THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.2100 of 2009 Between:
1. Kunapureddy Kondal Rao, and others.
PETITIONERS AND
1. The Land Acquisition Officer-cum-Special Deputy Collector, Yeleru Reservoir Project, Unit-I, Peddapuram, East Godavari District, and another.
RESPONDENTS ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed for the following relief:
“……to issue a Writ of Mandamus or any other appropriate writ or order or direction declaring the inaction of the respondents in paying the compensation to the petitioners as per the decree and Judgment in O.P.No.128/88, dt.9.11.1990 on the file of II Additional District Judge's Court, Rajahmundry, in respect of the lands acquired by the respondents for Yeleru Reservoir Project under Award No.40/85, dt.21.02.1985, situated in R.S.No.52/1 an extent of Ac.3.42 cents; 54/1 an extent of Ac.4.51-1/2 cents and R.S.No.55 an extent of 0.30-1/2 cents; R.S.No.55/1 an extent of 0.51-1/2 cents; R.S.No.50 an extent of Ac.1.34 cents; and R.S.No.50 an extent of Ac.1.34 cents situated at Lingavaram Village, East Godavari District, by considering the application preferred by the petitioners herein under Sec.28-A of the Land Acquisition Act, dt.11.12.1990 as illegal, arbitrary and violative of Art. 300-A of Constitution of India and also violative of principles of natural justice and for a consequential order directing the respondents herein to pay the compensation to the petitioners forthwith by considering their application dt.11.12.1990…..”
2. According to the petitioners, they owned small extents of ancestral lands in Rs.Nos.52/1, 54/1, 55, 55/1 and 50, situated at Yeleswaram Village, East Godavari District, and the respondents acquired the said lands under the provisions of the Land Acquisition Act, 1894 (‘the Act’ for brevity) for Yeleru Reservoir Project, Unit-I, and Award bearing No.40/1985, dated 21.02.1985 was passed, awarding compensation at the rate of Rs.10,500/- per acre for wet lands, Rs.5,500/- per acre for dry lands and Rs.3000/- for grazing lands. Felt aggrieved by the quantum of compensation, certain land owners preferred O.P.No.128 of 1988 on the file of the Court of the II Additional District Judge, and the learned Judge by virtue of an order dated 9.11.1990, enhanced the compensation to Rs.13,000/- per acre for wet lands and Rs.10,000/- per acre for dry lands. As per the petitioners, petitioners 1 and 2 and the fathers of petitioners 3 and 5 made a joint application on 11.12.1990 to the 1st respondent by registered post acknowledgement due under Section 28-A of the Act, requesting for re-determination of compensation in terms of the decree and judgment in O.P.No.128 of 1988, dated 9.11.1990. As per the petitioners, they got issued a legal notice dated 24.12.2006, but their request did not yield any result.
3. Complaining inaction and assailing the same as illegal, arbitrary and violative of Article 300-A of the Constitution of India, the present writ petition came to be filed. This Court issued Rule Nisi on 09.02.2009 and responding to the same, a counter affidavit has been filed by the 2nd respondent, denying the averments in the writ affidavit and in the direction of justifying the impugned action. A reply affidavit has also been filed by the petitioners.
4. Heard Sri Ch. Dhanamjaya, learned counsel for the petitioners and the learned Government Pleader for Land Acquisition for respondents 1 and 2, apart from perusing the material available before this Court.
5. It is contended by the learned counsel for the petitioner that the action impugned in the present writ petition is highly illegal, arbitrary, unreasonable and violative of Articles 14 and 300-A of the Constitution of India and opposed to the very spirit and object of the provisions of the Act. The learned counsel further contends that the reason assigned by the respondents in their counter affidavit, is neither sustainable nor tenable in the eye of law and it is not open for the respondents to deny the claim on unreasonable grounds and the petitioners cannot be made to suffer for no fault of them. It is further contended that having received the legal notice, the respondent-authorities are not justified in not responding to the same.
6. Per contra, the learned Government Pleader for Land Acquisition vehemently opposed for grant of any relief in favour of the petitioners. It is contended that there is neither illegality nor any irregularity in the impugned action, as such, the present writ petition is not maintainable and the petitioners are not entitled for any relief from this Court under Article 226 of the Constitution of India. It is further argued that the claim of the petitioners cannot be granted at this length of time and the same is barred by laches. It is further contended that the application said to have been submitted on 11.12.1990 under Section 28-A of the Act is not found in the record as such the claim of the petitioners does not deserve any consideration.
7. In the light of the above pleadings, submissions and contentions, now the issues that boil down for consideration of this Court are whether the respondent-authorities are justified in refusing to consider the request of the petitioners under Section 28-A of the Act and whether the petitioners are entitled for any relief from this Court under Article 226 of the constitution of India.
8. Property right is a constitutional right as enshrined under Article 300-A of the Constitution of India, which in vivid and manifest terms, mandates that no citizen of our country shall be deprived of or divested of his/her property except in accordance with the procedure established by law. Therefore, the authorities dealing with this right are required to act in furtherance of the said constitutional mandate. The Land Acquisition Act, 1894 is an ex-proprietory legislation, as such, the provisions of the said legislation should necessarily be implemented and followed in their true letter and spirit and such sacred statutory obligation is cast upon the authorities functioning under the said Statute. The above aspects should be born in mind while dealing with the claims under the present enactment. The issue in the instant case requires consideration in the light of the above aspects.
9. The provision of law, which is germane and relevant and which needs reference for the purpose of resolving the controversy in the present writ petition, is Section 28-A of the Act, which reads as under:
“Section 28-A:-Re-determination of the amount of compensation on the basis of the award of the Court:- (1) Where in an award under this Part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court;
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub0section the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
(2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under sub0section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.
10. A reading of the above provision of law makes it manifest that the same enables the land losers, due to compulsory acquisition of their land under the Land Acquisition Act, to seek equal treatment on par with those who availed the remedy for enhancement under Section 18 of the Act. This provision of law is obviously enacted for the benefit of the land losers, as such the claims under the said Section must be considered in the light of the object behind the said provision.
11. The persons aggrieved by the quantum of compensation awarded by the Land Acquisition Officer have evidently two options. (1) by way of reference under Section 18 of the Act and (2) by way of submitting application under Section 28-A of the Act, within the time stipulated therein. These provisions are inserted in the Statute by the legislature obviously keeping in view the importance and significance of the consequences of loss of land and its impact on the lives of the citizens in the agriculture based country.
12. The material made available before this Court amply discloses that there is absolutely no dispute with regard to the facts of the authorities acquiring the lands of the petitioners for Yeleru Reservoir Project, passing of award bearing No.40/1985 dated 21.02.1985, the reference vide O.P.No.128 of 1988 to the Court of the II Additional District Judge, Rajahmundry, and the order of the said Court dated 9.11.1990, enhancing the amount of compensation under Section 18 of the Act. It is the categorical case of the petitioners that on 11.12.1990 petitioners 1, 2 and the fathers of petitioners 3 and 5, and the 4th petitioner submitted a joint application under Section 28A of the Act, claiming compensation on par with the claims of the petitioners in O.P.No.128 of 1988 and a copy of the said application and acknowledgment, which bears the signatures and seal of the Special Deputy Collector (L.A), Yeleru Reservoir Project, Peddapuram, is placed on record by the petitioners. Except stating in the counter that no such application or acknowledgement, were found in the record there is absolutely no denial of their genuineness by the respondents.
13. As per Section 28-A of the Act, the application has to be made within three months from the date of the award of the Court. In the instant case the reference Court answered the reference by virtue of order dated 9.11.1990 and the petitioners submitted the application on 11.12.1990. As per the counter affidavit the Project Office at Peddapuram was dis-abandoned in the year 1993 and the record relating to Rampachodavaram Division was received in the Revenue Divisional Office at Rampachodavaram in the year 1994 and the respondents could not find the application of the petitioners in the said record. While referring to the same, it is emphatically argued by the learned Government Pleader that in view of the same, the petitioners are not entitled for any relief from this Court. The said defence sought to be canvassed and pressed into service by the respondents, in the considered opinion of this Court, cannot stand for the twin tests of reasonableness and rationality in the absence of any denial of genuineness of the application and the postal acknowledgement produced by the petitioners along with the present writ petition.
14. The aspect of delay, if any, on the part of the petitioners in approaching this Court, in the opinion on this Court, is of no consequence in view of the object behind the enactment and the intention of the legislature in incorporating Section 28-A of the Act. The contention advanced by the learned Government pleader on laches and delay is also of no consequence and deserves to be rejected in view of the law laid down by the Hon’ble Apex Court in Tukaram Kana Joshi v.
Maharashtra Industrial Development Corporation
[1]
.
15. In the above referred judgment, the Hon’ble Apex Court at paragraph Nos.12 to 15 held as under:
“12. The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party’s defence must be tried upon principles substantially equitable. (Vide P.S.
Sadasivaswamy v. State of T.N.8, State of M.P. v. Nandlal Jaiswal9 and Tridip Kumar Dingal v. State of W.B.10)
14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners. (Vide Durga Prashad v. Chief Controller of Imports and Exports11, Collector (LA) v. Katiji12, Dehri
Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur13, Dayal Singh v. Union of India14 and Shankara Coop. Housing Society Ltd. v. M. Prabhakar15.)
15. In H.D. Vora v. State of Maharashtra16 this Court condoned a 30-year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed.”
16. In the instant case also there is absolutely no involvement of any third party rights. Therefore, on the ground of delay, the petitioners cannot be non-suited and deprived of their legitimate claim under Section 28-A of the Act. In view of the reasons narrated supra, this Court has absolutely no scintilla of hesitation nor any traces of doubt to arrive at a conclusion that the petitioners are entitled to have their request considered in accordance with the provisions of Section 28-A of the Act.
17. For the aforesaid reasons, the writ petition is allowed, directing the respondents to consider the claim of the petitioners for enhancement of compensation in terms of the provisions of Section 28-A of the Act in the light of the order in O.P.No.128 of 1988 dated 9.11.1990 passed by the Court of II Additional District Judge, Rajahmundry, within a period of three months from the date of receipt of a copy of this order. No order as to costs. As a sequel, miscellaneous petitions, if any, stand closed.
JUSTICE A.V. SESHA SAI.
24th November, 2014 Js.
L.R. Copy to be marked.
[1] 2013 (1) SCC 353