HON’BLE SRI JUSTICE A.V.SESHA SAI
W.P.No.25040 of 2001
Date :01-07-2014
Between:
P.Showri Subash Reddy, S/o Chinnaiah Reddy, Aged 42 years, Occ: Agriculture and three others … Petitioners and The Government of Andhra Pradesh Represented by its Additional Secretary to Government, Transport, Roads and Buildings Department, Secretariat, Hyderabad and three others.
… Respondents THE HON’BLE SRI JUSTICE A.V.SESHA SAI W.P.No.25040 of 2001
ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed, seeking the following relief:
“To issue a Writ, order or direction particularly one in the nature of Writ of Mandamus declaring that the entire proceedings including the notice issued by the 2nd respondent U/s.9(1) and 10 of Land Acquisition Act, 1894 initiated by the Respondent for Acquisition of the Petitioners land admeasuring Ac.1-38 Cents in Sy.No.372/2 of Proddatur Village, Cuddapah District, have lapsed by virtue of Sec.11(A) of the Land Acquisition Act, 1984.”
2. Heard Sri P.Gangaiah Naidu, learned Senior Counsel appearing for Sri S. Rajeshwara Reddy, advocate on record for the petitioners, the learned Government Pleader for Land Acquisition for respondents 1 to 3 and the learned Standing Counsel for the fourth respondent apart from perusing the material available on record.
3. Filtering the unnecessary details, the facts which are essential and relevant for resolving the issue in the present writ petition are:
4. The Government of Andhra Pradesh issued a draft notification under sub-Section (1) of Section 4 of the Land Acquisition Act, 1894 (hereinafter called ‘the Act’) on 15.06.1989, proposing to acquire the land admeasuring Ac.1-38 cents situated in Sy.No.327/2 of Proddatur village and Mandal, Kadapa District for construction of staff quarters for postal employees. By invoking the provisions of Section 17 (4) of the Act, enquiry under Section 5-A was dispensed with. The Government also issued a draft declaration under Section 6 of the Act on 16.07.1989. Assailing the said draft notification and draft declaration, W.P.No.1235/1991 was filed before this Court and this Court on 10.09.1999 dismissed the said writ petition.
5. While that being so, with an intention to proceed further, the Revenue Divisional Officer, Jammalamadugu, issued notice under Sections 9 and 10 of the Act and as per the petitioners herein the same was served on them on 29.11.2001.
6. In the above background, the present writ petition has been instituted, seeking a declaration that the entire proceedings have lapsed in view of the failure on the part of the authorities in passing the award within two years from the date of publication of the draft declaration as per Section 11-A of the Act.
7. This Court, while issuing Rule Nisi on 10.12.2001 in WPMP.No.31629 of 2001, granted interim stay of all further proceedings. The said order was made absolute on 01.04.2004.
8. In the counter affidavit filed on behalf of the respondents 1 to 3, it is stated that the possession of the land was taken by the Mandal Revenue Officer, Proddatur on 28.09.1989 and handed over the same to the requisition department, as such, the land completely vested with the Government and the period stipulated under Section 11-A is of no significance. It is further stated in the said counter that in view of the law laid down by this Court in GOVERNMENT OF A.P AND
[1]
ANOTHER v. MOHD MOHINUDDING HUSSAN AND OTHERS , the present writ petition is not maintainable.
9. A reply affidavit is filed by the petitioner herein, denying the averments with regard to taking over of possession of the property by the Mandal Revenue Officer on 28.09.1989. The said reply further states that the petitioners herein are in possession and enjoyment till date and the revenue record also shows the same. The provision of law which is germane and relevant for the purpose of dealing with the issue in the present writ petition is Section 11-A of the Act, which reads as under:
“11A. Period shall be which an award within made. - The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), the award shall be made within a period of two years from such commencement.
Explanation - In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court shall be excluded.]”
10. The above mentioned Section 11-A of the Land Acquisition Act, 1894 in clear and unambiguous terms, mandates that the award under Section 11 of the Act shall be made within a period of two years from the date of publication of the draft declaration under Section 6 of the Act and non-adherence to the same would automatically render the entire proceedings invalid and nugatory, but there are two exceptions for the same viz., one is by way of explanation for the same and another is by way of explanation to Section 11-A which stipulates that “ while computing the period of two years, the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of a Court shall be excluded and the second exception is, if possession of the land is taken by invoking the provisions of Section 17 of the Act, then the failure to pass award within two years as stipulated under Section 11-A pales into insignificance and would not render the proceedings invalid.
11. Earlier in WPMP.No.1472/1991 in W.P.No.1235/1991 interim stay was granted by this Court and the said W.P.No.1235/1991 was dismissed on 10.09.1999. The authorities issued notice under Sections 9 and 10 on 05.11.2001 and the same was served on the petitioner on 29.11.2001. In the present writ petition, this Court granted interim order on 10.12.2001
12. The material available on record before this Court discloses that even though W.P.No.1235/1991 was dismissed as long back as on 10.09.1999, the authorities did not chose to proceed further till 05.10.2001. Another aspect which needs mention at this juncture is that even though it is averred in the counter affidavit filed on behalf of the respondents that the possession was taken as long back as on 28.09.1989, the record produced before this Court does not show the holding of panchanama if any for handing over the possession in accordance with the provisions of Section 16 of the Act. On the other hand, the Adangal extract and 1-B Form dated 03.05.2014 produced by the petitioner herein before this Court issued by the Tahsildar, Proddatur clearly demonstrate that the possession is with the petitioners herein in respect of the subject properties. At this juncture, it would be appropriate to refer to the Judgments of the Hon'ble apex Court in the case of SITA RAM BHANDAR SOCIETY, NEW DELHI VS. LT. GOVERNOR, GOVT. OF
[2]
N.C.T. DELHI AND ORS. In the said judgment the Hon'ble apex Court at paragraph 9 held that one of the methods of taking possession and handing over to the beneficiary department is the recording of a panchanama which can in itself constitute evidence of the fact that the possession had been taken and the land had been vested absolutely in the Government. In the instant case, absolutely there is no piece of evidence to show that the respondents took physical possession of the property by holding panchanama.
13. On the other hand, the revenue records made available before this Court by the petitioners herein would clearly demonstrate that the petitioners herein are in possession of the property. Therefore, it is not open for the respondent authorities to contend that the possession is with them. Since the respondent authorities failed to pass the award within the time stipulated under Section 11-A of the Act i.e., within two years from the date of Section 6 declaration and in the absence of any evidence to show that the possession was taken by the Government in 1989 as per law and in view of the revenue records filed before this Court, this Court has absolutely no hesitation to hold that the impugned proceedings are vitiated.
13. For the aforesaid reasons and having regard to the provisions of Section 11-A of the Act, the proceedings in the present case are liable to be invalidated. Accordingly, the writ petition is allowed declaring that the entire land acquisition proceedings in respect of the land admeasuring Ac.1-38 cents situated in Sy.No.327/2 of Proddatur village and Mandal, Cuddapah District covered by a draft notification dated 15.07.1989 and draft declaration dated 16.07.1989 have lapsed. As a sequel, the miscellaneous petitions, if any, shall stand closed. No order as to costs.
A.V.SESHA SAI, J Date:01.07.2014 grk THE HON’BLE SRI JUSTICE A.V.SESHA SAI W.P.No.25040 of 2001 Dated 01.07.2014
HON’BLE SRI JUSTICE A.V.SESHA SAI
PD judgment in W.P.No.25040 of 2001`
[1] 1998 (4) ALT 554
[2] AIR 2010 SC 1143