Andhra HC (Pre-Telangana)
Rajsekhar Babu vs Deputy Collector (Land Acquisition), ... on 27 November, 1991
Equivalent citations: AIR1992AP193, 1992(1)ALT105, AIR 1992 ANDHRA PRADESH 193, (1992) 1 ANDHWR 213, (1992) 1 ANDH LT 105, (1992) 2 CURCC 84
ORDER
1. These two writ petitions seek for issuance of mandamus directing the Ist respondent to make a reference under Section 18 of the Land Acquisition Act for adjudication of the rights of the petitioners.
2. The brief facts necessary for disposal of these two writ petitions are: By is issuance of a notification under Sec. 4(1) of the Land Acquisition Act, the lands in survey Nos. 20, 21 and 25 of Daira village (within the Hyderabad Municipal Corporation Limits) along with some other lands were acquired by the 1st respondent and that ultimately culminated in passing the award No. 51/685/77 dated 23-5-1986. The petitioner in W.P. 17679/87 claims that he was the owner and possessor of S. No. 25 in an extent of Ac. 2-04 guntas, while the petitioner in the other writ petition makes a claim for the other two survey numbers in an extent of Ac. 5-26 guntas put together. Both the petitioners trace their title to a PHARMAN issued by the Nizain-VII in 1336 fasli in the name of one Zainulabaddin. Zainlabaddin was the sister's husband of the petitioner in W.P. 5943/88. Since the sister died, Zainulabaddin married another by name Ayasha Begum. Ayasha Begum had a daughter through her first husband before marrying Zainulabaddin, Respondent No. 3 is the said daughter and her son is the 2nd respondent. In fasli 1346 itself, Zainuiabaddin made an application on 21st Azur, for transferring the land covered by the Pharman in the name of the petitioner in W.P. 5943/88 and that was accordingly transferred. Thus, the petitioner in W.P. 5943/88 got the landsin S. Nos. 20,21 and 25. He in his turn said Ac. 2-04 guntas in S. No. 25 to one Peddayya, from whom the petitioner in W.P. 17679/87 again purchased the same under a sale-deed. Thus, both the petitioners claim title to and possession of the lands covered by the award in question. It is to be noticed that it was in October, '74 the notification under S. 4(1) of the Act was issued and after enquiry in September, '86 the award was passed. The case of the petitioner in W.P. 17679 of '87 is that in the year 1982 itself he had put in a petition claiming his rights before the 1st respondent. That petition was sent under certificate of posting. The other petitioner also avers that he in person had filed his petition direct in the office of the 1st respondent. Besides these two petitioners, the lands were also claimed by one Raja Krishna Devaraya Trust and respondent Nos. 2 and 3. The word enquiry was held in the year 1986 and later the award was passed on 23-5-86. The grievance of the petitioners is that the award inquiry was conducted without giving any notice under Ss. 9(3) and 10 of the Act to them. Even after passing of the award no notice as contemplated under S. 12(2) of the Act given to the petitioners. The award, according to the petitioners, was passed in terms of the compromise entered into between the said Raja Krishna Devaraya Trust and respondent Nos. 2 and 3. When the petitioner in W.P. 5943/88 came to know of the passing of the award, he filed an application before the 1st respondent on 25-11-87 requesting him to make a reference to the Civil Court under S. 18 of the Land Acquisition Act to have his rights adjudicated by the Court. To this, the 1st respondent issued a reply in the form of a memo dated 26-12-'87 rejecting the request.
3. In so far as the petitioner in W.P. No. 17679/87 is concerned he made an application on 25-2-'87 to the 1st respondent and that was responded to on 27-2-'87 informing him that the award was already passed on 22-2-86. There was another application put in by him on 18-3-'87 to which also the reply dated 2-4-'87 discloses that since the award was passed no steps could be taken. The applications dated 25-2-'87 and 18-3-87 were made seeking payment of compensation, inasmuch as those two applications were of no avail and informed him of the passing of the award, he filed another application on 28-9-'87 to make a reference under S. 18 of the Act. To this, the 1st respondent informed through communication dated 7-10-'87 that a reference was already made at the instance of respondent Nos. 2 & 3 and that was pending in the Civil Court, and that no further action could be taken in the matter. Since both the petitioners had a negative reply in the matter of their effort to have a reference under S. 18 of the Act made for having their rights adjudicated, they moved this Court under Art. 226 of the Constitution.
4. In the counter filed to W.P. No. 17679/87 by the 1st respondent it is denied that the petitioner had in person filed any petition in 1982 and therefore it is averred question of issuing any notice under Ss. 9(3) or 10 of the Act did not arise. In relation to W.P. 5943/88 the counter filed by the 1st respondent discloses that in respect of the ownership of the lands in question there was a dispute between Raja Krishna Deva Raya Trust and respondent Nos. 2 and 3 and that having been compromised, the award was passed in terms thereof. It is admitted that on 11-1-'82 the petitioner in W.P. 5943/88 filed a petition claiming title to the lands through Zainullabuddin, but however failed to substantiate his claim by filing any documents in support thereof. On account of this failure, his claim petition was rejected. It is also stated that inasmuch as the petitioner kept quiet having filed a claim petition for over 6 1/2 years, the authorities did not find any right vested in him for issuing notices either under S. 9(3) or 10 of the Act. As regards, the issuance of the, notice under S. 12(2), the counter states that inasmuch as the petitioner did not make any effort to substantiate his claim put forward and on the other hand kept quiet deliberately, the award having been passed after careful examination of the title deeds and strictly in accordance with the provisions of the Land Acquisition Act and the petitioner being not one of the awardees, no need was felt for issuing any notice in terms of S. 12(2) to the petitioner. The counters accordingly prayed for dismissal of the writ petitions, being devoid of any merit.'
5. The 2nd and 3rd respondents also filed one counter in each of the writ petitions. It is mentioned in their counter that the remedy of the writ petitioners is to move the Civil Court by way of a suit to establish their title independently and not in a reference under S. 18 of the Act. They contend that they are the legal heirs of late Ayesha Begum, second wife of Zainullabuddin, and were also the legatees under a will executed by her in respect of the present lands. It is also stated that in a suit filed for declaration of their title, the petitioner in W.P. 5943/88 filed I.A. No. 3558/81 (in O.S. 1429/81 on the file of the III Asst. Judge, City Civil Court, Hyderabad) for being himself impleaded as a party defendant on the ground that he was the owner. That I.A., was dismissed and the order therein became final. As regards the title set up by the petitioner in W.P. 17679/87, the respondents stated that even according to the petitioner in W.P. 5943/88 it was in 1981 that he came to know of his ownership to the lands, question of selling the land in S. No. 25 in 1346 fasli itself to the other petitioner is inconceivable and therefore it is purely a concoction. Hence they pray that the writ petitions may be dismissed.
6. The contention of Mr. Madhava Reddy, the learned counsel for the petitioners is that though the petitioners filed the petitions in the year 1982 before the Land Acquisition Officer claiming their rights in the land, they were not issued any notice under S. 9(3) of the Act and therefore even if the award cannot be set aside, this is a case for ordering reference under S. 18 of the Act. As regards the limitation prescribed by S. 18 is concerned, the learned counsel submitted, the same has no application inasmuch as no notice under S. 12(2) of the Act was issued to the petitioners.
7. The learned Govt. Pleader, on the other hand, contended that though the petitioners filed the petitions in the year 1982 they did not pursue the matter by adducing any documentary evidence in support of their claim and did not also participate in the inquiry. The notice under S.9(3) would be issued only to persons interested and since in the instant case the petitioners did not evince any interest except simply filing the petitions and kept quiet, the authorities did not issue any such notice to the petitioners. The authorities verified the revenue records and nowhere they could find the name of the petitioners in the records and therefore their names were not mentioned in S. 4(1) notification. It is also submitted that claiming ownership does not by itself confer any right to treat them as persons 'known to be interested' or 'believed to be interested' calling for issuance of the notice.
8. The learned counsel, Sri Gopal Reddy, for respondent Nos. 2 and 3 contended that the petitioners have no right or interest in the land. He submitted that the petitioner in W.P. 5943/88 filed O.P. 48/82 on the file of the 5th Addl. Judge, City Civil Court for declaration of his title to the lands and did not press for the same slating that the matter was settled out of Court and this conduct itself disentitles him to seek for a reference under S. 18 of the Act. So much so, the petitioner in WP 17679/87 having been claiming title to the land in S. No. 25 through the other petitioner in WP 5943/88, his case is still worse. It is also pointed out that the petitioner in WP 17879/87 having filed I.A. 1327/87 in OP 153/87 did not state that he made an application in the award inquiry and that I.A., was also dismissed for default. In the circumstances, the petitioners-according to the learned counsel have not entitled to any notice.
9. In view of the above contentions, the point that arises for consideration is whether a direction can be issued to the Land Acquisition Officer, the 1st respondent herein to make reference under S. IS of the Land Acquisition Act to the Civil Court for adjudication of the rights of the petitioners?
10. To decide whether under Section 9(3) of the Act, issuance of notice by the Land Acquisition Officer to the petitioners is necessary, it is relevant to extract S. 9 of the Act. Section 9 reads:
"9. Notice to persons interested.-- (1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under S. 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Ss. 28 and 29 of the Indian Post Office Act, 1898."
11. A close reading of sub-section (3) of S. 9 makes it clear that it is incumbent on the part of the Land Acquisition Officer to issue notice to 'all persons known to be interested' or 'persons believed to be interested'. The expression 'person interested', as per S. 3(b) of the Act, includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land. In the present case, the names of the petitioners are neither found in the revenue records nor mentioned in the S. 4(1) notification or Section 6 declaration. The 'person known to be interested' or 'person believed to be interested' must file some record before the Land Acquisition Officer to show that he has got interest in the land. Then only it can be said that that person is known to be interested or believed to be interested. The petitioners filed petitions before the 1st respondent requesting him to make a reference to the civil Court, but they have neither produced sufficient record nor pursued the matter stating that they are the persons known to be interested or believed to be interested. Merely filing a petition claiming that they have got some right in the land does not mean that they are known to be interested or believed to be interested. It is true that S. 9(3) of the Act casts a duty on the Land Acquisition Officer to issue notice to the person known or believed to be interested. A 'person interested' does not mean a person who puts in words his claim without any proof how he is interested in the land. Inasmuch as the petitioners have not proved to the satisfaction of the Land Acquisition Officer by filing any documentary evidenc, it can be said that non-issuance of notice to the petitioners under S.9(3) of the Act is in violation of the provisions of that Act.
12. The learned counsel for the petitioners relied on the decision in Yousuf Begam v. State, , for the proposition that where no notice under S.9(3) of the Act is issued, no question of limitation arises for filing a petition seeking a reference under S. 18 of the Act to the Civil Court. He also relied on the decision in V. Koteswara Rao v. Govt. of A.P. 1979(1) ALT 65. The facts of those two cases are quite different from the one on hand and, therefore, the aforesaid decisions are not at all applic-able,to the facts of the present case.
13. The second limb of the argument of the learned counsel for the petitioners is that as no notice as contemplated under S. 12(2) of the Act was issued to the petitioners, the limitation prescribed under S. 18(2} of the Act to seek a reference to the Civil Court is not applicable to the petitioners and, therefore, the 1st respondent ought to have made a reference to the Civil court under S. 18 of the Act. The contention of both the petitioners is that they have filed petitions in the year 1982 itself before the 1st respondent .claiming their rights but they did not produce any record nor pursued the matter. They have participated in enquiry (sic). The petitioner in W. P. No. 17679/87 has filed an application on 25-2-1987 and the 1st respondent gave a reply on 27-2-1987 intimating that the award was already passed and amount was paid to the concerned parties. Again he made an application on 18-5-1987, to which he received a reply dated 2-4-1987 that the award was passed and no steps could be taken. Thereafter, on 28-9-1987 he made an application, seeking a refernce under S. 18 of the Act to the Civil Court. The above facts disclose that the petitioner in W.P. No. 17679/87 had the knowledge by 27-2-1987 itself that the award was already passed. Even then, he made an application only on 28-9-1987 seeking reference under S. 18 of the Act to the Civil Court, long after, six months of the reply dated 27-2-1987 of the Land Acquisition Officer. Therefore, even assuming that the limitation starts from the date of knowledge, the application filed on 28-9-1987 seeking reference is barred by limitation. Even if we count the limitation from the second intimation i.e. 2-4-1987 the application is barred by limitation.
14. Regarding the petitioner in W.P. No. 5943/ 88, he filed an application on 25-11-1987 to make a reference under S. 18 of the Act to the Civil Court, whereas the award was passed on 23-5-1986. It is to be noticed that the petitioner filed a suit in forma pauperis --O.P. No. 48/1982 -- before the VI Additional Judge, City Civil Court, Hyderabad for a declaration that he was the absolute owner of the land in question and for a direction to the 5th respondent, B. Pawan, to pay to him the entire compensation. Subsequent thereto, the petitioner filed petition on 17-10-1986 that he has compromised with the respondents out of the court, that he did not want to proceed with the case and that, therefore, the O.P. may be closed as not pressed. Basing on the said petition the court closed the O.P. as not pressed. Therefore, it cannot be said that the petitioner in W.P. No. 5943/86 had no knowledge about the award proceedings. Apart from that, defendants 1 and 2 in the said suit are the respondents in the present writ petition. Hence, the petition filed by the petitioner seeking reference is barred by limitation.
15. The learned counsel for the petitioners relied on the judgment in Spl. Dy. Collector L. A. (SSP), Kurnool v. C. Sai Reddy, , wherein a Division Bench of this Court held that where notice of the award is not given as contemplated under S. 12(2) of the Act, it is not proper on the part of the Land Acquisition Officer to 'refuse reference under S. 18 of the Act to the Civil Court. The said judgment was considered in a subsequent judgment by a Full Bench of this Court in M. Narsimlu v. Spl. Dy. Collector (L.A.), 1990 (3) ALT 326 and held that no mandamus can be issued unless the party has filed application under S. 18 in time and that reference can be made where there is no intimation as contemplated under the Act. In the present case, though the notice was not given in the prescribed pro forma, the intimation that the award was passed and amount was paid to the parties concerned, was given to both the pelitioners. In Md. Hasnuddin v. State of Maharashtra , the Supreme Court held:
"The word 'require' in S. 18 of the Act implies compulsion. It carried with it the idea that the written application makes it incumbent on the Collector to make a reference. The Collector is required to make a reference under S. 18 on the fulfilment of certain conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award. The second condition is as to the nature of the objections which may be taken, and the third condition is as to the time within which the application shall be made. The power of the Collector to make a reference under S. 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso." The Supreme Court further held :
"The conditions laid down in S. 18 are 'matters of substance and their observance is a condition precedent to the Collector's power of reference', as rightly observed by Chanda-varkar J., in Re Land Acquisition Act (1906) ILR 30 Bom 275. We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It must accordingly be held that the making of an application for reference within the time precribed by proviso to S. 18, sub-sec. (2) is a sine qua non for a valid reference by the Collector."
16. In view of the above judgment of the Supreme Court, the application seeking reference under S. 18 of the Act is necessarily to be filed within the period of limitation. But in the present writ petitions the petitioners made applications seeking reference under S. 18 to the Civil Court beyond the period of limitation. Therefore, there is no merit in the writ petitions.
17. Apart from that, Krishnadeva Raya Trust, which received the compensation and which is intereested party, is not made party to these writ petitions, therefore, for the nonjoinder of necessary party also, the writ petitions deserve to be dismissed.
18. However, it is observed that this judgment will not have any effect on other proceedings, concerning other lands. It is open to the petitioners to seek any other appropriate remedy before the Civil Court, if they so desired, along with an application under S. J4 of the Limitation Act.
19. Subject to the above observation, the writ petitions are dismissed. No costs. Advocate's fee Rs. 300/- in each.
20. Petitions dismissed.