Divisional Engineer of the Board, Tcnali. to the petitioners dated 25-9-1990 reads as follows:
It is proposed to construct 132 KV/33 KV-Sub-Station near Clicnchupet, Tenali. In this connection necessary land acquisition proposals sent to Revenue Authorities for acquisition of lands bearing SF Nos.211, 214. 209 belonging to you.
As it is proposed to take up the construction of sub-station immediately, and also in view of delay in finalisation of land acquisition by Revenue Authorities, you are requested to give your consent to hand over the sites pending finalisation by Revenue Authorities. Soon after receipt of intimation from Revenue authorities, the necessary amount as fixed by Revenue authorities towards cost of land will be deposited to Revenue Divisional Office/Tenali.
Urgent action is requested in the matter please.
Yours faithfully, Sd/-
Divisional Engineer/Elecl"
The petitioners reply to this letter is also necessary to be noticed in this context:
"... ... ...
We own possess and enjoy the schedule property with absolute rights.
(1) In compliance to your request by the said letter we hereby give my consent, subject to the condition detailed below:
(a) Compensation, solatium, interest etc., are acceptable to me, only when they are finally fixed by the Highest Court or as per my choice.
(b) In retain with myself the right to receive the compensation under protest, and prefer reference to Court, appeal etc., to the Higher Courts.
(c) Whether Gazette publications, etc., and other proceedings are gone through or not, as per the Land Acquisition Act, you abide by the said Act, for payment of the compensation, solatium, interest etc.
(d) You undertake to pay solatium, interest etc., apart form compensation, irrespective of the formalities, technicalities etc., under the Act.
(e) Whether the acquisition is treated as under the Act or not, the provisions of the Act with regards to payment of compensation, solatium interest etc., are to be made as per the provisions of the said Act.
It is, therefore, clear that the petitioners handed over possession of the land to the Board on the assumption that acquisition proceedings would be initiated under the Act and compensation be paid to them as per the provisions of the Act. It is not in dispute that the petitioners had lost the possession and enjoyment of the land and the same is occupied by the Government. Subsequently notifications were issued proposing to acquire the land of the petitioners for construction of a sub-station staff quarters. The land therefore should be held as vested with the Government under Section 17(1) of the Act, though the Government did not invoke the urgency provisions under Section 17(1) of the Act. In tliis connection it is necessary to notice the decision in the Revenue Divisional Officer, Guntur v. Vasi Reddy Rama Bhamt Bhitpal, , cited by the learned Government Pleader. The Full Bench in this case, while considering the meaning of 'taking possession of the land in Section 28 of the Act' for the purpose of paying interest, (prior to amendment) observed that-
"Even assuming that the expression 'taking possession of the land' under Section 28 of the Act, would only mean taking possession of the land under or in pursuance of the Act we do not see any reason why the taking of possession of the land prior to the Land Acquisition proceedings without any objection by the owner (in this case by private negotiation with his consent) followed by valid proceedings under the Act should not be held to be taking possession of the land under the Act. The Act docs not prescribe when the Collector representing the Government should take possession of the land. Under Section 16 of the Act he may take possession after he has made an award, but there is nothing in that Section or in any other provisions of the Act, which prevents the Collector from taking possession of the land earlier with the consent of the owner. On the other hand there are provisions in the Act, for instance, Section 17 which authorises the Collector, in case of urgency to take possession of any waste or arable land needed for public purposes, after expiration of fifteen days from the publication of the notice mentioned in Section 9(1) of the Act. The fact that on 30-11-1950 it was the Municipality that took possession and not the Government would not make any difference as the acquisition of the land by . the Government was at the instance and for the purpose of the Municipality and it is also stated in the award that the cost of acquisition would be met from the amount deposited by the Municipality underworks Deposit in the name of the Revenue Divisional Officer, Guntur. Therefore no distinction can be made between the possession of the Municipality and the possession of the Government in the circumstances of this case.''
13. Having regard to the facts of the present case, taking over the possession by the Board prior to the notification should be held as possession taken by the Government under Section 17(1) of the Act, thus divesting the ownership of the petitioners and vesting the ownership of the land in the State. It therefore follows that Section 11-A of the Act has no application to the facts of this case and the notifications issued in 1991 and 1992 i.e., on 30-9-1991 and 31-7-1992, did not lapse and the acquisition proceedings are still alive. Hence the question of issuing fresh notification does not ariser The averments made in the counter affidavit by the respondents that the notifications lapsed, were only made due to misconception of law. Considering the similar question, in Mohd. Moimuddin Hussain 's case (supra), P. Venkatarama Reddi, J, speaking for the Bench, observed:
"... The subsequent notifications under Sections 4(1) and 6 were issued by the Government labouring under a fundamental misconception as to the true legal position. The Government and the Land Acquisition Collector proceeded on the basis that the acquisition proceedings lapsed under Section 11-A though such legal consequence does not follow as per the decisions of the Supreme Court. The land having vested in the Government absolutely and free from encumbrances as per the legislative mandate contained in Section 17(1), issuance of any further notifications under Section 4(1) and Section 6 will be a futile, meaningless and superfluous exercise. Notification under Section 4(1) is meant to initiate or get in motion the proceedings culminating in the vesting of land with the Government even before the award is passed in case Section 17(1) applies and after the award passed in case the acquisition is de hors Section 17. That being the case, there was no point in issuing further notification as if the acquisition did not take a start. It would amount to overlooking the plain effect of latter part of Section 17(1). The subsequent notifications under Section 4(1) issued in the year 1989 and 1995 must be deemed to be 'non esf in the eye of law apart from being superfluous. Naturally, such notifications can not form the basis for fixation of market value. We will then be left with the first notification published on 27-3-1980. It is that notification alone which is crucial for dctcnnination of market value."
Hence, the averments made in the counter affidavit due to misconception of legal position, will not change the legal consequences. The land vested with the Government under the notifications cannot be treated as divested.
14. The next point that has to be considered is whether the respondent-Board is permitted to return the land to the petitioners granting suitable compensation. It is categorically stated in the reply affidavit that the petitioners are not prepared to accept the offer. They want compensation to be paid under the provisions of the Act.
15. In the circumstances, the petitioners ace entitled for compensation at the market rate prevailing upon at the date of notifications 30-9-1991 and 31-7-1992 in accordance with the provisions of the Act along with solatium, interest, etc., till the date of passing the award. The respondents are directed to complete the enquiry into the award proceedings and pass the award and pay compensation strictly in accordance with the provisions of the Act without reference to the earlier offers made by the Board, within three months from the date of receipt of a copy of this order.
16. With the above directions, the writ petition is disposed of. No costs.