WP/21368/2006 of E.Ram Reddy Vs The District Collector, Nizamabad District, N on 22 December 2006

ORAL ORDER:

Heard the petitioner in person and the learnedGovernment Pleader for Land Acquisition on behalf of therespondents.

This case illustrates yet again the disregard of thelegislative mandate [of the provisions of the Land AcquisitionAct 1894 (‘the Act’)], by the executive branch of the State.

The petitioner assails the acquisition process including the Draft Notification u/Sec.4(1), (dispensing with the salutaryprocess of inquiry u/Sec.5A of the Act by irrational andunwarranted invocation of urgency u/Sec.17) and the whollyinexplicable failure of the State to tender and pay 80% of theestimated compensation amount.

As the substantive facts are admitted this court prefers torecord the flow of events from the counter affidavit filed by the1[st] respondent – the District Collector, Nizamabad :

A)On the instructions of the State Government the NodalOfficer, the M.R.O. and the M.D.O. of Balkonda Mandal,Nizamabad District conducted “Prajala Vaddaku Palana”in 1998. At this event the people of Venchiriyal villagebelonging to the weaker sections represented to theNodal Officer to provide house sites. In response 3[rd]respondent along with the Mandal Surveyor and thePanchayat Secretary of the village inspected the lands inthe village and identified an extent of Ac.4.23 gts, inSy.No. 4 as suitable for house sites. The 3[rd] respondentwas also satisfied that there were no Government orporamboke lands available in the village. The 3[rd]respondent selected the above land for acquisition andsubmitted proposals. The Notification u/Sec. 4(1) wasinitially published in the District Gazette on 12.10.1998. Thereafter, realizing that the means did not match thedesire, the notification was withdrawn u/Sec. 48(1). Thewithdrawal was also notified in the District Gazette.

B)The petitioner, one of the land owners, filed W.P.No.11361 of 2003 questioning the withdrawal notificationand seeking a direction for payment of compensation. The writ petition is stated to be pending.

Conclusion

C)In the year 2003 the villagers (who had earlierrepresented during ‘Prajala Vaddaku Palana’ in 1998)reiterated their demand for house sites. The 1[st]respondent thereupon reactivated the acquisitionproposals. Eventually the Notification u/Sec.4(1) alongwith a Draft Declaration u/Sec.6 was published in theDistrict Gazette Nos. 52 and 53, on 14.11.2003. Thelocal publication in the daily press and in the localityritually followed. Admittedly urgency was invoked andinquiry u/Sec.5A dispensed with. Notices u/Sec. 9(1)and 10 are stated to have been put on the notice board ofthe Gram Panchayat and notices u/Sec. 9(3) and 10 wereissued on 7.8.2006 scheduling the date for the awardenquiry on 25.8.2006. represented during ‘Prajala Vaddaku Palana’ in 1998)reiterated their demand for house sites. The 1[st]respondent thereupon reactivated the acquisitionproposals. Eventually the Notification u/Sec.4(1) alongwith a Draft Declaration u/Sec.6 was published in theDistrict Gazette Nos. 52 and 53, on 14.11.2003. Thelocal publication in the daily press and in the localityritually followed. Admittedly urgency was invoked andinquiry u/Sec.5A dispensed with. Notices u/Sec. 9(1)and 10 are stated to have been put on the notice board ofthe Gram Panchayat and notices u/Sec. 9(3) and 10 wereissued on 7.8.2006 scheduling the date for the awardenquiry on 25.8.2006.

D)Though the land in Sy.No.4 of the village is in the nameof 9 persons including the petitioner, notices u/Sec. 9(3)and 10 though issued to all interested persons, were notcommunicated to three of them. The other six includingthe petitioner have received the notices on 10.11.2006.of 9 persons including the petitioner, notices u/Sec. 9(3)and 10 though issued to all interested persons, were notcommunicated to three of them. The other six includingthe petitioner have received the notices on 10.11.2006.E)Advance possession of the land was taken on20.3.2004,under a panchanama.20.3.2004,under a panchanama.

F)The acquisition process has not lapsed though theaward was not passed within two years of the Notificationu/Sec.4(1). Since advance possession of the land wastaken (on 20.3.2004), the acquisition did not lapse, asSec.11A has no application.award was not passed within two years of the Notificationu/Sec.4(1). Since advance possession of the land wastaken (on 20.3.2004), the acquisition did not lapse, asSec.11A has no application.

G)Since the petitioner returned from the USA he cannotclaim that he is solely dependent on the land proposedfor acquisition (implication being that not tendering orpaying 80% of the estimated compensation amount, inviolation of Sec.17-3A, is of no consequence).claim that he is solely dependent on the land proposedfor acquisition (implication being that not tendering orpaying 80% of the estimated compensation amount, inviolation of Sec.17-3A, is of no consequence).

On 17.11.2006 the learned Government Pleader for LandAcquisition was directed to obtain instructions from therespondents as to the relevant dates on which the acquisitionprocess was pursued including the date on which possession ofthe land was taken and whether 80% of the estimatedcompensation amount was tendered and paid to the petitioner. On 20.11.2006 the 1[st] respondent was directed to file a counteraffidavit inter alia spelling out the disciplinary proceedings, ifany, initiated or proposed to be initiated against the person orpersons responsible for failing to tender/deposit 80% of theestimated compensation amount as mandated u/Sec.17 of theAct in view of the advance possession taken.

The counter affidavit of the 1[st] respondent (filed on28.11.2006) is conspicuously, perhaps consciously silent on theaspect whether disciplinary action was initiated by the State orthe 1[st] respondent for the blatant transgression of the mandateof Sec. 17(3-A) of the Act.

Sec.17 sets out the special powers available in cases ofurgency. Sec.17(1) enacts that in cases of urgency wheneverthe Government or the District Collector directs, the Collector,though no award has been made, on the expiration of fifteendays from the publication of the notice mentioned in Sec.9(1), may take possession of any land needed for a public purpose,whereupon the land vests absolutely in the State free of from allencumbrances.

Sec.17 (3-A) mandates that before taking possession ofany land u/Sec.17(1) or (2), the Collector shall tender paymentof eighty per cent of the compensation for such land (asestimated by him) to the persons interested and entitled thereto,and shall pay it to them, unless prevented by one or more of thecontingencies mentioned in Sec.31(2). Even where the contingencies specified in Sec.31(2) exist, the Collector isrequired t confirm to the requirement of Sec.31(2).

It is not the case of the State that the contingenciesspecified in Sec.31(2) of the Act were prevalent. The 1[st]respondent was thus under a legal obligation to tender and payto the petitioner and to other land owners, 80% of the estimatedcompensation amount, before taking possession of the land.

On admitted facts, advance possession of the land wastaken on 20.3.2004 without tender or payment (to the landowners including the petitioner), 80% of the estimatedcompensation. There is no explanation in the counter affidavitwhat circumstances impelled the State and the 1[st] respondentto violate the clear and express legislative mandate. Thisgrossly illegal State conduct is compounded by the silence inthe counter to offer an explanation or set out a legitimatejustification for the transgression by the State and theconcerned State actors.

Under Sec.17(4) of the Act, in case of any land to which,in the opinion of the appropriate Government, the provisions ofsub-sections (1) or (2) [of Sec.17] are applicable, suchGovernment may direct that the provisions of Sec.5A shall notapply and if so directed, a declaration may be made u/Sec.6 inrespect of land, at any time after the date of the publication ofthe notification u/Sec.4(1). In the case on hand urgency wasinvoked and a direction was issued by the 1[st] respondent thatprovisions of Sec.5A would not apply. Consequently enquiryu/Sec.5A was dispensed with and a declaration u/Sec.6 wasissued and notified in the Gazette on 14.11.2003.

If urgency had not been invoked under Section 17, theState could not have taken possession of the land prior to thepassing of the award (in view of the provisions of Section 16).

The provisions of Sec.17(3-A) which require the State orthe Collector, as the case may be, to estimate the amount ofcompensation payable for the land so acquired (exercisingemergency powers) and to tender and pay 80% of the suchestimated compensation to the persons interested, is an integralcomponent of the package of emergency powers u/Sec.17. Thelegislative purposes underlying this urgency schematic of theAct is to enable persons who are dispossessed of their land (inexercise of the powers of eminent domain of the State and indeviation of the normal process of divestiture following upon thepassing of the award), is to enable them to get at least 80% ofthe estimated compensation amount payable for theirsustenance till the process of acquisition is concluded in thefullness of time. Invoking emergency powers without complyingwith the statutory obligation (to pay/tender 80% of the estimatedcompensation) is a State conduct of extreme depravity and is agross illegality.

Since the possession was taken after an invocation ofurgency (on 14.11.2003 by the Notification u/Sec.4(1) with asimultaneous notification of the Declaration u/Sec.6 of evendate), on 20.3.2004, more than 5 months after the declaration ofurgency, the conclusion is compelling that there was no urgencyto begin with, since at best 30 or 45 days are required toconclude even a ritual of an inquiry u/Sec.5A. At any rate aperiod of 5 months would have been extravagantly ample byany standard to conduct an enquiry u/Sec.5A to its conclusion. Nevertheless with zeal overtaking rational requirement aritualistic invocation of urgency was made and advancepossession taken leisurely on 20.3.2004. Since 20.3.2004 tillthe filing of the writ petition on 12.10.2006 the provisions ofSec.17(3-A) of the Act were not complied with and 80% of the estimated compensation has not been tendered to thepetitioner. The 1[st] respondent’s counter is silent as to whysuch deposit was not made. It is represented by the learnedGovernment Pleader for Land Acquisition that 80% of theestimated compensation has been deposited in the Civil Courton 19.11.2006 pursuant to an interim order of this court dated18.11.2006.

Defending the relief sought in the writ petition therespondents contend that even if 80% of the estimatedcompensation was not paid (as mandated by Sec.17(3-A) of theAct), the notification u/Sec. 4(1) and the acquisition isnevertheless valid. Reliance for this position is placed on adecision of the Supreme Court in Satendra Prasad Jain andothers v State of U.P. and others ([[1]]). The factual substrate ofthis judgment, in the context of the observations made in para-16 of the AIR report (on which reliance is placed) must beconsidered. This is so since “Every judgment must be read asapplicable to the particular facts proved or assumed to beproved, since the generality of the expressions which may befound there are not intended to be expositions of the whole lawbut govern and are qualified by the particular facts of the case in”which such expressions are to be found ([[2]]).

The land of the appellants (before the Supreme Court)was proposed for notification. The Notification u/Sec.4(1) wasissued on 29.7.1986; urgency u/Sec. 17(4) was invoked andinquiry u/Sec.5A dispensed with. On 24.10.1986 Sec. 6Declaration was issued. Sec. 9(1) notice was published on2.11.1986. The appellant assailed the acquisition proceedingsby a writ in Allahabad High Court. The writ petition wasdismissed on 19.1.1987. Acquisition proceedings were up held

up holding the invocation of urgency. On 27.2.1987 possessionof the land was taken by the respondents 1 and 2 from theappellants and handed over to the 3[rd] respondent, thebeneficiary (the requisition department). A SLP filed by theappellants against the judgment of the High Court wasdismissed on 19.4.1987. On 13.1.1989 the requisitiondepartment resolved to exclude from acquisition the land of theappellants on account of inadequate funds with it and for otherstrategic reasons. On 10.8.1989 the appellants filed a writpetition seeking compensation for the lands that were proposedfor acquisition and advance possession taken. The petitionerssought a direction to the respondents to publish an award. On27.6.1990 the LAO wrote to the requisitioning respondent thatcompensation for the purpose of making award had beenclaimed from the 3[rd] respondent but the said respondent had notmade the amount available and therefore the period of twoyears having expired on 18.1.1989 (excluding the time of staygranted in the earlier litigation) the acquisition has lapsed. On8.2.1991 the Allahabad High Court dismissed the writ petitionupholding the contention on behalf of the State Agency that inview of the provisions of Sec.11A of the Act the acquisition haslapsed on expiry of period of more than 2 years since the date ofdeclaration u/Sec.6 and that the fact of mere possession hasbeen taken pursuant to Sec.17(1) would not disapply theprovisions of Sec.11A. Here was the fact situation where theowner of the land was not assailing the acquisition. He wantedthe acquisition to proceed to its normative conclusion of passingof an award as he had already been dispossessed. 80% of theestimated compensation amount was not tendered or paid to theappellants. The observations in paras 14 to 16 are recordedafter an analysis of the scheme of the provisions of the Act relating to invocation of urgency and taking of possessionoutside the normal procedure u/Sec. 11 and 12 of the Act. Theobservations by the Supreme Court in the factual contextrecorded to above are set out in paras 14 to 16 and read as under:

“(14) Ordinarily, the Government can take possession of theland proposed to be acquired only after an award ofcompensation in respect thereof has been made underSection 11. Upon the taking of possession the land vests inthe Government, that is to say, the owner of the land loses tothe Government the title to it. This is what Section 16 states. The provisions of Section 11-A are intended to benefit the landowner and ensure that the award is made within a period oftwo years from the date of the Section 6 declaration. In theordinary case, therefore, when Government fails to make anaward within two years of the declaration under Section 6, theland has still not vested in the Government and its titleremains with the owner, the acquisition proceedings are stillpending and, by virtue of the provisions of Section 11-A,lapse. When Section 17(1) is applied by reason of urgency,Government takes possession of the land prior to the makingof the award under Section 11 and thereupon the owner isdivested of the title to the land which is vested in theGovernment. Section 17(1) states so in unmistakable terms. Clearly, Section 11-A can have no application to cases ofacquisitions under Section 17 because the lands have alreadyvested in the Government and there is no provision in the saidAct by which land statutorily vested in the Government canrevert to the owner.

(15) Further, Section 17(3-A) postulates that the owner will beoffered an amount equivalent to 80 per cent of the estimatedcompensation for the land before the Government takespossession of it under Section 17(1). Section 11-A cannot beso construed as to leave the Government holding title to theland without the obligation to determine compensation, makean award and pay to the owner the difference between theamount of the award and the amount of 80 per cent of theestimated compensation.

(16) In the instant case, even that 80 per cent of the estimatedcompensation was not paid to the appellants although Sec.17 (3-A) required that it should have been paid beforepossession of the said land was taken but that does not meanthat the possession was taken illegally or that the said land didnot thereupon vest in the 1[st] respondent. It is, at any rate, notopen to the third respondent, who, as the letter of the Special Land Acquisition Officer dated 27/-6/1990 shows, failed tomake the necessary monies available and who has been inoccupation of the said land ever since its possession wastaken, to urge that the possession was taken illegally and that,therefore, the said land has not vested in the first respondentand the first respondent is under no obligation to make anaward.”

The observations in paragraph-16 of Satyendra PrasadJain (1 supra) are significant. On facts, the requisitioningauthority – the 3[rd] respondent had pleaded that the acquisitionproceedings had lapsed. The decision does not lay down theprinciple that the provisions of Sec.17(3-A), (as to therequirement of payment of 80% of the estimated compensation),is merely indicative and not mandatory. The Apex Court did notcountenance the stand of a defaulting party who had occupiedthe land, refused to deposit the compensation amount and waspleading lapse of the acquisition proceedings. In the case onhand the petitioner landowner does not seek culmination of theacquisition proceedings. The petitioner is gravely prejudiced asthe respondents had fraudulently and without reasonable causeinvoked urgency where there was none, as is apparent fromtheir admitted conduct i.e., in not having taken possession of theland for over 5 months from the date of simultaneous publicationof the Notifications u/Secs. 4 and 6, on 14.11.2003. Thepossession was admittedly taken on 20.3.2004. He is alsoaggrieved that 80% of the estimated compensation amount asrequired to be tendered u/Sec.17(3-A) was not tendered andpaid to him or even deposited in the Civil Court, as mandated. There is also no explanation offered, why the award was notpassed for over 3 years since the notification u/Sec. 4(1)[14.11.2003]. Vague and jejune excuses are offered in thecounter viz., that some of the persons interested have not yet received the notices. Presumably the award will await till all thebeneficiaries walk into the offices of the respondents 1 to 3 andoffer their explanations and attend the award enquiry. This ishow the 1[st] respondent performs its obligations under the Act ina fact setting where urgency was invoked u/Sec.17 of the Act. The land owners are entitled to the economic fruits of thecompulsory acquisition of their property, within a reasonableperiod and during their lifetime.

The learned Government Pleader, faced with the piquantsituation of the irredeemable unlawful conduct of therespondents 1 to 3 at every stage of this acquisition, wouldhowever submit that it would not be in the over all public interestto invalidate the acquisition, on account of the delinquentconduct of a few State actors. According to the learnedGovernment Pleader it would have pejorative impact on thebeneficiaries. The learned Government Pleader however offersno defense to the inexplicable conduct of the respondents 1 to 3and does not attempt to harmonize the State action with theprovisions of the Act.

However, since the acquisition is for the benefit of theweaker sections and possession was taken on 20.3.2004 andthe writ petition filed more than 2 ½ years later on 20.10.2006,this court is not inclined to quash the acquisition though thiscourt is prima facie, satisfied that the invocation of urgency inthe fact situation is an unwarranted, irrational and colorableexercise of statutory power. Possession having been taken on20.3.2004 more than 5 months after the notifications u/Sec. 4(1)and 6 belay the urgency and invalidates the satisfactionrecorded for invoking urgency. However, since the petitionerhas not chosen to challenge the validity of the notification u/Sec.4(1) or the invocation of urgency, within a reasonable time after possession was taken on 20.3.2004, this court is not inclined toinvalidate the acquisition wholly.

The writ petition is in the circumstances, allowed directingthe 1[st] respondent to pass or cause to be passed the awardwithin thirty (30) days from today. As 80% of the estimatedcompensation amount, which ought to have beentendered/paid/deposited before possession was taken(emphasis) on 20.3.2004, (qua the mandate u/Sec. 17(3-A) of theAct); and as the respondents have violated the obligationenjoined by the Act and without just and reasonable cause andthereby caused prejudice and injury, this court considers itappropriate to impose costs of Rs.50,000/- (Rupees FiftyThousands only) on respondents 1 to 3, jointly and severally. Of this amount, Rs.10,000/- shall be paid to the petitioner andRs.40,000/- to the Secretary, AP State Legal Services Authority,Hyderabad, within four (4) weeks from the date of receipt of acopy of this order.

This court hopes and trusts that the appropriate level ofthe Government will identify the officers responsible for non-compliance with the mandatory provisions of Sec.17(3-A) of theAct and initiate appropriate proceedings against them to avoidrecurrence of such unlawful conduct. The State is also atliberty to identify the officers responsible and to take steps torecover the costs imposed herein from such officers, as it is theunlawful and wholly arbitrary conduct of State civil servantswhich has led to the injury to the petitioner, defiance of thelegislative mandate and consequently the imposition of thesecosts. The State shall not mulct the citizens with this avoidableexpenditure consequent on the mal-performance of publicofficials.

A copy of this order shall be communicated to the Chief Secretary to the Government of Andhra Pradesh, Hyderabad, forappropriate administrative consideration and action, in the lightof the observations recorded.

The writ petition is allowed as above with costs.

Dated: 22.12.2006 ------------------------LR copy to be marked: Yes/No JusticeG.Raghuram(B/o)pvsn [1]AIR 1993 SC 2517[2]Lord Halsbury in Quin v Leathem (1901) AC 495