HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION Nos.24213 of 2008 and 5767 of 2009 Date :15-04-2014 WRIT PETITION Nos.24213 of 2008 Between:
Renati Venkata Subba Raju and Others.
… Petitioner and The Government of Andhra Pradesh Rep by its Secretary, Irrigation Department, Secretariat Building, Hyderabad and others.
… Respondents WRIT PETITION Nos.5767 of 2009 Between:
Balaraju Chinna Subba Raju s/o Pedda Subbaraju and others.
… Petitioner and The Government of Andhra Pradesh Rep by its Secretary, Irrigation Department, Secretariat Building, Hyderabad and others.
… Respondents THE HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION Nos.24213 of 2008 and 5767 of 2009 COMMON ORDER:
These writ petitions, under Article 226 of the Constitution of India, are filed by as many as 354 individuals, seeking Writ of Certiorari to call for the records pertaining to the Award Nos.1/2007-2008 and 2/2007-2008, dated 02.11.2007 and to set aside the same and further to direct the respondents to notify the structures of the petitioners for acquisition under the provisions of the Land Acquisition Act, 1894 (for short ‘the Act’).
2. In view of the identical nature of the cause of action and the similarity in the facts and circumstances of the cases, these two writ petitions are heard together and are being disposed of by this common order.
3. The pleaded case of the petitioners in the affidavit filed in support of the writ petitions is as under:
Petitioners are the owners and possessors of the dwelling houses situated at Eguvarachapalli Village, Nandalur Mandal, Kadapa District and the said village got effected by submersion due to construction of Somasila Project. The respondents published a draft notification under Section 4 (1) of the Act in the year 1995, notifying 755 structures for acquisition. Failure to take up further proceedings resulted in lapsing of the notification.
A devastating fire accident in the village in the year 1996 destroyed some of the structures/buildings. Respondents initiated proceedings afresh in the year 1999 and published a draft notification under sub-Section (1) of Section 4 of the Act in the year 2002 wherein 236 structures were sought to be acquired out of 697 in existence which prompted the petitioners and others whose structures were not notified for acquisition to file W.P.No.20587/2002 and batch, and this Court passed an order on 27.08.2003, issuing certain directions. Pending the said writ petitions, an Empowered Committee was constituted with the District Collector as the Chairman, and on 07.02.2003, the District Collector convened a meeting and issued guidelines for enumeration. The District Collector issued proceedings Ref.No.G2/3606/02, dated 21.07.2003, forming teams for enumeration of the structures entrusted to them and for the purpose of getting digital videography for each household and a team consisting of the Mandal Revenue Officer, Mylavaram and the Mandal Revenue Inspector of the said village and the Assistant Executive Engineer, Telugu Ganga project Division II, Cuddapah was appointed on 11.08.2003. The Committee so constituted submitted a report to the District Collector vide Ref.A/185/2003, dated 16.09.2003, categorizing the structures existing on the land into four categories, they are:
Category I Already notified.
Category II Residential and other genuine but not yet notified.
Category III Structures raised on Poramboke lands.
Category IV Structures that have come for claiming compensation.
4. As per the report, Reach No.1 consists of 150 structures in category I, 257 structures in Category II, Nil structures in Category III, 12 structures in Category IV and Reach No.II consists of 81 structures in Category I, 327 structures in Category II, 14 structures in Category III, 8 structures in Category IV. The said categorisation was done with the assistance of the village committee and a resolution was passed by the Committee on 17.09.2003, approving the report of the committee. As directed by the District Collector on 21.07.2003, the evaluation of the structures was furnished to the Deputy Executive Engineer, Sri M.Konda Reddy on 10.08.2003 and at the time of enquiry the videograph of the petitioners’ houses was also taken and the structures of the petitioners were also included in all the reports. The Joint Collector and Special Collector (FAC), G.N.S.S, Kadapa, issued proceedings in Rc.No.C2/1593/02, dated 07.11.2005, mentioning all the structures existing on the ground and in the said proceedings certain clarifications with regard to payment of compensation for structures was sought and the same was forwarded to the Commissioner of Land Revenue, who opined that compensation has to be paid in terms of G.O.Ms.No.76, Irrigation and CAD (Projects Wing) LA-IV R.R1) Department dated 13.04.2006.
5. It is contended that the authorities issued 4 (1) notification and dispensed with Section 5-A enquiry and also published Section 6 declaration, but failed to notify all the structures as approved by the Committee unlike in 13 other villages in respect of which the authorities have notified all the structures as approved by the Committee and that out of 697 structures in Reaches 1 and 2 only 199 and 57 structures respectively were notified and certain sums of money was paid as exgratia for the structures of the petitioners in the guise of the consent award passed under Section 11 (2) of the Act and contending that the same is illegal, arbitrary and violative of the basic structure of the Constitution, the present writ petition has been filed.
6. A counter affidavit deposed by the sixth respondent/Special Deputy Collector, Somasila Project, is filed on behalf of the respondents, resisting and denying the averments in the writ affidavit while contending inter alia that the present writ petition is not maintainable in law and the same is misconceived and that the petitioners received compensation under consent awards 1/2007-2008 and 2/2007-2008, dated 02.11.2007, under Section 11 (2) of the Act after signing Form-III agreements and Form IV affidavits, and that after receiving compensation under consent awards, the petitioners filed the writ petitions disputing the award. It is further averred in the counter that pursuant to the requisition made by the Executive Engineer, Somasila Project Unit IV, Atmakur for acquisition of 755 structures of Eguvarachapalli village in Nandalur Mandal of Kadapa District in the year 1994, a draft notification and a draft declaration were published on 20.02.1995 and 01.03.1995 respectively under Section 4 (1) and Section 6 of the Act. It is further stated that in a fire accident which took place on 25.03.1996, 254 structures existing in the village were gutted and pursuant to which reconstruction of houses with change of roofs, extensions and new structures were also made. The counter further alleges that each family constructed four or five structures on the average with an intention to grab the Government money. It is further stated that since the award was not passed within two years, the entire proceedings lapsed and in view of the same, the Executive Engineer sent a requisition for acquisition of 677 structures in Reaches I and II of Eguva Rachapalli village. It is further stated that the Government of Andhra Pradesh constituted the District Empowered Committee for categorising and for examining the genuinity of the structures proposed for acquisition for Somasila Project and the said Committee appointed Sri P.Subba Rao, I.A.S., as Special Officer to inspect each and every structure, who inspected and submitted his report to the District Empowered Committee, and basing on the said report, a notification under Section 4 (1) of the Act was published in the year 2002 and questioning the same WP.20587/2002 was filed and the same was disposed of on 27.08.2003, and thereafter, the District Collector and the Chairman of the District Empowered Committee appointed a team consisting of the Mandal Revenue Officer and Mandal Revenue Inspector of Mydukur Mandal and the Assistant Executive Engineer, Telugu Ganga Project for enumeration and getting videography of the structures in Reaches I and II and the said team submitted a report and the District Empowered Committee appointed a Special Officer viz., Dr.Laxminarayana, I.A.S., who inspected all 697 structures and found that out of 343 in Reach No.1, 210 genuine and 133 as motivated and out of 354 in Reach No.II, 109 as genuine and 245 as motivated. It is further stated in the counter that the Special Collector, G.N.S.S, Kadapa, after getting clarification from the Government and after approval from the District Empowered Committee, issued directions to the Special Deputy Collector, S.S.P., Unit-IV, Rajampet to publish structures as reported genuine by the Special Officer and a notification and a declaration were issued under Section 4(1) and Section 6 of the Act on 08.08.2006 and 10.08.2006 respectively and the District Empowered Committee approved the recommendations of the Special Officer for payment of Rs.3,18,70,192/- for the genuine structures and the Land acquisition Officer and Special Deputy Collector, Rajampet passed consent award on 02.11.2007 in compliance of the orders of this Court in W.P.No.20587/2002 dated 27.08.2003.
7. Heard Sri R.Narasimha Reddy, learned counsel for the writ petitioners and the learned Government Pleader for Land Acquisition for the respondents.
8. Contentions of the petitioners:
1. Action of the respondents in not notifying the structures of the petitioners and passing of the awards under Section 11 (2) of the Land Acquisition Act is opposed to law.
2. The action of the respondents is in violation of Articles 14 and 300-A of the Constitution of India.
3. The respondent authorities failed to adhere to the directions of this Court in W.P.No.20587/2003, dated 27.08.2003 and no supplementary notification as directed in the said order was issued and the payment of ex-gratia is contrary to law.
4. The assumption of jurisdiction of the Land Acquisition Officer under Section 11 of the Act for non-notified structures is illegal.
5. Form III agreements and Form IV affidavits are permissible only pending proceedings under the Act, and after passing the award if any such consent is obtained, it is of no consequence.
9. Contentions of the respondents:
1. The writ petition is not maintainable as the petitioners herein gave consent by signing Form III agreements and Form IV affidavits and as the awards are consent awards.
2. In view of the orders in W.P.No.19955/2006 and 19964/2006, dated 11.12.2007, the present writ petitions are liable to be dismissed and having agreed for the said order, petitioners cannot raise the same grounds as were raised in the earlier writ petitions.
10. In the light of the pleadings, submissions and contentions, the point which arises for consideration and which this Court is called upon to answer is whether the petitioners herein are entitled for any relief in the present writ petition?
11. The material available on record discloses that initially the Executive Engineer, fourth respondent herein, submitted a requisition for acquisition of 755 structures in the year 1994 and basing on which a draft notification and a draft declaration were published by the respondent authorities on 20.02.1995 and 01.03.1995, respectively, and the same lapsed in view of the failure on the part of the respondent authorities in passing the award within two years. It is an admitted fact that on 25.03.1996 a fire accident took place in the village and 254 structures were gutted in the said accident. It is also an admitted fact that the Executive Engineer, fourth respondent herein, made another requisition for acquisition of 697 structures and the Government vide G.O.Ms.No.553 dated 02.08.2002 formed a District Empowered Committee which appointed one Sri P.Subbarao, I.A.S., as Special Officer, who submitted a report and basing on which 4 (1) notification was given in the year 2002. Questioning the said notification, W.P.No.14246 of 2002 and batch (including W.P.20587 of 2002) and batch were filed and this Court disposed of the same, and the operative portion of the said order reads as follows:
“In the result, for the above reasons, the Writ Petitions are disposed of in the following manner.
(i) The respondents shall complete the enumeration of structure in a transparent manner in the presence of the concerned owner duly videographing the enumeration immediately;
(ii) After completing such enumeration concerned Special Deputy Collector (Land Acquisition) may wait for a period of one week to enable petitioerns, if any, to verify the particulars of structures, after announcing by way of tom tom in the villages inviting any objections from the petitioners;
(iii) Supplementary notifications as ordered by Government in G.O.Rt.No.434, dt. 26.6.2003 shall be issued thereafter and matters may be placed before Negotiations Committee;
(iv) If any of the petitioners or other persons whose lands and structures are proposed to be acquired are not wiling to accept consent awards all necessary steps under the Land Acquisition Act shall be taken;
(v) The amount awarded by the Negotiations Committee with the consent awardees shall be paid within a period of four weeks after passing the Award; and
(vi) There shall be no order as to costs.”
12. On 10.08.2003, the Deputy Executive Engineer (LA) TGP Division, Porumamilla and the Assistant Engineer, TGP Division, Kadapa, submitted a report showing 343 and 355 structures respectively in Reaches 1 and 2. Subsequently, the petitioners filed W.P.Nos.19955 and 19964 of 2006 for the following reliefs:
“W.P.No.19955/2006 To issue a writ of mandamus or any other appropriate writ or direction declaring the action of the respondents in not including the names of the petitioners and structures owned by them in the notification issued under section 4(1) and Section 6 of the Land Acquisition Act proposing to acquire the land and structures in Eguvarachalapalli Village H/O Pothapi village, Nandalur Mandal, Kadapa District published Andhra Jyoti News paper dt. 6.8.2006 and declaration published in Vaartha news paper dt. 9.8.2006 even though the names of the petitioners along with the structures owned by them find place in the report of the requisition department as illegal arbitrary and consequently direct the respondents to include the structures owned by the petitioner in the notification and declaration under section 4(1) and 6 of the Land Acquisition Act and to pass award.
W.P.No.19964/2006 To issue a writ of mandamus or any other appropriate writ or direction declaring the action of the respondents in not including the names of the petitioners and structures owned by them in the notification issued under section 4(1) and section 6 of the Land Acquisition Act proposing to qcquire the land and structures in Eguvarachapalli Village H/o. Pothapi Village, Nandalur Mandal, Kadapa District published in Vaartha News paper dt. 8.8.2006 and declaration published in Andhra Jyoti News paper dt. 10.8.2006 even though the names of the petitioners along with the structure owned by them even though their names find place in the report of the requisition department as illegal arbitrary and consequently direct the respondents to include the structures owned by the petitioner in the notification and declaration under section 4(1) and section 6 of the Land Acquisition act and to pass award.”
13. This court, on 11.12.2007 dismissed the said writ petitions in view of the letter dated 27.11.2007 produced on behalf of the respondents herein and the said order reads as under:
“This Writ Petition is filed for a Writ of Mandamus to declare the action of the respondents in not including the structures belonging to the petitioners in the notification issued under Section 4(1) and declaration made under Section 6 of the Land Acquisition Act, 1894 (for short “the Act”), as illegal.
At the hearing, Sri O.Manohar Reddy, learned counsel for the petitioners, submitted that letter dated 27-11-2007, a copy of which was furnished by the learned Assistant Government Pleader for Land Acquisition, shows that ex- gratia/compensation has been sanctioned to the petitioners. He submitted that in view of the same, the cause in the Writ Petition does not survive for consideration. But, however, he stated that if the petitioners are not satisfied with the quantum of ex-gratia/compensation, they may be given liberty to initiate appropriate proceedings in that regard.
Having regard to the submissions of the learned counsel for the petitioners, the Writ Petition is dismissed as infructuous with liberty to the petitioners in terms of the prayer made.”
14. It is the further case of the petitioners herein that after this Judgment, the Land Acquisition Officer on 29.11.2007 passed an award covering five other villages and for their lands no compensation was paid under the Act. In respect of the petitioners herein consent awards were passed on 02.11.2007 after obtaining Form III agreements and Form-IV affidavits.
15. It is relevant and pertinent to refer to Rules 5, 7, 8, 12, 15, 16 and 17 of the A.P. Land Acquisition (Negotiation Committee) Rules, 1992.
“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. In the instant case, there is absolutely no dispute with regard to the factum of executing Form III agreements and Form IV affidavits expressing consent for passing the award agreeing for the amount indicated by the respondents herein. It is also significant to note at this juncture that the petitioners herein filed writ petitions, being W.P.Nos.19955 and 19964 of 2006 complaining that the respondents did not include their structures in the 4 (1) notification and Section 6 declaration dated 06.08.2005 and 08.08.2006, respectively. It is further to be noted that on letter produced on behalf of the respondents dated 27.11.2007 on the ground that the cause in the writ petition would not survive, the writ petitions were dismissed as infructuous.
17. In view of these reasons, this Court does not find any reason much less a valid reason, to interfere with the impugned awards passed by the respondent authorities by taking into consideration the consent expressed by the petitioners herein for doing so.
18. For the aforesaid reasons and having regard to the agreement and consent expressed by the petitioners herein by way of executing Form-III agreements and Form IV affidavits, these writ petitions are liable to be dismissed and are accordingly dismissed. As a sequel, miscellaneous petitions pending, if any, shall stand closed. No costs.
A.V.SESHA SAI, J Date: 15-04-2014 grk THE HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION Nos.24213 of 2008 and 5767 of 2009 Dated: 15-04-2014