THE HON'BLE Ms. JUSTICE G.ROHINI WRIT PETITION Nos.15904 AND 17535 OF 2010 Dated: 04.10.2010 IN WRIT PETITION No.15904 OF 2010 Between: 1. Chennuru Venkata Subba Reddy and 83 others. ..... PETITIONERS AND 1. The Govt. of A.P., rep. by its Secretary, Irrigation – LA Department, Secretariat, Hyderabad., and 4 others. .....RESPONDENTS IN WRIT PETITION No. 17535 OF 2010 Between: 1. Gajjala Obulamma and 282 others. ..... PETITIONERS AND 1. The Govt. of A.P., rep. by its Secretary, Irrigation – LA Department, Secretariat, Hyderabad., and 4 others. .....RESPONDENTS THE HON’BLE Ms. JUSTICE G.ROHINI WRIT PETITION Nos. 15904 AND 17535 OF 2010 COMMON ORDER: These two writ petitions are filed seeking a declaration that the action of the respondents in not awarding the additional market value of 12% on the value of structures acquired under award No.1/2009-10, dated 25.04.2009 passed by the 4th respondent, is arbitrary and illegal. By notification dated 20.04.2007 published under Section 4(1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) all the structures in Gundavolu, Kollapanaidupalli and Regadapalli villages were acquired for foreshore submersion of Kandaleru reservoir under Telugu Ganga Project. The petitioners in these two writ petitions are residents of Kollapanaidupalli village and it is not in dispute that their structures were also acquired under the above said notification. It is also not in dispute that the houses/structures of the petitioners were constructed on the land classified as village site poramboke/Government property. Thus the petitioners are entitled for compensation only in respect of the structures. After conducting the necessary enquiry, the 4th respondent- Special Deputy Collector made an award under Section 11 of the Act vide Award No.1/2009-10, dated 25.04.2009, determining the compensation to which the petitioners are entitled to and awarding 30% solatium under Section 23 (2) of the Act. However the 4th respondent did not award the additional market value as provided under Section 23(1- A) of the Act, observing that as per Government Memo, dated 14.6.2002, no additional market value shall be allowed in respect of the structures existing on village site poramboke. Aggrieved by the same, the petitioners approached the Government seeking redressal of their grievance. Having considered the same, vide proceedings dated 07.08.2009, the 2nd respondent recommended for payment of the additional market value under Section 23(1-A) of the Act. Pursuant thereto, the 4th respondent vide letter dated 13.11.2009 sought the requisite permission from the 1st respondent for payment of the additional market value to the petitioners. However, the 1st respondent by Memo dated 04.03.2010 informed the respondents 2 to 4 that as the land belonged to the Government, except exgratia for the structures, the petitioners were not entitled to compensation or additional market value under Section 23(1-A) of the Act. Hence these two writ petitions seeking a declaration that the action of the respondents in not awarding the additional market value under Section 23 (1-A) of the Act is arbitrary and illegal. In the counter-affidavit filed on behalf of the respondents 3 and 4, it is stated that as per the instructions issued in Government Memo dated 14.6.2002 no payment under the Land Acquisition Act shall be made for the land classified as Village Site Poramboke as the underlying principle is that the village site poramboke is Government property. As the petitioners are the owners of the structure only, they are eligible for exgratia and they are not entitled for payment of the compensation under the provisions of the Land Acquisition Act. It is further stated that as per the Government Memo dated 26.4.2001 the exgratia has to be paid to the genuine structures existing in the land as on the date of the notifications and no compensation shall be payable under the provisions of the Land Acquisition Act. Basing on the said Government Memos, the amount payable to the owners of the structures was decided and accordingly Award No.1/2009-10, dated 25.4.2009 was passed. It is also contended that as the petitioners filed applications under Section 18 of the Land Acquisition Act seeking reference not only for enhancement of compensation but also for payment of 12% additional market value under Section 23 (1-A) of the Land Acquisition Act and the references are pending as LAOP.No.7/2010 and LAOP.Nos.6, 8, 13 & 14 of 2010 respectively on the file of the Court of the Senior Civil Judge, Kovur, Sri Potti Sreeramulu Nellore District, it is not open to the petitioners to invoke the jurisdiction under Article 226 of the Constitution of India for the very same relief. I have heard the learned Senior Counsel Sri D.Prakash Reddy appearing for the petitioners and the learned Government Pleader for Land Acquisition appearing for the respondents. It is not in dispute that the land in question is classified as village site poramboke and the claim of the petitioners is only for the value of the structures raised thereon. As the definition of land under Section 3 (a) of the Land Acquisition Act, 1894 includes things attached to the earth or permanently fastened to anything attached to the earth, there can be no dispute that the petitioners are entitled to receive compensation under the Act for the structures acquired. Thus the structures were rightly notified under Section 4 (1) and the compensation payable was determined in accordance with the provisions of the Land Acquisition Act. The solatium under Section 23(2) of the Act was also granted in the award itself. However, the additional market value under Section 23 (1-A) of the Land Acquisition Act, 1894 was not awarded on an erroneous assumption that except exgratia, no compensation can be paid towards the value of the structures. The 4th respondent had arrived at the said conclusion on the basis of the Government instructions vide Memo No.43082/LA(A2)/2000, Revenue (LA) Department, dated 26.4.2001 and Memo No. No.11496/TGP.II(2)/2002- 03, Irrigation & CAD (Project Wing) Department, dated 14.6.2002. A perusal of the said Memos dated 14.6.2002 and 26.4.2001 shows that for the structures raised on the village site poramboke which came under submergence under Telugu Ganga Project, proceedings under the Land Acquisition Act were initiated for acquisition of the structures and compensation was paid in terms of the provisions of the Land Acquisition Act for the structures. Though in the Memo dated 26.4.2001 the Land Acquisition Officers were directed to pay only exgratia to the genuine structures existing in the land as on the date of the notification, subsequently a fresh decision was taken by the Government vide Memo dated 14.6.2002 for payment of compensation under the Land Acquisition Act for the structures by initiating the proceedings under the Land Acquisition Act, 1894 and specific instructions were accordingly issued to the Special Collector, Telugu Ganga Project, Nellore – the 3rd respondent herein. Apparently the acquisition proceedings were initiated in the instant case in terms of Memo dated 14.6.2002. As a matter of fact, the 4th respondent in the award dated 25.4.2009 had also referred to Government Memo dated 14.6.2002 under which the 3rd respondent was instructed to issue a notification under the Land Acquisition Act for the structures coming under submergence. Strangely, the 4th respondent while ignoring the Memo dated 14.6.2002 had chosen to rely upon the Memo dated 26.4.2001 which is not in operation. Hence, on the face of it, the action of the 4th respondent in rejecting the additional market value to the petitioners while passing the Award dated 25.4.2009 is arbitrary and illegal and the respondents 1 to 3 are not justified in not considering the request of the petitioners for extending the said benefit. However, the learned Government Pleader while submitting that the petitioners have already sought reference under Section 18 of the Land Acquisition Act and that the question of their entitlement to the additional market value is the subject-matter of LAOP.No.7/2010 and LAOP.Nos.6, 8, 13 & 14 of 2010 pending on the file of the Civil Court, vehemently contended that the petitioners cannot be permitted to invoke the jurisdiction under Article 226 of the Constitution of India by way of parallel proceedings. The learned Government Pleader further contended that the Land Acquisition Act, being a complete code laying down a detailed procedure for acquisition of land and payment of compensation including solatium and additional market value, the petitioners are bound to avail the remedy under the Land Acquisition Act for redressal of their grievance. It is contended that without exhausting the statutory remedy available under Section 18 of the Act, the petitioners cannot be permitted to approach this Court. In support of the said submission, the learned Government Pleader relied upon the decisions of the Supreme Court in GOVT. OF A.P. v. KOLUTLA OBI REDDY[1] and DDA v. MAHENDER SINGH[2]. The law is well-settled that there is no absolute bar as such for exercising the discretionary powers under Article 226 of the Constitution of India and in appropriate cases, particularly when no disputed questions of fact are involved, it is always open to this Court to grant the relief notwithstanding the availability of the alternative remedy. The question with regard to the entitlement of the petitioners to the statutory benefits being a pure question of law, I am of the considered opinion that the pendency of the O.Ps. before the competent Civil Court is not a bar to grant the relief in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The decisions cited by the learned Government Pleader in which it was held that the High Court ought not to have entertained the writ petitions while the reference in terms of Section 18 of the Act was pending are distinguishable on facts and have no relevance to the facts and circumstances of the cases on hand. For the aforesaid reasons, the Writ Petitions are disposed of declaring that the petitioners herein are entitled to receive additional market value under Section 23 (1-A) of the Land Acquisition Act under Award No.1/2009-10, dated 25.4.2009 on the file of the 4th respondent and with a direction to the respondents to pay the same to the petitioners as expeditiously as possible preferably within a period of three months from the date of receipt of this order. No costs. ____________ G. ROHINI, J Dt. 04.10.2010 Note:- CC in one week. (B/O) gbs [1] (2005) 6 SCC 493 [2] (2009) 5 SCC 339