Telangana High Court
E.Nagamma vs The State Of Andhra Pradesh on 27 December, 2018
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
I.A.No.2 of 2018 and I.A.No.3 of 2018
in/and
WRIT PETITION No.23284 of 2018
COMMON ORDER:
The petitioners in this Writ Petition belong to the Schedule Caste and Schedule Tribe Community. They contend that they are assignees from the Revenue Department of the State of Andhra Pradesh of small extents of land in Chinnapanduru Village, Varadaiahpalem Mandal, Chittoor District under DKT Pattas granted to them in 2005 as under :
Extent Sl.No. Name of the Petitioner Survey Ac.Cents Number
1. E.Nagamma 106-1 0.80
2. P.Kanthamma 106-2 1.60
3. E.Nagabhushanamma @ 106-5 1.00 Nagamma 4 E.Challaiah 106-4 1.00 5 E.Polamma @ Swarna 106-9 1.00 112-2 0.88 6 C.Meeramma 72-1A 0.95 73-1A 0.98 57-1 1.27 7 D.Kamakshamma 108-2A 0.40 107-2 1.40 8 K.Challamma 108-2C 0.46 57-2 1.44 9 K.Bharathi 108-2B 040 10 G.Rangaiah 118-2 1.91
2. Pattadar pass books were issued to the petitioners individually by the Revenue Department and they had been filed along with the 2 MSR,J W.P.No.23284 of 2018 Writ Petition. Pahanies for Fasli 1427 as well as 1-B ROR show petitioners' possession and occupation of the above lands.
3. The petitioners contend that they had been in continuous and uninterrupted possession of the above lands from the date of assignment; that they did not violate any conditions of the pattas; that in 2017 these lands along with other lands in the said village were taken possession by the Tahsildar, Varadaiahpalem Mandal (5th respondent) promising to pay ex gratia for establishment of Industrial Park by the Andhra Pradesh Industrial Infrastructure Corporation (A.P.I.I.C.); and when they approached the 5th respondent seeking compensation, he did not take any action.
4. They contend that suddenly the Joint Collector, Chittoor (3rd respondent) issued a notice dt.11.05.2018 asking the petitioners to show-cause why the DKT pattas and pattadar pass books issued to them should not be cancelled on the ground that they were previously assigned to other parties; that they appeared before him on 19.05.2018 stating that they were cultivating their lands, their names were recorded in the Revenue Records also, and submitted copies of the same; but the 3rd respondent passed the impugned order in Ref.D.Dis.(E4)/Rev/ ESECOLAS(APL)/422018 dt.29.05.2018 canceling their DKT pattas, pattadar pass books and title deeds.
5. In the said order, there is a table showing the land and the Survey Nos of lands assigned to petitioners but for every entry, the 3 MSR,J W.P.No.23284 of 2018 remarks column in the table states that petitioners were issued Khatas subsequently without canceling the first Khata, and that the first Khata should be considered for payment of ex gratia, and the subsequent Khata (land assigned to petitioners) should be cancelled as mistake of fact.
6. The petitioners contend that the said order is illegal, arbitrary, violative of Article 14, 21 and 300-A of the Constitution of India, that it should be set aside. They also seek a consequential direction to the State of Andhra Pradesh (1st respondent) and the District Collector, Chittoor (2nd respondent) to pay compensation to them in accordance with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013).
7. In the affidavit filed in support of the Writ Petition, it is contended that the Sub-Collector, Tirupathi (4th respondent) submitted ex gratia proposals for the lands acquired in the above village for the above purpose; that he reported that Acs.42.35 cents (described as category 'C') has two or three Khatas existing for a single survey number and recommended that the subsequent Khatas be cancelled under "mistake of fact". Petitioners contend that the extents assigned to petitioner and the extents assigned to third parties in whose favour ex gratia is proposed are different though in same survey numbers.
4 MSR,J W.P.No.23284 of 2018
8. The petitioners contend that Board Standing Order (B.S.O.) No.15 (18) read with G.O.Ms.No.912 Revenue (B) Department dt.02.08.1985 was invoked erroneously while passing the impugned order; that the 3rd respondent proceeded on the assumption that petitioners were at fault and asked them to give explanation; in fact, it was a mistake on the part of the Revenue Authorities to have assigned the lands to the petitioners 13 years back without verifying previous records; since petitioners are not at fault and had cultivated the same for the said period, they alone are entitled to compensation; and the earlier assignees / third parties, who had never challenged the assignment to the petitioners of the lands, cannot be granted compensation depriving the petitioners of the same.
9. The petitioners placed reliance on G.O.Ms.No.259 dt.21.06.2016 and contend that they are entitled to compensation on par with full owners of the land (patta land owners) and all attendant benefits under Act 30 of 2013. They contend that the respondents are proposing to start land development work without paying any compensation, and so sought an interim direction in I.A.No.1 of 2018 to direct the respondents to ensure that no development activity is carried out on petitioners' lands which have been resumed for public purpose pending the Writ Petition.
10. On 06.07.2018, this Court held in I.A.No.1 of 2018 in WP.No.23284 of 2018 as under:
5 MSR,J W.P.No.23284 of 2018 "... ... having regard to the law declared by the Supreme Court in Joint Collector, Ranga Reddy District and another v. D. Narsing Rao and others1 that even if there is fraud or misrepresentation, action ought to be initiated only within a reasonable time, the 3rd respondent could not have, thirteen years after the assignment was made in favour of petitioners, hold that the petitioners could not have been assigned the land in 2005, and seek to deny them compensation which they are entitled as per the decision in Land Acquisition Officer-cum-Revenue Divisional Officer, Chevella Division, Hyderabad and others vs. Mekala Pandu and others2. Therefore, there shall be interim suspension of the impugned order.
Accordingly, there shall be interim direction as prayed for."
11. I.A.No.2 of 2018 has been filed by the respondents to vacate the said order.
CONTENTIONS IN THE COUNTER-AFFIDAVIT OF RESPONDENTS
12. In the counter-affidavit filed in support of the said application, it is the stand of the respondents that there was a requisition from the APIIC for providing land for construction of an Industrial Park; and that the Sub-Collector, Tirupathi enquired into the matter and found that there are two or three ROR Khatas existing for a single survey number in the land sought by the A.P.I.I.C. and recommended for cancellation of such Khatas under 'mistake of fact'. It is stated that compensation / ex gratia is proposed to be paid not to the petitioners but to third parties who had been earlier granted Khatas in the said survey numbers in which petitioners were later assigned lands; that the persons who were given earlier pattas were found in possession of the lands; and so compensation is proposed to be paid to them and the 1 (2015) 3 S.C.C. 695 2 2004 (2) ALT 546 (L.B.) 6 MSR,J W.P.No.23284 of 2018 subsequent Khatas issued in the name of the petitioners was cancelled basing on the recommendations of the Sub-Collector by invoking B.S.O. 15 (18) read with G.O.Ms.No.912, Revenue (B) Department, dt.02.08.1985.
13. It is contended that order dt.29.05.2018 was passed by the Joint Collector, Chittoor invoking the above provision and canceling the DKT pattas issued to petitioners as well as the pattadar pass books and title deeds issued to them on the basis of "mistake of fact"; that there is jurisdiction for cancellation of patta on grounds of fraud and misrepresentation; and that the B.S.O. does not prescribe any limitation for exercise of revisional jurisdiction to cancel assignments if there is material irregularity in the procedure or if the decision was grossly inequitable or it exceeded the powers of the officer who passed it or it was passed under a 'mistake of fact' or owing to fraud or misrepresentation. Reliance is placed on In Re P. Shyam Rao3, Habeeb Yahiya and another vs. Government of Andhra Pradesh4, C. Subhash Mudiraj vs. Regional Joint Commissioner5 and it is contended that when fraud is committed, authorities are competent to withdraw the benefit at any point of time, and similar is the case with regard to 'mistake of fact' and 'material irregularity in procedure'.
14. It is contended that petitioners have right of appeal to the Chief Commissioner of Land Administration, Andhra Pradesh, Vijayawada 3 1984 (2) A.L.T. 386 4 2003 (5) ALD 215 5 2003 (2) ALD 750 7 MSR,J W.P.No.23284 of 2018 within forty days from the date of the order and they should have availed the same instead of filing the Writ Petition.
15. It is contended that pattas were granted to petitioners in 2014 and not 2005, that too by an incompetent Tahsildar who was posted for election duty under 'mistake of fact' without canceling the earlier patta, and so the impugned order is valid. It is contended that the land was taken possession after paying ex gratia to the first Khata holder and not to the subsequent Khata holders like the petitioners to whom patta was issued under 'mistake of fact'.
16. It is alleged that though land was assigned earlier to other persons, and the names of such persons were incorporated in 1-B Register, petitioners, after colluding with the incompetent Tahsildar, who was deputed for election duty in 2014, got their names included in 1-B Register and got pattas and so their pattas are invalid. It is contended that there is no reason to stall development activity in the land as respondents are willing to pay compensation / ex gratia to earlier assignees and so the interim order is liable to be vacated.
17. It is contended that after taking possession of the land in 2016, it was handed over to A.P.I.I.C. in 2017 and A.P.I.I.C. handed over the land to Apollo Tyres and the said Company was in possession of the land.
18. Along with the Vacate Stay application copy of proceedings ROC.G2/2095/2016 dt.24.06.2016 of the then District Collector, 8 MSR,J W.P.No.23284 of 2018 Chittoor were filed which records that market value for acquisition of land of Acs.164.57 cents acquired from assignees has been fixed by the Sub-Collector, Tirupathi at Rs.6,50,000/- per acre and a sum of Rs.10,03,55,125/- was sanctioned to be disbursed for payment of ex gratia to 126 assignees of DKT lands of Chinnapaduru Village. The said order contained two categories (A) and (C). Copies of 1-B Register of certain survey numbers are also filed. REPLY AFFIDAVIT OF THE PETITIONERS
19. Reply-affidavit is filed by the petitioners to the above Vacate Stay application / counter-affidavit.
20. The petitioners contended that they were issued pattadar pass books pursuant to the D-Form pattas issued to them; there was a statutory presumption under the A.P. Rights in Land and Pattadar Passbooks Act, 1971 in their favour; therefore, respondents cannot contend that there are two or three ROR accounts in each survey number and put it against the petitioners. The petitioners denied that third parties were in possession of the lands at the time of resumption of the lands and asserted that they alone were in possession of the lands from the date of assignment till resumption and the Revenue Records also reflect their names.
21. It is contended that the power to cancel assignment pattas vests with the District Collector as per G.O.Ms.No.912 Revenue (B) Department, dt.02.08.1985 and the Joint Collector (3rd respondent) 9 MSR,J W.P.No.23284 of 2018 had no jurisdiction to do so. It is also contended that power to revise assignments by canceling them should be exercised within a reasonable time (from the date of assignment) even if there is no time limit prescribed for exercise of such revisional power; and in the instant case there is no allegation of fraud against the petitioners and the cancellation is on the basis of the 'mistake of fact' only. It is contended that the respondents cannot allege fraud in the counter- affidavit when the impugned order does not impute any fraudulent conduct to the petitioners. Therefore, the Writ Petition is maintainable and the petitioners are entitled to compensation. It is stated that petitioner nos.1 to 5 had been granted D-Form pattas in 2005 and petitioner nos.6 to 10 were issued such pattas in 2014. Since petitioners names were shown in Form1-B and Adangal, and pattadar pass books were also issued to them, the State had recognized their title and possession.
ADDITIONAL COUNTER OF RESPONDENT No.4
22. An additional counter-affidavit was filed by the Sub-Collector reiterating most of the contentions in the counter of the 5th respondent and also enclosing resumption proceedings passed in October, 2015 of alleged earlier assignees and their consent letters for such resumption and stating that lands were resumed on 17.10.2015.
23. It is stated that certain sale transactions from 17.10.2012 to 16.10.2015 of lands in the said village were considered and Rs.2 lakh per acre was determined as the market value as on 01.08.2015.
10 MSR,J W.P.No.23284 of 2018
24. It is stated that some farmers / DKT assignees agreed to take ex gratia of Rs.6,50,000/- per acre and the same was accepted and G.O.Ms.No.87 Industries and Commerce (Infra) Department dt.24.06.2016 was issued fixing the said rate. It is stated that petitioners claimed amounts under 'A' category and the said amount would be Rs.6,50,000/- per acre and the amounts were deposited with the Registrar (Judicial) of the High Court on 03.11.2018. The Implead application I.A.No.3 of 2018
25. I.A.No.3 of 2018 is filed by twelve (12) persons (K.Chengaiah and others) seeking impleadment in the Writ Petition. Their contention is that they were the original assignees to the land which is the subject matter of the Writ Petition; that such assignment was made in their favour by the Tahsildar, Varadaiahpalem; that they are in possession of the property; and the petitioners had obtained pattas subsequently and are claiming ex gratia payment and they are not entitled to the same.
26. In view of the contention, the said application is allowed and they are impleaded as respondent nos.6 to 17 in the Writ Petition. I.A.No.3 of 2018 is allowed.
27. Though in the affidavit filed in support of the application, reference is made to pattadar pass books allegedly issued to them, no pattadar pass book has been filed by them. No document is filed by them to establish their continuous possession over the lands in 11 MSR,J W.P.No.23284 of 2018 question from the alleged date of assignment till the alleged date of resumption.
THE POINTS FOR CONSIDERATION
28. From the above pleadings, the following questions arise for consideration:
(a) What was the ground on the basis of which action was taken by the Joint Collector, Chittoor to cancel the assignment made to the petitioners?
(b) Whether exercise of suo motu revisional powers invoking Board Standing Order No.15 (18) by the Joint Collector, Chittoor is valid in law?
(c) Whether the petitioners are entitled to compensation from the respondents and if so, how much?
Point (a):-
29. According to the petitioners, petitioner Nos.1 to 6 had been assigned various extents of land in Chinnapanduru village on 20-01-2005 while petitioner Nos.7 to 10 were assigned various extents of land on 26-02-2014.
30. According to the impugned order, the Sub Collector, Tirupathi, submitted a report in April 2018 that lands assigned to the petitioners had been assigned to them under "mistake of fact" since there were two or three khatas existing for a single survey number. Thus respondents state that there was earlier assignment of lands in the 12 MSR,J W.P.No.23284 of 2018 same survey numbers to K.Chengaiah and others (the respondent no.s 6-17) and without canceling the same, there was assignment again to the petitioners. The table given in the impugned order mentions these facts as regards land assigned to each of the petitioners.
31. In para-15 of the impugned order, it is stated that 'DKT pattas were issued to the respondents/subsequent assignees without canceling original assignments granted to Sri K.Chengaiah and others as shown at para-6 and therefore they are liable for cancellation under mistake of fact under BSO 15 (18) read with G.O.Ms.No.912 Revenue (B Department) dt.02-08-1985.'
32. Therefore, though in the first paragraph of the impugned order, it is stated that there was misrepresentation of facts under BSO 15 (18), the basis on which the impugned order was passed is not misrepresentation but that there was a mistake of fact.
33. In the first counter affidavit filed by the Tahsildar, Varadaiahpalem, at paragraph 5, it is admitted that the Sub Collector, Chittoor, recommended cancellation of Khatas under mistake of fact only and this is also reiterated in para-7 of the counter affidavit.
34. Admittedly, a show cause notice dt.11-05-2018 was issued to petitioners proposing to cancel the assignments and thereafter, the impugned order was passed. According to para-7 in the impugned order, the show cause notice merely asked for explanation of petitioners within seven days of receipt of the same as to why pattadar 13 MSR,J W.P.No.23284 of 2018 pass books/title deeds given to the petitioners in Sy. Nos.106/1, 106/2 etc. of total extent Ac.12.50 cts. should not be cancelled. Copy of such notice was not filed by the respondents. So it is not the case of the respondents that in the said show cause notice, they had attributed any fraud or misrepresentation to the petitioners for securing assignment of land.
35. However, it is hinted in para-8 that petitioners got included their names in the 1-B Register with the help of an incompetent Tahsildar, who was deputed for election duty in 2014, and they got pattas. In the absence of any such allegation in the impugned order, the respondents cannot be allowed to take such a plea since the order has to be considered on its contents and not by new facts introduced by way of counter affidavit.
36. In Mohinder Singh Gill Vs. Chief Election Commissioner6, the Supreme Court held:
"8........when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji7:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he 6 (1978) 1 S.C.C. 405 7 AIR 1952 S.C. 16 14 MSR,J W.P.No.23284 of 2018 meant, or of what was in his mind, or what he intended to do.
Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."( emphasis supplied)
37. Therefore the respondents cannot now contend that there was any fraud or misrepresentation by any of the petitioners.
38. Therefore on this point, I hold that the basis for cancellation of assignments granted to the petitioners was mistake of fact and not fraud or misrepresentation of the petitioners. Point (b):-
39. Board Standing Order 15 (18) deals with the power of Revision conferred on the District Collector. Sub para (1) states:
"(1) the order of the authority making the assignment, if no appeal is presented, or of the appellate authority, if an appeal is disposed of, is final and no second appeal shall be admitted. But if, at any time after the passing of the original or appellate decision, the Collector is satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation he may set aside, cancel or in any way modify the decision passed by an officer subordinate to him. No order should be reversed or modified adversely to the respondent without giving the respondent a notice to show cause against the action proposed to be taken adversely to him."
15 MSR,J W.P.No.23284 of 2018
40. From the above provision, it is clear that powers of Revision can be exercised by the District Collector on being satisfied that there has been a material irregularity in the procedure or that the decision was grossly inequitable or that it exceeded the powers of the officer who passed it or that it was passed under a mistake of fact or owing to fraud or misrepresentation. No period of limitation is indicated therein.
41. The Special Government Pleader Sri D.Ramesh appearing for the respondents contended that the impugned order exercising Revisional power under BSO 15(18) is valid since there is no period of limitation prescribed for exercise of Revisional powers by the Collector.
42. In State of Gujarat Vs. Patel Raghav Natha8, the Supreme Court held that even when no period of limitation was prescribed, the power is to be exercised within a reasonable time and the limit of reasonable time must be determined by the facts of the case and the nature of the order which was sought to be varied.
43. This was reiterated in Collector and others Vs. P.Mangamma and others9. The Supreme Court held that it would be hard to give an exact definition of the word "reasonable" and that it is a relative term and is essentially what is rationale according to the dictates of reason 8 (1969) 2 S.C.C. 187 9 (2003) 4 S.C.C. 488 16 MSR,J W.P.No.23284 of 2018 and not excessive or immoderate on the facts and circumstances of a particular case.
44. In D.Narsing Rao and others (1 supra), the Supreme Court again reviewed the case law in relation to exercise of suo motu revisional powers under Section 166-B of the A.P. (Telangana) Area Land Revenue Act, 1317 Fasli. The said provision stated:
"166-B. Revision.--(1) Subject to the provisions of the Andhra Pradesh (Telangana Area) Board of Revenue Regulation, 1358 F, the Government or any Revenue Officer not lower in rank to a Collector the Settlement Commissioner of Land Records may call for the record of a case or proceedings from a subordinate department and inspect it in order to satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and may make suitable order in that behalf;
Provided that no order or decision affecting the rights of the ryot shall be modified or annulled unless the parties concerned are summoned and heard.
(2) Every Revenue Officer lower in rank to a Collector or Settlement Commissioner may call for the records of a case or proceedings for a subordinate department and satisfy himself that the order or decision passed or the proceedings taken is regular, legal and proper and if, in his opinion, any order or decision or, proceedings should be modified or annulled, he shall put up the file of the case and with his opinion to the Collector or Settlement Commissioner as the case may be. Thereupon the Collector or Settlement Commissioner may pass suitable order under the provisions of sub-section (1). (3) The original order or decision or an authentic copy of the original order or decision sought to be revised shall be filed along with every application for revision."
45. The Supreme Court referred to the above decisions and observed:
17 MSR,J W.P.No.23284 of 2018 "25. The legal position is fairly well settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference insofar as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period....
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law.
Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority." ( emphasis supplied)
46. Thus, according to the above decision, even when there is no period of limitation prescribed for exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period and this is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. It held that simply 18 MSR,J W.P.No.23284 of 2018 describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; and otherwise the very exercise of Revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority. It held that where the State sought to exercise revisional powers 50 years after the names of the predecessors in title of the respondents were incorporated in the Khasra pahani and other revenue records, such exercise of power is bad in law since the Government had every occasion to verify the revenue entries but had not chosen to do so and it must be presumed to have known about the record and the revenue entries concerning the parcel of the land made in the ordinary course of official business.
47. Consequently, the decisions cited by the respondents in their counter affidavit on C.Subash Mudiraj (5 supra) and Habeeb Yahiya (4 supra) and In Re P Shyam Rao (3 supra) which dealt with cases of fraud and empowered Revisional powers to be exercised at any point of time are not good in law, and are deemed to be overruled by the decision in D.Narsing Rao and others (1 supra).
48. In the instant case, there is admittedly no allegation of fraud against the petitioners and the impugned order proceeds on the basis that there was a mistake of fact. It is also not open to the respondents to contend that the principle in C.Subash Mudiraj (5 supra) and Habeeb Yahiya (4 supra) and In Re P Shyam Rao (3 supra) which dealt with fraud can also be extended to cases of mistake of fact and 19 MSR,J W.P.No.23284 of 2018 material irregularity, and that even in such cases, they can exercise the Revisional powers at any point of time.
49. In view of the above settled legal position, I hold on point (b) that the suo motu revisional powers, having been exercised on 11-05-2018 through show cause notice by the Joint Collector, more than 13 years from the grant of assignment to the petitioner Nos.1 to 6 and more than 4 years after the assignment to petitioner Nos.7 to 10, cannot be said to have been exercised within a reasonable time, since it is not the case of the State that it was precluded from verifying the revenue records and the number of khatas in each survey number before issuing assignment/DKT pattas to the petitioners or at any time thereafter within a reasonable time.
50. Also when the power under BSO 15 (18) is conferred on the Collector, the Joint Collector cannot exercise the said power. So, the exercise of such a power by the Joint Collector is wholly without jurisdiction.
51. When such exercise of power by the Joint Collector is without jurisdiction, there is no need for the petitioners to avail the remedy of appeal to the Chief Commissioner of Land Administration, A.P., Vijayawada, within 40 days in view of the decision of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks10. 10
(1998) 8 S.C.C. 1 20 MSR,J W.P.No.23284 of 2018
52. Accordingly, Point (b) is held in favour of the petitioners and against the respondents.
Point (c):-
53. I shall now consider the question "Whether the petitioners are entitled to compensation from the respondents and if so, how much?"
54. A Larger Bench of this Court in Mekala Pandu and others ( 2 supra) considered the issue "where the assigned land is taken possession of by the State in accordance with the terms of the grant or patta the right of the assignee to any compensation will have to be determined in accordance with the conditions in patta itself and where the State does not resort to the covenant of the grant and resorts to the Land Acquisition Act the assignee shall be entitled to compensation in terms of the Land Acquisition Act not as an owner but as an interested person for the interest he held in the property ?" The Bench answered the issue holding that the assignees of Government land are entitled to payment of compensation equivalent to the full market value of 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 of patta and though such resumption is for a public purpose. It further held that 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 21 MSR,J W.P.No.23284 of 2018 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. It further held that the condition incorporated in the patta denying compensation or restricting the right of the assignees to claim full compensation is unconstitutional and infringes the fundamental rights guaranteed by Articles 14 and 31-A of the Constitution and where deprivation of property leads to deprivation of life or liberty or livelihood, Article 21 would spring into action and any such deprivation without just payment of compensation amounts to infringement of the said Article also. It declared that no such 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.
55. This view has been confirmed by the Supreme Court in its order dt.04.08.2014 in Civil Appeal No.7904-7912 of 2012.
56. This legal position is not disputed by the Special Government Pleader.
57. So if the assignment of land to the petitioners is valid, they are also entitled to compensation as per the decision in Mekala Pandu ( 2 Supra).
58. From the pleadings of the parties, it is clear that DKT pattas were also issued to the petitioners in 2005 and 2014 by the Revenue 22 MSR,J W.P.No.23284 of 2018 officials, though it is the stand of the respondents that this was done under "mistake of fact".
59. Petitioners have filed pattadar pass books issued to them by the 5th respondent. The issuance of the said pattadar pass books to petitioners has not been disputed. As per Rule 26(6) of the A.P. Rights in Land and Pattadar Pass Books Rules, 1989, such pass books would be issued only to those persons who are in actual possession of the land. Therefore the very fact that the petitioners have been issued such pattadar pass books indicates that they are in possession of the land assigned to them and the stand of the respondents that they are not in possession of the land cannot be accepted. That apart, copies of pahanis issued in January, 2018 filed by the petitioner Nos.1 to 4 indicate the possession of the said petitioners of the lands assigned to them.
60. In para-8 of the counter-affidavit filed by respondent Nos.1 to 5, it is admitted that petitioners' names were also incorporated in 1B register though it is suggested that this was done by them with the help of an incompetent Tahsildar, who was deputed for Election duty in 2014. There is absolutely no basis or evidence in support of the said plea and there is no mention of this allegation in the impugned order passed by the Joint Collector. Obviously the then Tahsildar who affected entries of the petitioners' names in the 1B register is conveniently made the scapegoat to avoid payment of compensation on market value basis to the petitioners as per Mekala Pandu 23 MSR,J W.P.No.23284 of 2018 (2 supra). Under Section 6 of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 there is a presumption of correctness of entries in Record of Rights and the petitioners are entitled to the benefit of the said presumption particularly when pattadar pass books have also issued to them.
61. In the impugned order passed by the Joint Collector there is no mention that petitioners are not in possession of the lands claimed to have been assigned to them and for the first time in the counter- affidavit such a plea is raised. No adangal is filed by the respondents along with their counter-affidavit to show that the persons who were allegedly assigned lands prior to the petitioners were in possession of the land at the time of its resumption and not the petitioners.
62. As stated by me above, I.A.No.3 of 2018 is filed by twelve (12) persons seeking impleadment in the Writ Petition and they are impleaded as respondent nos.6 to 17 in the Writ Petition. Their contention is that they were the original assignees to the land which is the subject matter of the Writ Petition; that such assignment was made in their favour by the Tahsildar, Varadaiahpalem; that they are in possession of the property; and the petitioners had obtained pattas subsequently and are claiming ex gratia payment and they are not entitled to the same.
63. Though in the affidavit filed in support of the application, reference is made to pattadar pass books allegedly issued to them, no 24 MSR,J W.P.No.23284 of 2018 pattadar pass book has been filed by them. No document is filed by them to establish their continuous possession over the lands in question from the alleged date of assignment till the alleged date of resumption. Therefore, their contention that they were in possession and enjoyment of the land just prior to the resumption thereof is not supported by any record.
64. The respondent nos.6 to 17 had never complained to anybody about the fresh assignment given to the petitioners and have kept silent all these years. This also indicates that they were probably in possession of different parcel of land in the same survey number and not the parcel of the land assigned to the petitioners.
65. So they would not be entitled to claim any compensation for the resumption of the land assigned to the petitioners and the respondent nos.1 to 5 cannot deprive the petitioners of the compensation on the said pretext.
66. Therefore, I see no reason to doubt the genuineness of the assignment of lands to the petitioners.
67. Consequently, the impugned order passed by the Joint Collector cannot be sustained not only on the above ground but also on the ground that he did not have jurisdiction to revise the pattas granted to the petitioners and only the District Collector had such jurisdiction; and even if he had jurisdiction, it was exercised not within reasonable time and is vitiated.
25 MSR,J W.P.No.23284 of 2018
68. Accordingly, the impugned order dt.29-05-2018 of the Joint Collector, Chittoor is declared as one without jurisdiction, illegal and void and is accordingly set aside.
69. I also hold that petitioners are entitled to compensation on market value basis as per the decision in Mekala Pandu (2 Supra). and that the action of the respondents in totally denying compensation to the petitioners whose assigned lands were resumed in 2016 is illegal, arbitrary and violative of Article 14 and 300-A of the Constitution of India as well as the decision in Mekala Pandu (2 supra).
70. Coming to the quantum of compensation, it is not disputed that the State Government had issued G.O.Ms.No.259 Revenue (Assn.1) Department dt.21-06-2016 stating that compensation for resumed assigned lands would be paid on par with patta lands as per the provisions of the Right for Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
71. Proceedings Roc.No.G2/2095/2016 dt.24-06-2016 have been filed by respondents proposing compensation at Rs.6,50,000/- per acre for the DKT lands which are acquired in Chinnapanduru village.
72. In para-5 of the counter-affidavit filed by the Sub-Collector, Varadaiahpalem it is contended that resumption proceedings were issued by the then Tahsildar, Varadaiahpalem on 16-10-2015 and possession was taken under panchanama on 17-10-2015. Some 26 MSR,J W.P.No.23284 of 2018 resumption orders in relation to respondent nos.6 to 17 have been filed along with the said counter-affidavit. However, there is no assertion by respondents that similar resumption orders were passed resuming the land assigned in favour of the petitioners.
73. But in para-9 of the counter-affidavit filed by Tahsildar, Varadaiahpalem on behalf of all the respondents, he contradicts the Sub-Collector by saying that possession of the land was taken by respondents in 2016 and 2017 and handed over to the A.P.I.I.C. in 2017. No specific date is mentioned in the counter-affidavit as regards the date of dispossession of the petitioners. No panchanama is filed in proof of taking of possession of the lands assigned to the petitioners and it appears that the same has been deliberately suppressed by the respondents. When a specific question was put to the Special Government Pleader on this aspect, he could not give any satisfactory answer.
74. This shows that the respondents are not speaking truth and wish to mislead the Court as to the date when they actually resumed the lands assigned to petitioners by dispossessing them.
75. In Charan Dass v. H.P. Housing & Urban Development Authority11 and in several other cases, the Supreme Court had held that comparable sales instances of similar lands in the neighborhood at or about the date of notification under Section 4(1) of the Act are considered to be the best evidence for determining the market value of 11 (2010) 13 SCC 398 27 MSR,J W.P.No.23284 of 2018 the acquired land to arrive at a fair estimate of the amount of compensation payable to a landowner.
76. In Mehrawal Khewaji Trust (Registered), Faridkot and others Vs. State of Punjab and others12, the Supreme Court held that when several sale deeds are available with reference to similar lands, it is the general rule that highest of the sales, if they are bona fide sales, has to be considered and accepted; and the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different value.
77. In Kasturi v. State of Haryana13 it was held that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for roads and other civic amenities to develop the land so as to make the plots for residential or commercial purposes.
78. These are the fundamental legal principles which ought to be applied for determining market value of the land as per the Land Acquisition Act,1894 and also the Act 30 of 2013. These are not disputed by the Special Government Pleader.
12
(2012) 5 S.C.C 432 13 (2003) 1 SCC 354 28 MSR,J W.P.No.23284 of 2018
79. In the counter-affidavit it is stated that 16 sale transactions of lands for the period 17-10-2012 to 16-10-2015 were considered, but all were discarded on the ground that they did not relate to the same type of land as the lands of the petitioners, and were not in the vicinity of the said land (para-9 of the counter of the Sub-Collector) and only the basic value of the land obtained from the Sub-Registrar, which was Rs.2,00,000/- per acre, was adopted as the market value.
80. According to Section 26(1) of Act 30 of 2013, the higher of the values between (a) market value specified in the Stamp Act, 1899 for registration of sale deeds and (b) average sale price for similar type of land situated in the nearest village or nearest vicinity area, has to be considered. Therefore, only on the basis of basic value register maintained under the Stamp Act, 1899, the respondents cannot determine market value of the lands of the petitioners by ignoring the sale transactions in the vicinity.
81. In my opinion, the 16 sale transactions include sales within 2 Kms from the lands assigned to the petitioners as well, for example, the sale transaction being document No.805/2013 dt.23-11-2013 in Sy.No.28/2B and 28/3B where Ac.1.44 cents was sold for Rs.7,00,000/- per acre (Transaction No.15). But, this is rejected on the ground that the sold land is adjacent to National High way and village site while the lands assigned to the petitioners are not adjacent to the National High way.
29 MSR,J W.P.No.23284 of 2018
82. In my considered opinion, it was not open to the Joint Collector to rely upon the basic value register and ignore the above sale transaction of larger extent of Acs.1.44 cents which is within 2 Kms from the lands assigned to the petitioners. The principles in the above decisions were not followed by the Joint Collector when he arrived at the market value of the petitioners' lands as Rs.2,00,000/- per acre.
83. Also, since according to the Tahsildar's counter, possession of the land of the petitioners was taken in 2016 (para-9 of the counter), it was incumbent on the part of the respondents to consider sale transaction even in the year 2016 proximate in time to the date of dispossession of the petitioners. This has also not been done.
84. This Court had dealt with several matters from the Chittoor District dealing with non-payment of compensation to assignees, whose lands were acquired for projects by APIIC, and has time and again found fault with the manner in which the respondents have ignored Mekala Pandu (2 supra) and deliberately either deprived the assignees of compensation totally or paid them very meager amount ignoring every settled principle of law governing the fixation of compensation for lands acquired. Strictures were passed against the District collector, Chittoor and the Joint Collector, Chittoor. The said matters are :
(i) Order dt.24.10.2017 in WP.No.18152 of 2012 ;
(ii) Order dt.29.08.2017 in WP.No.3102 of 2012;
30 MSR,J W.P.No.23284 of 2018
(iii) Order dt.06.12.2018 in Rev.I.A.No.2 of 2018 in WP.No.18152 of 2012 and C.C.No.1329 of 2018
(iv) Order dt.05.12.2018 in Rev.I.A.No.2 of 2018 in WP.No.3102 of 2012 and C.C.No.1809 of 2018;
(v) Order dt.09.03.2017 in WP.No.20140 of 2011;
(vi) Order dt.04.10.2018 in CC.No.1471 of 2017;
(vii) Order dt.28.04.2016 in WP.No.5727 of 2016;
(viii) Order dt.30.04.2018 in CC.No.2304 of 2016;
(ix) Order dt.23.02.2017 in WP.No.20953 of 2015.
85. In CAG v. K.S. Jagannathan14, the Supreme Court declared that in exercise of jurisdiction under Article 226 of Constitution of India, this Court has also got power to do what the State Government authorities are supposed to do. It observed :
" 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been 14 (1986) 2 SCC 679 31 MSR,J W.P.No.23284 of 2018 conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
86. Therefore, in the interests of justice, instead of relegating the matter again to the respondents to do an exercise afresh, which would have been totally futile, having regard to their conduct in the cases mentioned above in para no.84, I deem it appropriate to determine the compensation to be paid to the petitioners in exercise of the jurisdiction conferred on this Court under Art.226 of the Constitution of India.
87. I have already noted that as per the Counter affidavit of the Sub-Collector, Tirupathi there is the sale transaction being document No.805/2013 dt.23-11-2013 in Sy.No.28/2B and 28/3B where Ac.1.44 cents was sold for Rs.7,00,000/- per acre (Transaction No.15). This land is 1.92 Km from the lands assigned to petitioners according to the respondents.
88. The Supreme Court in Jage Ram v. Union of India15 has held that normally 15% escalation is being taken per year by the Supreme Court in recent times while quantifying the compensation. So 15% 15 (2017) 13 SCC 570 32 MSR,J W.P.No.23284 of 2018 value should be added to value of the sale consideration per year keeping in mind the escalation of price of the lands day by day.
89. Applying this principle the value would be Rs.8,05,000/- in the first year( 2014), Rs.9,25,750/- for the 2nd year ( 2015) and Rs.10,64,613/- per acre for 2016, the year when the petitioners were dispossessed according to the Tahsildar.
90. From this some deduction is to be made for the distance of 1.92 km from the land which is subject of the above sale transaction. Taking such deduction as 20%, the market value is determined as Rs.10,64,613/- minus Rs.2,12,923/- , which comes to Rs.8,51,690/- per acre.
91. Thereafter 1/3rd deduction is applied as per Kasturi ( 13 supra) towards development charges i.e Rs.8,51,690/- minus Rs.2,83,897/- = Rs.5,67, 793/- per acre.
92. Applying the principles for determination of compensation under Act 30 of 2013, the total amount of compensation per acre would be as under:
Market Value =Rs.5,67,793/-
Add :
(a) Rs.5,67,793/- x 1.25 ( Multiplying factor
Specified in I Schedule) = Rs.7,09,741
(b) 100% solatium under Section
30(1) = Rs 7,09,741
Total : Rs.19,87,275 per acre
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W.P.No.23284 of 2018
Petitioners are also entitled to interest under Sec.80 of Act 30 of 2013 between the date of dispossession till payment @ 9% p.a.
93. Accordingly the respondents are directed to pay within four (04) weeks from the date of receipt of copy of this order compensation at the above rate of Rs.19,87,275 per acre to the petitioners for resuming their assigned lands in 2016 with interest at 9% p.a from date of dispossession till date of payment; and till such payment is made, the respondents are directed to ensure that no development activity is carried out on petitioners' lands which were resumed. The amounts admittedly deposited with the Registrar (Judicial), High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh shall be paid by the Registrar (Judicial) to each of the petitioners on production of proof of identity of the petitioners, either by way of cheque or by RTGS/NEFT to their savings bank accounts (on the petitioners furnishing those details within two (02) weeks from the date of receipt of copy of the order), which amount shall be given credit while paying further amounts to them as held in this order. I.A.No.3 of 2018 is allowed; I.A.No.2 of 2018 is disposed of as above and the Writ Petition is allowed with the above directions.
94. The 1st respondent shall pay costs of Rs.2,500/- (Rupees Two Thousand and Five Hundred only) to each of the petitioners within four (04) weeks.
34 MSR,J W.P.No.23284 of 2018
95. As a sequel, miscellaneous applications pending, if any, shall stand closed.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 27-12-2018 Ndr/Kvr/Vsv