WP/24655/2012 of K. Praveen Kumar, Vs State of A.P, on 28 December 2012

ORDER:

This Writ Petition is filed for a mandamus to set-asideaward No.11/2012 dated 22/18-2-2012. The petitionersought for a consequential declaration that the award isnonest with respect to Ac.4-38 cents in Sy.No.531 ofDevarakadra village and Mandal, Mahaboobnagar District.

I have heard Sri M.S.R. Chandra Murthy, learnedcounsel representing Sri G. Purushotham Reddy, learnedcounsel for the petitioner, and the learned AssistantGovernment Pleader for Revenue appearing for therespondents.

The above mentioned land was acquired for KoilsagarLift Irrigation Scheme, Stage-II. Notification under Section4(1) of the Land Acquisition Act, 1898 (for short "the Act")was published on 7-5-2008; declaration under Section 6 ofthe Act was published on 20-5-2008 and notices underSections 9(1), 9(3) and 10 of the Act were issued on 3-5-2008. During the award enquiry held on 26-5-2008, thepetitioner made a representation to respondent No.3 to refer the aspect relating to compensation to the District LevelNegotiation Committee (for short “the Committee”).Accordingly, the matter was referred to the Committee. Afterholding negotiations, the Committee has finalizedcompensation @ Rs.1,12,000/- per acre on 26-10-2010. Asno award was passed, the petitioner made a representationon 17-2-2012 to respondent No.3 wherein he has statedthat he is withdrawing the consent in view of long lapse oftime from the date of notification. However, a day afterreceiving the said representation, respondent No.3 haspassed the consent award on 18-5-2012. Questioning thisaward, the petitioner filed this Writ Petition.

In the counter-affidavit filed by respondent No.3, it isinter alia stated that since the then Land Acquisition Officerpassed award No.11/2008 on 5-1-2011 on the basis of theconsent given by the petitioner, the latter is not entitled towithdraw the consent. It is further stated that since there is adispute on the person who is entitled to receive thecompensation, the same was referred to the Civil Courtunder Section 30 of the Act.

A perusal of the award shows that it does not containany date even though attestation thereon was found to havebeen made on 18-5-2012. However, in the counter-affidavit, respondent No.3 has given two dates, namely, 5-1-2011 and 18-2-2012 as the dates of award. If an award wasalready passed on 5-1-2011 by the then Land Acquisition Officer, there is no reason why a fresh award was passedon 18-2-2012. The award filed by both the parties finds areference to letter No.A/145/2007, dated 5-1-2011. Neitherthe award nor the counter-affidavit explained the nature andcontents of the said letter dated 5-1-2011. In theabsence of any proof that an award was passed on 5-1-2011, the plea of respondent No.3 in this regardcannot be accepted. The fact remains that the award hasseen the light of the day only on 18-2-2012, by which timethe petitioner has withdrawn his consent.

In my opinion, even if respondent No.3 had reasons togo ahead with the passing of the award after the petitionerhas withdrawn his consent, he ought not to have passed thesame under Section 11(2) of the Act. Respondent No.3ought to have passed the award under Section 11(1) of theAct so that the petitioner’s right for seeking reference of thedispute relating to compensation would have beenpreserved. On the facts and circumstances of the case, Ifind it appropriate that the award passed by respondentNo.3 under Section 11(2) of the Act must be treated as anaward passed under Section 11(1) thereof to enable thepetitioner to seek reference of the dispute to the Civil Court.

As regards the action of respondent No.3 in referringthe dispute to the Civil Court, in the award it is stated thatone B. Veera Bhaskar Reddy and B. Srinivas Reddy, sons of Chenna Reddy, have filed a claim petition stating thatthere is a partition dispute between the parties; that the civildispute in O.S.No18/2007 in the Court of the learned JuniorCivil Judge, Atmakur, has been disposed of in favour of thepetitioner and that since the petitioner is not willing toreceive the compensation, proceedings are issued in thename of the learned Senior Civil Judge, Atmakur underSections 30 and 31 of the Act. In my opinion, this is afundamentally flawed approach of respondent No.3. Havingfound that the petitioner has succeeded in the civil disputebetween himself and the above mentioned two persons,there was no justification for respondent No.3 to refer thedispute to the Civil Court under Sections 30 and 31 of theAct only for the reason that the former is not willing toreceive the compensation amount. In Shaik Kareemunnisa Begum Vs. Government of A.P.[[1]],this Court, at paras-9 and 10, held as under :

“A close analysis of sub-section (2) of Section 31 ofthe Act would show that the Land Acquisition Officeris required to deposit the amount of compensationonly under the four contingencies mentioned therein,namely, that the parties do not consent to receive thecompensation, where there is no person competentto alienate the land, where there is any dispute as tothe title to receive the compensation or where there isa dispute relating to apportionment of it. The learnedGovernment Pleader laid emphasis on the phrase “ifthere be no person competent to alienate the land” todrive home his submission that since no one hadmade a claim before the Land Acquisition Officer for receiving the compensation, the latter has treated thesame as the contingency that there is no personcompetent to alienate.

I find no merit in this submission. In a givensituation, the owner of the land may not make a claimfor receiving compensation. Mere absence of such aclaim cannot be brought under the contingency ofthere being no person competent to alienate theland….”

It was further held that absence of claim before the LandAcquisition Officer in the award enquiry is not a disputeenvisaged under Section 18 of the Act and that it would bewholly an exercise in futility if compensation for which noclaims are received is deposited before the Civil Court.

Following the ratio referred to above, the Writ Petitionis partly allowed by holding that the impugned award shallbe treated as having been passed under Section 11(1) ofthe Act. Respondent No.3 is directed to withdraw thereference, take return of the compensation amount withinone month if the same has already been deposited beforethe Civil Court and pay the same to the petitioner withoutprejudice to the latter’s right to seek reference of the disputeunder Section 18 of the Act. The petitioner is permitted tomake a request in writing to respondent No.3 for referenceof the dispute to the Civil Court under Section 18 of the Actwithin six weeks from today. On such application beingmade, respondent No.3 shall refer the dispute to the CivilCourt under Section 18 of the Act.

As a sequel, WPMP No.31467 of 2012 is disposed ofas infructuous.

________________________

Justice C.V. Nagarjuna Reddy

Date : 28-12-2012

AM

[1]2012(1) ALT 557