Andhra HC (Pre-Telangana)
Municipal Corporation Of Hyderabad ... vs State Of Andhra Pradesh, Rep. By ... on 23 April, 2004
Equivalent citations: 2004(4)ALT219, 2004 A I H C 3308, (2004) 2 LACC 333, (2004) 3 ANDHLD 786, (2004) 4 ANDH LT 219
JUDGMENT T. Meena Kumari, J.
1. As the issue involved in all these writ petitions is one and the same, they are clubbed together and are being disposed of by this common order.
2. All these writ petitions have been filed by the Municipal Corporation of Hyderabad rep. by its Commissioner questioning the five supplemental awards passed by the second respondent in Award Nos.B1/93/85 dated 30.6.1987 and 11.1.1989 respectively. In these writ petitions, the official respondents have proposed to acquire Ac.69.27 cents in various survey numbers of Daira, Gaganmahal and Rasooolpura villages for the purpose of the National Park (Indira Park) from various claimants. The extent of land which was acquired and the date of award and other particulars with regard to the payment of compensation in each writ petition are as follows:
1. WP No.11641 of 1993:
Respondents 4 and 5 are owners of Ac.1.28 guntas in Survey No.20, Ac.0.24 guntas in Survey no.34 and Ac.0.19 guntas in Survey no.35 of Daira, Gaganmahal and Rasoolpura villages. The Land Acquisition Officer passed award on 15.7.1974 granting compensation at the rate of Rs.8/- per square yard for the land in Survey No.20 and Rs.5/- per square yard for the land in survey nos.34 and 35 as per the Award No.A/76/66-1. Against the said award, the claimants/unofficial respondents sought reference to the Civil Court and the said reference was decided on 24.12.1975 in OP No.379 of 1974. In the said reference, the Civil Court enhanced the compensation to Rs.10/- per square yard. Aggrieved by the said judgment in OP, CCCA No.73 of 1976 was filed before this Court and this Court dismissed the said CCCA on 17.6.1983. Later, the claimants made an application through their counsel under Section 28-A of the Land Acquisition Act (for short 'the Act') on 4.2.1985 and the Land Acquisition Officer passed supplemental award on 30.6.1987 in Award No.B1/93/85
2. WP No.11642 of 1993:
Respondents 4 to 22 are owners of Ac.1.06 guntas in Survey No.51/1 of Rasoolpura village. The Land Acquisition officer passed award on 15.7.1974 granting compensation at the rate of Rs.8/- per square yard as per the Award No.A/76/66-3. Against the said award, the claimants sought reference to the Civil Court and the same was decided on 28.2.1978 in OP No.36 of 1976. In the said reference, the Civil Court enhanced the compensation to Rs.15/- per square yard. However, no appeal has been preferred against the said judgment. Later, the claimants made an application through their counsel under Section 28-A of the Act on 23.6.1988 and the Land Acquisition Officer passed supplemental award on 11.1.1989 in Award No.B1/93/85 enhancing compensation, in total of Rs.12,20,282.25.
3. WP No.11643 of 1993:
Respondents 4 to 13 are owners of Ac.2.08 guntas in Survey Nos. 70, 71 and 72 Gaganmahal village. The Land Acquisition Officer passed two awards on 15.7.1974 and 16.7.1974 granting compensation at the rate of Rs.8/- per square yard for the land in survey no.70 and 71 and Rs.5.50 per square yard for the land in survey no.72 as per the Award No.A/76/66-9 and Award No.A/76/66-4 dated 15.7.1974. Against the said Awards, the claimants sought reference to the Civil Court and the same was decided on 16.4.1977 in OP Nos.72 and 83 of 1976. In the said reference, the Civil Court enhanced the compensation to Rs.30/- per square yard. Aggrieved by the said judgment, CCCA No.17 of 1978 has been filed before this Court against the judgment in OP No.72 of 1976 and CCCA No.126 of 1977 against OP No.83 of 1976 and this Court dismissed CCCA No.17 of 1978 and CCCA No.126 of 1977 was allowed partly by enhancing compensation to Rs.35/- per square yard for the land in survey nos.70 and 71 on 14.12.1982. Later, the claimants made an application through their counsel under Section 28-A of the Act on 23.6.1988 and the Land Acquisition Officer passed Supplemental Award on 11.1.1989 in Award No.B1/93/85 enhancing the compensation in total of Rs.15,93,982.81 ps.
4. WP No.11644 of 1993:
Respondents 4 to 7 are owners of Ac.0.31 guntas in Survey No.19 of Daira village. The Land Acquisition Officer passed award on 16.7.1974 granting compensation at the rate of Rs.8/- per square yard as per the Award No.A/76/66-5. Against the said award, the claimants sought reference to the Civil Court and the same was decided on 23.2.1978 in OP No.260 of 1976. In the said reference, the Civil Court enhanced compensation to Rs.15/- per square yard. However, no CCCA has been filed against the said judgment before this Court. Later, the claimants made an application through their counsel under Section 28-A of the Act on 23.6.1988 and the Land Acquisition Officer passed supplemental award on 11.1.1989 in Award No.B1/93/85 enhancing the compensation in total of Rs.8,22,364.15 ps.
5. WP No.11645 of 1993:
Respondents 4 and 5 are owners of Ac.1.35 guntas in Survey No.23 of Daira village. The Land Acquisition Officer passed award on 16.7.1974 granting compensation at the rate of Rs.8/- per square yard as per the Award No.A/76/66-16. Against the said award, the claimants sought reference to the Civil Court and the same was decided on 11.6.1979 in OP No.9 of 1977. In the said reference, the Civil Court enhanced the compensation to Rs.30/- per square yard. However, no appeal has been made to this Court questioning the said judgment in the OP. Later, the claimants made an application through their counsel under Section 28-A of the Land Acquisition Act on 23.6.1988 and the Land Acquisition Officer passed supplemental award on 11.1.1989 in Award No.B1/93/85 enhancing the compensation in total of Rs.15,16.280.69 ps.
Thus, in all the above writ petitions, the petitioner questions the above five supplemental awards dated 30.6.1987 and 11.1.1989 respectively passed by the Land Acquisition Officer under Section 28-A of the Act.
3. This Court while admitting the writ petitions on 17.8.1993 ordered notices to the respondents. Accordingly, the notices were sent to respondents and same were served on some of the respondents and some notices were returned unserved. Against the respondents on whom the notices were unserved, the petitioner also got published in the news papers by way of substitute service in the year 1999 itself.
4. However, as these matters have been taken up for final hearing in the year 2004, this Court felt that an opportunity should be given to the respondents and accordingly directed to issue fresh notices to all respondents on 4.3.2004. Pursuant to the said direction, notices have been sent to the respondents and the same have been served on all the respondents except respondents 4 and 5 in WP No.11644 of 1993. The learned counsel for the petitioner filed a memo to that effect. As notices were not served against respondents 4 and 5 in WP No.11644 of 1993, the petitioner was directed to effect substitute service by way of paper publication. Accordingly, notices were got published in Deccan Chronicle on 18.3.2004. Even then also, vakalats have been filed by Mr. M. Narendera Reddy for Respondents 5 to 11 in WP No.11642 of 1993 and Mr. A. Sudershan Reddy for respondent no.5 in WP No.11644 of 1993 and no counters have been filed by any of the respondents. The other respondents remained un-represented.
5. It has been argued by the learned Advocate General Sri T. Anantha Babu appearing for the petitioner in all the writ petitions, basing on the Awards passed by the second respondent, that the Municipal Corporation of Hyderabad proposed to acquire 69.27 cents in various Survey numbers of Daira, Gaganmahal and Rasoolpura villages for the purpose of the National park (Indira Park) from various claimants and accordingly notification under Section 4(1) of the Act was issued in GO Rt.No.877 on 17.10.1966 proposing to acquire extent of Ac.1.28 guntas in Survey No.20; Ac.0.24 guntas in Survey No.34 and Ac.0.19 guntas in Survey no.35 of Daira, Gaganmahal and Rasoolpura villages of the unofficial respondents 4 and 5 in WP No.11641 of 1993; an extent of Ac.1.06 guntas of land in Survey No.51/1 of Rasoolpura village of respondents 4 to 22 in WP No.11642 of 1993; an extent of Ac.2.08 guntas in Survey Nos.70, 71 and 72 of Gaganmahal village of respondents 4 to 13 in WP No.11643 of 1993; an extent Ac.0.31 guntas in Survey no.19 of Daira village belongs to respondents 4 to 7 in WP No.11644 of 1993; and an extent of Ac.1.35 guntas in Survey no.23 of Daira village of respondents 4 and 5 in WP No.11645 of 1993. It is further stated that the notification has been published in official gazette on 10.11.1966 and declaration under Section 6 of the Land Acquisition Act was published in GO Rt.No.25 Municipal Administration dated 10.1.1969. It has also been argued that the second respondent passed awards granting compensation in various Awards in 1974 itself and subsequent to the passing of the awards by the Land Acquisition Officer, the claimants have chosen to question the same by filing OPs under Section 18 of the Act having felt that the amount awarded by the Land Acquisition Officer is on lower side, and the trial court after appreciating the entire oral and documentary evidence, the requests of the claimants for enhancement of compensation in some OPs have been partly considered and in some cases their requests were negatived. It has also been stated that questioning the judgments in OPs, CCCAs have also been filed and those CCCAs were also disposed of in 1983. It is also stated that in some of the OPs, no appeals have been preferred to this Court and therefore the awards passed by the Land Acquisition Officer attained finality in 1983 itself.
6. The learned Advocate General Sri T. Anantha Babu submits that though the matters have attained finality, the claimants through their counsel made applications purported to be under Section 28-A of the Act in violation of and contrary to the provisions of the above Section and the third respondent i.e., the then Spl. Deputy Collector/Land Acquisition Officer with an ulterior motive entertained those applications and passed supplemental awards granting huge amount of compensation. The learned Advocate General also submits that Section 28-A of the Act has been introduced by Act 19 of the Land Acquisition (Amendment) Act, 1984 w.e.f. 24.9.1984 and it has only prospective in operation and it has no retrospective effect.
7. In the application filed under Section 28-A of the Land Acquisition Act it has been stated that the Land Acquisition Officer granted compensation at Rs.3/- to Rs.8/- per square yard for various survey numbers and some of the claimants filed OPs and in one of the OPs i.e., OP No.256 of 1979, the I Addl. Judge, City Civil Court, Hyderabad granted compensation at Rs.43/- per square yard and hence the claimants filed an application under Section 28-A of the Land Acquisition Act for passing award as per the orders passed in OP No.256 of 1979 in respect of survey nos.19, 20, 23, 34, 35, 51/1, 70, 71 and 72 of Daira village. Pursuant to the said application, the Land Acquisition Officer has chosen to allow the applications filed under Section 28-A of the Land Acquisition Act and the Land Acquisition Officer has chosen to allow the said application by passing supplemental awards dated 30.6.1987 and 11.1.1989.
8. On the other hand, the learned counsel who made their appearance for respondents 5 to 11 in WP No.11642 of 1993, respondent no.6 and 5 in WP Nos.11643 and 11644 of 1993 except stating that their clients have paid necessary taxes to the Government on the compensation amount received from respondents 1 and 2 pursuant to the supplemental awards, no arguments have been addressed with regard to filing and maintainability of application by the claimants under Section 28-A of the Act. Though notices have been served on the other claimants, they did not made their appearance either in person or through any counsel.
9. For proper appreciation of the case, Section 28-A of the Land Acquisition Act is reproduced below for ready reference:
"28-A. Re-determination of the amount of compensation on the basis of the award of the Court. - (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
(2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18."
It is to be noted that Section 28-A of the Act was introduced by Act 19 of the Land Acquisition (Amendment) Act, 1984 with effect from 24.9.1984.
10. Referring to the provisions under Section 28-A of the Act, the learned Advocate General further argued that the benefits under Section 28-A of the Act cannot be invoked by those who made applications under Section 18 of the Act and it can be invoked by the persons who did not make applications seeking reference to the Civil Court under Section 18 of the Land Acquisition Act. In these cases, it has been argued that the matters attained finality in this Court by virtue of judgments in CCCAs in the years 1982 and 1983 itself and in some cases, the unofficial respondents did not question the awards passed in OPs. It is further argued that the unofficial respondents have chosen to file the applications under Section 28-A of the Act on 4.2.1985, 23.6.1988, 23.6.1988, 23.6.1988 and 23.6.1988 respectively, that is clearly after 11 years and so on after the date of passing of the awards and hence they are barred by limitation. It is further submitted that the Land Acquisition Officer without noticing the above facts erroneously entertained the applications said to have been filed under Section 28-A of the Act and passed supplemental awards granting huge amounts. It is also stated that pursuant to the supplemental awards, amounts have been deposited and were also withdrawn by the unofficial respondents. It is further argued that as passing of the supplemental awards is against the provision of Section 28-A of the Act, the same have to be set aside and the unofficial respondents be directed to return the amount which were received by them pursuant to the said supplemental awards.
11. A plain reading of Section 28-A of the Act, it shows that the benefits under the said Section has no application where the claimant approached the Civil Court under a reference under Section 18 of the Land Acquisition Act. The Supreme Court in the case of SC CO-OPERATIVE LAND OWNING SOCIETY LIMTIED V. UNION OF INDIA, as follows:
"We may first deal with the contention based on the newly added Section 28-A inserted by Amending Act 68 of 1984 with retrospective operation from April 13, 1982. Under this provision where compensation awarded by the Collector under Section 11 is enhanced by the court in reference under Section 18, the persons interested in the acquired land who were not parties to the reference may, by a written application to the Collector made within three months from the date of the award to the Court, request the Collector to re-determine the amount of compensation payable to them on the basis of the amount awarded by the court. On receipt of such an application the Collector is expected to conduct an inquiry and make an award re-determining the amount of compensation payable to the applicants. Any person who does not accept the award so made may, by written application to the Collector, require that the matter be referred for the determination of the court whereupon the provisions of Sections 18 and 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18 of the Act are conferred this right to apply to the Collector for re-determination and not all those like the petitioners who had not only sought a reference under Section 18 but had also filed an appeal in the High Court against the award made by the reference court. The newly added Section 28-A, therefore, clearly does not apply to a case where the claimant has sought and secured a reference under Section 18 and has even preferred an appeal to the High Court. xxxx"
The Supreme Court in the above case has made it very clear that a claimant is not entitled to invoke provision of Section 28-A of the Land Acquisition Act once he sought and made a reference under Section 18 of the Land Acquisition Act. The said decision has been followed in different cases.
12. In these writ petitions, the undisputed facts remain that the unofficial respondents have sought reference under Section 18 of the Act to the Civil Court aggrieved by the Awards passed in the year 1974 itself by of the Land Acquisition Officer, and in some cases they have even preferred appeals before this Court having not satisfied with the award made by the Civil Court in the reference made under Section 18 of the Act. By virtue of the judgments in the OPs, some of the awards attained finality in 1974 itself. Thus, in view of the above judgment, Section 28-A of the Act does not apply to the cases of the petitioners.
13. With regard to non-applicability of Section 28-A of the Act with retrospective effect, the Supreme Court in the case of BABU RAM V. STATE OF U.P., has held that the said section has prospective in operation. The Supreme Court in the above said decision held as follows:
"Sub-Section (1) of Section 28-A reads that where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all other lands covered by the same notification under Section 4(1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of the compensation awarded by the Court. A person interested becomes aggrieved, when for other lands covered by the same notification under Section 4(1) of the Act, the Court awards compensation in excess of the compensation awarded under Section 11 to him for his land and to others for their land. Such aggrieved persons who had not made an application to the Collector under Section 18 earlier become entitled to invoke Section 28-A. Therefore, the verb 'allows' indicates that the right to an aggrieved person under Section 28-A (1) arises only when the reference court grants compensation in excess of the amount awarded under Section i.e., after 24.9.1984. It is prospective in operation after the Act had come into force. The amount 'awarded' speaks of past tense. In other words there must be an award in existence under Section 26 made after the Amended Act came into force. The right and remedy to claim re-determination accrues to an interested aggrieved person after 24.9.1984. The proviso amplifies it when it speaks of exclusion of the time taken to obtain copy of the award under Section 26 till it is supplied, i.e., it operates in future. It is, therefore, clear that Section 28-A does not apply to an award under Section 26 made prior to 24.9.1984."
Thus, it is clear that Section 28-A of the Act came into operation from 24.9.1984 and it has no retrospective effect and it has only prospective in nature. In these writ petitions, the awards were passed way back in 1974 and on the reference made to the Civil Court, the references in OPs were also disposed of in the years 1975, 1976 and 1978. Hence, Section 28-A of the Act is not applicable to the cases of the writ petitioners.
14. In UNION OF INDIA V. PRADEEP KUMARI, the Apex Court has laid down certain conditions to get benefit under Section 28-A of the Act, which are as follows:
"xxx Holding that the award referred to in Section 28-A (1) is the first award made after the coming into force of Section 28-A would be to deprive persons of the benefit extended by Section 28-A. Such a construction would result in perpetuating the inequality in the payment of compensation which the legislature wanted to remove by enaction Section 28-A. The object underlying Section 28-A would be better achieved by giving the expression 'an award' in Section 28-A its natural meaning as meaning the award that is made by the court in Part III of the Act after the coming into force of Section 28-A. If the said expression in Section 28-A(1) is thus construed, a person would be able to seek re-determination of the amount of compensation payable to him provided the following conditions are satisfied:-
(i) An award has been made by the court under Part III after the coming into force of Section 28-A;
(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector under Section 11 has been allowed to the applicant in that reference;
(iii) The person moving the application under Section 28-A is interested in other land covered by the same notification under Section 4(1) to which the said award relates;
(iv) The person moving the application did not make an application to the Collector under Section 18;
(v) The application is moved within three months from the date of the award on the basis of which the re-determination of amount of compensation is sought; and
(vi) Only one application can be moved under Section 28-A for re-determination of compensation by an applicant."
The Supreme Court in the case of HUKAM CHAND V. STATE OF HARYANA, held that re-determination of compensation under Section 28-A of the Act is not available when compensation was enhanced under Section 54 of the Act. In these writ petitions, some of the unofficial respondents/claimants in WP Nos. 11641, 11643, 11644 of 1993 have approached this Court by filing CCCAs and those cases were disposed of in 1983 itself. The unofficial respondents/claimants in WP Nos.11642 and 11645 of 1993 did not question the judgment passed in OPs. Thus, the issue involved in the land acquisition proceedings attained finality. In view of the above position, the unofficial respondents have no right to invoke Section 28-A of the Act for re-determination of the compensation.
15. The next point urged by the learned Advocate General is that an application to be made to the Collector within three months from the date of the award requesting to re-determine on the basis of the amount of compensation awarded by the Court and if any application is made under Section 28-A of the Act after that date, the same cannot be entertained by the Land Acquisition officer. In all these cases, the applications are barred by limitation as they are filed nearly after 15 years from the date of the Award.
16. The Supreme Court in the case of STATE OF ANDHRA PRADESH v. MARRI VENKAIAH, has held that limitation of three months starts running from the date of passing of award by Reference Court and not from the acquisition of knowledge by applicant of passing award. In the said case, the Apex Court observed as follows:
"In our view, with regard to first contention that Section 28-A is beneficial provision, there cannot be any dispute. However, the advantage of he benefit which is conferred is required to be taken within the stipulated time. A landowner may be poor or illiterate and because of that he might not have filed reference application but that would not mean that he could be negligent in not finding out whether other land owners have filed such applications. Whosoever wants to take advantage of the beneficial legislation has to be vigilant and has to take appropriate action within prescribed time. He must at least be vigilant in making efforts to find out whether other landowner has filed any reference application and if so what is the result. If that is not done then law cannot help him. Admittedly, in the present case, award enhancing the compensation was pronounced by the Civil Court by order dated 29th November, 1984 and applications were filed on 27th November, 1989 i.e., after lapse of 5 years. In such case, as the applicant was having an opportunity of knowing the award and/or he was required to make efforts of knowing about such proceedings, he must be presumed to have had knowledge of the award. If the contention of the learned counsel for the respondents is accepted, it will create total vagueness and uncertainty as landowners can claim that they have come to know of the award after long lapse of time and, therefore the application even though beyond time may be entertained. If such applications are entertained, there may not be any finality to the award and payment of compensation. Result may be that such proceedings may adversely affect where land is acquired by the Government for a project which is to be carried out by local bodies."
While observing so, the Apex Court reversed the judgment of this Court .
17. In these writ petitions, the unofficial respondents made applications in the years 1986 and 1988 under Section 28-A of the Act claiming compensation as awarded in OP No.256 of 1979 dated 17.4.1986. Except in WP No.11641 of 1993, in other writ petitions, the unofficial respondents made applications under Section 28-A of the Act after a gap of two years from the date of judgment. In view of the judgment of the Supreme Court in the above case, the applications have to be made within three months from the date of passing of the Award by the Reference Court. Thus, it has to be held that the applications have been filed beyond the limitation prescribed in Section 28-A of the Act.
18. This Court has gone through the entire records of the petitioner-Corporation in this matter. The petition filed by one of the unofficial respondents under Section 28-A of the Act is as follows:
"The lands of the claimant bearing S.no.20, 34 and 35 of Daira village, admeasuring 1 acre 28 gts. 24 gts, and 19 gts, respectively, have been acquired by the Municipal Corporation of Hyderabad for the purpose of National park as per the GO No.877 MA dt.7.10.66. Along with the above mentioned lands, the Corporation also acquired several other lands under the same notification. This officer awarded Rs.8/- per sq. yd. In respect of S.No.20 and Rs.5/- per sq. yd. for S. Nos. 34 and 35. The office also awarded Rs.8/- in respect of other S. No. i.e., S.No.27, 61, 62 of Gaganmahal village under the same notification and later on the said matter was referred under Section 18 of the L.A. Act to Civil Court in OP No.190/82 on the file of the first Additional Judge, City Civil Court, Hyderabad.
2. The Hon'ble First Additional Judge enhanced the compensation from Rs.8/- to 35/- per sq. yd. As per order and decree dated 9.9.83.
3. The claimant submit that in view of the amendment of the Land Acquisition Act, Section 28(A) , the claimant is also entitled to receive the compensation at the rate of Rs.35/- per sq. yd. Together with solatium of 3% and interest at 9% per annum, if the amount is paid within one year from the date of taking over the possession of the land, otherwise 15% per annum from the date of expiry of one year period till the date of payment.
4. The claimant therefore prays that he has received Rs.10/- per sq. yd. After the matter was referred to the Court. The claimant now further entitled to Rs.25/- per sq. yd. Together with solatium and interest as per the amended Act.
5. The petitioner came to know about the amendment of the Land Acquisition Act only on 30.1.1985 as such the application for enhancing of the compensation under Section 28(A) is within time xxxx"
19. In this context, the Supreme Court in the case of STATE OF ANDHRA PRADESH (5th supra) has held that the limitation of three months starts running from the date of passing of award by Reference Court and not from the date of knowledge by applicant of passing award. Therefore, it has to be held that the claim made by the unofficial respondents under Section 28-A of the Act is clearly barred by limitation.
20. Be that as it may, the Apex Court in the case of BABU RAM (2nd supra) has held that Section 28-A of the Act has no retrospective operation. Since Section 28-A of the Act has no retrospective operation, the awards passed prior to the enactment of Section 28-A of the Act cannot be modified.
21. Further, from the above discussion, it is clear that the benefits under Section 28-A of the Act can be made available to the claimants those who did not avail the reference under Section 18 of the Act. In these writ petitions, the unofficial respondents availed the reference under Section 18 of the Act and some of them also approached this Court by filing appeals against the judgment in OPs and those judgments attained finality. Therefore, the remedy available under Section 28-A of the Act is not available to the unofficial respondents and the Land Acquisition Officer without taking all these factors into consideration passed supplemental award and hence those awards are liable to be set aside.
22. A perusal of the entire record produced by the learned Advocate General goes to show that Mr. Dushyanth Reddy, Advocate addressed a letter to the petitioner Corporation, on behalf of some of the claimants, on 18.2.1999 requesting for payment of the balance amount of Rs.39,32,627.60 paise towards the Award No.B1/93/85 dated 11.1.1989. In the said letter, it was also informed that if the Corporation fails to arrange the balance amount, the claimants would be constrained to take coercive steps for recovery of amount at the risk of corporation. However, a copy of the said letter was marked to the Special Deputy Collector, L.A., (M.C.H.) Unit I to pay the balance of award amount. It is to be seen that on the said letter, the Spl. Deputy Collector has addressed a letter to the Addl. Commissioner, MCH, Hyderabad on the same day i.e., on 18.2.1989 requesting him to provide an amount of Rs.39,32,627.65 urgently. The record shows that the Special Deputy Collector did not bring to the notice of the Municipal Commissioner about the fact of receiving letter and he directly addressed a letter to the Additional Commissioner, MCH, Hyderabad to provide an amount of Rs.39,32,627.65 to distribute the same to the claimants pursuant to the Supplemental Awards passed by him.
23. All these facts would go to show that the then Spl. Deputy Collector i.e., third respondent herein acted hastily in disbursing the amounts as expeditiously as possible. These facts would support the allegation made by the petitioner herein that the then Special Deputy Collector i.e., third respondent herein has acted in violation of provisions of Section 28-A of the Act by passing supplemental awards as stated supra.
24. In the affidavit filed in support of the writ petitions, it has been stated by the writ petitioner that a huge fraud has been perpetrated in the Land Acquisition proceedings under Section 28-A of the Act as a result of conspiracy primarily between the claimants and the then Land Acquisition officer, huge amounts have been paid and the said conspiracy has come to light on the basis of a complaint given against the then Land Acquisition Officer and the resultant enquiry. It is also stated that a number of persons have been paid hefty sums by virtue of the fraudulent orders passed under Section 28-A of the Land Acquisition Act by the second respondent and the petitioner Corporation for whose purposes, the acquisition was made has parted with enormous sums under bona fide mistaken impression that the said orders passed under Section 28-A of the Land Acquisition Act are lawful. It is also stated that after certain facts were unearthed regarding the conduct of the Land Acquisition Officer concerned, the petitioner took legal advice, the present writ petitions have been filed questioning the said supplemental awards.
25. Even though the supplemental awards were passed in the year 1989, the petitioner has chosen to file the writ petitions in 1993. The delay in filing the said writ petition has been explained that they have come to know about the same in view of the complaint lodged against the then Land Acquisition Officer. Basing on the said complaint, an enquiry was ordered and in the enquiry, it came to light the fraud played by the then Land Acquisition Officer and on coming to know about the same, these writ petitions have been filed.
26. This Court perused the record produced by the learned Advocate General and the record shows that lot of correspondence was exchanged between the petitioner-Corporation and the Government till 1992 and 1993. Considering the fact that huge money of the public body is involved and also considering the fact that the delay in filing these writ petitions was due to initiation of the enquiry against the second and third respondents and also for obtaining legal opinion as to whether the writ petitions have to be filed or not, this Court is of the view that the petitioner has properly explained the delay in filing the writ petition and hence the delay in filing writ petitioners before this Court is not fatal particularly in view of the fact that huge amount of the public body is involved.
27. As seen from the material on record, no counters have been filed in these writ petitions by either of the respondents, which prima facie shows that the allegations made by the writ petitioner against the respondents are not traversed, which implies that they have admitted those allegations. I am fortified in this view by the decision of a Division Bench of this Court in the case of V.SANJEEVAMMA V. Y.PURANAMMA6 wherein this Court held as follows:
"It is one of the settled principles of system of pleadings that an averment, which is not denied by the opposite party must be taken by the court to have been admitted. The only way which the law provides for the denial of an averment of fact is by filing a written statement or a counter-affidavit. xxxx"
28. Under the above circumstances, following the principles laid down by the Apex court in the case law cited supra, the supplemental awards passed by the second respondent in Award No.B1/93/85 dated 30.6.1987, which was impugned in WP No.11641 of 1993; and Award Nos.B1/93/85 dated 11.1.1989 impugned in WP Nos.11642 to 11645 of 1993 have to be declared as nullity as they have been passed in violation of Section 28-A of the Act. Accordingly, Writ of Mandamus is issued declaring the supplemental awards passed by the second respondent in favour of unofficial respondents in Supplemental Award No.B1/93/85 dated 30.6.1987 in respect of Survey Nos.20, 34 and 35 of Ac.1.28 guntas , Ac.0.24 guntas and Ac.0.19 guntas of Daira , Gaganmahal and Rasoolura Villages respectively; Supplemental Award No.B1/93/85 dated 11.1.1989 in respect of survey no.51/1 to an extent of Ac.1.06 gunats of Rasoolpura village; Supplemental Award No.B1/93/85 dated 11.1.1989 in respect of Survey nos.70,71 and 72 of Gaganmahal Village to an extent of Ac.2.08 guntas; Supplemental Award No.B1/93/85 dated 11.1.1989 to an extent of Ac.0.31 guntas in respect of Survey No.19 of Daira village; and Supplemental Award No.B1/93/85 dated 11.1.1989 in respect of Survey No.23 to an extent of Ac.1.35 guntas of Daira vilage as nullity and the claimants/unofficial respondents are directed to refund the amount with interest at the rate of 12% per annum from the date of the receipt of the amount till the date of deposit within a period of three months from the date of the receipt of the order. It is also made clear that if the claimants failed to deposit the said amount with the petitioner within the above period, the petitioner is at liberty to recover the same in accordance with law.
29. With the above observations, all these Writ Petitions are allowed as prayed for. However, no order as to costs.