IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 9894 of 1997 Between: Dhunji J.Mistry, S/o. J.D.Mistry. R/o. 5-9-324, Gunfoundry, Hderabad. ..... PETITIONER AND 1 District Collector, Nampally Road, Hyderabad. 2 Special Deputy Collector, Land Acquisition M.C.H., Municipal Corporation Officer, Lower Tank Bund Road, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more particularly a writ of Mandamus declaring the notification in Memo.No. D3/4157/93 dated 02/07/1993 declaration in Memo.No. D3/4157/93 dated 14/07/1994 and the award No.B/251/89 dated 31/01/1997 as illegal, arbitrary and unenforceable as being violative of Sections 4, 6, 11, 11-A of Land Acquisition Act and principles of natural justice and consequently set aside the same. Counsel for the Petitioner:MR.V.RAVINDER RAO Counsel for the Respondents : GP FOR LAND ACQUISITION The Court made the following : ORDER: The writ petitioner, Dhunji J.Mistry, had invoked the jurisdiction of this Court under Article 226 of the Constitution of India praying for issuance of a writ, order or direction more particularly a writ of mandamus declaring the notification in Memo No.D3/4157/93, dated 2-7-1993, declaration in Memo No.D3/4157/93 dated 14-7-1994 and Award No.B/251/89, dated 31-1-1997 as illegal, arbitrary and unenforceable as being violative of Sections 4, 5, 11 and 11-A of Land Acquisition Act and principles of natural justice and consequently set aside the same and to pass such other suitable orders. 2. Originally notification under Section 4(1) of the Land Acquisition Act, 1894, hereinafter referred to as “Act” for the purpose of convenience, was published in A.P. Gazette dated 17-6-1990 in Memo No.D3/4199/89 and the same had lapsed for non-taking of further steps under the Act. Subsequent thereto yet another notification under Section 4(1) of the Act in Memo No.D3/4157/93 dated 2-7-1993 was published in A.P. Gazette on 8-10-1993 and it was published in the local News Papers, Eenadu on 16-11-1993 and in Pledge on 15-11-1993 and the substance of the notification was published in the locality on 11-11-1993. Thereafter requisite draft declaration under Section 6 of the Act in Memo No.d3/4157/93 dated 14-7-1994 was published in the A.P. Gazette on 1-8-1994 and it was published in two News Papers i.e., Citizen (Evening) and Andhra Bhoomi on 2-2-1995 and the substance of the same was published in the locality on 31-1-1995. It was averred that from the above narrative of the dates of publication of draft notification and declaration it is apparent that the respondents had violated the statutory mandate under Section 6 of the Act to the effect that the draft declaration has to be made within one year from the date of publication of the draft notification. The provisions of Section 4 and Section 6 of the Act make it clear that the relevant date of publication for the purpose of computation of the period is the last of dates of such publication and the giving of such public notice. It was further averred that in the present case the last of the date of public notification under Section 4(1) of the Act was 16-11-1993 when it was published in Eenadu News Paper. The last of the dates of publication of the declaration under Section 6 of the Act was 2-2-1995 when the declaration was published in Citizen and Andhra Bhoomi News papers. Thus it is apparent that the respondents had failed to publish the draft declaration within one year from the date of publication of notification under Section 4(1) of the Act and this lapse on the part of the respondents caused a serious prejudice to the writ petitioner. 3. It was further averred in the affidavit filed in support of the Writ Petition that the notification under Section 4(1) of the Act was issued and published by the 1st respondent who is not competent to do so. Section 4(1) of the Act makes it clear that the appropriate Government shall publish a notification where it appears necessary for the Government to acquire any land for public purpose. The 1st respondent was not empowered or delegated to issue such a notification if the land is required for road widening and hence the impugned proceedings are illegal and unauthorized. It was also further averred that the 2nd respondent issued a notice in Lr.No.B/251/89 dated 15-7-1995 as required under Sections 9(1), 9(3) and 10 of the Act for award enquiry fixing the date of hearing as 4-8-1995 and the writ petitioner appeared before the 2nd respondent through his Counsel and submitted claim petition on 11-10-1995. After submission of the claim petition, no further intimation of the enquiry or proceeding was given and only in January 1997 a notice dated 18-1-1997 was served on the Counsel for the writ petitioner fixing the date of hearing on 22-1-1997. Thereafter the 2nd respondent seems to have passed an award but no notice of the passing of the award was given to the writ petitioner till the statutory period had lapsed. The proceedings had lapsed on expiry of two years from the date of publication of the declaration by 1-2-1997. Surprisingly the 2nd respondent had served a notice under Section 12(2) of the Act on 2-4-1997 which was dated 17-3-1997. The notice is intended to inform the claimants about the relevant particulars of the award but the 2nd respondent had deliberately chosen to remain silent about the number and date of the award. This vague notice had lent support to the apprehension of the writ petitioner that the 2nd respondent having failed to pass an award within the time prescribed, ante-dated it to cure the defect. The enquiries of the writ petitioner in this regard revealed that the award was dated 31-1-1997 and the writ petitioner filed an application for a certified copy of the award and obtained the same to verify the legality of the award. 4. It was further averred that it is surprising that an award could be passed within 8 days of the last date of award enquiry. The provisions of Section 11 of the Act contemplate a mandatory approval from the Government before the award is passed. From the present standard of functioning of the Government it is impossible to prepare a provisional valuation statement, get the same approved by the Government and pass the award within such a short time. It was also averred that the award was not passed within the statutory period but by manipulating the record or by not following the statutory mandates the 2nd respondent had managed to make the claimants believe that a valid award is passed. On further enquiry the writ petitioner learnt that the 2nd respondent had sent the provisional valuation statement dated 21-12-1996 in proceedings No.B/251/89 to the 1st respondent which was dispatched from the office of the 2nd respondent on 23-12-1996, but even before an approval was received from the 1st respondent the award was passed on 31-1- 1997. It was also further stated that the 2nd respondent appears to have arrived at the value of the property even before the enquiry was completed. The last date of enquiry was 22-1-1997 and one month prior to this date of enquiry i.e., on 21-12-1996 the 2nd respondent had arrived at his conclusion and sent a provisional valuation to the 1st respondent for approval. From this it is apparent that the 2nd respondent had conducted a make-believe enquiry having already come to a conclusion. The opportunity afforded therefore was an empty formality and no weightage whatsoever is assigned to the claim of the writ petitioner. The 2nd respondent made a mockery of the procedure and violated the principles of natural justice and the procedural mandates of the award enquiry under the Act. It was also further stated that the 2nd respondent had proceeded to pass an award even before the mandatory approval was obtained from the 1st respondent. It is learnt that even till date the 1st respondent had not accorded necessary approval to the provisional valuation statement sent by the 2nd respondent on 23-12-1996 and the provisions of Section 11 of the Act mandates that no award shall be made by the 2nd respondent without the previous approval of the appropriate Government. Only with a view to make the writ petitioner believe that the award is passed within the time stipulated the 2nd respondent had passed an award after expiry of the statutory period of two years from the date of declaration by ante-dating the same and without there being an approval of the competent authority and for this reason also the award passed by the 2nd respondent on 31-1-1997 in Proceedings No.B/251/89 is illegal, arbitrary and violative of the provisions of Sections 11 and 11-A of the Act. It was further averred that as an abundant caution the writ petitioner filed an application on 28-4-1997 seeking to refer the matter to civil Court under Section 18 of the Act since the compensation awarded is inadequate, reserving his right to question the validity and legality of the award since the Civil Court cannot adjudicate these issues. It was also further stated that having served a notice under Section 12(2) of the Act on 2-4- 1997 the 2nd respondent had so far not paid the compensation to the claimants nor referred the matter to the Civil Court and possession of the land also was not taken so far from the writ petitioner. In the said circumstances, the present Writ Petition is filed by the writ petitioner. 5. In the counter affidavit filed specific stand was taken that the Executive Engineer, P.D. VI, M.C.H. in Lr.No.EE/PD.VI/MCH/89, dated 22-5-1989 had sent an acquisition proposal to acquire an extent of 160.44 sq. yards of land for widening of road in H.No.5-9- 324 to 326 belonging to Mrs.A.D.Mistry situated on the road leading from Abids Junction to Basheerbagh Junction, opposite to Mahboobia Girls School. On receipt of the above requisition the site was jointly inspected on 4-1-1990 by the then Special Deputy Collector and the representative of the requisitioning Department i.e., the Deputy Executive Engineer, P.D. VI and the Assistant City Planner, Circle VI, MCH and the Survey staff of his office. After completion of joint inspection, the land under acquisition was surveyed by the survey staff following the site plan provided by the requisitioning Department and the Town Survey record. The sub- division record prepared by the surveyors was sent to the Deputy Director (S&SL) Hyderabad for verification and attestation in Lr.No.A2/251/89 dated 31-1-1990 who is the competent authority to attest the area. It was further stated that the Deputy Director (S&LRS) had retransmitted the sub-division records in Lr.No.E/171/90 dated 9- 3-1990 duly attesting to an extent of 160.26 sq. yards, equivalent to 134 sq. matters. In T.S. No.43 and 45, Ward No.51 of Block ‘F’ of Village Nampally. The attested area of 160.26 sq. yards was adopted for acquisition. The draft notification proposal under Section 4(1) of the Act was submitted to the Collector, Hyderabad District in Lr.No.A2/251/89 dated 26-3-1990 for approval. The Collector, Hyderabad District had approved the proposal to an extent of 160.26 sq. yards in Memo No.D3/4194/89 dated 26-5-1990. The substance of draft notification was published in the daily news papers on 28-6- 1990 and the enquiry under Section 5-A of the Act was commenced on 22-7-1990 which was concluded on 31-10-1990 over-ruling the objection of the writ petitioner. The award enquiry which was started on 27-7-1990 was concluded on 22-7-1990. After the conclusion of the award enquiry, further formalities under the Act were completed and the award was about to be passed but the requisitioning Department did not provide detailed plan of the affected structures to the Executive Engineer, Roads and Buildings for preparation of structure valuation. Meanwhile the draft declaration had lapsed on 4- 1-1993 since the award was not passed within two years of statutory period as per the Act. The requisitioning Department vide Letter dated 16-1-1993 was informed that the draft declaration had lapsed and requested to inform whether the land is still needed for road widening or not. The requisitioning Department in Lr.No.MCH/EE/PD.VI/93 dated Nil which was received on 5-6-1993 had informed that the land is still required and on receipt of the above letter, a fresh draft notification under Section 4(2) of the Act was submitted to the Collector, Hyderabad District for approval in Lr.No.A2/251/89, dated 9-6-1993. The Collector, Hyderabad District in Memo No.d3/4157/93 dated 2-7-1993 had approved the draft notification to an extent of 160.26 sq. yards in P.No.5-9-324 to 326. The notification under Section 4(1) of the Act was also published in A.P. Gazette No.21, dated 8-10-1993 and the substance of the notification was also published in two local news papers i.e., in Pledge on 15-11-1993 and in Eenadu Telugu daily on 16-11-1993 and the enquiry notice under Section 5-A of the Act in Form-3 was issued on 16-12-1993 fixing the date of enquiry on 30-12-1993 while serving the notice along with A.P. Gazette copy to the writ petitioner on 20-12-1993. Since the enquiry was not conducted, it was adjourned to 22-3-1994 while giving notice to the writ petitioner on 9- 3-1994 but no person turned up in the enquiry in spite of serving notices and hence the enquiry under Section 5-A of the Act was concluded on 25-5-1994. It was further stated that the draft declaration proposal under Section 6 of the Act was submitted to the Collector in Lr.No.A2/251/89 dated 26-5-1994 and the same was approved in Memo No.D3/4157/93 dated 14-7-1994. The draft declaration was published in A.P. Gazette No.76 dated 1-8-1994 and also in two local news papers i.e., in Citizen on 2-2-1995 and in Andhra Bhoomi on 2-2-1995 as laid down under sub-section (2) of Section 6 of the Act. The award enquiry notice under Section 9(1) and 10 of the Act was issued on 9-8-1995 and the award enquiry was conducted on 22-8-1995, 13-11-1995, 27-12-1996 and 21-1-1997. The writ petitioner had filed claim petition on 11-10-1995 requesting to pay the land value @ Rs.15,000/- per sq. yard and Rs.2,50,000/- for compound wall and Rs.1,00,000/- for platform and Rs.4,00,000/- for the financial loss for removal of the platform. The notices under Sections 9(1) and 10 of the Act were served to the Counsel for the writ petitioner on 17-8-1995 and on 11-12-1996 to the writ petitioner and to Chermas Private Limited on 19-12-1995. A final notice was issued on 18-1-1997 and served on the land owner and Chermas Private Limited informing that consent award under Section 11(2) of the Act is proposed to be passed and they were requested to be present on 22-1-1997 with documentary evidence to put their claim and title over the land. In the notice it was also informed that the award will be passed on the material available in the office and the land owner did not turn up on 22-1-1997 and M/s. Chermas Ltd. filed vakalat on 22-1-1997 and remained silent since then. In order to fix the land value the sale statistics from the concerned Sub-Registrar office were obtained for the sales that took place in the vicinity of the acquired land and a land value of Rs.2000/- per sq. yard was fixed and the preliminary valuation was prepared and submitted to the Collector, Hyderabad District for approval in Lr.No.B/251/89 dated 21- 12-1996. The Collector, Hyderabad District in P.V. Inspection Note dated 17-1-1997 had permitted to pass the consent award but the land owners were not present to represent the claim on 22-1-1997 in regard to passing of consent award in spite of serving notices and hence the office had no other go but to pass the award under Section 30 of the Act on the material available and deposited the compensation of Rs.5,79,379/- on 2-5-1997. 6. It was further stated that the land acquisition proceedings were initiated by the 2nd respondent to acquire an extent of 160-26 sq. yards of land for road widening in H.No.5-9-324 to 326 correlating to T.S.Nos.43 and 45, Ward 51, Block-F of Nampally village. The land acquisition proceedings are in accordance with the Act and the Amendment Act of 1984 and there is no violation of Sections 4, 5 and 11 of the Act as alleged by the writ petitioner. It was further stated that at the first instance the draft notification under Section 4(1) of the Act was published in A.P. Gazette on 17-6-1990. The draft declaration under Section 6 of the Act was published on 28-10-1990 within the stipulated period of one year of publication of draft notification under Section 4(1) of the Act but the draft declaration under Section 6 of the Act had lapsed on 4-1-1990 due to not passing of award within the stipulated period as per the Act as detailed plan could not be provided by the requisitioning Department in time to the Executive Engineer, Roads and Buildings for assessing the structural valuation of the affected structure. The requisitioning Department by the letter dated 16-1-1993 was informed that the draft declaration had lapsed and requested to inform whether the land is still needed for road widening or not and the requisitioning Department in Lr.No.MCH/EE/PD.IV/93 dated Nil, which was received on 5-6-1993 had informed that the land is still required. It was further stated that a fresh draft declaration proposal under Section 4(1) of the Act was submitted to the Collector, Hyderabad District for approval in Lr.No.A2/251/89 dated 9-5-1993. The Collector, Hyderabad District in Memo No.D3/4157/93 dated 2-7-1993 had approved the draft notification to an extent of 160.26 sq. yards in P.No.5-9-324 to 326. Thereafter the notification under Section 4(1) was also published in the A.P. Gazette Part I, No.21 dated 8-10-1993. The substance of Section 4(1) of the notification was also published in two local news papers i.e., in Pledge, an English daily on 15-11-1993 and in Eenadu Telugu daily on 16-11-1993. The substance of Section 4(1) notification was displayed on 11-11-1993 on H.No.5-9-324 to 326 as the owner was not present in the house. The substance of the notification under Section 4(1) of the Act was also displayed on the notice board of the office of the Collector, Hyderabad District, concerned M.R.O’s office and Police Station at Abids. The draft declaration proposal under Section 6 of the Act was submitted to the Collector, Hyderabad District in Lr.No.A2/251/89 dated 26-5-1994 and the same was approved in Memo No.D3/4157/93 dated 14-7- 1994. The draft declaration was published in A.P. Gazette No.76 dated 1-8-1994 and also in two local news papers in Citizen evening on 2-2-1995 and Andhra Bhoomi on 2-2-1995. The date of publication had been reckoned on 2-2-1995 as laid down under sub- section (2) of Section 6 of the Act. It was further submitted that the draft notification under Section 4(1) of the Act was published in Gazette No.21, dated 8-10-1993 and the same was published in two local News papers in Pledge, an English daily on 15-11-1993 and in Eenadu Telugu daily on 16-11-1993. The draft declaration under Section 6 of the Act was published in A.P. Gazette No.76 dated 1-8- 1994 and the same was also published in two local news papers in Andhra Bhoomi, a Telugu daily on 2-2-1995 and in Citizen Evening on 2-2-1995. The date of publication had been reckoned on 2-2-1995 as laid down under sub-section (2) of Section 6 of the Act and hence there was no lapse on the part of the 2nd respondent as the draft declaration was published in A.P. Gazette on 1-8-1994 and is well within the statutory time limit. It was further stated that the District Collector, Hyderabad is delegated with powers to prove draft notification and draft declaration by G.O.Ms.No.713, dated 30-4-1982 of Revenue Department on behalf of Government and hence the action of the 1st respondent in approving the draft notification and the draft declaration is in order and no further orders of Government are required. It was also further stated that the notice under Sections 9(1), 9(3) and 10 of the Act had been issued simultaneously on 9-8-1995 and not on 15-7-1995 as stated in the affidavit fixing the date of enquiry on 22-8-1995 and served to the Advocate of the writ petitioner on 17-8-1995. In response to the above notice the writ petitioner had filed a claim petition on 11-10-1995 requesting to pay land value at Rs.15,000/- per sq. yard and Rs.2,50,000/- to the compound wall and Rs.1,00,000/- for the platform and Rs.4,00,000/- for financial loss on removal of the platform. It is stated that it is not true to mention that no notice was issued to the writ petitioner till 18-1- 1997 and in fact a second notice was issued to the land owner on 16- 12-1996 and was served on the writ petitioner on 21-12-1996 and M/s. Chermas Exquisite on 19-12-1996 fixing the date of enquiry on 27-12-1996 but no body appeared to put forth their claim interest with documentary proof. The District Collector, Hyderabad inspected the site on 16-1-1997 and directed the 2nd respondent to negotiate with the land owner so as to pass consent award under Section 11(2) of the Act. Accordingly a notice was issued on 18-1-1997 to the land owner and Chermas Exquisite and served on 20-1-1997. In the said notice the land owner was clearly informed that the award enquiry is finally posted to 22-1-1997 and also that the consent award under Section 11(2) of the Act was proposed to be passed and they were requested to be present on 22-1-1997 with documentary evidence to put forth their claims of interest and title over the land, failing which the award will be passed on the material available in the office. In response to the said notice M/s. Chermas Exquisite Limited filed vakalat on 22-1-1997 and remained silent since then. The Chermas Exquisite Limited filed an undertaking on 31-1-1997 stating that they are the owners of H.No.5-9-5 & 6 and are ready to handover the possession of the land and existing structure proposed to be acquired shall be surrendered to the M.C.H. free of cost on sanction of building permission. It was stated that even after serving the final notice on 20-1-1997 the writ petitioner did not turn up till 31-1-1997 and finally an award under Section 30 of the Act was passed on 31- 1-1997 fixing the land value @ Rs.2000/- per sq. yard and referred the matter to the Chief Judge, City Civil Court, Hyderabad in Lr.No.18/251/89 dated 2-5-1997 along with compensation amount of Rs.5,79,378/-. The petition under Section 18 of the Act filed by the writ petitioner on 28-4-1997 was also sent to the Chief Judge, City Civil Court, Hyderabad for adjudication in Lr.No.B/251/89 dated 2-5- 1997. The award dated 31-1-1997 had not lapsed due to the reasons that the notification under Section 4(1) was published in official Gazette No.21 on 8-10-1993 and the draft declaration under Section 6 of the Act was published in official Gazette No.76 on 1-8-1994 which is well within the one year period. The award also was passed well within the time of two years on 31-1-1997 and the publication under Section 6 of the Act was reckoned as 2-2-1995 and as such notifications issued under Sections 4(1) and 6 of the Act are legal and valid and award had been passed within the time under Section 11-A of the Act and as such it is valid. It was further averred that a notice under Section 12(2) of the Act was also served on the writ petitioner informing the award passed under Section 30 of the Act and the allegation of the petitioner of ante-dating the award is false and baseless. It was further stated that the award enquiry was conducted on 22-8-1995, 16-12-1996 and finally on 22-1-1997 and every time notice was served to the writ petitioner. The writ petitioner except filing a claim petition on 11-10-1995 had not submitted title deeds and was prolonging the