THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION Nos.15310, 16573, 16579, 16580, 20992 and 21516 of 2007
Dated 21st January, 2014
Between:
D.Janardhan Reddy, son of D.Krishna Reddy, Aged about 41 years, Occ: Government Service, Resident of G-37, Madhura Nagar, Hyderabad – 45.
…Petitioner and The Revenue Divisional Officer, Land Acquisition Officer, Tirupathi, Chittoor District and three others.
… Respondents
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION Nos.15310, 16573, 16579, 16580, 20992 and 21516 of 2007 COMMON ORDER:
Since the cause of action in all these writ petitions is one and the same, the factual aspects are also the same and the grievance is also the same, this Court deems it apposite to dispose of these writ petitions by way of a common order.
2. In these writ petitions, petitioners are assailing the action of the respondents in not paying compensation to them for the Mango trees pursuant to the notification dated 18.03.2006 and as per the award dated 09.02.2007 as being illegal, arbitrary and violative of Articles 14 and 300-A of the Constitution of India and consequently the petitioners are seeking a direction to the respondents for payment of compensation for the same together with interest @ 24% per annum.
3. The facts in nutshell, which are essential for the purpose of resolving the controversy in this batch of writ petitions, are as under:
Petitioners herein are the residents of Mallavaripalem village, Satyavedu Mandal, Chittoor District and owned agricultural lands in the said village and used to raise fruit bearing and other trees such as Cashew, Neem, Mango, Eucalyptus, Palm, Vemga, Tamarind, Teakwood, Coconut, Sapota, Karra Tumma, Panasa and Nerudu. A notification under Section 4 (1) of the Land Acquisition Act, 1894 (hereinafter called ‘the Act’) was issued on 18.03.2006 and after holding enquiry under Section 5-A of the Act, a declaration under Section 6 of the Act was issued on 10.11.2006. The Revenue Divisional Officer/first respondent herein issued notice dated 22.11.2006 under Sections 9 (3) and 10 of the Act and also issued Form-I notice dated 09.02.2007 under Rule 5 of the Land Acquisition (District Level Negotiation Committee) Rules, 1992 (hereinafter called ‘the Rules’). As per the declaration under Section 6 and notices under Section 9 (3) and 10 of the Act and Form-I notice issued under the Rules, the number of Mango trees covered by the present writ petitions are as under:
4. The complaint of the petitioners herein in this batch of writ petitions is the failure on the part of the respondent authorities to adhere to the above number of mango trees and the respondent authorities paid compensation for less number of trees by passing a consent award dated 18.03.2007 after obtaining consent in Form-II and affidavit in Form-IV.
5. A counter affidavit deposed by the first respondent Revenue Divisional Officer is filed on behalf of the respondents 1 and 2, contending inter alia, that during the award enquiry certain ryoths made a request to the Land Acquisition Officer, stating that some discrepancy crept in while counting the number of mango trees, as such, a team consisting of Deputy Inspector of Survey and Land Records, Tirupati, Deputy Surveyors of Satyavedu and Varadaiahpalem Mandals were drafted for counting of the Mango trees and the said teem submitted a report to the Land Acquisition Officer mentioning the number of trees. It is further stated in the counter affidavit that after submission of the said report, errata proposals were submitted for Section 6 declaration to the Collector, Chittoor district, for approval and a Gazette notification was published vide Gazette No.85/2006 dated 26.12.2006 and accordingly payments were made to the petitioners.
6. A reply affidavit is filed by the petitioners herein stating that the respondents took consent from the petitioners in March, 2007 mentioning the same number of mango trees as mentioned in 4 (1) Notification, under Section 6 Declaration and notice under Section 9 (3) and 10 and Form-I. It is denied in the reply that at the time of enquiry certain ryoths requested the Land Acquisition Officer to enquire into the discrepancy. The said reply also denies the submission of report to the Land Acquisition Officer by the team. It is stated that the entire story set up by the respondents in the counter affidavit is only to get over the liability. The said reply further states that had the story of the respondents been correct, they would have mentioned the same in the Form-I notice dated 9-2-2007 and the so called survey, errata proposals and gazette notification are invented only for the purpose of filing the counter in the present writ petitions.
7. Heard Sri P.Venugopal, learned counsel for the petitioners and the learned Government Pleader for Land Acquisition for the respondent 1 and 2 and Sri P.Roy Reddy, learned counsel for the 4th respondent and there is no appearance for the 3rd respondent.
8. It is contended by the learned counsel for the petitioners that the action of the respondents in paying the compensation for the less number of trees without adhering to the number of trees indicated in the notification under Section 4 (1), declaration under Section 6, notices under Section 9 (3) and 10 and Form-I is violative of Articles 14 and 300 A of the Constitution of India. The counsel further contends that if there is any discrepancy in counting the trees, the least that is expected from the respondents is prior notices to the petitioners and the respondents did not issue such notices and that the entire story set up in the counter affidavit is only to get over the liability and that the respondents played fraud. It is contended that at the time of initial survey before the issuance of notification under Section 4 (1) of the Act, the entire inspection was done and so called errata proposals dated 22.06.2006 is not filed along with the counter. The counsel further argues that there is absolutely no mention about the errata proposals dated 22.12.2006 in the Form-I notice dated 09.02.2007 or in the award and so called survey and errata proposals were invented for the purpose of filing the counter. It is further contended by the learned counsel for the petitioners that the respondents had taken possession of the petitioners’ land long back and put the third respondent in possession and in turn the third respondent had given award advertisements and issued brochures thereby giving invitation to the prospective purchasers to purchase the land acquired from the petitioners and that certain lands have already been purchased by the third parties. It is further contended that it is not open for the respondents herein to restrict the number of trees in the award without giving any notice to the petitioners herein. Learned counsel for the petitioners places reliance on the Judgments reported in KARNATAKA ELECTRICITY BOARD v. STATE OF
[1]
KARNATAKA , STATE OF KARNATAKA v. SANGAPPA
[2]
DYAVAPPA BIRADAR a n d VITTAL REDDY v. PRINCIPAL
[3]
SECRETARY, I & CAD DEPARTMENT .
9. Reiterating the contents of the counter affidavit filed on behalf of the respondents 1 and 2 as well as the counsel for the respondent No.4, it is vehemently contended by the learned Government Pleader that there is neither illegality nor infirmity in the impugned proceedings and the payments were made to the petitioners herein strictly adhering to the mandatory provisions of the Land Acquisition Act and the Rules framed thereunder.
10. In the light of the respective pleadings of the parties to the present lis and the contentions advanced by the learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel for the Andhra Pradesh Industrial Infrastructure Corporation Limited, the question which falls for consideration of this Court is whether the respondent authorities are justified in paying the compensation for the less number of Mango trees notwithstanding the number of mango trees shown in the earlier proceedings.
11. Right to property is a constitutional right as enshrined under Article 300-A of the Constitution of India, which in clear and unequivocal terms mandates that no citizen of the country shall be deprived of his/her property except in accordance with the procedure established by law. The Land Acquisition Act which authorises the State to acquire the private property compulsorily notwithstanding the opinion of the owner is an expropriatory legislation as such the provisions of the said enactment are required to be construed strictly and scrupulously. The obligation to pay just compensation is a necessary incidence of power of compulsory acquisition of the property.
12. In this batch of writ petitions, this Court is called upon to examine the issue in the light of the said constitutional mandate. The material available before this Court including the record produced by the learned Government Pleader, discloses that on the requisition made by the Zonal Manager, Andhra Pradesh Industrial Infrastructure Corporation Limited, Tirupati, by Lr.No.ZO/TPT/LA/MALLAVARI/2006 dated 23.02.2006, the Mandal Revenue Officer, Sathyavedu, vide Roc.B/66-15/2006 dated 07.03.2006 and the Revenue Divisional Officer, Sathyavedu, Tirupati, vide Roc.F/673/2006 dated 13.03.2006 submitted 4 (1) proposals for acquisition of an extent of Ac.128-79 cents in Sy.No.354/3A, 3B, 3C, 4A, 4B, 4C, 5A, 5B, 5C and 5D of Mallavaripalem village of Sathyavedu Mandal, Chittoor District for establishment of Industrial Park (SEZ). The District Collector vide Roc.No.G2/3682/2006 dated 18.03.2006 accorded approval for 4 (1) notification. The Land Acquisition Officer/Revenue Divisional Officer, Tirupati, sent the same for publication and the same was published in Gazettee.No.85/2006 dated 18.03.2006. Subsequently, vide Roc.No.F/673/2006 dated 07.11.2006, the Revenue Divisional Officer submitted Section 6 proposals to the District Collector and unnumbered paragraph 2 of the said proposals reads as under:
“I submit that teams have been formed and field inspections have been made by the enumeration teams to verify the status on ground. The teams have been inspected the notified lands from 4.9.2006 to 10.09.2006 and submitted reports in the prescribed formats. After verification of reports submitted by the enumerators along with village accounts DD proposals under Sec. 6 of LA Act have been prepared. The proposals of Draft Declaration under Sec.6 of Land Acquisition Act for an extent of Ac.128.79 is submitted herewith for kind perusal.”
13. The schedule annexed to the declaration clearly indicates the number of trees. Vide Roc.No.G2/3682/2006 dated 10.11.2006, the District Collector accorded approval for Section 6 declaration and the same was published in the news papers on 12.11.2006 and in the Gazette No.85/2006 dated 10.11.2006. Subsequently, notices under Section 9 (3) and 10 of the Act were issued on 22.11.2006, indicating the same number of trees as mentioned in Section 6 declaration dated 10.11.2006. Subsequently, statements of the petitioners’ were also recorded during the course of award enquiry and the same were signed by the petitioners’ as well as the Land Acquisition Officer and the Panchayat Secretary. In the said statements also number of trees as mentioned in Section 6 declaration was indicated. The record produced before this Court further discloses that vide Memo Roc.F/673/2006 dated 19.12.2006, the Revenue Divisional Officer directed the Surveyor, Satyavedu and Surveyor, Varadaiahpalem to re-verify the existing trees and the Deputy Inspector of Survey, Revenue Divisional Office, Tirupati and the Mandal Revenue Officer, Satyavedu were also instructed to supervise the said re-verification of the trees and to submit a report. On 23.12.2006 reports were submitted by the said surveyors. Subsequent to the same, the Revenue Divisional Officer vide Roc.F673/2006 26.12.2006, addressed a letter to the District Collector, requesting to issue errata in view of the said reports. On 26.12.2006, errata was issued to the draft declaration by publishing the same in A.P. Gazette extraordinary No.85/2006. The record further discloses that notices in Form-I were also issued on 09.02.2007 under Section 5 of the Andhra Pradesh Land Acquisition (Negotiation Committee) Rules, 1992 and agreements in Form-III were also entered into and affidavits in Form- IV on Non-Judicial Stamp papers were also obtained. The said Forms I, III and IV under the Rules were signed by the petitioners and counter signed by the Land Acquisition Officer/Revenue Divisional Officer. In the said forms also number of Mango trees was mentioned and the said forms I, III and IV tally with the number of trees mentioned in Section 6 declaration and notices under Section 9 (3) and 10 of the Act. Subsequently, the Land Acquisition Officer/Revenue Divisional Officer, Tirupati, passed an Award No.A85/2007 in Roc.No.F/673/2006 dated 18.03.2007, mentioning the list of number of trees basing on the reports of the Surveyors said to have been conducted during the course of award enquiry. It is an admitted fact that no notices were issued to the petitioners herein either at the time of conducting re- verification said to have been made by the surveyors on the instructions of the Revenue Divisional Officer or before issuing errata. There is also no reference with regard to the errata either in the DD proposals or in the award proceedings nor in the Forms-I, III and IV. The said proposals were also, as per the record, do not disclose anything with regard to errata dated 26.12.2006.
14. In the case of KARNATAKA ELECTRICITY BOARD v. STATE OF KARNATAKA (supra 1), the Hon’ble apex Court at paragraph 10 held as follows:
“In our view, the learned Additional Solicitor-General rightly contended that undisputedly there was a written agreement between the parties, which was produced before the LAO and the LAO was bound to pass award in accordance with the agreement. Law on this subject is settled. Granting of interest, solatium and additional amount would depend upon contract between the parties.”
In the case of STATE OF KARNATAKA v. SANGAPPA DYAVAPPA BIRADAR (supra 2), the Hon’ble apex Court at paragraph 12 held as follows:
“12. A right of a landholder to obtain an order of reference would arise only when he has not accepted the award. Once such award is accepted, no legal right in him survives for claiming a reference to the Civil Court. An agreement between the parties as regard the value of the lands acquired by the State is binding on the parties. So long as such agreement and consequently the consent awards are not set aside in an appropriate proceeding by a court of law having jurisdiction in relation thereto, the same remain binding. It is one thing to say that agreements are void or voidable in terms of the provisions of the Indian Contract Act having been obtained by fraud, collusion, etc, or are against public policy but it is another thing to say that without questioning the validity thereof the Respondents could have maintained their writ petitions. We have noticed hereinbefore that even in the writ petitions, the prayers made by the Respondents were for quashing the order dated 23.8.1999 passed by the Special Land Acquisition Officer and for issuance of a direction upon him to refer the matter to the Civil Court. The High Court while exercising its jurisdiction under Article 226 of the Constitution of India, thus, could not have substituted the award passed by the Land Acquisition Officer by reason of the impugned judgment. Furthermore, the question as regard the validity of the agreements had not been raised before the High Court, As indicated hereinbefore, the Division Bench of the High Court had also rejected the contention raised on behalf of the Respondents herein to the effect that the agreements did not conform to the requirements of Article 299 of the Constitution of India or had not been drawn up in the prescribed proforma.”
In the case of VITTAL REDDY v. PRINCIPAL SECRETARY, I & CAD DEPARTMENT (supra 3), this Court at paragraph 11 held as follows:
“11. The present case stands on a higher footing if not on the same pedestal. In the case before the Division Bench, the party was entitled to seek reference under Section 18 of the Act. In the present case, the petitioners have denied to themselves the right to seek reference by submitting an undertaking. The proceedings were almost in the nature of a Consent Award. Consent, by its very nature presupposes the agreement of both the parties on contested issues. From the facts referred to in the previous paragraphs, it emerges that after submission of the Draft Award by the third respondent, the views of the petitioners were not taken into account at all. The substantial reduction of almost more than one-third of the amount was on the basis of the directions issued by the second respondent in his letter dated 12.4.2001. Unless this aspect was discussed with the petitioners or their representatives, the proceedings cannot partake the character of Consent Award. In all fairness, Respondents 2 and 3 ought to have indicated their intention to effect deduction of the cost of wood to the petitioner. What would have emerged on such discussion is a different thing altogether. Absence of discussion as such would certainly vitiate the entire proceedings.”
15. In the instant case, the respondent authorities passed consent award under the Andhra Pradesh Land Acquisition (Negotiation Committee) Rules, 1992. At this juncture, it is relevant to refer to Rules 5, 7, 8, 12, 15, 16 and 17 of the said Rules.
“5. The Collector or the Convenor of Committee shall cause notice in the Form-I to be affixed at two or more public places like Gram Panchayat or Chavidi etc., of the village in which jurisdiction the proposed area of acquisition lies and to the persons interested in the land to appear personally or by person authorized by them before such officer as specified at a time and places therein mentioned and to state their willingness or otherwise to settle their claims through the negotiations Committee. The District Collector Convenor may in any case require such statement to be made in writing and signed by the party or his agent.
(i) The interested persons may also file petitions suo-motu for settlement of the claims before the Negotiation Committee for settlement of Compensation or for share in the compensation.
(ii) (ii) In respect of the cases pending in any Court including High Court/supreme Court or Executive Court the persons interested is initiated by the Negotiation Committee.
(iii) On receipt of suo-motu application for settlement of compensation the Convenor of the negotiation Committee shall take further action in accordance with the provisions contained in Rule 8. After obtaining the consent of the requisitioning department further action for negotiations and for final settlement shall be taken. Notices under Form-I need not be issued to persons interested who are signatories to such application.
(iv) In case any person interested is not a Party to such applications, the notice in Form-I shall be sent to him by Post in a letter addressed to him at his last known residential address, or place or business and 53registered under Sections 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898).
(v) negotiation for settlement shall commence only when all interested persons or representatives authorized by them covered by a notification give a statement expressing willingness for settlement by negotiation Committee.
7. Every Person required to make or deliver a statement under these rules shall be deemed to be legally bound to do so within the meaning of Section 175 and 176 of the Indian penal Code (4 of 1860).
8. The Collector shall also serve a notice in Form – II to the requisitioning department to make a statement that it is willing for settlement of the claims of the pattadars and interested persons by the negotiation Committee and obtain its statement accordingly and duly signed by a responsible officer authorized by the concerned department in that area.
12. (a) The Quantum of compensation, as arrived at the interested persons and requisitioning department before the Negotiations Committee shall be Package deal inclusive of market value/Additional market value/solatium/cost of the damages/valuation of structures/trees and interest etc., as are allowed under the Land Acquisition Act and Government Orders. The Package deal shall indicate the installments and mode and dates of payments, if any.
(b) If there is delay in Payments after settlement as per package deal interest as provided under Section 34 of Land Acquisition Act shall be paid from the due date.
15. The interested persons shall be at liberty to hand-over the possession of land on any other conditions as agreed upon with the Negotiations Committee and as stated in the Agreement Deed.
16. After negotiated settlement the consent award shall be passed by the Land Acquisition Officer under Section 11(2) read with second Provision under Section 31(2) of Land Acquisition Act and reference under Section 18 shall not be made in Court of Law.
17. The settlement arrived at or consent award passed under these rules shall not be applicable to the other similar cases.”
16. As per the said Rules, the land owners are not entitled for any reference under Section 18 of the Act. Agreements in Form-III were entered into and they were signed by the petitioners as well as the Land Acquisition Officer. The said agreements clearly show the number of trees as mentioned in Section 6 declaration and 9 (3) notices and Form-I notices issued under Rule 5 of the said Rules.
17. In the above referred judgment reported in KARNATAKA ELECTRICITY BOARD v. STATE OF KARNATAKA (supra 1), the Honourable apex Court categorically held that it would be obligatory and imperative on the part of the Land Acquisition Officer to pass award in accordance with the agreements. In the case of STATE OF KARNATAKA v. SANGAPPA DYAVAPPA BIRADAR (supra 2), the Hon’ble apex Court at paragraph 12 and in the case of VITTAL REDDY v. PRINCIPAL SECRETARY, I & CAD DEPARTMENT (supra 3), this Court at paragraph 11, held that agreements are binding.
18. In the present cases, except saying that errata was published by way of Tom-Tom in the village, the counter is absolutely silent as to why no notices were issued to the petitioners before issuing such errata. In the record also this Court does not find any evidence with regard to Tom-Tom. In the absence of any notice and opportunity to the petitioners, the respondent authorities cannot justify their action in the name of publishing errata in the Gazette.
19. The facts and circumstances of the cases and the material available on record, drive this Court towards an irresistible conclusion that there is absolutely no plausible explanation nor reasonable justification on the part of the respondent authorities in reducing the number of trees in the name of a request said to have been made by certain land owners at the time of award enquiry without the same being preceded by any notice or opportunity of being heard to the petitioners herein. At this juncture, it is relevant to refer to the judgment of the apex Court in INDU BHUSHAN DWIVEDI v. STATE OF
[4]
JHARKHAND AND ANR . In the said decision, the Hon’ble apex Court, by dealing with the principles of natural justice, at paragraphs 21 and 22 held as under:
“The proposition laid down in the above noted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order prejudicially affecting any person can be passed by a public authority without affording him reasonable opportunity to defend himself or represent his cause. As a general rule, an authority entrusted with the task of deciding lis between the parties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the concerned person must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of not overlooking the cause which may be shown by the other side before coming to its decision.”
20. The material on record manifestly discloses that by completely giving go-bye to the principles of natural justice and by completely ignoring all the proceedings issued and conducted under the Act and the Rules, the respondent authorities penalised the petitioners herein without any reasonable cause.
21. For the aforesaid reasons, these Writ Petitions are disposed of, directing the first respondent herein to pass supplementary award in terms of the agreements entered into between the petitioners and the Land Acquisition officer in Form III and to pay compensation in accordance with the same. This exercise shall be completed within a period of three months from the date of receipt of this order.
Miscellaneous Petitions, if any, shall stand closed. No order as to costs.
A.V.SESHA SAI,J Date:21-01-2014 grk
THE HONOURABLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION Nos.15310, 16573, 16579, 16580, 20992 and 21516 of 2007
Dated 21st January, 2014
grk
[1] 2002 (4) ALD 80 (SC)
[2] (2005) 4 SCC 264
[3] 2004 (4) ALT 430
[4] (2010 )11 SCC 278