HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.29913, 29919, 29925, 29978, 29979, 31771, 31909, 31523, 31525, 32251, 32165, 32758, 35534, 32098 and 32179 of 2014 Date: 02.12.2014
W.P.No.29913 of 2014
Between :
Burgula Kathyayani D/o. Syamsunder Goud, Aged 27 years, Doctor, R/o.H.No.7-1-212/A/43, Plot No.58, Shivbagh Colony, Ameerpet, Hyderabad.
….. Petitioner And The State of Telangana, rep.by its Prl.Secretary, Revenue (L.A.), Secretariat, Hyderabad and others.
….. Respondents This Court made the following:-
HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.29913, 29919, 29925, 29978, 29979, 31771, 31909, 31523, 31525, 32251, 32165, 32758, 35534, 32098 and 32179 of 2014 COMMON ORDER:
In all these writ petitions, petitioners challenge the Award Nos.C3/922/2013, dated 20.09.2014 (W.P.Nos.29913, 29919, 29925, 29978, 29979 of 2014); C2/892/2013, dated 26.09.2014 (W.P.No.31771, 31523, 31525, 32251, 32179 of 2014); C1/935/2013, dated 01.10.2014 (W.P.No.31909 of 2014); C2/1618/2013, dated 26.09.2014 (W.P.Nos.32165, 32758, 35534 of 2014); and C2/1339/2013, dated 29.09.2014 (WP No.32098 of 2014), acquiring the properties of petitioners. When the matters are called, learned counsels for petitioners and learned Advocate General for the State and learned counsel Sri Vivek Reddy for Hyderabad Metro Rail Limited, agreed for disposal of writ petitions. As issue in all these writ petitions is common, they are disposed of by this order.
2. Heard Sri. S.Subba Reddy, Sri D.Krishna Murthy, Smt. P.Bhavana Rao, Sri Aravinda Rao Venepally, Sri B.Vijaysen Reddy, Sri V.L.N.G.K.Murthy, Sri G.S.Prakash Rao, counsels for the respective petitioners, learned Advocate General for State of Telangana, learned Government Pleader for Land Acquisition and Sri K.Vivek Reddy, standing counsel for Metro Rail.
3. As a consequence to the decision to provide elevated rail network in Hyderabad City, special purpose vehicle is constituted known as Hyderabad Metro Rail Limited (HMRL). The Metro Rail pass through various roads in the city of Hyderabad. To provide proper passage for the project work and to avoid congestion of roads on account of introduction of Metro Rail, the Government simultaneously taken up widening of the roads, wherever the Metro Rail lines passes through. The provisions of the Land Acquisition Act, 1894 (Repealed Act) were invoked setting in motion the process for acquisition of private properties. Awards were notified acquiring the properties of petitioners. These awards are challenged in these writ petitions. In this batch of cases, the grievance of all the petitioners is that award is passed after 01.01.2014, whereas the amount of compensation payable was determined in accordance with the provisions of Land Acquisition Act, 1894, which was repealed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act 30 of 2013) and therefore, the award is ex facie illegal on that ground. In support of the claim reliance is placed on Section 24 of Act 30 of 2013.
4. Learned counsels for petitioners submit that the only grievance of petitioners is against method adopted to determine compensation. The petitioners are not opposing acquisition of their properties. Learned counsels contend that the petitioners are entitled to higher compensation in accordance with the provisions contained in Act 30 of 2013 and determination of lower compensation by following the Repealed Act is ex facie illegal. There are some individual grievances of the petitioners in respective cases, such as, differing compensation on the ground that no evidence in support of the ownership is produced, that opportunity of hearing during award enquiry was not properly followed, that the claim of compensation though specifically made in accordance with the new Act was not dealt with.
5. As per the scheme contained in Land Acquisition Act, 1894, whenever there is a requirement of private properties for public purpose, notification under Section 4(1) has to be issued expressing intendment of the State to acquire such properties. Thereafter, an enquiry has to be conducted as per Section 5A of the Act. The objections already filed and the objections raised during the course of the personal hearing shall be considered and an order to be passed. Thereafter declaration has to be issued under Section 6 confirming the proposal of the State to acquire the properties. After the notification is issued of such declaration, notices have to be issued on taking possession and claims of compensation and an enquiry has to be conducted accordingly. During the award enquiry, the persons, whose properties were under compulsory acquisition are entitled to raise objections with reference to the extent of acquisition, their entitlement for compensation and also the claims of persons who have interest in the property. The award under Land Acquisition Act is of two parts. First part deals with extent of acquisition of the property of an individual for the public purpose as specified therein. After determining the extent of the land required for public purpose, in the second part, the Land Acquisition Officer is also required to determine the amount of compensation payable. Land Acquisition Act, 1894 and Act 30 of 2013 recognize right of owners of property for determination of appropriate compensation. It is a substantive right. In this batch of writ petitions, as already noted, the grievance is with reference to second limb of awards i.e., determination of compensation.
6. It is contended that in view of the provision contained in Section 24(1) of the Act 30 of 2013, the Land Acquisition Officer is mandated to determine the compensation in accordance with the Act 30 of 2013, whereas in the awards under challenge in these writ petitions, it was determined by following provisions of Repealed Act.
7. Act 30 of 2013 is enacted in supersession of Act, 1894. However, Section 24 of the Act saves the process of acquisition already set in motion as per the Repealed Act before 01.01.2014. Section 24 of Act 30 of 2013 reads as under:
“Section 24: (1) Notwithstanding anything contained in this Act, in any case of Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894:-
(a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or
(b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed”.
(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act.
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.”
8. In these cases, Section 24(1)(a) is applicable. According to this provision, land acquisition proceedings initiated under Act, 1894, can be continued and award can be passed, but the compensation payable to the owners of the property has to be determined in accordance with the provisions of Act 30 of 2013.
Failure to determine the compensation in accordance with the Act 30 of 2013 would vitiate such land acquisition proceedings. Thus, when the awards were passed, the Land Acquisition Officer was ignorant of the statutory mandate and proceeded to determine the compensation according to the Repealed Act, which is ex facie illegal.
9. Having regard to mandate of Section 24(1) of Act, 2013, earlier these matters were adjourned at the instance of the Government to express its stand on the primary grievance of the petitioners that the compensation determined in accordance with the Repealed Act is ex facie illegal and, therefore, liable to be set aside.
10. Learned Advocate General appearing on behalf of the State produced recent decision of the Government, which is contained in Memo No.9662/LA/2014, dated 10.11.2014. In view of the said decision of Government, learned Advocate General submits that Land Acquisition Officers have to take steps to determine the compensation payable to persons whose properties are compulsorily acquired.
11. The orders of the Government in Memo dated 10.11.2014 read as under:
“ With reference to letter 3rd cited ( From the District Collector, Hyderabad, Lr.No.C2/1618/14, dated 13.10.2014), the District Collector, Hyderabad, is informed that the new Land Acquisition Act i.e., Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act No.30/2013) has been enacted by the GOI which came into force w.e.f. 01.01.2014.
2. He is also informed that, Section 24(1) of the said new L.A.Act, 2013 provides as follows:-
“Notwithstanding anything contained in this Act, in any case of Land Acquisition Proceedings initiated under the Land Acquisition Act, 1894:-
(a) Where no award u/s. 11 of the said L.A.Act has been made, then, all provisions of this act relating to the determination of compensation shall apply; or
(b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said L.A.Act, as if the said Act has not been repealed”.
3. In view of the above position, it is clear that, the compensation for the properties notified before 31.12.2013 (which are at award/PV stage) has to be assessed and paid as per new L.A.Act, 2013 only.
4. With regard to the rules governing the said new Act, the draft rules have been finalized by the Cabinet sub-committee and it may take some more time to issue the rules.
5. He, is therefore, requested to take necessary action in the matter as per law/rules in force.”
12. In accordance with the decision of the Government of State of Telangana, it is mandatory for the Land Acquisition Officer to undertake the exercise of re-determination of compensation on the properties acquired for the purpose of widening of the roads. Learned counsel for the petitioners submits that the petitioners are entitled to an opportunity of hearing and to raise all the claims for determination of appropriate compensation payable to them.
13. Having regard to the above discussion and in view of the orders of Government in Memo No.9662/LA/2014, dated 10.11.2014, the awards impugned in these writ petitions are set aside to the extent of determination of compensation under the Repealed Act and as a result matters are remitted to the Land Acquisition Officer for re-determination of compensation payable to the properties of the petitioners acquired by the State in accordance with Section 24(1) of Act 30 of 2013.
14. The Land Acquisition Officer shall fix the date for hearing, cause notice on the petitioners and afford an opportunity of hearing to the petitioners, consider all the claims of the petitioners with reference to the determination of appropriate compensation, consider their objections and pass supplementary award and the amount of compensation so determined would be paid before possession of the properties are taken. The persons in occupation shall be given four weeks time from the date of payment of compensation for vacating the premises and handing over the premises. To avoid further litigation, it is necessary to put on notice the persons, who claimed to have interest in the subject properties and shall also be given an opportunity of hearing to them and their grievance shall also be considered before passing the supplementary award. The petitioners shall furnish list of such persons to the Land Acquisition Officer within a week from today. The petitioners shall cooperate for early disposal of the issue and shall have to appear on the date and time fixed by the Land Acquisition Officer for the purpose of enquiry to determine compensation and to receive the amount of compensation determined. By the date and time fixed for enquiry, petitioners shall be ready with the claims in accordance with the provisions of Act 30 of 2013. If they so choose, they may submit in advance the amount of compensation payable to them as per their assessment. Petitioners are entitled to be represented by their counsel. The entire exercise shall be completed within the fixed time frame and the Land Acquisition Officer shall draw the schedule and communicate to petitioners along with notice of hearing including date for payment of amounts and mode of payments. If the petitioners do not appear on the dates fixed or do not cooperate in early disposal of the claims, it is open to the Land Acquisition Officer to pass ex parte supplementary award duly recording the reasons and to take consequential steps. Parties shall adhere to time schedule fixed to conclude the acquisition proceedings.
15. The writ petitions are accordingly allowed. There shall be no order as to costs. Miscellaneous petitions if any pending in these writ petitions shall stand closed.
JUSTICE P.NAVEEN RAO Date: 02.12.2014 Kkm HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.29913, 29919, 29925, 29978, 29979, 31771, 31909, 31523, 31525, 32251, 32165, 32758, 35534, 32098 and 32179 of 2014 Date: 02.12.2014 Kkm