THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.15908 of 2006 Date : 27-10-2009 Between: The Raghunayaka Co-operative Rural Bank Limited .. Petitioner And The State of AP., Rep.by District Collector, Eluru, West Godavari District and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYAN W.P.No.15908 of 2006 ORDER: 1. This Court issued rule nisi on 1-8-2006 and granted interim direction in W.P.M.P.No.19836/2006. 2. W.V.M.P.No.2799/2008 was filed to vacate the interim order and on 4-2-2009 W.V.M.P. was dismissed making the interim order absolute. Thus the matter came up for final hearing before this Court. 3. Heard Sri Nimmagadda Satyanarayana, the learned Counsel representing the writ petitioner, the learned Assistant Government Pleader for Land Acquisition representing respondents 1 and 2, Sri K.Jyothi Prasad, the learned Counsel representing the respondents 3 and 4 and Sri S.D.Goud, the learned Counsel representing the other respondents. 4. The Raghunayaka Co-operative Rural Bank Limited, filed the present Writ Petition praying for a Writ of Mandamus declaring the action of the respondents 1 and 2 in not paying compensation payable for land of Acs.1-24 in R.S.No.270 of Yadavolu village to the petitioner in spite of claim by way of legal notice dated 25-7-2006 and telegram dated 25-7-2006 as illegal, arbitrary and violative of Articles 14, 21 and 300-A of the Constitution of India and contrary to the provisions of the Land Acquisition Act (hereinafter in short referred to as “Act”) for the purpose of convenience and consequently to direct respondents 1 and 2 to pay the compensation to the petitioner towards satisfaction of subsisting debt on the said land or in the alternative refer the matter to Civil Court in accordance with law for a decision as to entitlement as to compensation and to pass such other suitable orders. 5. It is the case of the writ petitioner that dry land of Acs.8.94 in R.S.No.270 of Yadavole Revenue village, was originally the joint family property of respondents 5 and 6 and late Brahmanandam, husband of 7th respondent. It appears that the said three persons had partitioned the said land of Acs.8.94 in between them prior to 1998. It is further the case of the petitioner that the respondents 5 and 6 and late Brahmanandam had obtained loans from the petitioner by mortgaging their respective lands out of Acs.8.94 in favour of the petitioner but none of them had discharged the said loans. It is further the case of the petitioner that the petitioner learnt that the respondents 3 and 4 had purchased the said land of Acs.8.94 from the respondents 5 and 6 and late Brahmanandam in the year 2000 without redeeming the petitioner’s mortgage debts. As the debtors failed to discharge the debts, the petitioner had obtained Certificates under Section 71(1) of A.P. Co-operative Societies Act for the mortgage debts due from the respondents 5 and 6 in Case No.39/98-99 dated 30-6-1998 and case No.87/98-99 dated 18-7-1998. The husband of the 7th respondent – Brahmanandam, filed Insolvency Petition showing the petitioner’s debt in the Petition Schedule. 6. It is further stated in the affidavit filed in support of the Writ Petition that the petitioner had put in to execution the aforesaid Certificates through Special Cadre Deputy Registrar-cum-Sale Officer and in fact sale was proposed to be held on 24-5-2006 in regard to the debts due and in respect of the aforesaid land of Acs.8.94. However, because of the fraud and misrepresentation played by the respondents 3 and 4, the sale could not be conducted and again the said Sale Officer had fixed the auction on 8-8-2006. 7. It is further stated that as the matters stood thus, recently the 2nd respondent, for the purpose of formation of Tadipudi Lift Irrigation Scheme, is taking steps to acquire Acs.1.24 cents out of the aforesaid land of Acs.8.94 and in Form No.7 issued by the 2nd respondent, the 2nd respondent had shown the names of the respondents 3 and 4 as land owners most probably basing upon the misrepresentation made by the respondents 5 and 6 without showing the petitioner’s name being the mortgagor as “interested person”. 8. It is also further stated that that the petitioner had reliably learnt that the 2nd respondent is making negotiations with the land owners mentioned in Form No.7 issued by the 2nd respondent and had fixed the market value of the land at Rs.2.45 lakhs per acre. The compensation amount payable by the 2nd respondent for acquiring the aforesaid land of Acs.1-24 comes to about Rs.3 lakhs. The 2nd respondent has to pay the said compensation to the petitioner towards part satisfaction of the mortgage debts due on the land of Acs.8.94 in R.S.No.270 of Yadavole village. The 2nd respondent, under Law, has no power to pay the said compensation amount to the respondents 3 and 4. The petitioner is entitled to compensation towards the discharge of the debt due. It is further stated that the petitioner had issued telegram and also legal notice dated 25-7-2006 to the respondents 1 and 2 not to disburse the compensation amount to any of the respondents 3 to 7. After receipt of the said notice, the respondents 1 and 2 had been contemplating to disburse the compensation to the unofficial respondents. The respondents 1 and 2 also are bound under Law to pay compensation to the petitioner or to refer the matter to the competent Civil Court. 9. In the counter affidavit filed by respondents 1 and 2, in para- 3 it was averred that the brief facts of the case are that an extent of Ac.20-68 cents of land covered by R.S.No.17/2 etc., of Yadavolu village of Devarapalli Mandal was acquired for excavation of TLIS Distributory Canal at Yadavolu village of Devarapalli Mandal. The draft notification under Section 4(1) and draft declaration under Section 6 of the Act were approved by the District Collector, West Godavari District at Eluru on 24-6-2006 and 28-6-2006 respectively duly dispensing with enquiry under Section 5-A of the Act. The said draft notification and draft declaration were published in the Gazette, newspapers and locality in the following manner: Sl. No. Mode of publication Date of publication of draft notification Date of publication of draft declaration 1 West Godavari District Gazette 182 & 198 29-6-2006 30-6-2006 2 Janata daily News Paper 30-6-2006 --- 3 New India Express daily News Paper ___ 29-6-2006 4 Substance in the locality 5-7-2006 ___ The Joint Collector had conducted a Gram Sabha in Yadavolu village. At that time all the land owners had given their consent for acquisition and a sum of Rs.2,41,000/- per acre was fixed and all of them had given consent in writing. Accordingly the land compensation is awarded to the land owners as follows: Sl.No. Name of the land owner Extent acquired Rate per acre Rs. Amount awarded Rs. 1 Anisetty Subrahmanyam s/o.Venkata Rao Anisetty Naga Durga Prasad s/o.Venkata Rao 270/2 Ac.1-24 2,41,000/- 2,98,840/- 2 Kola Satyanarayana s/o.Veeranna 2271/1B 2,41,000/- 1,30,140/- 3 Kola Veerabhadra Rao s/o.Veeranna 271/1C Ac.0-38 2,41,000/- 91,580/- 4 Kola Polayya 273/2 2,41,000/- 9,640/- 5 Kola China Satyanarayana 273/3 Ac.1-67 2,41,000/- 4,02,470/- TOTAL 9,32,670/- 10. It is further stated that during the course of Award enquiry on 15-7-2006 at Gram Panchayat, Yadavolu, the Secretary to Co- operative Rural Bank Limited had attended and raised objection for the payment of land compensation to the above land owners for R.S.No.270/2 measuring Acs.1-24 which was mortgaged in their Bank by the family members of Kola Brahmanandam and others in the year 2000 as they have to pay debts to their Bank. Hence the Land Acquisition Officer and Special Deputy Collector, L.A., TLIS, Unit No.1, Kovvur had stopped the payment of the land compensation to the landowners. At that stage the petitioner filed the present Writ Petition before this Court. Further it is stated that an extent of Acs.20-68 cents of land covered by R.S.No.17/2 etc., of Yadavolu village of Devarapalli Mandal was acquired for excavation of TLIS Distributory 5 Canal at Yadavolu village of Devarapalli Mandal. The draft notification under Section 4(1) and draft declaration under Section 6 of the Act were approved by the District Collector, West Godavari District at Eluru duly dispensing with enquiry under Section 5-A of the Act. The said draft notification and draft declaration were published in the Gazette, News papers and locality as detailed above. It is further stated that out of Acs.20-68 cents, an extent of Acs.3-87 cents covered by R.S.No.270/2, 271/1B, 271/1C, 273/2 and 3 belonging to the respondents 3 to 7 was involved as per the records. The name of the petitioner does not find place in the records and hence the name of the petitioner was not notified. The petitioner had never approached the 2nd respondent and represented that the land owners had mortgaged the land in their Bank during the course of process of the land acquisition case. 11. Further it is stated that the 2nd respondent had issued notice under Sections 9(3) and 10 of the Act for conduct of Award enquiry on 15-7-2006 at Gram Panchyaat, Yadavolu village to the land owners and got published notice under Sections 9(1) and 10 of the Act in the village in the respective places also by beat of tom-tom in the locality for wide publicity and also to represent their objections before the Land Acquisition Officer. Further it is also stated that during the course of Award enquiry on 15-7-2006 at Gram Panchayat, Yadavolu, the Secretary to Co-operative Rural Bank Limited had attended and raised objection for the payment of land compensation to the above land owners for R.S.No.270/2 measuring Acs.1-24 which was mortgaged in their Bank by the family members of Kola Brahmanandam and others in the year 2000 as they have to pay debts to their Bank and hence the Land Acquisition Officer and the Special Deputy Collector, L.A., TLIS, Unit No.1, Kovvur had stopped the payment of the land compensation to the land owners in view of the dispute on the acquired land in R.S.No.270/2 etc., measuring Acs.3-89 cents. Hence the Land Acquisition Officer had not paid the land compensation to any person in the case. Hence the dismissal of the Writ Petition had been prayed for. 12. In the counter affidavit filed by respondents 3 and 4, averments in detail had been made. It is averred that these respondents are the absolute owners of the land situated in R.S.No.270 of Yadavole village in an extent of Acs.10-94 cents having purchased the same under different sale deeds by the father of the respondents 3 and 4 when they were minors during the years 2000 and 2004. An extent of Acs.3-00 out of the total extent of Acs.10-94 was purchased under a registered sale deed dated 19-10-2000 in favour of the 3rd respondent from the 5th respondent and husband of the 7th respondent. On the same day i.e., 19-10-2000 an extent of Acs.2-75 cents was purchased under a registered sale deed in favour of the 4th respondent from respondents 5 and 6. Subsequently, an extent of Acs.2-69 cents in the same survey number was purchased in favour of the 3rd respondent under a registered sale deed dated 13-12- 2004 from the 5th respondent and the husband of the 7th respondent. Similarly, an extent of Acs.2-50 cents in the same survey number was purchased under a registered sale deed dated 3-12-2004 in favour of the 4th respondent. Thus in pursuance of the aforesaid registered sale deeds, the respondents 3 and 4 are the absolute owners and possessors of the land in an extent of Acs.10-94 cents in R.S.No.270 of Yadavole village. After the purchase of the aforementioned lands, they were put in possession of the same by the vendors and since then the respondents 3 and 4 are in continuous possession and enjoyment of the entire land of Acs.10-94 cents. Considering the eligibility of the respondents 3 and 4, the revenue authorities had issued pattedar pass books and title deeds in their favour and consequently they are paying all the relevant taxes to the Government. Thus the title and possession of respondents 3 and 4 was upheld by the revenue authorities also as the owners of the land to the extent of Acs.10-94 cents. After the purchase, the respondents 3 and 4 had invested huge amounts by digging bore well and installing a motor by obtaining loan from Canara Bank, Yadavole. 13. It is also stated that after the purchase of the said land, the vendors of the respondents 3 and 4 developed eye sore as the respondents 3 and 4 developed the land by digging bore well and installing a motor therein and were getting good yield. Due to such jealousy, they wanted to create all sorts of problems to the respondents 3 and 4. The said land is free from all sorts of encumbrances and there is no charge or mortgage over the same to any one, much less the petitioner herein. The petitioner, with the influence of respondents 5 to 7, tried to put the land of the respondents 3 and 4 to auction to recover the alleged dues from the respondents 5 to 7 alleging that the said land was mortgaged to it. Questioning the said action of the petitioner-Bank in bringing the lands of the respondents 3 and 4 to auction, they filed W.P.No.15236/2007 before this Court and obtained interim stay. In fact, the respondents 5 to 7 are due to the petitioner-bank in discharge of certain loans that were obtained by them by mortgaging their another property in Sy.No.884 of Yadavole village. The petitioner, knowing fully well that the respondents 3 and 4 purchased the land in Sy.No.270, purposefully with the influence of the respondents 5 to 7, without putting their property covered in Sy.No.884, for sale, is trying to put the lands of the respondents 3 and 4 to auction to realise the debts due from the respondents 5 to 7. If the petitioner-Bank is unable to realise the amount that is due to it from the respondents 5 to 7 even after selling their lands in Sy.No.884, it is at liberty to proceed against the lands of the respondents 3 and 4 covered by Sy.No.270 which was purchased by the respondents 3 and 4 under valid sale deeds. 14. It is also further stated that the respondents 3 and 4 are the bona fide purchasers of the land in Sy.No.270 and they are in continuous possession of the same since their purchase as stated supra. It is pertinent to mention that one Anisetty China Ganga Raju is the President of the petitioner-Bank and he is the father of the 7th respondent. The Secretary of the petitioner-Bank is acting to the tunes of the said China Ganga Raju and hence is trying to put the lands of the respondents 3 and 4 for auction against which respondents 3 and 4 filed the Writ Petition before this Court and obtained order of interim stay. Further it is stated that the petitioner-Bank is trying to put hurdles against the respondents 3 and 4 to see that no compensation amount would be paid to them to the land in an extent of Acs.1-24 cents acquired by the 2nd respondent for the purpose of Tadipudi Lift Irrigation Scheme. In such a process, the petitioner-Bank mala fide filed the present Writ Petition and obtained interim orders and in view of the same the respondents 3 and 4 are unable to reap the fruits of the award passed by the 2nd respondent. 15. In reply to para-2 of the affidavit filed in support of the Writ Petition it is further stated that the petitioner-Bank had obtained a Certificate under Section 71(1) of A.P. Co-operative Societies Act for the debts due from the respondents 5 to 7 and the respondents 3 and 4 are not aware of the other averments. Similarly the averment in para-3 of the affidavit that due to the misrepresentation by respondents 3 and 4, the proposed sale on 24-5-2006 could not be conducted had been denied. Further, the averment in para-4 of the affidavit that the 2nd respondent had shown the names of the respondents 3 and 4 as the land owners in Form No.7 notice only on the misrepresentation made by respondents 5 and 6 without showing the petitioner’s name being the mortgagor as an interested person also had been denied as not true and correct and the petitioner is put to strict proof of the sae. Similarly the averment in para-5 of the affidavit that the 2nd respondent has to pay compensation for the land acquired from the respondents 3 and 4 to the petitioner towards part satisfaction of the mortgage debt due to it is not true and correct and the petitioner is put to strict proof of the same. Further it is stated that the petitioner is not entitled to initiate two proceedings and the petitioner no where stated in the affidavit the amounts due to it from the respondents 5 to 7. 16. Further it is also stated that the respondents 3 and 4 paid some amounts to the petitioner-Bank when it threatened to put their land into action for the loans borrowed by their vendors. The auction schedules issued by the petitioner-Bank show that an extent of Acs.4- 47 cents in Sy.No.270 on the Eastern side out of the total extent of Acs.10-94 cents was mortgaged to it. Even assuming that the said extent of Acs.4-47 cents on the Eastern side was mortgaged to the petitioner-Bank, it cannot proceed against the land which was acquired by the 2nd respondent in the middle of the entire extent of Acs.10-94 cents. From the bund of the said canal for which the land was acquired and the boundary on the Eastern side, there is a land of about Acs.5.00. Thus the petitioner-Bank has no right to claim compensation that would be paid to the respondents 3 and 4 in pursuance of the land acquisition proceedings initiated by the 2nd respondent. 17. Further it is stated that even assuming that the land acquired for the purpose of Tadipudi Lift Irrigation Scheme by the 2nd respondent is under the mortgage to the petitioner-Bank, the remedy available to the petitioner is elsewhere but not before this Court under Article 226 of the Constitution of India. Further it is stated that it is an admitted fact that the petitioner-Bank had not approached the respondents 1 and 2 showing its entitlement to receive the compensation being paid as an interested person. The petitioner is not at all an ‘interested person’ under Section 3(b) of the Act and thus the Writ Petition is misconceived in such circumstances the dismissal of the Writ Petition had been prayed for. 18. Respondents 3 and 4 herein filed W.P.No.15236/2007 in which the writ petitioner herein was shown as the 1st respondent therein; The Co-operative Senior Inspector/Sale Officer-The District Co-operative Central Bank Limited as 2nd respondent and the 5th respondent in the present Writ Petition is shown as 3rd respondent therein. This Court by order dated 3-11-2008 while disposing of the said W.P.No.15236/2007 observed as hereunder:- “Hence, the Writ Petition is disposed of, directing that it shall be open to the petitioners to redeem the mortgage against an extent of Acs.4-94 cents of land in survey No.270 with the first respondent and thereafter, to recover the amount from their vendor in accordance with law. It is made clear that in case the petitioners have deposited ant amount to the District Co- operative Central Bank under a mistaken impression while complying with the direction issued by this Court, it shall be open to them to get the amount back. To enable the petitioners to redeem the mortgaged property, it is directed that the first respondent shall not proceed with the matter for a period of three months from today. There shall be no order as to costs”. 19. It is brought to the notice of this Court that the respondents 3 and 4 herein – the writ petitioners in W.P.No.15236/2007, already had deposited Rs.40,000/-, no doubt by mistake and it is also stated that though the writ petitioner had received the said amount, inasmuch as the same had been transmitted to the writ petitioner, the said amount also is not being deducted. The respective stands taken by the parties in the pleadings already had been referred to above. The steps taken by the writ petitioner herein are on the strength of the mortgage. Though the respondents 3 and 4 might have purchased the property in question, the right of the writ petitioner herein to recover the amount in the light of the mortgage cannot be ignored. In fact, in the Writ Petition filed by the respondents 3 and 4 i.e., in W.P.No.15236/2007, the same had been observed and the said Writ Petition was disposed of with a direction that it shall be open to the petitioners therein to redeem the mortgage to against an extent of Acs.4-94 cents of land in Sy.No.270 with the 1st respondent therein and thereafter to recover the amount from their vendor in accordance with Law. Further it was observed that it is clear that the case of the petitioners in the said Writ Petition i.e., the respondents 3 and 4 herein, that they had deposited the amount before the District Co-operative Central Bank under the mistaken impression while complying the direction issued by this Court, it shall be open to them to get the amount back. Further it was observed that to enable the petitioners therein to redeem the mortgaged property, it is directed that the 1st respondent therein shall not proceed with the matter for a period of three months from the date of disposal of the said Writ Petition. As already stated supra, inasmuch as the writ petitioner herein is the 1st respondent in W.P.N.15236/2007 and the respondents 3 and 4 in the present Writ Petition are the writ petitioners in the said Writ Petition, the parties are bound by the direction issued by this Court while disposing of W.P.No.15236/2007. However, it is brought to the notice of this Court that an amount of Rs.40,000/- which had been deposited by mistake before the District Co-operative Central Bank had been received by the Raghunayaka Co-operative Rural Bank Limited, the writ petitioner in the present Writ Petition. Hence, it is needless to say that the said amount to be adjusted by giving appropriate deductions. 20. Subject to the above modification, this Writ Petition also is disposed of in the light of the directions issued in W.P.No.15236/2007 specified supra. No order as to costs. ______________________ Justice P.S. Narayana Date : -10-2009 AM