IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.26373 of 2008 Between: Nagam Veera Reddy and 66 others ..... PETITIONERS AND The Government of Andhra Pradesh, Rep. By its Secretary, Irrigation & CAD Department, Secretariat, Hyderabad and two others .....RESPONDENTS ORDER: This court issued rule nisi on 03-12-2008. Counter affidavit had filed by the third respondent on behalf of all the respondents. 2. The writ petitioners filed the present writ petition praying for the issuance of a writ of Mandamus declaring the inaction of the respondents in not paying interest for the house properties of the petitioners situated in Reach No.I of Bandarupalli Village, H/o.Kudamalur Village, Vontimitta Mandal, Kadapa District acquired under the notification published on 17-09-2002 to the petitioners in terms of Section 34 of the Land Acquisition Act from the date of taking possession of their properties on 29-09-1999 till the date of the award No.1/2003-04 dated 31-12-2003 and in not paying 50% incentive as provided under G.O.Rt.No.484, Irrigation & CAD (Project wing/TGP.II/A-2, Department dated 26-06-2003 as illegal, arbitrary, unjust and violative of the provisions of the Land Acquisition Act and also offends Articles 14 and 300-A of the Constitution of India and direct the respondents to pay interest on the amount of compensation including solatium and additional market value at the rate of 9% for the 1st year and at 15% thereafter from the date of taking possession on 29-09-1999 till the date of the award No.1/2003-04 dated 31-12-2003 and pass such other suitable orders. 3. Sri P. Sridhar Reddy representing the writ petitioners had taken this court through the contents of the affidavit filed in support of the writ petition and also the counter affidavit and would maintain that in the light of clear mention that the payment of interest does not arise under Section 34 of Land Acquisition Act, hereinafter referred in short as ‘the Act’ for the purpose of convenience, the respondents are bound to pay interest from the date of taking possession and in this view of the matter the petitioners are entitled to the said interest. The learned counsel in all fairness further submitted that as far as non-payment of 50% incentive is considered, in the light of the elaborate stand taken in the counter affidavit that portion of the relief is being given up. 4. Per contra the learned AGP for Land Acquisition had taken this court through the contents of the counter affidavit and also pointed out to the specific stand taken in para 6 of the counter affidavit and would maintain that in the light of the same, the question of paying any further incentive would not arise. The learned AGP for Land Acquisition also would maintain that it is true that for the relevant period the interest had not been paid, which is from the date of taking possession. However, since this aspect was not considered, let the respondents reconsider this issue in the light of the provisions of the Act. 5. Heard the counsel. Perused the averments made in the affidavit filed in support of the writ petition and also the averments made in the counter affidavit and the other material placed before this court. 6. The relief prayed for by the writ petitioners already had been specified supra. The petitioners were the permanent residents of Bandarupalli village, H/o.Kudumuluru, Vontimitta Mandal, Kadapa District. The petitioners were eking out their livelihood by personally cultivating the small extent of land owned by them. While so, the Government published a notification in the A.P. State gazette dated 28-12-1994 under Section 4(i) of the Act acquiring the land and house properties of the petitioners situated in Reach No.I of Bandarupalli Village for foreshore submersion of Somasila project. By invoking the urgency clause under Section 17(4) of the Act, the enquiry under Section 5-A was dispensed with. 7. It is further averred that the declaration dated 07-04-1995 was published by the Government in A.P. State Gazette on 09-04-1995 under Section 6 of the Act. The then Special Collector, Telugu Ganga Project presently re-designated as the Special Collector, GNSS, Kadapa addressed D.O.Rc.C2/1580/1999 dated 11-09-1999 directing the Special Deputy Collector, Telugu Ganga Project, Nellore at Rajampet, who was the Land Acquisition Officer and presently the Special Deputy Collector, Somasila project, Kadapa while referring to Government memo dated 30-03-1999 stating that wherever notifications are issued invoking under Section 17 of the Act for not passing award within the stipulated time under Section 11-A of the Act, the proceedings would not lapse and Award can be passed basing on the said notification. Therefore, an Award bearing No.2/1999-2000 was passed on 19-02-2000. 8. It is also averred that despite the same no compensation was paid to the petitioners therein. Since the properties of the petitioners were situated at 315 contour level and they were liable for inundation in the foreshore area of the project, the petitioners were dispossessed on 29-10-1999 as per the proceedings of the office of the 3rd respondent in B/200/98 dated 29-10-1999 and the classification of the properties of the petitioners was changed as Somasila Project poramboke. The properties of the petitioners became submerged in the water-spread area of the project. Therefore, petitioners were constrained to migrate to Madhavarm-I Village in Siddavattam Mandal in Kadapa District. 9. It is also averred in para 4 that the 2nd respondent issued a fresh notification under Section 4(i) of the Act which was published in A.P. Gazette No.32/TGP/2002 dated 17-09-2002 for the very same properties belong to the petitioners. The declaration under Section 6 was issued in the proceedings of the 2nd respondent in Ref.C2/1468/2002 dated 05-10-2002 and published in two newspapers on 07-10-2002. In the notification the urgency clause under Section 17(4) of the Act was invoked and the enquiry under Section 5-A was dispensed with. 10. It is further averred that the Government constituted an empowered committee in G.O.Rt.No.553.I & CAD (TGP.II) Dept. Dated 02-08-2002 with the District Collector, Kadapa as a Chairmen and the Special Collector, Telugu Ganga Project as the Member Convener and the Superintending Engineer, Telugu Ganga Project Circle, Kadapa as a member to resolve all issues relating to the acquisition of lands in structures under Somasila Project. The empowered committee is required to explore the possibilities for acquiring the structures through consent award. The Government also issued G.O.Rt.No.484 I & CAD (P.W/TGP.II) department dated 16-05-2003 empowering the District Collector, Kadapa to arrive at suitable enhancement up to a maximum 50% to facilitate consent award. Pursuant there to the empowered committee held deliberations with the petitioners for passing a consent award. Petitioners agreed for the rates of valuation of their properties but insisted for payment of the statutory benefits including the 50% incentive for aggrieving for passing a consent award. 11. It is also further averred in para 6 that 3rd respondent who was appointed as the Land Acquisition Officer passed award No.1/2003-04 dated 31-12-2003. He also stated that surprisingly in the said award the 3rd respondent granted only 25% of the amount of compensation towards incentive instead of 50% as agreed upon. Apart from that the 3rd respondent failed to pay interest from the date of taking possession till the date of payment of compensation as provided under Section 34 of the Act. The petitioners are all illiterate persons and the 3rd respondent obtained their signatures on printed forms. The petitioners only accepted for the rates for the structures of the petitioners depending upon the nature of construction as mentioned in page 4 of the Award. It is also stated that the petitioners are entitled for all the statutory benefits like solatium, additional market value and interest as provided under Section 23 of the Act. Surprisingly in the award while calculating the compensation for the structures at the rates agreed upon and while adding solatium at 30% and additional market value at 12%, no interest was included in the compensation as evidenced in the Award. The petitioners were not allowed to record their protest on the ground that it was a consent Award. Therefore, the petitioners were constrained to make a representation dated 27-04-2004 to the 3rd respondent requesting him to pay the incentive at the rate of 50% and also to pay interest from the year 1997 when the award enquiry was conducted on the earlier occasion. The representation of the petitioners is not considered till date. 12. In such circumstances the present writ petition had been filed specifically raising certain grounds as well, as grounds No.i to vii i) The action of the respondents 2 and 3 in not paying the statutory benefits to the petitioners while passing the award is illegal, arbitrary and violative of the provisions of the Land Acquisition Act. ii) The respondents ought to have considered that the petitioners only accepted for the rates to be calculated for the structures of the petitioners. The respondents cannot take advantage of the illiteracy and ignorance of the petitioners and deny the statutory benefits to them while passing the award. iii) The respondents ought to have considered that their action while paying 12% of additional market value and 30% of solatium on the amount of compensation as prescribed under sub-sections 1-A and 2 of Section 23 of the Act, failed to pay interest at the rate of 9% from the date of taking possession till the date of payment for the 1st year and thereafter at the rate of 15% as prescribed under Section 34 of the Act. iv) It is settled law that compensation includes solatium and the additional market value and interest thereon as prescribed under Section 34. The inaction on the part of the respondents in paying interest from the date of taking possession i.e., from 29-10-1999 till the date of passing of award is illegal and it amounts to dispossessing the petitioners otherwise than in accordance with law and therefore, offending Article 300-A of the Constitution of India. v) The respondents ought to have paid the incentive at the rate of 50% as provided under G.O.Ms.No.484 dated 26-06-2003. vi) The respondents ought to have considered that under similar circumstances incentive at 50% of the compensation for those we have consented for passing a consent award under award No.58/07-08 dated 20-03- 2008 passed by the Special Deputy Collector (L.A.), Somasila Project, Atmakur. Hence, the action of the respondents 2 and 3 in not paying the incentive of 50% to the petitioners is clearly discriminatory offending Article 14 of the Constitution of India. vii) The respondent ought to have considered there is no question of waiver of statutory benefits in the guise of passing a consent award. 13. In the counter affidavit filed by the third respondent, on behalf of all the respondents, it is averred that the respondents had not taken advance possession of the house property in the petition and hence, the payment of interest under Section 34 of the Act does not arise. 14. It is also the case of the respondents that the Government issued G.O.Rt.No.484, I & CAD (PW/T.G.P.-II/A2) Dept dated 26-06-2003 permitting the District Collector, Kadapa to negotiate with the village community and to arrive at suitable enhancement up to a maximum of 50% to facilitate consent Award. It is also stated that Government vide G.O.Rt.No.802, I & CAD (PW-T.G.P.-II) Dept dated 30-10-2003, permitted that District Collector, Kadapa to finalize the consent award package by offering 25% enhancement over the estimated value of the structures following 2002-03 SSR Rates. Hence, it is not correct to say that the petitioners are entitled for 50% enhancement of Market value. 15. Further it is stated that originally 4(1) Notification for acquisition of residential houses of Bandarupalli village has been published in AP State Gazette dated 28-12-1994 and the Draft Declaration on 09-04-1995. It is also stated that as 2 years lapsed from the date of Draft Declaration, the Award could not be passed. It is not correct to say that wherever notifications are issued invoking urgency clause under Section 17 of the Act and Awards not passed within the stipulated time under Section 11(A) of the Act, the proceedings would not lapse and the Award can be passed basing on the said notification. It is further stated that, where advance possession has been taken prior to passing of Award, in such cases only, the 4(1) Notification will not lapse. The Draft Notification was got published vide AP Gazette No.32/T.G.P./2002 dated 17-09-2002 and the matter has been covered by the common orders of this Court in W.P.No.18583/2002 and batch dated 27-08-2003. 16. It is also the case of the respondents that it is a fact that fresh notification under Section 4(1) of the Act was published in AP Gazette No.32/T.G.P./2002 dated 17-09-2002 and the Declaration under Section 6 of the Act was also approved and published vide proceedings of the Special Collector, T.G.P., Nellore, since the L.A. Notification issued under Section 4(1) of the Act lapsed as Award could not be passed within two years of the date of Declaration. 17. It is also averred that it is a fact that, the Government constituted an empowered committee vide G.O.Rt.No.553, I & CAD (T.G.P.-II) Dept dated 02-08-2002 with the District Collector, Kadapa as a Chairman, as it came to the notice of the Government that certain unscrupulous elements are seeking to make illegal gain by constructing flimsy structures with material obtained by dubious mean in the hope that such structures would be acquired at a price far in- excess of their worth and thus, make unlawful gain to the detriment of public interest. 18. Further it is stated that the committee is constituted with functions: (1) Vet all requisitions which are to be notified (2) Convene meetings along with effected persons wherever needed (3) Ensure that the L.A. disbursement takes place well in time of the proposed submergence (4) All matters arising out of Somasila Land Acquisition. The Government also issued G.O.Rt.No.484, I & CAD (PW/T.G.P.-II/A2) Dept dated 26-06-2003 permitting the District Collector, Kadapa to negotiate with the village community and to arrive at suitable enhancement upto a maximum of 50% to facilitate consent Award. It is also stated that Government vide G.O.Rt.No.802, I & CAD (PW-T.G.P.-II) Dept dated 30-10-2003, permitted that District Collector, Kadapa to finalize the consent award package by offering 25% enhancement over the estimated value of the structures following 2002-03 SSR Rates. 19. Further it is stated that the District Collector and Chairman, District Empowered Committee, Kadapa held negotiations committee meetings on 20-07-2003 and offered a package as compensation to the structures under acquisition, internally valued with SSR rates of 2002-03, 30% Solatium and 12% Additional Market value in case of genuine structures, along with 25% enhancement of compensation amount. 20. It is also averred in para 7 that it is a fact that the 3rd respondent passed a consent Award No.1/2003-04 dated 31-12-2003 by paying package amount as agreed upon by the Awardees. It is further stated that the Government issued G.O.Rt.No.802, I & CAD (PW-T.G.P.-II) Dept dated 30-10-2003, permitting the District Collector, Kadapa to finalize the consent award package by offering 25% enhancement over the estimated value of the structure following 2002-03 SSR Rates. It is also stated that the petitioners filed WP.No.18583/2002 & batch and this Court on 27-08- 2003 directed the respondents to pay the awarded amount by the negotiation committee with the consent of Awardees within a period of 4 weeks after passing the Award. If any of the petitioners or others persons whose lands and structures are proposed to be acquired are not willing to accept consent awards all necessary steps under the Act shall be taken. It is further stated that the package amount had been paid after consent of the Awardees and it is not correct to say that as they are illiterates, 25% enhancement of compensation paid instead of 50% enhancement. It is further stated that no protest has been given by the Awardees at the time of taking payment. Hence, the respondents are not liable to pay the differential as claimed with interest and the claim of the petitioners’ stands to no reason. In such circumstances the dismissal of the writ petition had been prayed for. 21. Section 34 of Land Acquisition Act dealing with payment of interest reads as follows: “When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of (four per centum) per annum from the time of so taking possession until it shall have been so paid or deposited : Provided that where such possession is taken before the commencement of the Land Acquisition (Andhra Pradesh Amendment) Act, 1953, the foregoing provision shall have effect as if for the rate of four per centum per annum specified therein the rate of six per centum per annum had been substituted. Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.” 22. The specific case of the petitioners is that the petitioners are entitled to the statutory benefits inclusive of the 50% incentive and also the interest from the date of taking possession as per the provisions of Section 34 of the Act. No doubt, in the light of the elaborate stand taken in para 6 of the counter affidavit, the claim relating to the 50% incentive had been given up. It is also the case of the writ petitioners that the writ petitioners only accepted for the rates to be calculated for the structures of the petitioners and the respondents cannot take advantage of the illiteracy and ignorance of the petitioners and denied the statutory benefits while passing award. It is also the case of the writ petitioners that the respondents should have considered that their action while paying 12% additional market value and 30% solatium on the amount of compensation as prescribed under sub-Sections (1-A) and (2) of Section 23 of the Act, failed to pay interest at the rate of 9% p.a., from the date of taking possession till the date of payment for the 1st year and thereafter at the rate of 15% p.a., as prescribed by Section 34 of the Act. Section 34 of the Act already had been specified supra. 23. Specific stand had been taken related to the taking of possession in the affidavit filed in support of the writ petition. Whether the petitioners are entitled to 50% of incentive? This question need not be considered in elaboration for the reason that the counsel for the writ petitioners had given up that portion of the relief. 24. However, in the light of the clear language of Section 34 of the Act, there cannot be any doubt or controversy that the writ petitioners are entitled to interest on the amount of compensation including the solatium and additional market value at the rate of 9% p.a. for the first year and 15% p.a., thereafter from the date of taking possession on 29-09-1999 till the date of Award No.1/2003-04 dated 31-12-2003. It is needless to say that the respondents are bound to pay the said amount. Accordingly, the respondents are hereby directed to pay interest to the petitioners on the amount of compensation including solatium and market value @ 9% p.a. for the first year and 15% p.a. thereafter from taking possession on 29-09- 1999 till date of Award No.1/2003-04, dated 31-12-2003 within a period of eight weeks, from the date of receipt of a copy of this order. 25. Accordingly, the writ petition is allowed to the extent indicated above. No order as to costs. ___________________ P.S. NARAYANA, J September 11, 2009. PN/SMR THE HON'BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.26373 of 2008 September 11, 2009