HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.32918 of 2013 DATE: 23.12.2014 Between:
M.C.Chalapathi, s/o. Marichetti Krishnaiah, Aged about 49 years, Employee & Cultivation, r/o. Vedurukuppam Village, Vedurukuppam Mandal, Chittoor District and another AND The Government of Andhra Pradesh, rep.by its Secretary, Legislative Affairs & Justice, Secretariat, Hyderabad and others.
.. Petitioners .. Respondents The Court made the following:
HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.32918 of 2013 ORDER:
This writ petition is instituted challenging the notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) dated 23.08.2013 and Section 6 declaration, dated 25.10.2013.
2. It is the assertion of the petitioners that the first petitioner is the owner of the land to an extent of Ac.11.00 cents in Sy.No.54P, which is sought to be acquired and Ac.14.82 cents in Sy.No.57/1P of Tirupathi Village, erstwhile Chandragiri Taluq, Chittoor District. These extents of land originally stood in the name of Sri Swamy Bagawan Dossejee of Hathi Ramji Mutt, Tirupathi. S r i Swamy Bagawan Dossejee of Hathi Ramji Mutt, alienated the said properties in favour of Marichetti Krishnaiah after receiving due consideration and as per sanction accorded by the then Government of Madras in G.O.No.4935, dated 13.02.1927. Marichetti Krishnaiah is the father of the first petitioner. He died on 07.11.1973. After his death, his wife Marichetti Subbamma continued in possession and enjoyment. The lands were cultivated through the tenant, by name, Soora Ramachndra Reddy, father of the 2nd petitioner. On 01.03.1995, Subbamma executed deed of tenancy in favour of the second petitioner. In 1998, Subbamma requested the second petitioner to surrender 1/3rd share of the properties for personal cultivation and accordingly, an agreement was entered into on 07.01.1998. Alleging that as agreed upon the land was not surrendered, she filed ATC No.1 of 1998 on the file of Principal Junior Civil Judge, Tirupathi against the second petitioner, which was decreed on 19.06.1998. She filed E.P.No.2 of 2000 alleging non-compliance of the decree and ultimately, she took possession of her 1/3rd share in Sy.No.54P to an extent of Ac.3.00 cents and Ac.4.00 cents in Sy.No.57/1P by way of court proceedings dated 08.03.2011 and the remaining extents of land is in possession and enjoyment of the second petitioner. It is further case of the petitioners that after introduction of Andhra Pradesh Inams (Abolition and Conversion into Ryotwari) Act, 1956 (for short, ‘the Act, 1956’), the Inam Tahsildar granted ryotwari pattas in respect of the above extents of land in favour of Marichetti Krishnaiah and rest of the land in the above survey numbers belongs to the Hathiramji Mutt. Thus, the petitioners are the owners and in possession of the above extent of land, which was sought for acquisition.
3. Heard Sri S.V.Muni Reddy, counsel for the petitioners and learned Assistant Government Pleader for Land Acquisition.
4. The learned counsel for petitioners contends that petitioners are the owners of the property which is proposed for acquisition and without putting the owners on notice, acquisition proceedings cannot be taken up. Petitioners’ challenge to Section 4(1) notification and draft declaration under Section 6 of the Land Acquisition Act, 1894 (Act), is on the following grounds:
(a) The proceedings are ex facie illegal and liable to be set aside on the ground that the names of the owners of the land are not reflected in Section 4(1) notification and were not given opportunity of hearing before draft declaration was notified.
(b) It is illegal to invoke urgency clause under Section 17(4) of the Act, as no such emergency can be shown in matters where the acquisition is for the purpose of construction of Court buildings and, therefore, invoking urgency clause and dispensing with Section 5A enquiry is ex facie illegal.
(c) Section 5A of the Act vests substantive right in the owner of the land to raise objection against acquisition and such right being valuable right, it cannot be dispensed, more particularly when the acquisition is for the purpose of construction of Court buildings.
(d) Procedure illegalities in issuing Section 4(1) notification vitiate acquisition proceedings.
(e) On earlier occasion, Ac.2.00 cents of land in Sy.Nos.54 and 57 was acquired in Award No.1 of 2002 dated 16.8.2002 and compensation was paid to the petitioners. Repeated acquisition of properties of the same family is illegal and on that ground also the acquisition proceedings are vitiated.
(f) Sufficient Government poromboke land is available. When alternative Government land is available for the purpose of construction of Court building complex, acquiring the private property resorting to compulsory acquisition proceedings is illegal.
5. Counsel for the petitioners placed reliance on the following judgments in support of his contentions.
i) Narayan Govind Gavate etc., vs. State of Maharashtra and others[1]
ii) Pon. Elangovan v. State of Tamil Nadu[2]
iii) Radhy Shyam (dead) through LRs. And others v. State of Uttar Pradesh and others[3] i v ) Venkatadri Srinivasulu and others v. District Collector, Kurnool and another[4]
v) Pasala Padma Raghava Rao v. Collector, East Godavari District, Kakinada and others[5]
vi) Thumurouthu Mallikarjuna Rao and another v. State of Andhra Pradesh
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and others
6. Land Acquisition Officer denies the contention of the petitioners that they are the owners and possessors and illegally Section 4(1) notification and draft declaration were issued without putting them on notice. The assertion of the respondents is that Hathi Ramji Mutt is the owner of the property; that revenue records disclosed the name of Hathi Ramji Mutt and Hathi Ramji Mutt has consented for parting with Ac.10.41 acres of land in Sy.No.54 for the purpose of construction of Court building complex.
7. It is the case of the respondents that on the request of the High Court, survey was made for finding a suitable land for construction of Court building in Tirupathi. The land in Sy.No.54 to an extent of Ac.10.41 cents was identified as suitable land for construction of Court building. As the revenue records disclosed that the said land was in the name o f Hathi Ramji Mutt, the Commissioner for Endowments was requested to permit the Hathi Ramji Mutt to give land for the purpose of construction of Court building. The Commissioner vide letter dated 14.08.2012 gave consent for such parting of the land and instructed the Hathi Ramji Mutt to take steps to alienate the land in Sy.No.54/2B measuring Ac.10.41 cents. Accordingly, Sri Mahanth Varu, Sri Swami Hathi Ramji Mutt vide letter dated 03.10.2012, expressed his willingness to alienate the land. On further consideration of the matter, the District Collector, Chittoor, directed the Revenue Divisional Officer to initiate proposals under the Land Acquisition Act to acquire the land on payment of due compensation to Hathi Ramji Mutt. Accordingly, notification and draft declaration were approved by the District Collector and were notified.
8. Counter-affidavit traces the history of the land vesting in the Hathi Ramji Mutt. It is stated that on an extent of 49.70 acres of dry land and 75.23 acres of wet land in Sy.Nos.54, 57, 58 and 59 of Tirupati village inam was granted in favour of the Mutt by then Rulers. The Inam Commissioner, Madras, had recognized and confirmed the grant of title deed No.2929, dated 21.09.1883. The Inam Deputy Tahsildar, Chittoor conducted detailed enquiry and having found on the land Inam was granted to the Mutt, passed orders declaring the land as Inam land by order dated 24.04.1959. The said decision of the Deputy Tahsildar was published in District Gazette on 3.11.1959. On perusing relevant records and being satisfying with the pre-abolition rights of the Mutt, the Inam Deputy Tahsildar, granted ryotwari patta in favour of the Mutt over the lands in Sy.Nos.54, 57, 58 and 59 of Tirupati village. These orders have become final as no challenge is made.
9. It is further averred that Ac.11.00 cents of land in Sy.No.54 was leased out by the Mutt to C.D.Sampath Ayyangar, but third parties encroached on the same. Hence, Mutt prosecuted civil litigation and obtained decrees and the illegal occupants were evicted and possession was obtained by the Mutt as early as in the year 1971. Thereafter, Mutt is in possession. It is further averred that M.C.Chalapathi and S.Sudhakar Reddy (petitioners herein) filed O.S.No.33 of 2003 on the file of III Additional District Judge, Tirupati, seeking declaration of title and permanent injunction against the Mutt. It was contended that the then Mahant of Mutt under Takid No.119/1937 dated 11.09.1937 issued in favour of M.Krishnaiah, i.e., father of M.C.Chalapathi, alienated the land to an extent of Ac.11.00 cents in Sy.No.54 and Ac.14.83 cents in Sy.No.57/1 of Tirupati Village. It is contended that no such Takid was issued by Mutt. The person by name, B.Ramaiah who was incharge of legal matters of the Mutt from the year 1970 onwards in collusion with the ex-tenants, created Takids and other documents supporting the claim of the ex-tenants and to defeat the valuable rights of the Mutt. Crime No.239/2004 was registered and he was arrested on 02.09.2004 and valuable documents were seized from him including one round seal of the Mutt, facsimile signature seal of Sri Prayagadassji, five empty takid papers and other documents. He alleged to have confessed the illegalities committed by him. The takid relied upon by the plaintiffs in O.S.No.33 of 2003 was also one of such Takids. The III Additional District Judge, Tirupati, passed orders on 01.05.2009 refusing to receive Takid bearing No.119/37, dated 11.09.1937 since the original of it was insufficiently stamped and unregistered. Review filed by the plaintiffs to review the said orders was also dismissed on merits. Thus, the very Takid on which reliance is placed to claim the right over the land proposed for acquisition was not admitted in evidence in the said suit.
10. It is further averred that by private negotiations, Tirupati Tirumala Devasthanam purchased Ac.8.00 cents of land in Sy.No.54 in the year 1982. Out of the remaining extent of Ac.17.00 cents, Ac.11.00 cents was leased out to S.Muninadha Reddy, the junior paternal uncle of S.Sudhakar Reddy, in the year 1971 for a period of six years. Since the leaseholder did not vacate the premises even after the expiry of lease, Mutt filed O.A.No.25 of 1997 before the Deputy Commissioner of Endowments, Kurnool, for eviction and the same was allowed on 30.10.1997. In execution of the said orders, possession of the land was taken by the Mutt through Assistant Commissioner of Endowments, Chittoor, under a panchanama dated 14.6.2003 in the presence of Revenue and Police authorities and thereafter the Mutt is in possession of the property.
11. It is further asserted that the Joint Collector, Chittoor, in his proceedings dated 10.02.1993 held that the Inam patta alleged to have been granted on 19.04.1961 is illegally created and fabricated document. On a remand made by the Chief Commissioner of Land Administration, Hyderabad, the Joint Collector, Chittoor, conducted further enquiry and after perusing the Inam Fair Register, Inam-B Register, IDT files volume Nos.1 to 3, the village accounts and the original title deed, ryotwari patta and 10(1) account, finally decided that the lands in Sy.Nos.54, 57 etc., are the institutional lands, but not the private lands and ryotwari patta were granted on the said lands in favour of the Mutt. The Joint Collector, Chittoor also held that file bearing R.Dis.No.3901/59, dated 19.04.1961 is created, fabricated, forged and bogus. It is, therefore, asserted that grant of patta on 19.04.1961 as claimed by the petitioners is not valid. In his proceedings dated 18.01.2004, confirmed the issuance of ryotwari patta in favour of the Mutt and this order has become final.
12. It is further averred that by way of collusive litigation, order was obtained by M.Subbamma in ATC No.1 of 1998 against Soora Sudhakar Reddy. There was a dispute between them on the property and the property is shared by them by virtue of settlement arrived at and accordingly, the respective possessions were taken. It is the assertion of the respondents that petitioners were not in possession of land in Sy.No.54 at any point of time. Against the land in Sy.No.54, no suit is pending. Therefore, it is asserted that petitioners not being owners and are not in possession and enjoyment, the issuance of notice to them would not arise and therefore, proceedings are validly conducted.
13. Based on the above assertion in the counter affidavit, the learned Assistant Government Pleader submits that there is no illegality in the procedure followed. The owner of the property as reflected in the revenue records has consented for the acquisition of the land and petitioners are no way concerned with the land. The documents on which reliance is placed to claim that they are in possession and enjoyment and ownership are all fabricated documents and the documents obtained by collusive litigation and the same is not binding on the original pattadar. Petitioners are not prosecuting bona fide litigation. Petitioners are no way concerned with the property and therefore, issuance of notice to them and considering their objections before finalizing the land acquisition proceedings would not arise.
14. Shorn of details the issue for consideration is whether initiation of proceedings under Land Acquisition Act by issuing notification under Section 4(1) of the Act, invoking urgency clause under Section 17(4) of the Act and issuing draft declaration is vitiated on the ground that petitioners were not put on notice of such acquisition proceedings.
15. Whenever Government expresses intention to acquire land for public purpose, notification has to be issued under Section 4(1) of the Act. In the instant case, such notification was issued. The specified public purpose was for construction of court building complex in Tirupathi town. Therefore, the criterion for such compulsory acquisition is fulfilled.
16. The next issue is whether it was justified by Land Acquisition authorities in dispensing with holding enquiry under Section 5A by invoking urgency clause. In the instant case, the process for acquisition preceded by request made by the High Court for identifying suitable land for construction of Court building complex. This particular piece of land was found to be suitable for construction of court building complex. On verification of the revenue records, it was found that this piece of land stands in the name o f Hathi Ramji Mutt. Therefore, the Commissioner for Endowments was requested to make available this piece of land and permit the Hathi Ramji Mutt to give this land to the Government. The Commissioner responded positively and Hathi Ramji Mutt accepted the request of the District Administration to give its land to the State for the purpose of locating court building complex. After obtaining the said consent, the procedure as mandated by the Land Acquisition Act was set in motion by issuing notification under Section 4(1) of the Act. Since the owner of the property has consented for acquisition, in order to expedite the acquisition process conducting of enquiry under Section 5A was dispensed with and urgency clause was invoked and as a consequence Section 6 declaration was issued.
17. Though 1894 Act vested power in the State to compulsorily acquire private property, but before compulsorily acquiring private property, owner of the property must be afforded opportunity of hearing. It is a substantive right. Section 5A of the Act recognizes such substantive right of owner of the property. Constitutional Courts have frowned upon dispensing with enquiry under Section 5A. Thus, dispensing with Section 5A enquiry can be resorted to only in extraordinary circumstances. It is an exception, but not a general rule. Applying the principle of law, as settled by long line of precedents, the invoking of urgency clause, in the normal circumstances is not valid. Once owner of the property consented for acquisition, there is no need to hold an enquiry under Section 5A. In the peculiar facts of this case, it is not strictly a case of invoking urgency clause under Section 17(4), but a summary procedure adopted since the owner of the property has consented for such acquisition.
18. Petitioners narrated history of litigation and other proceedings to claim that the property vested in them and, therefore, they should have been put on notice before initiation of land acquisition proceedings by reflecting their names in Section 4(1) notification and they should have been given opportunity of hearing in accordance with the provision contained in Section 5A of the Act and, therefore, dispensing with Section 5A enquiry was illegal and as a consequence, Section 6 declaration is also illegal.
19. Petitioners relied upon earlier award passed in the year 2002, whereby portion of the land was acquired in support of their contention that earlier the name of the petitioners were reflected in the land acquisition proceedings and they were treated as owners and they were given opportunity of hearing during Section 5A enquiry and award enquiry. As seen from the award No.1 of 2002, total extent of Ac.1.62¼ cents of land was proposed for acquisition standing in Sy.Nos.54/1, 57/1B, 57/2B, 57/3A2 and 57/3B2. In Sy.No.54/1 the extent was Ac.0.73 cents. During the enquiry, in all eleven persons have claimed entitlement to receive compensation, which included Sri Swamy Hathi Ramji Mutt, Tirupathi Tirumala Devasthanam and Soora Sudhakar Reddy. Having found that there are several claimants, Land Acquisition Officer after determining compensation payable as Rs.12,13,262/- referred the matter for resolution by the Civil Court under Section 30 of the Act. Even according to the Land Acquisition Officer the claim of Sudhakar Reddy was confined to Ac.0.16½ cents as against Ac.0.73 cents proposed for acquisition. On this extent total compensation payable was determined as Rs.3,59,082/-. Furthermore, as per averments of petitioners, Soora Sudhakar Reddy was a lessee of mother of first petitioner.
20. As seen from the award No.1 of 2002, Ac.0.73 cents of land was standing in Sy.No.54/1, whereas the land now under acquisition to an extent of Ac.10.41 cents is in Sy.No.54/2B. Thus, the land which was subject matter of Award No.1 of 2002 is different from the land under acquisition.
21. As narrated by the respondents in their counter-affidavit, it is evident that as per the revenue records the property stands in the name of Hathi Ramji Mutt. The Land Acquisition Officer is expected to notify the names of the persons whose names are reflected in the revenue records/Municipal records. In the instant case, even before acquisition proceedings were initiated, detailed exercise was undertaken by the District Administration to find out suitable place for locating court building complex. On the particular property, the District Administration verified the revenue records and found that the lands stand in the name of Hathi Ramji Mutt. Accordingly, they requested the Commissioner for Endowments to permit Hathi Ramji Mutt to part with the land and on grant of such permission, Hathi Ramji Mutt agreed for parting with the land. Therefore, proper care was taken before ascertaining the ownership of the land as per the revenue records and accordingly, name of Hathi Ramji Mutt is reflected in the notification. If the petitioners dispute the ownership of Hathi Ramji Mutt or entries made in the revenue records, the petitioners have to independently work out their remedies.
22. In the instant case, the issue for consideration is whether the Land Acquisition Officer followed due procedure and has put on notice the persons whose names stand in the revenue records against the property proposed for acquisition. The material on record and the averments of the respondents in the counter would disclose clearly that such care and caution was taken before notification was issued.
23. To substantiate the contention of the petitioners that they are in possession reliance is placed on litigation that was generated between the petitioners and resultant delivery of possession. The report of District Administration clearly point out that the site was vacant. On a question posed by the Court to prove that the petitioners are in possession and therefore at least they are persons interested and are thus entitled to participate in the acquisition proceedings, matter underwent few adjournments, but the petitioners are unable to place before this Court any material to show that they are in possession. The relevant survey numbers are not tallying. The affidavit filed in support of W.P.M.P.No.47678 of 2013 is silent as to how petitioners are linking the Sy.No.54P to that of Sy.No.54/2B under acquisition.
24. The judgments relied upon by the counsel for the petitioners are on dispensing with Section 5A enquiry and invoking urgency clause under Section 17(4). The said judgments do not come to the aid of the petitioners unless the petitioners establish their ownership. In the instant case, the revenue records would disclose ownership in favour o f Hathi Ramji Mutt. Unless the said record is altered by due process of law, the entitlement of the petitioners for an opportunity of hearing would not arise.
25. Therefore, in the facts of this case, it cannot be said that the Land Acquisition Officer erred in reflecting the name of Hathi Ramji Mutt in the notifications. Thus the challenge on both counts i.e., acquisition of land by issuing notification under Section 4 of the Act, invoking urgency clause under Section 17(4) and consequent notification under Section 6 fails. I see no error in the procedure followed by the Land Acquisition Officer to acquire land to an extent of Ac.10.41 cents in Sy.No.54/2B in Tirupathi town.
26. Accordingly, the writ petition is dismissed. There shall be no order as to costs. Miscellaneous petitions if any pending in this writ petition shall stand closed.
JUSTICE P.NAVEEN RAO Date : 23.12.2014 kkm HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.32918 of 2013 Date: 23.12.2014 kkm
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AIR 1977 Supreme Court 183 LAWS(MAD)-2009-7-220 (2011) 5 SCC 553 2011 (2) ALT 225 2012 (2) ALD 553 2012 (3) ALD 752