IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTIETH DAY OF JULY, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.6698 and 9959 of 2000 WRIT PETITION Nos.6698 of 2000: Between: Fasahatunnisa Begum @ Shamshunnissa Begum and two others. … Petitioners And Union of India, representd by its Secretary, Ministry of Defense, New Delhi and two others. … Respondents WRIT PETITION Nos.9959 of 2000: Between: Fasahatunnisa Begum @ Shamshunnissa Begum and two others. … Petitioners And Union of India, representd by its Secretary, Ministry of Defense, New Delhi and three others. … Respondents Counsel for the petitioners: Sri S.Niranjan Reddy (Both the cases) Counsel for respondents: Sri A.Rajasekhar Reddy, (Both the cases) Addl.Solicitor General for R.1. The Advocate General for R.2 to R.4. This Court made the following: JUDGMENT: Since these two Writ Petitions raise common issues and are interconnected, apart from the parties being common, they are heard and being disposed of together. The brief facts, which are not in dispute, are as follows: Survey No.41/2 comprised a total extent of Ac.42.14 guntas. Sri K. Shankar Reddy, one of the owners of a part of the said property, filed Writ Petition N0o.3909 of 1974 against the action of the officers of respondent No.1 in raising constructions over a part of the land in the said Survey No., without initiating acquisition proceedings. The said Writ Petition was allowed by this Court by order dated 10-12-1975 by directing the respondents either to acquire or vacate the land after removing the structures and buildings in the said property within two months. The State Government, through the Commissioner of Land Revenue, appeared to have issued general instructions on 30-3- 1976 and 20-9-1976 that in respect of the land that is required for DRDL purpose no possession should be taken unless proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 (for short “the 1976 Act”) are finalized. During the year 1976-77 acquisition proceedings under the Land Acquisition Act, 1894 (for short “the 1894 Act”) were initiated in respect of Ac.21.13 guntas in Survey No.41/2 belonging to Sri K. Shankar Reddy. As the land was the subject matter of proceedings under the 1976 Act, correspondence was exchanged between the Commissioner of Land Revenue and the District Collector over the possibility of acquiring the land under the said Act. However, on 29-4-1978 the State Government accorded permission for acquisition of the land under the 1894 Act. Accordingly, on 20-6-1978 Award for Ac.21.13 guntas was passed under the 1894 Act, in which Sri K.Shanker Reddy’s right over the entire land was recognized to the extent of 7/16th share as per the memorandum of compromise recorded in the said Award. As the balance extent of Ac.19.19 guntas continued to be in the possession of the defence authorities, notification under Section 3 of the Requisition and Acquisition of Immovable Properties Act, 1952 (for short “the 1952 Act”) was issued on 27-10-1978, whereby the said property was requisitioned for public purpose. Owners of some other extents of lands, which were also in the possession of the respondents, filed Writ Petition No.3797 of 1979 and batch, seeking directions to the respondents to acquire the subject land under the provisions of the 1894 Act. In the year 1980 Kanchanbagh Revenue village was included in the Municipal Limits under the Master Plan for the purposes of the 1976 Act. On 7-9-1982 Writ Petition No.3797 of 1979 and batch was allowed by this Court, notifications issued under the 1952 Act were set aside and direction was given to the respondents to acquire the lands under the 1894 Act. On 7-3-1985 notification under Section 7 of the 1952 Act was issued proposing to acquire the extent of Ac.19.19 guntas. In the said notification properties belonging to others were also acquired. Owners of other properties challenged the similar notifications in Writ Petition No.4684 of 1987 and prayed for issue of directions to the respondents to acquire the land under the 1894 Act. By order dated 10-7-1987 a learned single Judge of this Court allowed the said Writ Petition and quashed the notification issued under Section 7 of the Act covering all the lands, including the extent of Ac.19.19 guntas belonging to the petitioners, and directed the respondents to acquire the lands under the 1894 Act. Writ Appeal No.1768 of 1987 filed by the respondents against the said order was dismissed on 10-11-1988 and SLP No.10907 of 1989 also met the same fate with its dismissal by the Supreme Court by its order dated 1-5-1989. Another batch of Writ Petitions filed questioning Section 7 notification, viz., Writ Petition No.17267 of 1988 and batch, was also allowed by a Division Bench of this Court on 20-10-1989 following the earlier judgment of this Court. On 5-2-1991 the State Government issued G.O.Ms.No.153, Revenue (UC.I) Department directing the Special Deputy Collector (Land Acquisition), to acquire the extent of Ac.19.19 guntas belonging to the petitioners under the 1894 Act. However, at the instance of the Defence Estate Officer (DEO) the State Government issued Memo dated 21-9-1992 modifying G.O.Ms.No.153 to the extent that acquisition could be done under the 1952 Act except where land already vested in the State under the 1976 Act. As no steps were taken for acquiring the petitioners’ lands, they filed Writ Petition No.8584 of 1992. On 31-7-1995 the Special Officer & Competent authority computed the holding of the petitioners and declared that they were not having any excess land as the land was already taken possession by the Defence Authorities and the declarant was not holding any vacant land. Writ Petition No.8584 of 1992 was allowed by a learned single Judge of this Court by order dated 1-3-1999 directing the respondents to acquire the petitioners’ lands under the 1894 Act as per the directions of the State Government contained in G.O.Ms.No.153 dated 5-2-1991. The said order was assailed by the respondents in Writ Appeal Nos.1697 and 1432 of 1999. On 6-10- 1999 Writ Appeal No.1432 of 1999 was disposed of, whereby the Division Bench set aside the judgment of the learned single Judge to the extent he held that the State Government can acquire the land only under the 1894 Act, giving liberty to the State Government to acquire the land in exercise of the statutory power under the 1952 Act. The Division Bench, however, noted that notification dated 2-3-1985, issued under Section 7(1) in respect of the petitioners’ lands, was already set aside by the learned single Judge in Writ Petition No.5400 of 1992, which was affirmed in Writ Appeal Nos.1330 of 1994 and batch and if the respondents (appellants in the Writ Appeals) have taken possession of the land, they were directed to compensate the petitioners by referring the matter to the District Collector for assessment of compensation for use and occupation of the land till the same is acquired in accordance with law. Liberty was given to the petitioners to approach the District Collector for this purpose. The Division Bench rejected the contention of the learned Standing Counsel for the Central Government that the District Collector had no jurisdiction to assess the compensation for use and occupation, by holding that with the quashing of notification under Section 7(1) of the 1952 Act, the case is not covered by the provisions of the said Act and that, therefore, it is only the District Collector who shall assess the compensation for use and occupation of the land and pass appropriate orders. Writ Appeal No.1697 of 1999 was also allowed by the Division Bench by order dated 22-11- 1999 following the judgment in Writ Appeal No.1432 of 1999. Following the above-mentioned judgment of the Division Bench, the petitioners approached respondent No.3 with a representation dated 21.02.2000 for fixing compensation for use and occupation of the land by respondent No.1 from the year 1975. Feeling aggrieved by the inaction of respondent No.3 in deciding the issue, the petitioners filed Writ Petition No.6698 of 2000. After the said Writ Petition was admitted on 25-4-2000, the Special Deputy Collector (Land Acquisition), respondent No.4, issued notice dated 16-5-2000 calling upon the petitioners to produce documentary evidence on their title and furnish ULC clearance. This notice is assailed in Writ Petition No.9959 of 2000 on the ground that respondent No.4 had no jurisdiction to issue such a notice purportedly under notification dated 2-3-1985 issued under Section 7 of the 1952 Act, which stood quashed by order dated 10-7-1987 in Writ Petition No.4684 of 1987. No counter-affidavit is filed on behalf of respondent No.1. In the counter-affidavit filed by the Special Deputy Collector (Land Acquisition) (General), Hyderabad on behalf of respondents 2 and 3, he denied taking of possession of 19.19 guntas in Survey No.41/2/1 of Kanchanbagh village in the year 1977. He, however, maintained that possession of the said land along with other lands was taken over on 15-12-1978 under the provisions of the 1952 Act and rents were paid upto 7-3-1985. He also averred that the said land is hit by the provisions of the 1976 Act and, therefore, the same need not be acquired either under the 1952 Act or under the 1894 Act. With reference to the judgment dated 1-3-1999 of the learned single Judge of this Court in Writ Petition Nos.8352 of 1989, he maintained that the said order was set aside by the Division Bench by its judgment dated 6-10-1999 in Writ Appeal No. 1432 of 1999 and, hence, there is no need to initiate fresh proceedings either under the 1894 Act or under the 1952 Act. An Additional counter-affidavit has been filed by the Special Deputy Collector (Land Acquisition) (General), wherein after narrating the facts leading to disposal of Writ Appeal No.735 of 1999 by the Division Bench of this Court on 9-6-1999 he stated in paragraphs 14 and 15 as under: “14. It is respectfully submitted that the learned Government Pleader rendered his opinion on 23-3-2000 in his Lr.No.735/99/LA/PRR advising that the Government has to proceed with the notification issued in the year 1985 under RAIP Act, 1952. 15. It is submitted that having regard to the opinion of Government Pleader for LA. High Court of A.P., the notice dt:16-5-2000 in file No.G/538/94 was issued to the petitioners herein and also others informing that the land compensation has been determined at Rs.48/- per Sq.yard without interest for acquire land in Sy.No.41/2/1 of Kanchanbagh village. The petitioners herein and others were requested to produce the following: i. Documentary evidence of their title over the lands for which the compensation is claimed. ii. Urban Land Ceiling clearance issued by the Competent Authority. iii. They are hereby directed to file their consent together with documents within (15) days from the date of this notice”. At the hearing, Sri S.Niranjan Reddy, learned counsel for the petitioners, submitted that with the quashing of the notifications issued under Section 7 of the 1952 Act, the possession of the Ac.19.19 guntas of land belonging to the petitioners is not protected by the provisions of the 1952 Act. He further submitted that until the respondents exercise the option of initiating proceedings under either of the two Acts, viz., 1894 and 1952 Acts, respondent No.1’s possession of the petitioners’ properties continues to be unauthorized and the petitioners are entitled to compensation for use and occupation of the same. He further submitted that despite the clear directions issued by the Division Bench and the request made by the petitioners as far back as 21-2-2000, respondent No.3 failed to assess the compensation. He also submitted that there was no authority for respondent No.4 in Writ Petition No.9959 of 2000 to issue notice dated 16-5-2000 with the quashing of notification dated 2-3-1985 issued under Section 7 of the 1952 Act. Sri A.Rajasekhar Reddy, learned Additional Solicitor General, appearing for respondent No.1, submitted that with the declaration given by the Division Bench in Writ Appeal No.735/99 that the respondents had the choice to initiate proceedings under either of the two Acts, the logical consequence could be restoration of notification dated 2-3-1985 issued under Section 7 of the 1952 Act and, accordingly, respondent No.4 in Writ Petition No.9959 of 2000 issued the notice for the purpose of assessment of compensation under the 1952 Act. He further submitted that respondent No.1 would be put to severe financial hardship if assessment of compensation is made outside the provisions of the 1952 Act. The learned Advocate General, while supporting the contentions of the learned Additional Solicitor General, further submitted that as regards the future course of action, as held by this Court in Writ Appeal No.735 of 1999 the respondents shall be left with the option to proceed under either of the two Acts. I have carefully considered the submissions of the learned counsel representing the respective parties and perused the record. From the facts narrated above, it is clear that notification dated 2-3- 1985 issued under Section 1952 Act was set aside by this Court in the earlier batch of Writ Petitions and the said judgment was confirmed in Writ Appeals. The said fact having been taken note of, the Division Bench in Writ Appeal No.1432 of 1999 held that the petitioners are entitled to payment of compensation for the use and occupation of the land till the land is acquired in accordance with law. Thus, there is no ambiguity, whatsoever, regarding the fact that the possession of Ac.19.19 guntas in Survey No.41/2/1 taken by respondent No.1 is not covered by any valid notification with the setting aside of notification dated 2-3-1985 issued under Section 7 of the 1952 Act. It is, therefore, in recognition of this position that the Division Bench directed respondent No.3 to assess the compensation for the use and occupation of the land. Though in the counter-affidavit filed by the Special Deputy Collector, (Land Acquisition), several contentions were raised, including the objection relating to the alleged excess land under the 1976 Act, at the hearing all these contentions were not-pressed by the learned Advocate General obviously due to the undeniable fact that the Special Officer and the competent authority in his proceedings dated 31-7-1995 already held that the declarants did not hold any excess land as they were not holding possession. At any rate, with respect to this aspect Sri S.Niranjan Reddy relied on the judgment of the Supreme Court in Government of A.P., Vs. H.E.H., the Nizam, Hyderabad(1) and a Division Bench of this Court in Special Officer and Competent Authority, ULC, Hyderabad Vs. Syed Azam and others(2) for the proposition that even if the land held by the petitioner is in excess of the ceiling limit, until the same is vested in the State following publication of notification under Section 10(3) of the 1976 Act, the petitioners continue to be the owners and are entitled to compensation for use and occupation of the land by respondent No.1. This position in law is not disputed either by the learned Additional Solicitor General or the learned Advocate General. Therefore, there is no need to delve into this aspect further. With the filing of the additional counter-affidavit, it has now transpired that the reason for respondent No.3 in not proceeding with the assessment of the compensation for use and occupation of the land and respondent No.4 in Writ Petition No.9959 of 2000 issuing the notice on 16-5-2000, is the opinion dated 23-3-2000 of the learned Government Pleader permitting them to proceed with the notification dated 2-3-1985 issued under the 1952 Act. In my considered view, the said purported opinion of the learned Government Pleader does not reflect correct understanding of the judgment of the Division Bench in Writ Appeal No.1432 of 1999 dated 6-10-1999 pertaining to the petitioners herein and Writ Appeal No.735 of 1999 in which Sri Shankar Reddy and others were parties. Indeed, the said two judgments unequivocally held that the lands covered by those cases cannot be treated as having been acquired under the 1952 Act when notification issued under Section 7(1) of the said Act stood quashed. The Division Bench, without leaving matters at that, had in fact gone to the extent of permitting the petitioners to file an application before respondent No.3 and giving direction to him to assess the compensation for use and occupation till a notification is issued under either of the two Acts. Therefore, if respondent No.3 has not proceeded to assess the compensation and respondent No.4 in Writ Petition No.9959 of 2000 issued the notice to the petitioners, the same can be attributed to their lack of understanding of the true purport of the above-mentioned judgments of the Division benches of this Court. In the face of the said judgments, respondent No.3 is left with no choice other than assessing compensation payable for use and occupation of land by respondent No.1 till such time as a notification is issued under the appropriate statutory provision. For the above-mentioned reasons, both the Writ Petitions are allowed. Notice dated 16-5-2000 is quashed. Respondent No.3 is directed to dispose of representation dated 21-2-2000 submitted by the petitioners by fixing appropriate compensation for use and occupation of the land by respondent No.1 from the date it has taken possession of the land admeasuring Ac.19.19 guntas in Survey No.41/2/1 of Kanchanbagh Revenue Village, Chanminar Mandal, Hyderabad District. He shall complete this exercise within a period of three months from the date of receipt of a copy of this order. The respondents shall also within the said time initiate appropriate proceedings for acquisition of the land under the relevant statute in terms of the abovementioned judgment of the Division Bench of this Court. -------------------------------------- C.V.NAGARJUNA REDDY, J Date: 30-07-2008 MNR