*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY + WPMP.No.29740 of 2007 And + WRIT PETITION No.25051 of 1998 % Dated 08-02-2008 # E.P. Vinaya Sagar. Petitioner VERSUS $ The Land Acquisition Officer-cum- Revenue Divisional Officer, Kamareddy, Nizamabad District & others. Respondents ! Counsel for the Petitioner: Mr. K.M. Mahender Reddy ^Counsel for Respondents 1&2: Government Pleader for Land Acquisition Counsel for respondent No.3 : Sri Padmanabha Rao for Smt. B.G. Uma Devi SC for APSRTC <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1996 SC 122 2. (1996) 6 SCC 424 3. 2003 (1) DT (A.P.) 217 4. AIR 1964 SC 1006 5. AIR 1970 SC 898 6. (1997) 5 SCC 536 7. AIR 1974 SC 259 8. (1992) 2 SCC 98 9. (1970) 2 SCC 149 10. (1993) 4 SCC 369 11. 1998 (4) ALD 714 (DB) 12. AIR 1984 SC 1767 13. 1995 (1) ALT 673 THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WPMP.No.29740 of 2007 AND WRIT PETITION No.25051 of 1998 Date: 08.02.2008 Between: E.P. Vinaya Sagar … Petitioner AND The Land Acquisition Officer-cum- Revenue Divisional Officer, Kamareddy, Nizamabad district & others. … Respondents Counsel for the petitioner: Sri K.M. Mahender Reddy Counsel for respondents 1&2: G.P. for Land Acquisition. Counsel for respondent No.3 : Sri Padmanabha Rao for Smt. B.G. Uma Devi SC for APSRTC HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WPMP.No.29740 of 2007 AND WRIT PETITION No. 25051 of 1998 ORDER:- The facts of the case lie in a narrow compass and they are stated hereunder: The father of the petitioner was the owner of land admeasuring Ac.2.05 guntas comprised in Sy.No.778/E of Kamareddy, Nizamabad District. He died on 11.04.1975. In the year 1971, the Andhra Pradesh State Road Transport Corporation (for short, ‘the Corporation’) requisitioned an extent of Ac.12.33 guntas in Sy.No.778/AA etc., for construction of a bus depot and bus stand at Kamareddy town. This land included an extent of Ac.1.39 guntas belonging to the father of the petitioner. Draft notification dated 24.01.1972 of the Land Acquisition Act, 1894 (for short, ‘the Act’) was published in the Nizamabad District Gazette on 20.04.1972 and draft declaration was approved by the Government on 25.09.1972 and published in the District Gazette on 23.11.1972. The petitioner claims that possession of the land to the extent of Ac.11.15 guntas, including the land of his father was taken in November, 1971 whereas the respondents averred that the possession was taken on 22.03.1974 and handed over to the Corporation. Award was passed on 20.01.1976 only to the extent of Ac.9.16 guntas, leaving out the land owned by the petitioner’s father. Compensation in respect of the lands covered by the award was paid to the land owners. The petitioner, who pleaded that he was not aware of the acquisition proceedings due to the sudden death of his father for a long time, appeared to have approached the revenue authorities in the year 1988. The Mandal Revenue Officer, Kamareddy, after holding a detailed enquiry, submitted his report vide letter No.A1/1135/93 dated 13.07.1994, wherein he mentioned that the petitioner, who is the successor-in-interest of the deceased pattadar is a Government employee working at Hyderabad and that he might not have an idea about the properties held by his father and that the petitioner had been going around his office since the year 1988. The Revenue Divisional Officer, Kamareddy Division, Nizamabad District vide his letter No.A4/1167/92 dated 24.09.1996 informed the Vice Chairman and Managing Director of the Corporation that on 03.09.1996 the petitioner caused a legal notice issued for payment of compensation in respect of Ac.1.39 guntas of land, that his verification of records revealed that the said extent of land was excluded from the award passed on 20.01.1976, that the surveyor of Mandal Revenue Office, Kamareddy, who was instructed to demarcate the land in Sy.No.778, submitted a detailed report, which revealed that an extent of Ac.12.33 guntas of land is in occupation of the Corporation, whereas the award was passed only for an extent of Ac.9.16 guntas, that the excess land of Ac.3.17 guntas included the land of the petitioner’s father and that the petitioner submitted a legal heir certificate to prove that he succeeded to the property of his father. He also informed the Corporation that the file concerned of his office is running since 1992 and that a number of reminders were issued to the Vice Chairman and Managing Director of the Corporation, Executive Engineer of Karimnagar and Depot Manager of Kamareddy, but no action was taken. He also opined that as there was no possibility of continuing the acquisition proceedings in view of the Land Acquisition Amendment Act 68 of 1984 since time expired for passing of supplementary award by 23.09.1996, a fresh notification was required to be issued. He therefore requested the Corporation to send a requisition for initiating fresh proceedings for acquisition of Ac.3.17 guntas. Evidently, there was no response to the said letter. The Revenue Divisional Officer, Kamareddy, therefore sent a detailed reminder vide his letter dated 04.04.1997. In the said letter he reiterated the contents of his earlier letter dated 24.09.1996 and also his request to send a requisition for initiating fresh proceedings under the Act. As there was no response either to letter dated 04.04.1997 or 24.09.1996 of the Revenue Divisional Officer, Kamareddy, the petitioner caused another legal notice issued on 28.07.1997 to the Corporation, its Managing Director, the District Collector, Nizamabad and the Revenue Divisional Officer (Land Acquisition Officer), Kamareddy, wherein he called upon them to pay compensation as early as possible, failing which he will take appropriate legal steps. As the Corporation did not respond even to this legal notice, the petitioner filed the present writ petition on 03.09.1998 for a writ of Mandamus to declare the action of the respondents in not paying compensation for the land acquired by them, as being illegal, arbitrary, unreasonable and violative of Articles 14, 21 and 300A of the Constitution of India. The petitioner also sought for a direction to the respondents to pay compensation as per the provisions of the Act with interest @24% per annum from November, 1971, the date on which possession was allegedly taken, till the finalization of the acquisition proceedings and to pay damages of Rs.10,000/- per acre for depriving him of right of enjoyment of the property. The Revenue Divisional Officer-cum-Land Acquisition Officer, respondent No.1, filed a counter affidavit, wherein he admitted the factum of acquisition of petitioner’s land on the dates as mentioned above, but he maintained that possession of the land was taken on 22.03.1974, that on coming to know that the petitioner’s father died and addresses of his successors-in- interest could not be found, the petitioner’s land was excluded from the award. It is averred that the petitioner approached the Mandal Revenue Officer with a petition after a lapse of 18 years, the Mandal Revenue Officer enquired into the matter and reported to respondent No.1 that the petitioner and his sister are the legal heirs of the deceased Edward Venkati yesudas, the original owner of the land. It is also averred that as the father of the petitioner did not attend the award enquiry and the addresses of his legal heirs are not known to the respondents, passing of award was deferred, though possession was taken. Sri A.G. Satyanarayana Rao, Law Officer of the Corporation filed a counter affidavit, wherein he stated that since the father of the petitioner died and the addresses of his legal heirs could not be secured, award could not be passed in respect of the land owned by the petitioner’s father. It is further mentioned that while notifying the land for acquisition, urgency clause was invoked and enquiry under Section 5A of the Act was dispensed with and possession of the land was taken on 22.03.1974. It is further averred that as possession was taken by invoking the urgency clause under Section 17 (2) and (4) of the Act, the lands stood vested in the Government as held by the Supreme Court in Awadh Bihari Yadav v. State of Bihar[1]. He also relied upon judgment dated 27.03.1996 of this Court in Writ Petition No.2843 of 1991 in support of his plea that the acquisition proceedings have not lapsed by operation of Section 11A of the Act as possession was taken. It is further pleaded that as per report dated 13.07.1994 of the Mandal Revenue Officer, Kamareddy, petitioner is not the sole legal heir, but his father died leaving behind him his daughter Smt. Dorrothy Ebebezer besides the petitioner and that therefore he is not entitled to claim compensation exclusively for himself. In the counter affidavit, the claim of the petitioner that he had been pursuing his cause for the last one decade was also denied and it is further stated that unless the petitioner establishes his rights to receive compensation by filing a civil suit, he is not entitled to claim relief in a proceeding under Article 226 of the Constitution of India. It is also averred that the petitioner is guilty of causing unexplained delay of 22 years in filing the writ petition and that the jurisdiction of this Court under Article 226 of the Constitution of India will not be exercised in favour of a person, who slept over his rights for an unduly long period. After the writ petition was taken up for hearing, the petitioner filed WPMP.No.29740 of 2007 to permit him to amend the prayer in the writ petition by adding the following relief: “… … Hon’ble Court may be pleased to direct the respondents herein to initiate fresh land acquisition proceedings by publishing draft notification under Section 4 of the Land Acquisition Act for the purpose of acquiring petitioner’s land bearing sy.No.778/E (EE) extent Ac.1.39 gts situated at Kamareddy District Nizamabad, by setting a site old D.N. under Section 4 of the Land Acquisition Act published on 20.04.1972 and to pay all statutory benefits, additional market value, equitable interest, damages, exemplary costs from 1971 year to till realization and pass such other order as deemed fit and proper in the circumstances of the case.” The Corporation filed a rejoinder, opposing the said application, wherein they expressed doubt about the succession of the petitioner to the estate of the original owner and also reiterated the plea of inordinate delay on the part of the petitioner in filing the writ petition. By order dated 30.11.2007, this Court directed the application to be posted along with the main writ petition to be decided. Heard Sri K. Mahender Reddy, learned counsel for the petitioner, learned Assistant Government Pleader for Land Acquisition for respondent Nos.1 and 2 and Sri Padmanabha Rao representing Smt. B.G. Uma Devi, learned Standing Counsel for the Corporation. Learned counsel for the petitioner submitted that the acquisition proceedings to the extent of the land of the petitioner have got lapsed as the Land Acquisition Officer failed to pass award within the time stipulated under Section 11A of the Act. He further submitted that the action of the respondents in taking advance possession of the petitioner’s land without tendering payment of 80% of the compensation as prescribed under Section 17 (3A) of the Act is illegal and the same renders the whole acquisition proceedings a nullity. He also submitted that even assuming that possession was taken on 22.03.1974, as contended by the respondents, the petitioner is entitled to be compensated for deprivation of the property without following the due process of law, which was violative of Articles 300A and 31A of the Constitution of India and that on the facts of the case, the respondents may be directed to initiate land acquisition proceedings by publishing notification under Section 4(1) of the Act afresh. Learned Assistant Government Pleader for Land Acquisition and the learned counsel for the Corporation, on the other hand, submitted that since advance possession was taken, the time limit stipulated under Section 11A of the Act for making award has no application. In support of this contention they relied upon the judgment of the Supreme Court in Allahabad Development Authority v. Nasiruzzaman[2]. They also contended that the writ petition suffers from huge and unexplained delay and that therefore the same is liable to be thrown out on the ground of laches. In support of their contention they relied upon the judgment in Ganji Mohan v. State of A.P. and others[3]. Let me first dispose of the contention relating to delay and laches. The language of Article 226 of the Constitution of India is not hedged with any condition for limitation for exercise of its jurisdiction by the High Courts. However, the superior Courts have evolved several rules of self-imposed of restraint including the one that the High Court will not entertain belated claims (State of Madhya Pradesh v. Bhailal Bhai[4], Tilokchand and Motichand v. H.B. Munshi[5] and judgment of a nine Judge Bench in Mafatlal Industries v. Union of India[6]). At the same time, the Supreme Court in R.S. Deodhar v. State of Maharastra[7] laid down that if the petitioner is able to make out a case on merits, he cannot be non-suited on the jejune grounds of delay and laches or the like, provided that the result of the writ petition is not likely to affect third party rights. The following propositions are laid down in that judgment: “ 1) The rule which says that a Court may not inquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. The question is one of discretion to be followed on the facts of each case. 2) It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like.” While reiterating the abovementioned principle of law, the Supreme Court in Dehri Rohtas Light Railway Company v. District Board, Bhojpur and others[8] held as under: “The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its on facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tirlok Chand (AIR 1970 SC 898) (supra) relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed.” (emphasis applied) Thus, the doctrine of laches is not an absolute and unqualified one. One of the main tests being applied by the superior Courts is whether due to long lapse of time, any rights came to be vested in others and granting of relief would unsettle such rights and cause prejudice to their interest. Applying the above test, I shall consider the facts of the present case. The fact that the father of the petitioner, who was the original owner of the property, died before passing of the award is admitted by the respondents. Going by the stand of the respondents, possession of the land was taken on 22.03.1974, and the petitioner’s father died on 11.04.1975, and that award in respect of other lands (Ac.9.16 guntas) was made on 20.01.1976. The fact that the petitioner was a Government employee working at Hyderabad was mentioned in his report dated 13.07.1974 submitted by the Mandal Revenue Officer, a reference to which is contained in letter dated 04.04.1997 addressed by the Revenue Divisional Officer, Kamareddy Division, Nizamabad District, to the Vice Chairman and Managing Director of the Corporation. That the petitioner had been going round the office of the Revenue Divisional Officer, Kamareddy Division at least since 1988 is borne out from the same letter of the Revenue Divisional Officer. Thus, at least for 10 years before the petitioner approached this Court by way of the present writ petition, he had been making relentless efforts to sensitize the respondents to the need for payment of compensation for the land acquired without passing award and paying compensation. The indignation shown by the Revenue Divisional Officer, Kamareddy Division at the apathy of the Corporation in responding to the request of the former to settle the petitioner’s claim is reflected in the following portion of the letter addressed by him to the Corporation: “In this connection, I would like to bring to your kind notice that this office file is running since 1992 and number of reminders were issued to this effect to the Managing Director and Vice Chairman, APSRTC, Musheerabad, Executive Engineer, APSRTC, Karimnagar and Depot Manager, APSRTC, Kamareddy. But they did not rise up to this (sic ‘the’) occasion and ultimately causing legal notice received from the advocate, kamareddy.” Both letters dated 24.09.1996 and 04.04.1997 addressed by the Revenue Divisional Officer, Kamareddy Division were marked to the petitioner’s advocate. As the Corporation remained un- moved despite the repeated wakeup calls from the Revenue Divisional Officer, the petitioner for the third time got a legal notice issued on 28.07.1997 before eventually filing the present writ petition. These facts thus clearly suggest that though the petitioner started raising the issue of payment of compensation somewhat belatedly, he had been actively pursuing with the respondents at least from the year 1988. While this is the picture on the petitioner’s side, on the flip side, the Corporation was making merry with its silence. The material on record does not suggest that it has replied to either the repeated legal notices sent on behalf of the petitioner or the letters addressed by the Revenue Divisional Officer. In the face of these facts, the Court cannot judge the plea of laches merely on the basis of the length of time by being oblivious of the events that have transpired in the intervening period. Viewed from this perspective and in the light of the fact that the valuable right of the petitioner to receive compensation for the property taken over by the respondents is involved, the writ petition cannot be thrown out on the ground of laches, more so, adjudication of the writ petition on merits may not in any manner unsettle the rights of any of the respondents. On the above premises, this contention of the respondents is rejected and the application of the petitioner for amendment of the writ petition is allowed. The next question to be considered is whether the land acquisition proceedings have got lapsed on account of non- passing of award? The Land Acquisition Act, 1894 is a pre-constitution enactment having been passed in the year 1894. It vested the power of eminent domain in the State. With the functionaries of the State acting with impunity while exercising this power by not acting with reasonable dispatch after initiating the land acquisition proceedings by publication of notifications under Section 4(1) of the Act, the Parliament amended the Act by introducing crucial amendments thereto by Act 68 of 1984 with effect from 24.09.1984. By the said amendment Act the Parliament ensured that the land acquisition proceedings are not dragged on endlessly and they are completed in a time bound manner, so that the land owners are not put to prolonged uncertainties and denied the benefit of compensation for unduly long time thereby denying them the opportunity of securing alternative lands with the compensation received by them before the value of those lands rise steeply making their purchase beyond the land owner’s economic reach. In this connection it is apt to extract the statement of objects and reasons of Act 68 of 1984 as under: “Statement of Objects and Reasons:- (1) With the enormous expansion of the State’s in promoting public welfare and economic development since independence, acquisition of land for public purposes, industrialization, building of institutions, etc., has become far more numerous than ever before. While this is inevitable, promotion of public purposes has to be balanced with the rights of the individual whose land is acquired, there by often depriving him of his means of livelihood. Again, acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the State or for an enterprises under it. The individual and institution who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for the larger interests of the community. The pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered as then.” (Emphasis added) Some of the important amendments that are introduced to the Act are, the first proviso to Section 6(1), which placed time limit on publication of declaration under Section 6, Section 11A of the Act, which ordained that the Collector shall make an award within a period of two years from the date of publication of the declaration and further mandate that if such an award is not passed within that period, the entire proceedings for the acquisition shall lapse and Section 3A of the Act, which made it incumbent for the Collector to tender payment of 80% of the compensation except in situations envisaged in sub-clause (b) of the said provision, in case where possession of land is taken under sub-sections (1) and (2) of Section 17, before making award. Section 11A of the Act, which is very relevant for this case, reads as under: “Period within which an award shall be made:- (1) The Collector shall made an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), the award shall be made within a period of two years from such commencement.” The provisions of Section