IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION NO.12029 OF 2001 Between :
Shaik Hussain @ Chinna Mai Sab and another PETITIONERS AND
1. Government of A.P.Rep.by Executive Engineer.
2. The District Collector.
3. Revenue Divisional Officer-cum-
Land Acquisition Officer. …RESPONDENTS THE HON'BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION NO.12029 OF 2001 ORDER:
In order to construct a Balancing Reservoir near Chandayana Thippa, Kallur Mandal of Kurnool District, the lands admeasuring an extent Ac12.70 cents were sought to be acquired. An extent of Ac 1.50 cents of land situated in survey Nos.208/1/C and 208/1/D of the petitioners was part of such land notified for acquisition. Contending that although the lands were taken possession in the year 1996, long prior to the notification, and consequent upon the aforesaid notification land continued to be in the possession of the third respondent i.e., the Revenue Divisional Officer-cum-Land Acquisition Officer, Kurnool, the petitioners have not been paid the compensation, this writ petition is filed for a direction for payment of compensation as per the provisions of Section 17 (3A) of the Land Acquisition Act, 1894 (for short “the Act”).
2. This court earlier by order dated 19.12.2002, disposed of the writ petition with a direction to the first respondent to make available necessary funds to the land acquisition officer-third respondent herein within six weeks from the date of receipt of a copy of that order and the third respondent, in turn, should pass the award after enquiry within a period of six weeks thereafter in respect of the lands covered by aforesaid notification dated 09.10.1999 in R.C.No.A2TB{P/13/94, dated 22.09.1999, in the light of the letter No.EE/93M, dated 7-6- 1999of the first respondent and pay the necessary compensation to the petitioners.
3. Subsequently, it was brought to the notice of this Court that the land acquisition notification itself had been withdrawn under the provisions of 48(1) of the Act, which fact was not before this Court, when the order dated 19.12.2000 was passed. On review in W.P.M.P.No.5568 of 2003, this Court by order dated 19.11.2003, recalled the order dated 19.12.2002 and posted the writ petition for regular disposal. The writ petition has thus been taken up for hearing:
4. Heard the learned counsel appearing for the petitioners and the learned Government pleader on behalf of the respondents.
5. Learned counsel appearing for the petitioners would contend that the possession was taken in advance in the year 1996 in anticipation of the acquisition of the land and the land has remained in the possession of the respondents. Therefore, the respondents are under obligation to pay compensation.
6. On the other hand, the learned Government Pleader would submit that Section 4 (1) Notification was published on 09.10.1999 and the possession had not been taken as alleged by the petitioners in the year 1996. He further contended that there is no material placed before this Court to show that possession was taken by the respondents in the year 1996. The Government later in exercise of the powers under Section 48(1) of the Act withdrew the Notification issued under Section 4 (1) and Section 6 of the Act as well and published the withdrawal in the A.P. Gazette Part-I Extraordinary No.11, dated 27.09.2002. The said withdrawal was made even before the issue of notice under Section 9 of the Act. The Government Pleader would therefore contend that the petitioners are not entitled for any compensation under Section 48(2) of the Act.
7. The provisions of sub Section 1 of the Section 48 of the Act provides that the Government is at liberty to withdraw from the acquisition of any land of which possession has not been taken and sub Section 2 thereof provides that whenever such acquisition is withdrawn, compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder should be paid.
8. The Apex Court in STATE OF M.P. AND OTHERS. V. VISHNU PRASAD SHARMA AND OTHERS[1], while examining the question whether Section 48 of the Act alone is the provision under which notifications under Sections 4 and 6 of the Act, can be withdrawn held that such withdrawals can also be made under the general clauses Act. It was also held that Section 48(2) of the Act provides for compensation after notice has been issued under Section 9(1) of the Act and the Collector has taken proceedings for acquisition of land by virtue of direction under Section 7 of the Act. It was further held that Section 48(1) of the Act thus gives power to Government to withdraw from the acquisition without canceling the notifications under Sections 4 and 6 after notice under Section 9(1) of the Act has been issued and before possession is taken. The said power can be exercised even after the Collector has made the award under Section 11 of the Act but before he takes possession under Section 15 of the Act. Section 48(2) of the Act provides for compensation in such a case. It is further held Section 48(1) of the Act is a special provision for those cases where proceedings for acquisition have gone beyond the stage of issue of notice under Section 9 (1) of the Act and it provides for payment of compensation under Section 48(2) read with Section 48(3). If no notice has been given under Section 9(1) of the Act all that the Government has to do is to pay the damages caused as provided under Section 5 of the Act and if a notice has been issued under Section 9 (1) of the Act and damages have also to be paid in accordance with the provisions of Section 48(2) and (3) of the Act.
9. In the instant case no notice has been issued under Section 9 of the Act, the petitioners are not entitled for compensation as provided under Section 48 (2) of the Act. However, as observed by the Apex Court, in a case where the notice has not been issued under Section 9 (1) of the Act, the Government has to pay for the damage caused as provided in Section 5 of the Act.
10. Section 5 of the Act, provides that the authorized officer, at the time of such entry pay or tender payment of all necessary damages to be done apparently at the stage as provided under sub Section 2 of Section 4 of the Act. Whether any such damage has been done and whether the petitioners are entitled for such damages for the acts done as enumerated under sub Section (2) of Section 4 has to be gone into by the respondent No.2 herein. The petitioners may have to claim such damages by making an application as may be necessary before the second respondent and seek appropriate damages. It is therefore, appropriate to direct the petitioners to make an appropriate application claiming damages in terms of Section 5 of the Act and on such representation being made by the petitioners, the second respondent is permitted to consider and pass appropriate orders as early as possible, preferably, within a period of eight (8) weeks from the date of receipt of the representation.
11. Accordingly, the writ petition is disposed of. There shall be no order as to costs.
NOUSHAD ALI, J JUNE 25, 2010.
YVL
[1] AIR 1966 SC 1593 (1)