G. Gnanesha and others vs Special Deputy Collector, Land Acquisition (General) and others

1.The short question that arises in these writ petitions is whether the Land Acquisition Officer can refrain from passing the award in respect of the lands under acquisition only on the ground that funds were not made available by the requisitioning authority for payment of compensation to the claimants as per the award that may be passed.

The petitioners in these various writ petitions are owners of different extents of land in Survey Nos. 102, 115, 133, 134,135, 136, 137, 138, 140/1 and 142/1 of Karmanghat village of Saroornagar mandal in Rangareddy district and in Survey No. 149 of Jullellaguda village of Saroornagar mandal in Rangareddy district. The possession of the said land was taken by the Defence Estate Officer, A.P. Circle at Secunderabad in Nov. 1978 on lease basis under the provisions of the Requisitioning and acquisition of Immovable Property Act, 1952 (for short R.A.I.P. Act). After the said land together with land in Survey Nos. 101 and 139 of Karmanghat village and Survey No. 148 of Jillellaguda village were taken possession of the Defence Metallurgical Research Laboratory complex was constructed therein comprising of several buildings and installations.

After a long lapse of time, proceedings were sought to be initiated by the respondents under R.A.I.P. Act and notice to the said effect in J-Form was issued by the District Collector, Rangareddy district in the year 1987. In respect of lands in Survey No. 101 of Karmanghat village and Survey No. 148 of Jillellaguda village, Writ Petition No. 4684 of 1987 was preferred by the owners thereof questioning the proceedings sought to be initiated under the R.A.I.P. Act and for directing the respondents to initiate action under the Land Acquisition Act, 1894 (for short L.A. Act) and the said writ petition was allowed by order datred 10-7-1987 granting the reliefs sought for by the petitioners therein and directing the authorities concerned to initiate proceddings under the L.A. Act. It was also contended by the petitioners in the said writ petition that when the said lands were taken over, they were purely agricultural lands and that they were not hit by the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 as the master plan was not extended to the said lands at that time. This Court held by its order in the said writ petition that it was not disputed at the time when the lands were requisitioned in the year 1978 that they are outside the master plan and the master plan in respect of the said land was prepared and brought into existence only in the year 1980 and that the petitioners therein were entitled for the issuance of Writ of Mandamus, directing the authorities concerned to issue draft notification u/s 4(1) of the L.A. Act and to finalise the proceedings including the award proceedings as expeditiously as possible preferably within one year positively from the date of receipt of the said order dated 10-7-1987. It is also oberved in the said order of this Court that prior to the purported invoking of R.A.I.P. Act, the authorities concerned sanctioned the acquisition of the said land under the L. A. Act, if necessary, by invoking the urgency clause by dispensing with the enquiry u/s 5A and that curiously, for reasons best known to the authorities, the acquisition proceedings under the L.A. Act were initiated only in respect of the land in Survey No. 139 of Karmanghat village and draft notification u/s 4(1) was published in respect of the said land on 29-4-1982 and the award was finalised on 29-7-1985.

Writ Appeal No. 1768 of 1987 preferred by the Special Deputy Collector, Land Aquisition (General), at Hyderabad, the District Collector, Rangareddy district and the Defence Estate Officer, Secunderabad against the order of this Court in Writ Petition No. 4684 of 1987 dated 10-7-1987 was dismissed on 10-11-1988 by a Division Bench of this Court. It is relevant to note that the Division Bench observed as follows:--

"In this Writ Appeal the learned Government Pleaded submitted that the provisions of the Urban Land (Ceiling and Regulation) Act can now be made applicable because it comes under the Urban agglomeration Act and under the said Act any surplus land is to vest with the State Government and therefore the Government has filed this Writ Appeal and the relief sought for by the petitioner cannot be granted.

We may at once mention that admittedly, no such plea was taken before the learned single Judge nor any thing was mentioned in the counter. Therefore, we thought it fit to hear the learned standing counsel for the Central Government also and on notice Sri K. Jagannadha Rao has appeared and he has also read out a letter that the Central Government is prepared to pay the compensation if any award is passed under the L.A. Act.

For all these reasons we are not able to accede to the contention of the learned Government Pleader that the acquisition should be subject to the provisions of the Urban Lands (Ceiling and Regulation) Act, when no such plea even was taken in the counter-affidavit and further when possession of the lands was taken even prior to the extension of the master-plan to these lands.

In the above circumstances, the notification under the R.A.I. P. Act is quashed and as directed by the learned single Judge, the respondents shall proceed under the provisions of the Land Acquisition Act as expeditiously as possible particularly they must bear in mind that these lands were taken possession in 1978 and so far they have not been paid any compensation."

SLP preferred against the said decision of the Division Bench in Writ Appeal No. 1768 of 1987 was dismissed on merits by the Honourable Supreme Court by order dated 1-5-1989.

Some of the petitioners in these Writ Petitions preferred Writ Petitions Nos. 18214 of 1987, 14865, 14988 and 17287 of 1988 and 13753 of 1990 for similar reliefs as were played by the petitioners in Writ Petition No. 4684 of 1987 and the said Writ Petitions were allowed by this Court directing the authorities concerned to issue draft notification u/s 4(1) of the L.A. Act and to finalise the proceedings including the award proceedings as expeditiously as possible in respect of the lands in question in the present Writ Petitions. Writ Appeal No. 1250 of 1989 preferred against the order of this Court dated 29-3-1988 in Writ Petition No. 18214 of 1987 was dismissed by a Division Bench of this Court by order dated 25-8- 1989 following the decision of this Court in Writ Appeal No. 1768 of 1987.

Pursuant to the said directions of this Court, acquisition proceedings were initiated under the L.A. Act in respect of the lands in question. Draft notification u/s 4(1) of the L.A. Act was issued under G.O.Ms. No. 1067 dated 27-11-1991 and was published in the Andhra Pradesh Gazette dated 5-12-1991. Draft declaration u/s 6 of the L.A. Act was issued under G.O.Ms. No. 1075 dated 29-11-1991 and was published in the Andhra Pradesh Gazette dated 17-12-1991. The lands covered under the said notification and declaration are those in Survey Nos. 102/3, 115/2, 133, 134/1, 135, 136, 137, 138/1, 140/2 and 142 of Karmanghat village and Survey No. 149/3 of Jillellaguda village. The total extent of land sought to be acquired is Ac 52-01 guntas in the said Survey Numbers of Karmanghat village and Ac. 7-16 guntas in Survey No. 149/3 of Jullellaguda village. The petitioners state that the award enquiry proceeded at snail''s pace. They believe that the award has already been made ready by the Special Deputy Collector, Land Acquisition (General), Hyderabad, but has not yet been passed and pronounced on the ground that funds have not been made available by the Union of India. Along with Writ Petition No. 2648 of 1994, copies of certain correspondence are filed. There is letter No. El/9993/89 dated 12-1-1994 addressed by the Collector, R. R. District to the Land Acqusition Officer, with reference to the submission of draft award in respect of the lands in question, which is as follows:-

"Advised to pass Award if the funds are received by 12-1-1994 the date on which the Award has to be passed and not otherwise. You are therefore advised to take action accordingly, the draft Award and Proceedings sent by you are returned herewith."

There is also another letter dated 12-1-1994 from the Special Deputy Collector, L. A. (General), Hyderabad to the Collector, R.R. District with reference to the letter of the Collector dated 12-1-1994 which is as follows:--

"Draft Award and Award Proceedings have been returned un-approved due to non-deposit of funds required with LAO by DEO, A.P. Circle which is payable to claimants.

In the above circumstances the un-approved Award and Award Proceedings in the case could not be passed and pronounced by this Office."

There is also letter No. P/2136/1990 of the Special Deputy Collector, L.A. (General), Hyderbad dated 24-1-1994 addressed to the petitioners in Writ Petition No. 2648 of 1994, which reads as follows:--

"Sri K. Linga Reddy and six other claimants are informed that due to non-depositing of funds, required with the Land Acquisition Officer to meet the cost of compensation payable to the Claimants till 12-1-1994 (i.e., last date by which the award has to be passed) by the Requisitioning Department i.e., Defence Estate Officer, A. P. Circle, Secunderbad, the Award could not be passed and pronounced in this case by this Office."

Similar memos were also issued to the other claimants who are some of the petitioners in the other writ petitions. Thus inspite of the earlier directions of this Court in various Writ Petitions filed by some of the owners of the lands in question, compensation is not yet paid even though they were deprived of their lands as long back as in 1978 though initially under the R.A.I.P. Act. All the authorities concerned seem to think that they can move into action only at the last moment as the action on 12-1-1994 by the Collector, Ranga-reddy district and Special Deputy Collector, Land Acquisition (General), Hyederabad and also under Secretary to Government of India who got issued a most urgent telex communication dated 12-1-1994 to the Director General, Defence Research and Development, New Delhi to be relayed to Defence Estate Officer, A.P. Circle, Secundrabad stating that Rs. 5,37,65,404/- was sanctioned for the acquisition of Ac. 59-17 guntas and also Rs. 5,37,650/- towards contingency expenses. It is also stated therein: "this issues with the concurrence of Integrated Finance vide their U.O. No. 96/D(IF/R&D) dated 12-1-1994."

It is most unfortunate that the Collector, Rangareddy district in his letter dated 12-1-1994 referred to above, advised the Special Deputy Collector, Land Acquisition (General), Hyderabad to pass the award if funds were received by 12-1-1994 and not otherwise. He has himself observed that the last date for the passing of the award was 12-1-1994 -- obviously with reference to Section 11A of the L.A. Act which fixes the period within which an award is to be made. Even knowing that, the Collector had not taken any steps to make it possible to have the award made by 12-1-1994 inspite of the fact that this Court in several Writ Petitions directed the authorities concerned to issue draft notification u/s 4(1) of the L.A. Act in respect of the lands in question and to finalise the award proceedings as expeditiously as possible -- within one year positiviely from the date of receipt of the order dated 10-7-1987 in Writ Petition No. 4684 of 1987 and similarly in several other Writ Petitions -- the Division Bench in its order dated 10-11-1988 in Writ Appeal No. 1768 of 1987 also directed that the authorities concerned "shall proceed under the provisions of the L.A. Act as expeditiously as possible, particularly they must bear in mind that these lands were taken possession in 1978 and so far they have not been paid any compensation". The Collector, Rangareddy district and the Special Deputy Collector, Land Acquisition (General), Hyderabad were obviously not aware of the decision of the Supreme Court in Satendra Prasad Jain and Others Vs. State of U.P. and Others, wherein the Supreme Court has observed that the provisions Section 11A of the L.A. Act are intended to the benefit of the land owners and ensure that the award is made within a period of two years from the date of the Section 6 declaration and has distinguished the cases where sub-section (1) of Section 17 of the L.A. Act is invoked and possession is taken which leads to vesting of the land in the Government in the following manner at page 2520:

"When Section 17(1) is applied by reason of urgency, Government takes possession of the land prior to the making of the award u/s 11 and thereupon the owner is divested of the title to the land which is vested in the Government. Section 17(1) states so in un-mistakable terms. Clearly, Section 11A can have no application to cases of acquisitions u/s 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner."

The Supreme Court furthr held :

"Further, Section 17(3A) postulates that the owner will be offered an amount equivalent to 80 per cent of the. estimated compensation for the land before the Government takes possession of it u/s 17(1). Section 11A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, make an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of the estimated compensation."

In view of this recent decision of the Supreme Court, there is no question of any lapsing of the present acquisition proceedings by virtue of Section 11A of the L. A. Act because in G. 0. Ms. 1067 dated 27-11-1991 it was directed that "the land be acquired under provisions of sub-section (1) of Section 17 of the L.A. Act". Even 80 per cent of the estimated compensation was neither tendered or paid to the petitioners by the authorities cocnerned as required by sub-section (3A) of Section 17, even though possession of the lands acquired was taken in 1978 itself long before sub-section (1) of Section 17 was invoked in November, 1991.

In the circumstances, the Special Deputy Colelctor, Land Acquisition (General), Hyderabad is bound to pass the award. There is no provision in the L. A. Act which precludes the award from being passed if funds for payment of compensation as per the award are not made available to the Land Acquisition Officer. Section 11 of the L. A, Act deals with enquiry and award by the Collector. The first proviso to sub-section (1) of Section 11 only provides that the "no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf. The Government or the appropriate officer authorised by the Government cannot withhold the approval unreasonably and without good cause. In the circumstances, on the facts of the present case, therefore, the Collector, Ranga reddy District was not right in addressing letter dated 12-1-1994 to the Special Deputy Collector, Land Acquisition (General), Hyderabad asking him not to pass any award unless funds were received by 12-1-1994.

The learned Government Pleader for Land Acquisition seeks to rely on the Circular of the Commissioner of Land Revenue in his Ref. No. Gl/2208/91 dated 23-9-1991 and in particular the following passage therein:

"In this connection all the District Collectors are informed that, normally the L.A.O. should not pass awards in the absence of funds, as passing of such awards without sufficient funds, will result in payment of interest, if the land is taken possession without paying compensation. Whenever the requisition is received, the matter should be pursued effectively with the concerned requisitioning departments for providing funds, from the time the requisition is received. Inspite of best efforts, if funds are not received, the fact of additional financial implications should be brought to the notice of the concerned department, if notification lapses i.e., of re-notification, afresh, increased market value and sub-sequent increased interest liabilities etc., and clearance of that Department should be obtained before passing of award, without funds."

That can have no application to cases where Section 17(1) has been invoked and possession has already been taken even before the award is passed. Even otherwise, after the introduction of Section 11A in the L.A. Act, the Commissioner of Land Revenue or any other authority cannot interfere with the statutory function of the Collector under subsection (1) of Section 11 in making the award except under the first proviso to sub-sec. (1) of Section 11 referred to above.

It is sought to be argued on behalf of the respondents that the lands in question are attracted by the Urban Land (Ceiling and Regulation) Act, 1976. But this is in the teeth of the order of this Court in Writ Petition No. 4684 of 1987 dated 10-7-1987 referred to above, which was confirmed by a Division Bench of this Court by order dated 10-11-1988 dismissing Writ Appeal No. 1768 of 1987. As already stated above, SLP against the said order of the Division Bench was dismissed on merits by the Honourable Supreme Court by order dated 1-5-1989. The petitioners in the present Writ Petitions are further supported by the decision of the Supreme Court in Smt. Atia Mohammadi Begum Vs. State of U.P. and others[OVERRULED], . The Supreme Court observed as follows in that case at page 2467; of 1993:

"Just as the holder of the land cannot by his subsequent actions reduce the area of the vacant land in excess of the ceiling limit, the authorities too cannot by any subsequent action increase the area of the excess vacant land by a similar action. The ''master plan'' defined in Section 2(h) and referred in the definition of ''urban land'' in Section 2(o), including Explanation (C) therein, is obviously a master plan prepared and in existence at the time of commencement of the Act when by virtue of Section 3 of the Act, rights of the holder of the land under the Act get crystallised and extinguish his right to hold any vacant land in excess of the ceiling limit. The proceedings for determining the vacant land in excess of the ceiling limit according to the machinery provisions in the Act is merely for quantification, and to effectuate the rights and liabilities which have crystallised at the time of commencement of the Act."

This position has been reiterated by this Court, following the said decision of the Supreme Court, in N. Narasinga Rao v. Special Officer and C.A., U. L. Ceilings, Hyderabad 1994 (I) Law Summary 47 holding as follows;-

"They (the lands in that case) were included by way of extension of the master plan in G.O. Ms. No. 391, Municipal Administration dated 23-6-1980, which was published in the Official Gazette on 29-9-1980. It is, therefore, obvious that on the date of commencement of the Act the lands in question were not included in the master plan for a purpose other than agriculture and they were also not within the municipal limits, so by extension of the master plan, the authorities cannot convert the agricultural land into vacant land by their unilateral act."

Therefore, it is obvious that the lands in question are not attracted by the said Act at all relevant times.

In the circumstances, the Collector, Rangareddy district is directed to give his approval for making the award and the Special Deputy Collector, Land Acqusition (General), Hyderabad is directed to pass the award within two months from today.

In view of letter bearing No. 98501/A/DMRL.RD-28/179/D (R & D) dated 12-1-1994 of the Government of India, Ministry of Defence, Department of Defence addressed to the Director General, Defence Research & Development, New Delhi with instructions to telex the same to the Defence Estate Officer, A.P. Circle at Secunderabad, the Government of India is directed to make available the entire funds for payment of compensation for the present acquisition within six weeks from today and the Defence Estate Officer, A.P. Circle at Secunderabad is directed to deposit the compensation amount released by the Government of India forthwith without any further delay.

The Writ Petitions are accordingly allowed with costs. Advocates'' fee Rs. 500/- in each of the writ petition.

Petitions allowed.