Andhra HC (Pre-Telangana)
Mohmed Abdullah (Died) By Lrs. vs Special Deputy Collector Land ... on 10 July, 1998
Equivalent citations: 1998(4)ALD714, 1998(4)ALT568, 1998 A I H C 4981, (1999) 1 LACC 148, (1998) 4 ANDHLD 714, (1998) 4 ANDH LT 568, (1998) 3 APLJ 152
Author: B. Subhashan Reddy
Bench: B. Subhashan Reddy, V. Bhaskara Rao
ORDER B. Subhashan Reddy, J.
1. This strange combination of civil appeal and writ petition relate to the same land of Ac.3-36 guntas in S.No. 147/1 situated at Begumpet relating to compensation in lieu of acquisition for the purpose of construction of the Airport. While the Civil Appeal is directed against the judgment and decree dated 74-1982 rendered by the Court of the First Additional Judge, City Civil Court, Hyderabad in OP No.242 of 1979 arising out of reference for enhancement of the compensation, the writ petition has been filed questioning the award dated 10-2-1979 passed by the Special Deputy Collector, Land Acquisition, the 1st respondent in the writ.
petition and the sole respondent in the appeal. Implead petition has been filed by the requisitioning authority and the same has been ordered and is arrayed as 2nd respondent. While the complaint in the appeal is that the determination of compensation at the rate of Re. 1/- per sq. yard is too low and meagre and did not represent the prevalent market rate, the complaint in the writ petition is that due to abnormal delay in finalisation of land acquisition proceedings, the award of the Land Acquisition Officer cannot sustain on the ground that such abnormal delay is arbitrary, unreasonable and is violative of the fundamental right guaranteed under Article 14 and the constitutional guarantee under Article 300-A and has to be set aside and to issue directions for the issuance of fresh notification under Section 4(1) of the Land Acquisition Act, 1894 and pay the compensation basing on the said date.
2. An extent of Ac.3-36 guntas in S.No. 147/1 of Begumpet was notified for the purpose mentioned above by initiating the proceedings under the Hyderabad Land Acquisition Act. The notification under Section 5 of the said Act (corresponding to Section 6 of Land Acquisition Act, 1894) was gazetted on 10th Dai, 1375 Fasli. The Land Acquisition Officer had passed the award on 20-2-1979 determining the market value at Re.1/- per sq.yard with 15% solatium and 6% interest from 19-2-1948, (the date of taking over possession) to 20-2-1979 (the date of passing of the award). Result is the CCCA.
3. While Mr. S. Ramchander Rao, the learned senior Counsel appeared for the appellant in the Appeal and the petitioner in the writ petition, the learned Government Pleader appeared for the Land Acquisition Officer and Mr. E. Madanmohan Rao has appeared for the Airport authority, for whom the land was acquired. While the contention of Mr. S. Ramchander Rao is that there is inordinate and abnormal delay in finalisation of the award proceedings and that the said action in passing the award after 31 years is arbitrary and unreasonable, that there is infraction of the fundamental right under Article 14 and the Constitutional guarantee under Article 300-A and that the award should be set at naught directing the issuance of fresh notification and more so, for the reason that there was no notification under Section 3(1) of the Hyderabad Land Acquisition Act, corresponding to Section 4(1) of the Land Acquisition Act of 1894, the learned Government Pleader and Mr. K. Madanmohan Rao submit that there is no inordinate delay and that the delay occurred because of the enquiry into the title of the claimant and that the amount awarded by the Land Acquisition Officer and confirmed by the Civil Court is proper and valid and the writ petition is not maintainable and more so, because it is filed after 13 years of the passing of the award and pleaded for the dismissal of both the appeal and the writ petition.
4. Section 3(1) of Hyderabad Land Acquisition Act reads :
"Whenever it appears to Government that any land is likely to be needed for any Government or public purpose or for the purposes of a company, a notification to that effect shall be published, and the Taluqdar shall cause public notice of the substance of such notification to be given on the site of the land to be acquired and at other convenient places.'' The above provision, in substance, is in pari materia with Section 4(1) of the Land Acquisition Act, 1894. As such it is clear that Sections 3(1) and 5 of Hyderabad Land Acquisition Act correspond to Sections 4(1) and 6 of the Land Acquisition Act, 1894.
5. On the advent of the formation of the State of Andhra Pradesh with effect from 1-11-1956, the lands in Telangana area were being acquired under Hyderabad Land Acquisition Act while the Land Acquisition Act, 1894 was operating for the lands acquired in Andhra area. Andhra Pradesh Act 20 of 1959, namely, the Land Acquisition (Andhra Pradesh Extension and Amendment) Act, 1959 was enacted extending the provisions of Land Acquisition Act, 1894 to Telangana area also, so that it is uniformly applied in the whole of the State of Andhra Pradesh and consequently repealed the Hyderabad Land Acquisition Act of 1309 Fasli by subsection (1) of Section 10 of the above A.P. Act XX of 1959. But, the savings .clause is contained under sub-section (2) of Section 10 thereof which reads :
"(2) Upon such repeal, the provisions of Section 8 of the Andhra Pradesh General Clauses Act, 1891 (Act 1 of 1891), shall apply; and for the removal of doubts it is hereby declared that any proceeding commenced under the said Act (Hyderabad Land Acquisition Act) and pending at the commencement of this Act (A.P. Act XX of 1959) before any officer, Court or other authority, shall be disposed of in accordance with the provisions of the said Act (Hyderabad Land Acquisition Act) as if the said Act had continued in force and this Act had not been passed."
6. The land acquisition proceedings in the instant case having commenced with the notification dated 10th Dai, 1357 Fasli (corresponding to 10-11-1947 AD, or even it is taken, as 10-2-1948 as stated in the award) and the award proceedings having been pending for years together and were finalised only on 19-2-1979, are covered by the saving clause contained under Section 10(2) of A.P. Act XX of 1959 and as such, the land acquisition proceedings in the instant case are governed by the provisions of the Hyderabad Land Acquisition Act, 1309 Fasli and not by the Land Acquisition Act of 1894.
7. The averment made in the additional affidavit filed by the petitioner that there was no draft notification under Section 3(1) of the Hyderabad Land Acquisition Act is not disputed by the Land Acquisition Officer (1st respondent) in his counter. The award passed by him also does not contain any reference to ' such draft notification. There is no such draft notification produced before this Court. As such, it is a conclusive feet that there was no notification issued under Section 3(1) of the Hyderabad Land Acquisition Act and it is needless to mention that the market value which is determined, has got reference only to the draft notification under Section 3(1) of the Act and not the draft declaration under Section 5 of the Hyderabad Land Acquisition Act, In feet, it is a settled law that the land acquisition proceedings are set in motion by a draft notification and are followed by draft declaration and without draft notification, the draft declaration cannot exist and there is no legal effect for the draft declaration made in this case dated 10th Dai, 1357 Fasli.
8. There is no plausible explanation for the long and abnormal delay of 31 years in passing the award and the plea that title of the claimant was gone into and so also of the survey of the land, is of no avail, as, if the Land Acquisition Officer had doubted the title of the claimant, he is bound to determine the compensation and then has to either settle the issue of apportionment or if he feels that he cannot settle the same, he should refer the matter to the Civil Court for adjudication of the same. No Land Acquisition Officer can ever plead that the survey has to be made and that mere is delay on account of the same, for, the same has to be surveyed, identified and ear-marked and even a sketch has to be maintained for inspection of the parties at the time when a declaration is published, be it under Section 5 of Hyderabad Land Acquisition Act or Section 6 of Land Acquisition Act of 1894. However, if mere is a dispute with regard to the area of the land notified for acquisition, a joint inspection can be made. But, even that should not consume a long time, as that can be one of the issues, if dispute arises with regard to correct area of the land acquired, in the reference sent to the Civil Court for adjudication along with the issue of determination of proper compensation.
9. Land acquisition involves compulsory acquisition for a public purpose. When the State opines that a particular property has to be acquired for public purpose, the public purpose being dominant, the private rights have to yield to the State right for public good and the subject has got no Choice, but to loose his property. The State has got a right in case of urgency to dispense with the substantive right of enquiry under Section 4-A in the case of Hyderabad Land Acquisition Act, corresponding to Section 5-A of the Land Acquisition Act, 1894. The Government in the instant case had felt that there was great urgency in taking possession of the land for extension of Hyderabad Airport area at Begumpet. As such, possession was taken over on 19-2-1948. So far so good and the public purpose had served. But, what should happen to the right of the subject like the appellant/petitioner herein. He has a right to receive the compensation. As the State feel urgency to take over possession of the land notified for acquisition, there is a corresponding obligation and duty on the part of the State to pay compensation to its deprived subject, as expeditiously as possible and in fact, the State has got a duty to feel the same kind of urgency in paying the compensation also. There is reason for that The deprived subject may make alternative arrangements for acquisition of other property or make such arrangements so as to maintain his quality of life even while compromising for the cause of the Society. The State cannot delay the matter unduly in payment of compensation. May be, the power for invoking urgency clause is provided in the statute and may be, at the relevant point of time, there was no time limit fixed for passing the award, but that will not arm the 'Land Acquisition Officer to cause undue delay in passing the award and payment of compensation. In the Amending Act 68 of 1984 (Central Legislation), all safeguards have been stated regarding the effect of delay in publishing Section 6 declaration and in passing the award under Section 11-A. If Section 6 declaration is not published within one year of Section 4(1) notification, then the said declaration lapses, if no award is passed within two years from Section 6 declaration, then the entire land acquisition proceedings lapse in view of Section 11-A of the Land Acquisition Act, 1894. Further, if urgency clause is invoked, 80% of the estimated compensation has to be paid and if possession is not taken over within a stipulated time, the urgency clause disappears entitling the person deprived of the property to prefer objections against the acquisition. Such safeguards came to be incorporated by amendment because of the arbitrariness and unreasonableness on account of the long delay in finalisation of the proceedings for acquisition. The Land Acquisition Officer who is an executive and subordinate to the Government, to get laurels from his Master, always tend to be over-zealous. They would issue draft notification under Section 4(1) to arrest the prices as on the date of notification and then would not issue Section 6 declaration and were doing so according to their will and pleasure. This practice was deprecated by the Supreme Court and then came the amendment prescribing the maximum time of 3 years between the draft notification under Section 4(1) and draft declaration under Section 6. The other device of the executives-in-charge of land acquisition cases was not to take possession in non-urgency cases so as to deprive the property owners of the interest and in the result neither the property owners were able to enjoy their lands nor get the interest. That is why Amending Act 68 of 1984 provides for 12 per cent interest per annum as an additional compensation by incorporating Section 23(1)-A payable from the date of Section 4(1) notification to the date of passing of the award or taking possession, whichever is earlier. From the above, it is evident that the Parliament has taken note of the need to duly compensate the person deprived of the property. Now, the Land Acquisition Act has got all in-built safeguards against any arbitrary or unreasonable act on the part of the executive and may be, some more reforms are necessary, but that is a question apart.
10. The instant case though not governed by the amending provisions contained under Central Act 68 of 1984, but it shall not mean that this Constitutional Court is helpless and can be silent spectator even if the undue delay was caused in passing the award, merely because there was no time limit prescribed for passing the awards. There are plethora of precedents as to what is the effect of the undue delay in passing the awards in the case of acquisitions governed by pre-1984 Amending Act. In Appalamurthy v. State of A.P., 1981 (2) ALT 21, B.P. Jeevan Reddy, J., (as His Lordship then was) speaking for this Court held that inordinate delay cannot be caused in passing the awards and for such inordinate delay, the award can be quashed. In the said case, there was a delay of six years in one case and eleven years in another case and terming it as unreasonable, oppressive and unfair and holding that every public authority is bound to act reasonably and fairly in exercise of its power and that an arbitrary and unreasonable exercise of power cannot be countenanced by the Courts and more so, when it causes prejudice and loss to the citizens, the learned Judge has quashed the notifications. In the said case, the judgment of the Supreme Court in Ambalal v. Ahmedabad Municipality, and the judgment of the Madras High Court in Krishna Iyer v. State of Madras, (1967) II MLJ 422, were followed In Ambalal v. Ahmedabad Municipality, (supra), it was held by the Supreme Court that the Government would not be justified in allowing the matters to drift and to take-in hand the proceedings for assessment of compensation, whenever they think fit and proper to do by holding that the scheme of the Land Acquisition Act contemplates determination of compensation without any unreasonable delay. The Madras High Court in Krishna Iyer v. State of Madras, (supra), the notification under Land Acquisition Act was quashed on the ground of undue delay in passing the award. In the said case, Section 4(1) notification was issued on 1-7-1959 while the Section 6 declaration was gazetted on 1-1-1964. The period of four years itself was termed as unreasonable and oppressive and the notification was set aside. Even more than a century back, a Division Bench consisting of Justice Straight and Justice Brodhurst of Allahabad High Court in the case of Imdad Ali Khan v. the Collector of Farakhabad, 1885 (7) ILR All. 817, held that the scope and object of the Land Acquisition Act is to provide a speedy method for deciding the amount of compensation payable by the Collector. In Satish Kapur v. State, , a notification under Section 4(1) was quashed as there was a delay of three years.
11. As there are no plausible reasons for the abnormal delay of 31 years in the instant case, the acquisition proceedings have to fail and arc liable to be set at naught. For the reason that Section 3(1) notification, which is mandatory and without which the proceedings cannot be initiated at all, was not issued, even if the subsequent procedure was adopted, without the basic notification under Section 3(1) of Hyderabad Land Acquisition Act, all subsequent proceedings fell to ground. In Khub Chand v. State of Rajasthan, , Chief Justice Subba Rao, speaking for the Supreme Court, held in a matter arising out of the Rajasthan Land Acquisition Act, 1953, analogous to Hyderabad Land Acquisition Act that the provisions of the Land Acquisition Act conferring power on the Government to compulsorily acquire the lands shall be strictly construed. It was held in that case that not only gazette notification of draft notification, but even the local publication is mandatory and in that case, even though there was a gazette notification, there was no local publication and on that ground, that draft notification was set aside. It is pertinent to mention that in the said case, even awards were passed, but the Supreme Court has issued a Writ of Prohibition restraining the respondent Government from giving effect to the awards passed for the reason of non-compliance of the mandatory provision of local publication of draft notification in the locality. The facts of the case on hand stand on better footing than the one decided by the Supreme Court for the reason that there is no notification issued under Section 3(1) of the Hyderabad Land Acquisition Act at all and as such, later proceedings of declaration under Section 5 and passing of the award are of no avail and have to be regarded as non est under law. There is yet another aspect with regard to infirmity and invalidity of the award passed by the Land Acquisition Officer. Section 10 of the Hyderabad Land Acquisition Act corresponds to Section 11 of the Land Acquisition Act of 1894. Both the provisions are in pari materia and cast an obligation on the Land Acquisition Officer to pass the award regarding (a) the true area of the land (b) the amount of compensation which, in his opinion, should, subject to the provisions of Sections 18 and 19, be allowed for the land; and (c) the apportionment of the amount of compensation among all the persons interested in the land. The word employed is 'shall' and in the context of objects and intendment of the Land Acquisition Act, it is mandatory and it was held mandatory as already stated above dealing with the substantive obligation of gathering of sale statistics. The Law of Land Acquisition is the law of compensation also. The provision relating to the passing of the award and the matters to be dealt with enumerated therein are mandatory and cannot be by-passed or lightly taken. There should be substantial compliance of the said provisions and there cannot be any slightest departure from the same. The Land Acquisition Officer discharges administrative functions and as such, cannot sit pretty in his office and assume the market value as he pleases or according to his whims and fancies. He has to make an enquiry on his own even if the parties do not place any material before him for the assessment of compensation. Being the Administrative Officer, he cannot function as a Court which discharges judicial functions. In fact, the administrative instructions, apart from the statutory requirement mentioned supra, make him obligatory on his part to not only inspect the land, but also the neighbourhood and collect the sales statistics and in fact, that is done in all the cases. It is a different thing if the fixation of such value by the Land Acquisition Officer is not accepted by the Court for the evidence adduced before it. But, it is primary and mandatory duly of the Land Acquisition Officer to collect the evidence and other material data apart from inspection so as to estimate the market value and fix the same and if the said function is not performed and the duty discharged, then the award is a nullity as it docs not conform to the requirements of the statute. In the instant case, the Land Acquisition Officer has failed to discharge his duties and functions in assessing the market value and excepting inspecting the land, he did not do any other acts of visiting the neighbourhood and obtaining the sales statistics and other related matters for the purpose of fixation of the market value. In fact, his approach is very casual and he did not apply his mind at all to an important matter like this where the citizen is deprived of his property and he is entitled for just and fair compensation. But, the Land Acquisition Officer has unjustly and unfairly behaved in conducting the proceedings for passing the award. It is apt to extract the mode of determination of market value in his award under the caption 'market value':
"The land acquired is situated adjacent to a big Nala. It was neither industrially developed, nor has any potential value for house constructions at the time of notifications. The land acquired was not even under cultivation by the claimants, as such, I fix the land rate @ Re.1/- (IG) per sq.yard for the land acquired."
This kind of callous attitude of the Land Acquisition Officer is deprecated.
12. When statutory rights of an exceptional character of compulsorily acquiring the land of a subject have been created, the conditions prescribed by the statute for the exercise of such rights shall be strictly fulfilled. As the award passed does not conform to the provisions of the statute, the same is liable to be struck down.
13. It is true that for the infirmities of there being no draft notification, the award being passed with inordinate delay and it not conforming to the requirements of the statute of making a valuation regarding the market value, the acquisition proceedings have to fail. But, this Court has to adopt pragmatic approach in the peculiar facts and circumstances of this case. While the State's right to acquire the land has to be given preference and precedence, the subject's rights for just and fair compensation should also be protected. If the entire land acquisition proceedings are to be quashed, it will be detrimental to the cause of the society and will not act for public good. Likewise, if we sustain the award as it is even if it is utterly illegal, the petitioner/appellant has to face untold misery and hardship. The laches on the part of the Government in passing the award after 31 years, by no stretch of imagination, can be said as reasonable, and on other hand, they are highly arbitrary, unreasonable and oppressive. Of course, there are laches on the part of the petitioner/appellant in filing this writ petition after lapse of 13 years. In a situation like this, the Constitutional Court like ours, which is not only a Court of Law, but is also a Court of Justice, has to tackle the situation and administer justice in a manner conducive, protecting both public interest as also the interests of the individual. In the facts and circumstances of this case, we adopt the procedure as adopted by the Supreme Court in Ujjain Vikas Pradhikamn v. Raj Kumar John, and also in the case of Chandra Bansi Singh v. State of Bihar, AIR 1984 SC 1768. In Ujjain Vihx's case (supra), the Supreme Court itself has fixed a notional date to deem it as a notification under Section 4(1) of the Land Acquisition Act, 1894 and in the later case of Chandra Bansi Singh v. State of Bihar, (supra), the Supreme Court had granted an equitable interest of 7 1/2% per annum on the market value for the delay caused in taking possession of the land after draft notification. On the basis of the said judgments, we fix the date 19-2-1979 (date of passing of the award by the Land Acquisition Officer) as a notification deemed to have been issued under Section 3(1) of Hyderabad Land Acquisition Act. The petitioner/appellant will be entitled for the statutory solatium of 15% and interest of 6% per annum as contemplated under Hyderabad Land Acquisition Act. In addition to the same, the petitioner/appellant shall be entitled for the equitable interest at the rate of 7 1/2 % per annum from 19-2-1948 to 19-2-1979 on the market value fixed by the Civil Court. We are not granting any equitable interest to the petitioner/appellant on account of his laches in approaching this Court by way of filing the writ petition, for 13 years (1979-1992). The writ petition is disposed of accordingly.
14. The CCCA is allowed and the OP No. 243 of 1979 is remanded back to the Court of the I Additional Judge, City Civil Court, Hyderabad to make enquiry about the market value as was prevalent on 19-2-1979, after affording opportunity to either side and then computing 15% solatium theron. Interest has to be awarded at the rate of 6% per annum from the date of taking possession i.e., 19-2-1948 till payment. In addition to the same, the claimants shall be entitled for the equitable interest of 7-1/2 per cent per annum from 19-2-1948 to 19-2-1979. The lower Court shall complete the above exercise by 31st December, 1998. We direct the parties to bear, their own costs.