*THE HONOURABLE SRI JUSTICE .V.SANJAY KUMAR +W.A.NO.1517 OF 2001 %28-08-2008 #Secretary to Government, Social Welfare Department, Secretariat, Hyderabad, and others. … Appellants Vs. $Eedara Krishna, S/o. Sarayya, aged 46 years, R/o.Penikeru Village, Alamuru Mandal, East Godavari District. … Respondents <GIST: >HEAD NOTE : ! Counsel for Appellants: Government Pleader for Land Acquisition ^ Counsel for respondent : Mr.G.Krishna Murthy. ? CASES REFERRED : 1. 1999(1) LACC 596 2. AIR 1996 SUPREME COURT 866 3. AIR 1997 SUPREME COURT 1701 4. (1994) 5 SUPREME COURT CASES 686 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT APPEAL No.1517 OF 2001 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 30.10.2000 in W.P.No.13318 of 1998 on the file of the High Court.) Between: 1. Secretary to Government, Social Welfare Dept, Secretariat, Hyderabad. 2. Dist Collector, Kakinada, E.G. Dist. 3. The Revenue Divisional Officer/ Sub-Collector, Rajahmundry. 4. Mandal Revenue Officer, Alamuru (M), E.G.Dist. ..... APPELLANTS AND 1 Eedara Krishna, S/o.Sarayya R/o. Penikeru (V), Alamuru (M), EG Dist. .....RESPONDENT Counsel for the Appellants: GP FOR LAND ACQUISITION Counsel for the Respondent: MR.G.KRISHNA MURTHY The Court made the following : THE HONOURABLE MRS JUSTICE T.MEENA KUMARI AND THE HONOURABLE MR JUSTICE P.V.SANJAY KUMAR WRIT APPEAL NO.1517 OF 2001 O R D E R (Per Sri Justice P.V.Sanjay Kumar) Aggrieved by the order dated 30.10.2000 passed by a learned single Judge of this Court in Writ Petition No.13318 of 1998, the State represented by its oﬃcers is in appeal before us. By the said order, the learned Judge allowed the writ petition declaring that Award No.2 of 1993, dated 22.12.1993 pertaining to the acquisition of an extent of Ac.1-50 cents in R.S.No.150/4 of Penikeru Village, Alamuru Mandal, East Godavari District, was illegal and liable to be set aside in the light of the violation of the mandatory requirement of the provisions of Section 9(3) of the Land Acquisition Act, 1894 (for short ‘the Act’). The facts of the case germane to this adjudication are as follows: The State of Andhra Pradesh issued notiﬁcation dated 27.07.1981 under Section 4(1) of the Act proposing to acquire a total extent of Ac.8-89 cents of land in Penikeru Village, Alamuru Mandal, East Godavari District, for the purpose of providing house sites to the weaker sections. The land proposed to be acquired was situated in Sy.Nos.150/4, 150/8, 150/9, 150/10, 151/1, 151/2, 151/3 and 151/4 of the Village. In so far as the Respondent in this writ appeal is concerned, (who was the Petitioner in the writ petition), his double crop wet land admeasuring Ac.1-50 cents in Sy.No.150/4 was proposed to be acquired under the said notification. It is pertinent to note that the State, while issuing the above notiﬁcation under Section 4(1) of the Act, simultaneously published the declaration under Section 6 of the Act also. The same were published in the A.P. Gazettee on 27.07.1981. While so, Writ Petition No.2498 of 1981 came to be ﬁled by the land owners of the lands comprised in Sy.Nos.150/8, 150/9 and 150/10 in respect of the proposed acquisition and pursuant to the order of this Court staying their dispossession, their land admeasuring Ac.0-74 cents was excluded and an award was passed bearing Award No.24 of 1982, dated 17.06.1982 in respect of the remaining land. However, Writ Petitions Nos.7279 and 7281 of 1983 were ﬁled before this Court by the owners of the lands in Sy.Nos.151/1, 151/2, 151/3 and 151/4 and pursuant to the order of this Court dated 11.02.1986 in the said writ petitions, an extent of Ac.6-28 cents covered by the litigation was also excluded from the proposed acquisition. The Respondent herein ﬁled W.P.No.4475 of 1982 before this Court seeking to restrain the Respondents therein from proceeding further with the acquisition without following the procedure laid down by law. The said writ petition was disposed of by an order dated 28.01.1986, taking note of the fact that the notiﬁcation under Section 4(1) of the Act and the declaration under Section 6 of the Act were published simultaneously and setting aside the declaration under Section 6 of the Act. The authorities were directed to conduct an enquiry under Section 5-A of the Act giving due notice and opportunity to the Respondent herein. Pursuant to the said order, notice dated 28.04.1986 was issued under Section 5-A of the Act to the Respondent and an enquiry was conducted on 04.06.1986. After considering the Respondent’s objections, draft declaration under Section 6 of the Act was approved by the Collector, East Godavari District, under Reference No.11/47/81, dated 24.10.1986 and the declaration was published in the East Godavari Gazettee on 28.10.1986. The same was also published in Andhra Jyothi and Visalandhra News Papers on 08.11.1986. The Respondent herein questioned the declaration under Section 6 of the Act by way of Writ Petition No.2096 of 1987 before this Court, but the same was dismissed by an order dated 21.10.1992. Writ Appeal No.978 of 1992, ﬁled by the Respondent herein against the dismissal of W.P.No.2096 of 1987, was also dismissed by a Division Bench of this Court by order dated 21.02.1997. It was the case of the Respondent before this Court in W.P.No.13318 of 1998, from which the present appeal arises, that the authorities did not issue any notice under Section 9 or Section 10 of the Act with regard to the conduct of the award enquiry under Section 11 of the Act. The Respondent stated that no award had been passed pursuant to the Section-6 declaration dated 28.10.1986 and the possession of the land was not taken. He, therefore, alleged that the land acquisition proceedings had lapsed. It was his further grievance that the authorities sought to interfere with his possession over the land, constraining him to get a legal notice issued on 17.02.1998 bringing out the above facts, but the authorities, having received the same did not give any effective reply. In their counter, the authorities while admitting most of the facts let in by the Respondent through his aﬃdavit, denied that no notices were issued under Sections 9 and 10 of the Act. They alleged that notices under Sections 9(1), 9(3) and 10 of the Act were issued on 22.11.1993 for publication and service, according to which, the award enquiry was to be held on 10.12.1993. They further stated that the Award was passed under Section 11 of the Act being Award No.2 of 1993, dated 22.12.1993. They further contended that the possession of the land was taken on 05.07.1992 and the same was kept in the safe custody of the Village Administrative Oﬃcer, Penikeru Village. According to them, an amount of Rs.1,08,882/- being the compensation awarded to the Respondent was deposited in the Subordinate Judge’s Court, Ramachandrapuram, under Section 31(2) of the Act. They, therefore, summed up by stating that the Respondent’s land had been acquired after following the due process as laid down in the Act and the land was under their continuous possession since 05.07.1992. The Respondent herein ﬁled his reply to the above counter stating that this Court had passed an interim order dated 05.05.1998 in WPMP No.16055 of 1998 in W.P.No.13318 of 1998 staying his dispossession from the land and it was only when the counter-aﬃdavit was served that a copy of the Award dated 22.12.1993 was served on his counsel. He also denied the allegation that possession of the land was taken on 05.07.1992 and also stated that without following the procedure prescribed under Sections 16 or 17(1) of the Act, the possession could not have been taken. He further stated that there was no emergency warranting the invocation of the provisions under Section 17 of the Act, as the same was also set aside by this Court in W.P.No.4475 of 1982. He submitted that the alleged award proceedings leading to the passing of the Award dated 22.12.1993 were held without issuing the mandatory notice under Section 9(3) of the Act, vitiating the entire proceedings. He also contended that the proposed award was not approved by the competent authority as required under Section 11 of the Act and accordingly, it was not a valid award in the eye of law. It is relevant to note that after the ﬁling of the counter in the writ petition, the Respondent herein sought the leave of the Court to amend the prayer in the writ petition by way of WPMP No.23258 of 1999 in W.P.No.13318 of 1998. Originally, the Respondent herein had sought a direction in the nature of a Mandamus declaring the action of the authorities in trying to take possession of his land in pursuance of the draft declaration dated 28.10.1986 after the lapse of the statutory period prescribed under Section 11-A of the Act was illegal and to consequently direct them not to take possession of his lands. This Court permitted the Respondent to amend the prayer by its order dated 30.10.2000 in the abovementioned Miscellaneous Petition and accordingly the Respondent, after the amendment, sought for a Mandamus declaring the Award No.2 of 1993, dated 22.12.1993 is illegal and null and void, being contrary to provisions of Section 9 and 10 of the Act. We have heard the Government Pleader for Land Acquisition appearing for the appellants and Sri G.Krishna Murthy, learned counsel appearing for the Respondent. The learned Government Pleader would submit that the present proceedings initiated by the Respondent were belated inasmuch as the award was passed as long back as on 22.12.1993 and accordingly the learned Judge ought to have held that the writ petition was not maintainable. Learned counsel would also submit that the learned Judge erred in holding that no notice was issued under Section 9(3) of the Act inasmuch as the record would reveal that such notice had, in fact, been issued. The other grounds raised by the learned Government Pleader are that once the award is passed, challenging the Section 4 notiﬁcation and Section 6 declaration under the Act, is not permissible and that as the Section 4(1) notiﬁcation had already been upheld by this Court in the earlier writ petition ﬁled by the Respondent herein, at the most this Court could only quash the Section 6 declaration in the event of the non-service of the notice under Section 9(3) of the Act upon the Respondent. On the other hand, Sri G.Krishna Murthy, learned counsel for the Respondent, would submit that there is no question of any delay on the part of his client as the award was made available only with the counter ﬁled in the writ petition. He would also submit that there is patent and manifest violation of the statutory procedure prescribed under the Act and more speciﬁcally, Sections 9, 10 and 11 of the Act, in so far as the award enquiry and the passing of the award are concerned. He vehemently denied that the possession of the land had been taken by the authorities and relied upon the statutory provisions to demonstrate that possession could not have been taken in violation thereof. In so far as the issue of delay is concerned, we are not impressed with the argument of the Government Pleader as it is an admitted fact that a copy of the award was made available to the Respondent herein along with the counter- affidavit filed in the writ petition. We have also perused the original records produced by the learned Government Pleader and we do not ﬁnd any proof of the notice of the award having been given to the Respondent as required under Section 12(2) of the Act. In the light of the violation of the statutory requirement with regard to the service of the notice of the award, it is not open to the authorities to now contend that there is a delay on the part of the Respondent herein in challenging the award, which was never served upon him. With respect to the second ground raised by the authorities, we have perused the original record produced before us. It is found that a combined notice under Sections 9(1) and 10 of the Act in Ref.No.SWLA.6586/93, dated 22.11.1993 was issued in Form No.VI, calling upon persons interested in the land to appear in person or by authorized agent on 10.12.1993 at the Sub-Collector’s Oﬃce, Rajahmundry, showing the nature of their interest in the land, the amount of compensation for such interest with particulars thereof and their objections, if any, to the measurements under Section 8 of the Act. Only the name of the Respondent herein is mentioned as against the extent of Ac.1-50 cents in Sy.No.150/4, classiﬁed as government wet land. There is an endorsement dated 23.11.1993 by the Mandal Revenue Inspector, Alamuru Mandal, on the back of the said notice stating to the eﬀect that a copy of the same had been put up on the notice boards of the Mandal Revenue Oﬃce, the Sub-Registrar’s Oﬃce, the Police Station, Alamuru and a copy of the same had also been aﬃxed on a pole on the land under acquisition. It is also stated that tom tom was made in the village on the same date. Another combined notice under Sections 9(3) and 10 of the Act was issued under Ref.No.SWLA.6586/93, dated 22.11.1993 in Form-VI stating to the same eﬀect and once again, only the name of the Respondent ﬁnds mention in this notice. The endorsement dated 23.11.1993 made by the Mandal Revenue Inspector, Alamuru, upon this notice states to the eﬀect that as there was refusal to accept the notice, a copy of the same was pasted on the door of the residence of the land owner concerned. Sri G.Krishna Murthy, counsel for the Respondent, denied the service of these notices. It is contended by him that there was no due and proper service of the notices under Sections 9 and 10 of the Act upon the Respondent. He placed reliance upon the judgment of one of us (Honourable Smt. Justice T.Meena Kumari) in J.RAMALINGAM V/s. THE GOVERNMENT OF TAMIL NADU[1], wherein it was held that aﬃxation of the Section-9 notice on a stick without making any diligent attempts to serve the party concerned, is not suﬃcient. It was further held therein that the aﬃxation of the notice under Section 9(3) of the Act on a stick is not in conformity with the procedure prescribed by the statute, thereby crippling the land owners from participating in the award enquiry. The acquisition proceedings were accordingly quashed in that case. Sri G.Krishna Murthy, learned counsel for the Respondent, relying upon the above judgment attacks the aﬃxation of the Section 9 notice upon the pole in the present case, as is demonstrated by the original record, and argues that in the light of the above judgment such aﬃxation cannot be treated to be in due and proper compliance with the statutory procedure laid down in Section 45. We ﬁnd substantial force in this argument. Learned Government Pleader relied upon the judgment of the Supreme Court in STATE OF TAMILNADU V/s. MAHALAKSHMI AMMAL[2] wherein, according to the learned Government Pleader, it was held that any irregularity in service of notice under Sections 9 and 10 of the Act would only be a curable irregularity and on account of the same the award would not become invalid. However, a perusal of the facts of the said case would demonstrate that Sections 9 and 10 notices were alleged to have been served on 120 persons in a single day, including a dead person. The Supreme Court was prepared to overlook any irregularity in such service of notices. In the present case, there was no service at all in accordance with the Act and it is not a case of ‘mere irregularity’. Further, there was a stay of dispossession in that case and therefore, the limitation under Section 11-A of the Act did not come into play. The Supreme Court also observed that the possession of the land would be taken only by way of a memorandum, Panchanama, which is a legally accepted norm as it would not be possible to take actual physical possession of vacant land. Further, in that case the issue was with regard to a supplemental award being passed in respect of certain portion of land, which had been left out in the ﬁrst notiﬁcation under Section 4(1) of the Act. The Supreme Court took note of the fact that in so far as the ﬁrst notiﬁcation was concerned, the procedure had been followed strictly, and therefore, the lacuna, if any, in passing of the award pursuant to the second Section 4(1) notification was overlooked. In the case on hand, we have noticed that there is no proof of the land having been taken on 05.07.1992 as alleged by the authorities. There is no panchanama available in the record and there is no proof of notice having been issued under Section 12(2) of the Act. It is also to be noted that in the aforestated judgment, the Supreme Court observed that if compensation was accepted without protest, it binds such party. In the present case, the Respondent did not even have notice that the award had been passed till he ﬁled the writ petition and the same was supplied to him along with the counter-aﬃdavit. According to the authorities, the compensation payable to him was deposited in Court. No details are forthcoming as to when such deposit was made. Without paying compensation to the Respondent, it is not lawful for the authorities to take possession of the land, unless they had sought re-course to the provisions of Section 17 of the Act. In this regard, Sri G.Krishna Murthy, learned counsel for the Respondent, stated that though Section 17 of the Act had been pressed into use when the Section 4(1) Notiﬁcation and Section 6 declaration were issued simultaneously on 27.07.1981, we do not ﬁnd any mention of the invocation of the provisions of Section 17 of the Act at that point of time, from the record. On the other hand, this Court, while setting aside the Section 6 declaration by its order dated 28.01.1986 in W.P.No.4475 of 1982 directed the authorities to follow the procedure prescribed under Section 5-A of the Act. Had the authorities invoked the urgency provisions of Section 17 of the Act, they were required under Section 17 (3-A) of the Act to tender payment of 80% of the compensation for the land before taking possession. There is no whisper of any such steps having been initiated by the authorities in this case. Further, as contended by Sri G.Krishna Murthy, the power to take possession of the land, in the absence of the urgency provisions under Section 17, would only arise when the Collector makes an award under Section 11 of the Act and takes possession under Section 16 of the Act. In the present case, it is the case of the authorities that award was passed on 22.11.1993 and possession was taken on 05.07.1992. Therefore, there is a clear violation of Section 16 of the Act going by the case as put-forth by the authorities themselves. Learned Government Pleader also placed reliance on the judgment of the Supreme Court in NASIK MUNICIPAL CORPORATION V/s. HARBANSLAL LAIKWANT RAJPAL[3], wherein the Supreme Court while dealing with a factual scenario where notiﬁcation under Section 4(1) of the Act was issued, declaration under Section 6 was published, notice under Section 9 was issued and an award was passed. Subsequent thereto, a corrigendum was issued restoring the notiﬁcation in respect of certain lands, which had been deleted in the interregnum. The issue before the Supreme Court was whether the award which had been passed in this interregnum would continue to be valid in law in spite of the corrigendum restoring the status-ante. It is in this background that the Supreme Court held that once a notiﬁcation under Section 4(1) was published and a declaration under Section 6 was issued, the public purpose becomes conclusive and for any variation without substantial formalities, it is not necessary that the entire process should be followed. The contention with regard to non-furnishing of information of the notiﬁcation under Section 9 of the Act did not ﬁnd approval with the Supreme Court, which held that merely because of the same, the award would not become invalid. It would be noticed that in this case also the Court was dealing with a modiﬁed factual situation subsequent to the proceedings issued earlier in accordance with the Act and the Court expressed the opinion that non-furnishing of the information of the notiﬁcation under Section 9 of the Act would not be fatal to the Award. The factual matrix of the present case is essentially diﬀerent from the situations which were before the Supreme Court in the aforesaid two cases and the same cannot be held to lay down the proposition of law that the authorities are at liberty to violate the procedure prescribed in the Act. In exercise of its right of eminent domain, the State is bound to follow the procedural norms prescribed in the Act while depriving an individual of his property. This valuable right of the individual cannot be trampled upon callously by the authorities by showing scant regard to the procedural safeguards provided in the Act. These safeguards have been prescribed so as to obviate any possibility of misuse or arbitrariness in exercise of the vast and potent powers vested in the authorities in this regard. It is also to be noticed that under Section 9(1) of the Act, the Collector is required to cause public notice with regard to the intent of taking possession of the land and that claims to compensation for all interests in such land should be made to him. Similarly, under Section 9(3) of the Act, the Collector is required to serve notice to the same eﬀect on the occupier of the land and on all such persons known or believed to be interested therein. It is clear that the above provisions envisage that the notices under Sections 9(1) and 9(3) of the Act are to be issued prior to the taking over of the possession of the land. In the present case, according to the authorities themselves, the notices under Sections 9(1) and 9(3) of the Act were issued on 22.11.1993, while the possession of the land is said to have been taken on 05.07.1992. This clearly demonstrates manifest and blatant violation of the procedure as laid down in the said provision. Further, it is very much doubtful as to whether the possession of the land was actually taken by the authorities as claimed by them. There is no proof of the same, be it in the form of a panchanama or by way of a notice under Section 12(2) of the Act. Further, when the Respondent herein obtained only an order of stay of his dispossession from the land on 05.05.1998, there was no necessity for the authorities, had they really taken possession, to move a vacate stay petition in WVMP No.2408 of 1999 in WPMP No.16055 of 1998 in W.P.No.13318 of 1998 praying that unless the stay is vacated, the beneﬁciaries would be put to great hardship and the very purpose of the acquisition would be defeated. This act on the part of the authorities clearly speaks against their having taken possession of the land as claimed by them. Sri G.Krishna Murthy, learned counsel for the Respondent, also raised another ground with respect to the violation of Section 11 of the Act in so far as there is no proof of the Collector having obtained previous approval of the appropriate Government or such Oﬃcer as the appropriate Government may authorize before making the award. He relied upon the judgment of the Supreme Court i n STATE OF U.P. V/s RAJIV GUPTA [4], wherein the Supreme Court held that the prior approval either of the appropriate Government or of the oﬃcer authorized by the