HON’BLE SRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SRI JUSTSICE G. BHAVANI PRASAD W.A. NO.172 OF 2006 Between: M. Anjaiah … Appellant/Petitioner And The Government of Andhra Pradesh rep. by its Principal Secretary to Government, Revenue (Assignment-III) Department, Secretariat Buildings, Hyderabad and five others … Respondents :: JUDGMENT :: Counsel for the appellant/petitioner: Sri O. Manohar Reddy Counsel for respondents : Government Pleader for Revenue 17th FEBRUARY, 2006 Per G. Bhavani Prasad, J Feeling aggrieved by order dated 1-2-2006 passed by the learned Single Judge whereby he dismissed Writ Petition No.10215 of 2005 filed by him questioning the acquisition of his land, the appellant has filed this appeal. The factual background leading to this appeal is that the petitioner-appellant is the owner of the premises No.13-6-790, consisting of a residential house admeasuring 400 square yards and saw mill admeasuring 514 square yards at Sangam, Langer House, Gudimalkapur, Golconda Mandal, Hyderabad. The State Government issued a notification under Section 4(1) of the Land Acquisition Act, 1894 (for short “the Act”), published in A.P. Gazette dated 14- 11-1996, proposing to acquire 6766 square metres of land including the property of the appellant. A declaration under Section 6 of the Act was published in A.P. Gazette dated 09-12-1997. The appellant questioned the notification under Section 4(1) of the Act in W.P. No.751 of 1998, which was disposed of by this Court on 02-12-2002 in the following manner: “It is represented that on passing the award, the petitioner made a representation, dated 19-7-2002 that if the authorities allot him a suitable land equivalent to his acquired land, he is ready to give possession of above said land in exchange. The said offer made by the petitioner was favourably considered and the Revenue Divisional Officer, Hyderabad Division through his letter No.G/13069/98, dated 07-8-2002 addressed to the Collector, Hyderabad District submitted proposals to allot alternative site to the applicant out of the vacant Government land of Ac.20-10 guntas of Ibrahimbagh village of Golconda Mandal. In view of the same, when once the authorities have agreed to allot alternative site, this Court is not inclined to go into the validity or otherwise of the impugned notification issued. However, if the authorities fail to honour the commitment, namely, allotting alternative site equivalent to the land acquired by the respondent, it is open for the petitioner to question the same before the appropriate forum. This Court hopes that the District Collector will consider the case of the petitioner as recommended by the Revenue Divisional Officer, Hyderabad Division, dated 07-8-2002, quietus to the litigation, within two months from the date of receipt of a copy of the order. The writ petition is accordingly, disposed of. No costs.” However, vide Memo dated 25-1-2003, Special Deputy Collector, Land Acquisition (General), Hyderabad (respondent No.5) rejected the appellant’s prayer for alternative site. The relevant extracts of that Memo are as under: “In pursuance of the orders of the Hon’ble High Court dated 02-12-2002 in this specific case for allotment of alternative land in lieu of land acquired to an extent of 914 square yards in T.S.No.6/1 of Guddimalkapur (Vg), Hyderabad and the application of Sri M. Anjaiah, S/o Mallaiah, dated 19-7-2002. The Revenue Divisional Officer, Hyderabad requested the Collector, Hyderabad to consider the allotment of alternative land dated 07-8-2002 is verified with reference to the provisions of the LA Act, 1894 and amended Act, 1984 and Award proceedings No.C1/669/96, dated 01-02-2000 of LA (Benl) Hyderabad. The Court in its judgment only taking the cognizance of the recommendations of the RDO has disposed the writ petition directing the respondents to consider the plea of the petitioner. On perusal of the Award proceedings the land of the petitioner was acquired on par with 24 other awardees and matter was referred to the Civil Court U/s. 30 & 31(2) of LA Act and amount of compensation to the extent of acquired land held by them including the writ petitioner was deposited in the Civil Court U/s. 31(2) of LA Act for adjudication. As there is no provision in the LA Act for providing alternative land in lieu of the land acquired and this instant case can be precedent to all other LA cases to come up with the same plea therefore needs no consideration and accordingly his request for providing alternative land is rejected.” The appellant filed Writ Petition No.2098 of 2003 against the aforesaid Memo, but withdrew the same with liberty to file fresh one. In the subsequent writ petition, which was registered as Writ Petition No.10215 of 2005, the appellant pleaded that the failure of the respondents to allot alternative site to him is illegal and is contrary to the undertaking given before the Court in Writ Petition No.751 of 1998. He relied on G.O.Ms.No.678 dated 17-10-2001 issued by the State Government for allotment of alternative land admeasuring 871 square metres (2100 square yards) in T.S.No.2, Block-A, Ward No.9 of Shaikpet Village and Mandal, Hyderabad District in favour of Lt.Col. D.N. Sharma and Dr. Vikram Sharma in lieu of their Plot Nos.13-6-785/A/10 and 11 at Sangam, Langer House acquired by the Government for the development of Bapu Ghat and to withdraw the amount of compensation deposited in O.P. No.9 of 1997 and averred that even though his case is similar to those of Lt.Col.D.N.Sharma and Dr.Vikram Sharma, the respondents have arbitrarily refused to allot alternative site. In the counter filed by him, respondent No.5 averred that he had rejected the appellant’s claim for alternative site in view of letter No.C3/3208/94 dated 18-1-2003 issued by Collector, Hyderabad. According to respondent No.5, there is no provision in the Land Acquisition Act, 1894 for allotment of alternative land in lieu of the acquired land and the appellant is free to receive compensation. The learned Single Judge in the impugned order traced the events leading to the writ petition and the pleadings and submissions therein noting that the award for payment of compensation had already been passed before the decision of Writ Petition No.751 of 1998 and held that the petitioner (appellant herein) is not entitled to alternative site as of right and a writ in the nature of mandamus cannot be issued directing the respondents to allot alternative land to him. Sri O. Manohar Reddy, learned counsel for the appellant argued that the failure of the respondents to allot alternative land to his client is not only violative of the assurance given before this Court in Writ Petition No.751 of 1998, but is also discriminatory and violative of his fundamental right to equality guaranteed under Article 14 of the Constitution. Learned Government Pleader for Revenue supported the order of the learned Single Judge and argued that the appellant is not entitled to alternative land because there is no provision in the Act for allotment of such land. He further argued that the limited right available to the appellant is to seek compensation in lieu of the acquisition of his land and the respondents are always ready and willing to pay compensation in terms of the award passed by the competent authority. We have considered the respective submissions and perused the record. The concept of providing alternative land to the person interested in lieu of the land acquired is not alien or strange to the Land Acquisition Act. Sub-Sections (3) and (4) of Section 31 of the Act specifically provide as under: “(3) Notwithstanding anything in this section, the Collector, may, with the sanction of the appropriate Government instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.” The Apex Court in State of U.P. v. Pista Devi, commended Section 21(2) of Delhi Development Act, 1957, which provided for an opportunity to the persons who are living or carrying on business or other activities on the acquired land to obtain thereon accommodation suitable to their requirements on terms settled with and the requirements of the authority concerned and observed as follows: “We are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purposes of land development in urban areas. We hope and trust that the Meerut Development Authority, for whose benefit the land in question has been acquired, will as far as practicable provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question.” In respect of acquisition of the lands in Nagarjunasagar Project area, the Nagarjunasagar Project (Acquisition of Land) Act, 1956 (A.P. Act No. XXXII of 1956) substituted clause first in Section 23(1) of the Act in respect of the acquisition of any land in the project area for a project purpose incorporating the following explanation. “Explanation:- The Government may, on the request of the landowner, agree to give in exchange any Government land the cost of which is, in their opinion, equal to the cost of the land acquired, or agree to pay the cost of a portion of the land acquired and for the remaining portion give Government land the cost of which is in their opinion equal to the amount due.” A similar substitution incorporating an identical explanation was made under the Visakhapatnam Steel Project (Acquisition of Land) Act XX of 1972 also. The legality and constitutionality of such an explanation as such was not doubted or challenged in any case in which the amended provisions introduced by the said two Acts were under challenge. (For instance, a reference may be made to K. Rangaiah v. Government of Andhra Pradesh). Even in K. Jayaramaiah Chetty v. Spl. Dy. Collector and L.A.O., the learned Single Judge while negativing the claim of a tenant of the acquired land for alternative site, did not interfere with the allotment of alternative sites to the owners whose lands were acquired or to the encroachers who were evicted. The question of power of the Trust Board of Tirumala-Tirupati Devasthanams to do so was left open. Though it was held that “the tenant or the owner who is forced to change the residence because of acquisition cannot, as a matter of right, claim alternative site or alternative shop or alternative residential premises and such a claim would be ex facie contrary to the provisions of the Act”, the resolutions of the Board of Trustees of Tirumala-Tirupati Devasthanams to allot alternative shops to the owners and alternative site to Mutt whose lands were acquired, were not interfered with. As the lessor was already awarded compensation in accordance with the provisions of the Act, the lessee was held not entitled to claim any other benefit which is not provided for under the provisions of the Act. Sub-Sections (3) and (4) of Section 31 of the Act were not under consideration before the learned Single Judge. Section 31(3) of the Act positively authorizes the Collector, of course, with the sanction of the appropriate Government, to make any arrangement either by grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. While Section 31(3) of the Act limits the scope of such arrangement to be with a person having limited interest in such land, Section 31(4) of the Act makes it clear that nothing in Sub-Section (3) of Section 31 of the Act shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof. That power was interpreted to be available not only before but also after the award, vide The land Acquisition Officer v. J. Sambasiva Rao. The letter No.G/13069/98, dated 07-8-2002 from the Revenue Divisional Officer, Hyderabad Division proposing to allot alternative site to the petitioner was thus within the scope and ambit of the provisions of the Land Acquisition Act. The Revenue Divisional Officer referred to the report of the Mandal Revenue Officer, Golconda in Lr.No.C/337/94, dated 22-07-2002, about the availability of Government poramboke vacant land to be exchanged for the land acquired. From the impugned letter of the Special Deputy Collector, Land Acquisition (General), Hyderabad, No.C1/669/96, dated 25-01-2003, it is clear that the proposal was refused to be considered and the request for providing alternative land was rejected only on the premise that there is no provision in the Land Acquisition Act for providing alternative land in lieu of the land acquired and due to fear that the same can become a precedent in future cases. As already stated, the claim that there is no such provision in the Land Acquisition Act is not correct. The authorities have to consider each such request or proposal on merits in accordance with law on the facts and circumstances of each case and cannot refuse to exercise their jurisdiction by an omnibus statement that one case can be a precedent to all other cases. The impugned proceedings noted that the order of this Court in W.P. No.751 of 1998, dated 02-12-2002 was only on taking cognizance of the recommendations of the Revenue Divisional Officer and having persuaded the Court to pass such an order on the strength of such promise, it is not just, legal or equitable for the authorities to go back from the same. This Court considered the proposal of the Revenue Divisional Officer as favourable consideration of the offer made by the petitioner and a commitment which will be positively considered putting a quietus to the litigation, as seen from the order dated 02-12-2002 in W.P. No.751 of 1998, and now making light of the Court taking cognizance of the recommendations of the Revenue Divisional Officer, is impermissible. This Court specifically gave liberty to the petitioner to question any failure to honour the commitment. In G.O.Ms.No.678 Revenue (Assignment-II) Department, dated 17-10-2001, the Government favourably responded to the representation of Lt.Col. D.N. Sharma and his son Dr. Vikram Sharma for allotment of alternative Government land instead of monetary compensation for two plots bearing Nos.13-6-785/A/10 and 11 at Sangam, Langer House for the same purpose of development of Bapu Ghat, for which the property of the petitioner was acquired. The Government agreed in principle for the request and obtained proposals from the Collector, Hyderabad for allotment of alternative land which was endorsed by the Special Chief Secretary and Chief Commissioner of Land Administration. Though, thereafter the Government initially directed to take action for payment of compensation in cash according to the award passed by the Land Acquisition Officer, again on a representation from the two interested persons it considered it to be reasonable to allot alternative land in lieu of the land acquired, and accordingly allotted the same, directing the Collector to withdraw the compensation already deposited in O.P. No.9 of 1997 on the file of the I Additional Judge, City Civil Court, Hyderabad. Thus, in respect of the acquisition for the same purpose, the Government provided alternative land to the persons interested much later to the award of the Land Acquisition Officer and deposit of compensation amount into the Court. Ex facie, the petitioner is similarly situated and there appears no prima facie justification to extend a differential treatment to identically placed persons without any explicable or justifiable reasons for making the distinction and discrimination. This aspect of the matter, though canvassed, was not considered and determined by the learned Single Judge. The question whether such differential treatment meted out to the petitioner has any justifiable basis, could not have been left undetermined. Similarly, the issue whether the respondents are estopped by their conduct from rejecting the plea of the petitioner for providing alternative land, should not have also been left undecided. Acceptance of the request of the petitioner for providing alternative land is very much feasible, as seen from the letters of the Mandal Revenue Officer, dated 22-7-2002 and the Revenue Divisional Officer, dated 07-8-2002, the only reason assigned for not considering the same being the absence of any provision in the Land Acquisition Act. In our opinion, omission of the learned Single Judge to consider the aforesaid aspect of the matter has resulted in substantial failure of justice and, therefore, the matter deserves to be remitted to the Single Bench. In the result, the appeal is allowed. The order of the learned Single Judge is set aside. The writ petition now be listed for fresh adjudication before the learned Single Judge. W.A.M.P. No.356 of 2006 for interim direction is dismissed as infructuous. G. BHAVANI PRASAD, J 17th February, 2006 G.S. SINGHVI, C.J. Svv / svs