* THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NO. 10215 of 2005 %THURSDAY, 23rd DAY OF NOVEMBER, TWO THOUSAND SIX # M.Anjaiah S/o Mallaiah, Occ: Saw Mill Cutter, Langer House, Hyderabad. . … Petitioner versus $ The Government of A,.P, rep by its Principal Secretary to Government, Revenue (Assignment-III) Department, Secretariat, Hyderabad and others . … Respondents ! Counsel for the petitioner : MR. O. MANOHAR REDDY ^ Counsel for the respondents : Government Pleader for Revenue < Gist : >Head Note: ? 1 AIR 1986 SC 2025 THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 10215 OF 2005 Between : M.Anjaiah S/o Mallaiah, Occ: Saw Mill Cutter, Langer House, Hyderabad. … Petitioner And : The Government of A,.P, rep by its Principal Secretary to Government, Revenue (Assignment-III) Department, Secretariat, Hyderabad and others … Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO.10215 OF 2005 ORDER The State and the respondents’ denial, to allot alternative land to the petitioner and seeking a direction that the respondents 1 and 2 allot him alternative land, and a declaration that the 5th respondent’s memo No.C/1669/96 dated.25-01-2003 is illegal and arbitrary, is the grievance and reliefs sought in this writ petition. The petitioner’s grievance, culminating in this writ petition and in the several proceedings leading to it has had a meandering course. The facts: The petitioner was the owner of a property bearing D.No.13/6/790 including a residential house in 400 square yards and a sawmill in 514 square yards at Sangam, Langar House, Gudimalkapur, Golkonda Mandal, Hyderabad. A draft notification under Sec.4(1) of the Land Acquisition Act,1894 (for short “the Act”) dated 14-11-1996 proposed acquisition of 6766 square meters, including 914 square yards (equivalent 764.10 square meters) of the petitioner’s land aforementioned. The declaration under Sec.6 was published on 09-12-1997. Questioning the acquisition proceedings, the petitioner filed W.P.No.751 of 1998. Stay of dispossession was granted by an interim order of this Court dated.12-01-1998 in W.P.M.P.No.848 of 1998. The stay was thereafter made absolute on 09-11-1999. Pending the writ petition the 3rd respondent called upon the petitioner to submit an application for allotment of alternative land. Responding to this the petitioner submitted a representation dated.10-02-2000 requesting provision of an alternative Government land in the same locality. Pursuant to the petitioner’s application, the 3rd respondent in a letter No.D-4/2939/96, dated.10-02-2000 directed the 6th respondent to identify 500 square yards of Government land in the same locality from the surplus land available and to send up proposals along with a sketch, to enable allotment of alternative Government land in the same locality to the petitioner, at an early date. The 6th respondent submitted the report in his letter No.C/337/94, dated.22-07-2002 to the 4th respondent. This report stated that an extent of 9604 square meters of patta land in T.S.No.6/1,3,4,7 to 11, 13/1,15/1 and 16/2 of Guddimalkapur village was acquired for development of Bapughat; that at the time of acquisition the petitioner was the owner of 914 square yards, had filed a writ petition and obtained an interim stay; that an extent of Ac.2.24 gts, in Sy.No.173 and Ac.17.25 guntas of Government poramboke land at Ibrahimbagh village was available and it was proposed to be exchanged with defence land in lieu of the land taken over in T.S.No.3 of Guddimalkapur village. The 6th respondent sought issuance of necessary orders. On receiving the report dated.22-07-2002, the 4th respondent submitted proposals in a letter No.G/13069/98 dated.07-8-2002 to the 2nd respondent, recommending that in the circumstances alternative site be allotted to the petitioner from out of Ac.20.19 guntas of vacant Government land of Ibrahimbagh village, Golkonda mandal, while retaining the remaining land for allotment to Defence authorities in lieu of the Defence land acquired for the Bapughat. Noticing the above development, W.P.No.751 of 1998 was disposed of by a learned single Judge of this Court by an order dated.02-12-2002 with the following observations: “ 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 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 form. This Court hopes that the District Collector will consider the case of the petitioner as recommended by the Revenue Divisional Officer, Hyderabad Division, dated.07-08-2002, quietus to the litigation, within two months from the date of receipt of a copy of the Order”. On 25-01-2003 the 5th respondent issued the following memo: “ In pursuance of the Orders of the Hon’ble High Court dated.2-12-2002 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 Guiddimalkapur village, Hyderabad and the application of Sri M.Anjaiah son of Mallaiah dated.19-07-2002. The Revenue Divisional Officer Hyderabad requested the Collector Hyderabad to consider the allotment of alternative land dated.7-8-2002 is verified with reference to the provisions of the LA Act,1894 and amended Act 1984 and Award proceedings No.C1/669/96 dated.1-2-20020 of LA(Ben) Hyderabad. The court in its judgment only taking the cognisancy 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 the 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 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.” On 01-02-2003 as the officers from the Offices of respondents 2 to 6 inspected the petitioner’s premises; had informed him that he would be dispossessed and without allotting alternative land, the petitioner filed W.P.No.2098 of 2003 challenging the memo dated.25-01-2003 and seeking a direction to the respondents 2 to 6 not to dispossess him till alternative land is provided. On 04-12-2003 the petitioner was dispossessed and the constructions on the property were demolished. The petitioner therefore withdrew W.P.No.2098 of 2003 (vide order of this Court dated.04-02-2003) preserving liberty to file a fresh writ petition. Thereafter, on 01-02-2003 the petitioner submitted another representation to the 2nd respondent to allot him alternative land. There was no response to this representation either. The petitioner thereupon filed this writ petition. In Para.4 of the affidavit accompanying this writ petition the petitioner pleads that the 1st respondent had issued an order in G.O.Ms.No.678 dated.17-10-2001 allotting alternative lands of a total extent of 1871 square meters in T.S.No.2, Block- A, Ward No.9, Shaikpet village and Mandal in favour of one Lt.Col. D.N.Sarma and Dr.Vikram Sarma (hereinafter the Sarmas)in lieu of acquisition of their plot Nos.13-06-785/A/10 & 11 at Sangam, which also were acquired for the development of Bapughat and that the allotment was after withdrawing the amount of compensation earlier deposited in O.P.No.9/97 (in favour of the Sarmas). The petitioner specifically alleges hostile discrimination and unequal treatment qua the Sarmas. Earlier, on 31.1.2003, the petitioner submitted a representation to the 2nd respondent stating all the facts and reiterating his request for allotment of alternative land and requesting that till such allotment he be not dispossessed. In para (6) of his representation, the petitioner specifically stated that 1871 sq.mts, (equivalent to 2100 sq.yds) in T.S.No.2/A, Ward No.9, Shaikpet village was allotted to the Sarmas in lieu of their plot which was acquired by the Government, also for development of the Bapughat. By the judgment dated 1.2.2006, this writ petition was dismissed by a learned Single Judge of this court, noticing that by the date of disposal of the petitioner’s earlier W.P.No.751 of 1998 (on 2.12.2002) an award was passed determining the compensation payable to the petitioner. The learned Single Judge held that Section 23 of the Land Acquisition Act, 1894 (for short ‘the Act’) does not require providing of an alternative site/land in lieu of property acquired and that when compensation was fixed in accordance with the provisions of the Act, no Mandamus could be issued to the respondents to provide an alternative site in lieu of compensation. Aggrieved thereby, the petitioner preferred W.A.No.172 of 2006. This appeal was allowed by a learned Division Bench of this court by the judgment dated 17.2.2006. In allowing the appeal, the Division Bench concluded that the concept of providing alternative land to a person interested, in lieu of his land acquired is not alien to the Act and Section 31 (3) and (4) do provide for such an alternative to compensation. Relying on the observations of the Supreme Court in State of U.P. Vs. Pista Devi (1.); the provisions of the Nagarjunasagar Project (Acquisition of land) Act 1956; the Visakhapatnam Steel Project (Acquisition of land) Act, 1972 and other decisions, the Bench held that the power to grant alternative land was available not only before the passing of an award but thereafter too. The learned Division Bench also recorded a conclusion that the impugned memo of the 5th respondent (dated 25.1.2003) was passed on a misconception of law that there was no provision in the Act for granting alternative land in lieu of compensation. The Division Bench also held that the respondents having induced the disposal of W.P.No.751 of 1998 by the order dated 2.12.2002, on the basis of proposals made for grant of alternative land to the petitioner, cannot consistent with just, legal and equitable conduct resile from that stand (to provide alternative land). Dealing with the issue of allotment of alternative land to the Sarmas and denial (of equal treatment) to the petitioner, the Division Bench observed that in respect of acquisition for the same purpose, the State had provided alternative land to some individuals even after the award of the land acquisition officer and deposit of compensation amount into the court; that the petitioner is similarly circumstanced and there was therefore no prima facie justification for a differential treatment and without any explicable or justifiable reasons for marking out such distinction. The Bench also observed that whether the doctrine of estoppel would apply against the respondents must also be considered. Accordingly, the appeal was allowed; the order dismissing this writ petition was set aside and the writ petition remanded for adjudication afresh. Prior to the earlier dismissal of this writ petition (by the judgment of the learned single Judge dated.01-02-2006), a counter-affidavit was filed by the 5th respondent. To the extent relevant and material, the 5th respondent’s counter dated.30-06- 2005 asserts (at para.7) that the 2nd respondent/District Collector by his letter dated.18-01-2003 declined allotment of alternate land to the writ petitioner and rejected the proposals sent by the 4th respondent in his letter dated.07-08-2002 and therefore the memo impugned in this writ petition was issued. This counter-affidavit reiterates the misconception in the impugned memo that there is no provision in the Act to allot alternative land and that the petitioner could only receive the compensation already determined. The 5th respondent denied that a promise or commitment was made to allot alternative land to the petitioner. This counter-affidavit is silent and unresponsive to the petitioner’s plea of hostile discrimination and unequal treatment vis-à-vis the Sarmas’. On 06-09-2006 the Special Chief Secretary to the Government, Revenue Department has filed a counter, on behalf of the 1st respondent. This affidavit is filed in response to an order of this Court dated.24-08-2006, wherein this Court directed the respondent Nos.1 and 2, inter alia to file an affidavit specifying the circumstances in which prima facie different parameters were adopted in the exercise of executive discretion regarding in the matter of alternative land to the Sarma’s while denying similar treatment to the petitioner and clearly pointing out that the counter-affidavit of the 5th respondent was vague non-responsive and callous in the context of the allegations of discrimination pleaded by the petitioner. The 1st respondent’s counter-affidavit states that during the course of the award enquiry the Sarmas’ (father and son) submitted a claim petition before the 5th respondent on 21-01- 1995 requesting release of compensation at Rs.3,000/- per square metre so as to purchase alternate land. The Sarmas’ earlier participated in the enquiry under Sec.5-A of the Act and pleaded that they purchased 2001 square yards in 1990 and claimed compensation at Rs.3000/- per square yard while alternatively requesting allotment of an equal area of land and additional compensation for the structures and a well in existence, in the land under acquisition. An award was passed on 30-03-1996 fixing the compensation at Rs.300/- per square yard. The 5th respondent invoked the power under Sec.30 of the Act and referred the matter to the Civil Court as the Sarmas’ were not declared as non-surplus holders by the Urban Land Ceiling Authorities. The counter-affidavit states that the matter is pending before the Civil Court. While so proposals emanated from the Office of the Collector, Hyderabad requesting the Government to provide alternate land instead of cash compensation vide the letter of the Collector dated.25-10-1996. The State Government considering the facts before it and in view of the services rendered by Lt.Col.D.N.Sarma as an Army Officer, issued G.O.Ms.No.678, Revenue Department dated.17- 11-2001 allotting land in an extent of 1871 square meters (2100 square yards) in T.S.No.2, Block No.A, Ward No.9, Shaikpet Mandal, Hyderabad in lieu of compensation payable to the Sarmas’ (father and son). The Land Acquisition Officer was directed to withdraw the compensation deposited in O.P.No.9 of 1997. The counter-affidavit states that the case of the petitioner cannot be equated with that of the Sarmas as he had never sought alternative land during the course of the Award enquiry or at any point of time prior to the passing of the award. In paragraph.7 of the 1st respondent’s counter-affidavit, it is pleaded as under: “ It is submitted that the Government once again issued Notification under section.4(1) of the Act for acquiring land admeasuring 6184 sq.mtrs for the purpose of developing Bapughat Memorial situated at Langer House, Hyderabad wherein the name of the petitioner is reflected at Sl.No.11. It is submitted that the petitioner has participated in the Award enquiry filing his claim to an extent of land admeasuring 914.00 Sq.Yards. As per the Claim Statement, he was the tenant of the said land and subsequently he entered into an agreement of sale on 10-08-1994 with Mahanth Bharat Das, Chela of Mahant Ram Ratan Das and also claimed that he paid entire sale consideration and obtained possession. It is submitted that the Endowments Department, through the Assistant Commissioner, Endowments Department, Hyderabad also submitted its claim in respect of the entire property claiming that the land belonging to the Sri Ramachandra Mutt. The Land Acquisition Officer taking into consideration of the claims and rival claims of the respective parties and also keeping in view of the interest of the Endowments Department referred the matter to the Civil Court under Sec.30 of the Act. He passed Award vide proceedings No.C1/669/1996, dated.1.2.2000 fixing the market value at the rate of Rs.450/- per square yard and determined the compensation accordingly and deposited the same to the credit of O.P.No.20/2000 on the file of the I Senior Civil Judge, City Civil Court, Hyderabad. It is submitted that the petitioner herein did not seek any alternative land during the course of Award enquiry nor made any specific request when the Award was passed as stated above. Further the title of the petitioner is under dispute. Therefore, the petitioner cannot equate his claim for alternative land with Lt.Col.D.N.Sharma and his son Vikran Sharma. The request of the petitioner cannot therefore be considered. Accordingly the writ petition deserves no merits and liable to be dismissed.” It requires to be noticed that the averment in Para.7 of the counter-affidavit (supra) that the Endowments Department had submitted its claim in respect of “entire property” claiming that the land belonged to Sri Ramachandra Mutt, does not clarify whether the claim of the Endowments Department is in respect of the entire property which was acquired for the Bapughat Memorial including the land of the Sarmas or is only in respect of the land of the petitioner, of an extent of 914 square yards. The 1st respondent in paragraph No.6 of his counter- affidavit tried to distinguish between the case of the petitioner vis-à-vis, the case of the Sarmas on the ground that the petitioner did not seek alternative land during the course of the Award enquiry or at any time prior to the passing of the Award. This contention is misleading in substance. Questioning the acquisition proceedings and immediately on the publication of the draft declaration under Sec.6 of the Act, the petitioner had filed W.P.No.751 of 1998 and a stay of dispossession was granted by an interim order of this Court dated.12-01-1998. During the pendency of W.P.751 of 1998 itself the 3rd respondent called upon the petitioner to submit an application for allotment of alternative land and the petitioner submitted a representation on 10-02-2000. The 3rd respondent by his letter dated.10-02-2000 directed the 6th respondent to identify Government land in the same locality and sent up a proposal to enable allotment of alternative Government land to the petitioner and the 6th respondent submitted the report in his letter dated.22-07-2002 to the 4th respondent. The 4th respondent then submitted proposals in his letter dated.07-08-2002 to the 2nd respondent recommending allotment of alternative land to the petitioner from out of the vacant land in Ibrahimbagh village, Golkonda Mandal. It was on noticing the above developments that W.P.751 of 1998 was disposed of by this Court by the order dated.02-12-2002. The petitioner’s challenge to the acquisition proceedings was therefore not adjudicated by this Court on the basis of the assurance processed by and on behalf of the State for providing an alternative site to him. Since the petitioner’s request for alternative land was processed and the process initiated as early as in February-2000, either just prior to or around the time the award was passed (on 01-02-2000), the contention of the 1st respondent that the petitioner did not lodge a claim for alternative land before the Award enquiry or prior to passing of the award, is a contention that is both a non sequitor and misconceived. The State and the State authorities, were truly and clearly aware that the petitioner was insisting for allotment of alternative land in lieu of compensation and that he had challenged the very authority of the acquisition proceedings. In any event the passing of the Award during the pendency of W.P.No.751 of 1998 was a decision pendente lite in view of the circumstance that W.P.No.751 of 1998 which had challenged the very authority of the acquisition proceedings was pending. Moreover there is no legal requirement that a claim for alternative land should be lodged during the Award enquiry. In Para.8 of the counter-affidavit dated.06-09-2006 the 1st respondent reiterates that the petitioner was not discriminated vis-à-vis the Sarmas; that the case of the Sarmas is different from the petitioner; and that each case was considered on its own facts. Since the petitioner presents a specific case of hostile discrimination and unequal treatment (vis-à-vis the decision of the State Government to allot alternative site to the Sarmas while denying similar treatment to him), this court will now examine the context in which the Sarmas were allotted the alternative land : 1) From the several representations of the Sarmas in the note file and record of the State Government relating to the eventual allotment of land to the Sarmas, the following relevant facts emerge: The administrative process: a) Lt. Col. D.N. Sarma (‘the father Sarma’) was an Army Officer, who retired in 1990 on medical grounds. Earlier he worked as an ADC to the Governor of A.P during early 1970s. He settled down in Hyderabad after retirement. He purchased a plot of 929.03 Sq.Mts. at Sangam, Langer House, Hyderabad while his son Dr. Vikram Sarma (‘the son Sarma’) purchased the adjacent plot of an extent of 942.065 Sq.Mts. b) Initiating proceedings under the Act the State acquired these properties during 1994-95 for the Bapu Ghat development (just as the State acquired the writ petitioner’s land). c) On 17.3.97 the father Sarma represented to the State that the award is being finalized for payment of compensation; they are not willing to accept the compensation; and they seek allotment of alternative land. The Sarmas also represented that the father Sarma was deriving an income of Rs.6,000/- pm, from leasing out the land to a Gas agency which income was lost on account of the acquisition; that there are numerous instances of the Government having granted alternative land on acquisition of property; and that as the total extent of land acquired is 2100 Sq.Yds of an approximate value of Rs.7,00,000/-, the State should allot two plots equal in size to the acquired plots and if the value of the allotted plots is more, the Sarams are willing to pay the difference in value. 2) On 30.3.1996 Award No. C/630/1994 was passed awarding compensation (to the Sarmas) @ Rs.300 per Sq.Yd. The LAO however referred the mater to the Civil Court since the Sarmas were having land in excess of the urban land ceiling limit. According to the affidavit of the Special Chief Secretary dated 6.9.2006, this issue is pending adjudication before the I Senior Civil Judge, CCC, Hyderabad (para-5). 3) After passing of the award (on 30.3.96), in response to a representation of the Sarmas dated 2.9.96, the 2nd respondent by the letter dated 25.10.96 addressed the Commissioner of Land Revenue seeking instructions on the representation of the Sarmas for allotment of alternative land. By the Memo No. 68453/ASSN.III(2)/96- 2, dated 26.4.1997 the State Government indicated its ‘in principle’ agreement for allotment of alternative land and called upon the 2nd respondent to send the necessary proposals regarding suitable alternative land (more than an year after the award was passed and the compensation deposited in the Civil Court). 4) On 22.4.1998 the 2nd respondent-Collector, responding to the 1st respondent’s memo dated 26.4.97, sent up proposals for allotment of alternative land (in an extent of 1871 Sq.Mts. in TS No.2, Block-A, Ward-9, Shaikpet village) in favour of the father Sarma. The Collector also stated that the award dated 30.3.96 was passed for Rs.6,69,507/- and the market value of the land now recommended for providing to the Sarmas is valued at Rs.46,77,500 @ Rs.2500 per Sq.Yd. 5) Though the proposals of the District Collector were addressed only to the State Government, within three days from the date of the Collector’s proposals the Sarmas submitted a representation to the Special Chief Secretary and Commissioner of Land Revenue on 25.4.1998, that the lands proposed by the Collector for allotment to them were of the same value as the acquired lands, therefore they should be allotted the same extent as was acquired. Within four days from the date of the representation dated 25.4.98 of the Sarmas, the Special Chief Secretary and Commissioner of Land Revenue addressed the District Collector on the valuation of the lands acquired vis-à-vis, the land proposed to be allotted. Responding to the directive of the Special Chief Secretary dated 29.4.98, the District Collector on 21.5.98 addressed the Special Chief Secretary stating that in view of the award already passed the value of the acquired land be taken as Rs.300/- per Sq.Yd and the value of the land proposed for allotment be taken as Rs.1050 per Sq.Yd. No copy of the District Collector’s letter dated 21.5.98 is marked to the Sarmas. 6) However, within five days of the District Collector’s letter dated 21.5.98 to the Special Chief Secretary, the Sarmas addressed another letter dated 26.5.1998 to the