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Judgment
The question involved in this Writ Petition is whether the exercise of power u/s 4(1) of the Land Acquisition Act (for short ''the Act'') with a view to scuttle the Civil Court decree can be said to be mala fide exercise of power.
The facts in brief are that the petitioner is the owner of a building No.13-1-1238 situated at Seetaram Bagh, Hyderabad. He had leased it out to the Government for the purpose of establish ing a School in 1954. The said building is 100 years old. When the petitioner wanted the Government to vacate the building as the building is in dilapidated condition for effecting repairs, the Government refused to vacate the same. Further the Government lias not paid the rent also. Therefore, the petitioner filed RC No. 195/77 on the file of the Rent Collector, Hyderabad. The said RC was dismissed on 15-12-1979 against which RA No.76 of 1980 was filed on the file of the Court of the Addl. Chief Judge, City Small Causes, Hyderabad. The said RA was allowed on 15-3-1989 and thus the order in appeal has become final.
Before the orders could be passed in RA.76/80, since the building was about to collapse, the petitioner filed WP No.6487 of 1988 for eviction. The said Writ Petition was allowed on 12-8-1988 directing the Government to vacate the building and hand over the possession within a particular period. The Government did not hand over the possession of the building but filed WPMP No. 19786 of 1988 seeking extension of time for vacating the building. This Court extended the time up to 30-4-1989. The judgment in the said Writ Petition has become final. Meanwhile as pointed out earlier, the Civil Court passed the eviction order on 15-3-1989. Pursuant to the orders in the Rent Appeal and in the Writ Petition, the Government have to vacate the building and hand over the possession on or before 30-4-1989. Instead of handing over the possession of the building in compliance with the orders of the Courts, the Government invoked the provisions of the Land Acquisition Act and issued Notification u/s 4(1) of the Act on 26-4-1989 acquiring the building for public purpose. Aggrieved by the said Notification, the present Writ Petition is filed.
The Writ Petition was admitted and pending disposal of the writ petition, status quo as to the possession was granted.
Since there is no stay of further proceedings, the Government issued declaration u/s 6 of the Act on 24-4-1990 and thereafter the award proceedings were initiated and an Award was passed u/s 12(2) of the Act on 6-5-1992. In the said Award, an amount of Rs.2,60,968-68 was determined as compensation and the said compensation amount was received by the petitioner on 20-6-1992 by a Cheque No. 106920 dated 19-6-1992. The petitioner also sought for enhancement of compensation u/s 18 of the Act.
From the facts narrated above, it is clear that the petitioner succeeded both before the Rent Control Authorities and also in the Writ Petition before the High Court. Both the Civil Court as well as the High Court under Article 226 of the Constitution of India directed the Government to vacate the building and hand over the possession to the petitioner. Instead of complying with the above Orders, the Government invoked the proceedings u/s 4(1) of the Act. In my view, the said exercise of power u/s 4(1) of the Act is to circumvent the Civil Court decree and the High Court order under Article 226 of the Constitution of India. The exercise of power u/s 4(1) of the Act is not fair and it is only to scuttle a valid decree passed by the Civil Court which amounts to malice in law. The power u/s 4(1) of the Act cannot be exercised to thwart a valid decree passed by the Civil Court.
The argument of the learned Government Pleader for Land Acquisition is that the petitioner has participated in the Award proceedings and also received the compensation amount and since he received the compensation amount, he cannot now challenge the Notification u/s 4(1) of the Act. In support of his contention, he relied on State of Haryana and others Vs. Dewan Singh and others, . There cannot be any dispute about the proposition laid down by the Supreme Court in the said case. However, the said judgment is distinguishable on facts. It cannot be applied to a case where the exercise of power u/s 4(1) of the Act is mala fide and to thwart the Civil Court decree. The case before the Supreme Court was that after participating in the award proceedings, the respondents challenged the Section 4(1) Notification on the ground that Section 5-A enquiry was not conducted and dispensing of Section 5(1) enquiry is illegal. Admittedly, having participated in the Award proceedings, they could not have turn around and challenge the Notification u/s 4(1) of the Act. Whereas on the facts of the present case, Section 4(1) was challenged within 10 days from the date of publication of the Notification. The participation of the petitioner in the Award proceedings is under protest and subject to their rights in the Writ Petition already filed and pending in the High Court under Article 226 of the Constitution of India viz., the present WP No.6867 of 1989. The participation of the petitioner in the Award proceedings does not estop him from prosecuting the Writ Petition already filed challenging Section 4(1) Notification. The petitioner who is in a helpless position cannot but participate in the Award proceedings. There is, therefore, no substance in the argument of the learned Government Pleader that having participated in the enquiry, the petitioner could not have challenged Section 4(1) Notification of the Act.
It is next contended by the learned Government Pleader for Land Acquisition that in G. Dalinaidu v. State of A.P., 1990 (2) ALT 363, a Division Bench of this consisting of B.P. Jeevan Reddy and S.S.M. Quadri, JJ., held that:
"...the acquisition has the effect of practically nullifying the decree of the Civil Court is no ground for quashing the acquisition notification, since the power to acquire is a superior statutory power -What is generally referred to as eminent domain. The acquisition cannot be questioned on the ground of legal malice, or legal mala fides, as it is called."
and, therefore, the exercise of power u/s 4(1) of the Act cannot be said to be mala fide.
It is true on the facts of Dalinaidu ''s case (supra), the learned Judges have made the above observations. It is necessary to refer to the facts in that case. The petitioner is the owner of vacant site which was leased out for establishment of a petrol bunk. The petitioner terminated the lease and sued for possession. Hindustan Petroleum Corporation (for short ''the Corporation'') came on record as a defendant in the said suit which was decreed by the learned Sub-Judge. The appeal AS No.688 of 1981 filed by the Corporation was dismissed. The petitioner took out execution and obtained delivery of possession through Court on 15-4-1985. Against the judgment in AS No. 688 of 1981 the Corporation filed a LPA No. 116 of 1985. Pending LPA, the Corporation approached the Government to initiate acquisition proceedings. Accordingly proceedings were initiated u/s 4(1) of the Act. The proceedings under the Act were challenged. While upholding the Notification u/s 4(1) of the Act, the learned Judges made the observations referred to above.
From the facts referred to above in Dalinaidu''s case (supra), it is clear that the Government was not a party to the proceedings in Civil suit. Whereas in the present ease, the Government is a party against whom the petitioner obtained a decree and in WP No. 6487 of 1988 also the Government was a party and this Court directed delivery of vacant possession to the petitioner by the Government. Therefore, the judgment in Dalinaidu''s case (supra) is distinguishable on facts.
Similarly the judgment in Government of A.P. v. K. Sivananda Reddy, 1996 (2) ALD 930, is not relevant to the facts of the present case.
It follows from the above, the fact that the petitioner participated in the Award proceedings does not preclude him from prosecuting the Writ Petition filed questioning the Notification u/s 4(1) of the Act prior to his participation in the Award proceedings under the Act. Any participation by the petitioner in the Award proceedings is subject to the result of the Writ Petition as the case is still pending consideration by the Court. I am fortified in my view by a judgment of this Court in CC No. 429 of 1995 dated 9-8-1995 wherein the then Chief Justice P.S. Mishra and Justice C.V.N. Sastri under exactly similar circumstances, no doubt In a Contempt Case, observed as follows:
"...By such executive exercise of discretion which is available to the Government of the State only for public purposes, respondents have shown not only disregard to the orders and decrees of the Court but acled, if not with malice in fact, with malice in law. There can never by any dispute to the fact that any acquisition of land for the purposes of running a girls school will be for a public purpose. That public purpose of course had existed for the period longer than the period of litigation between the parties but the respondents never fell the need of the property in their occupation for running the school and never thought it necessary to acquire the same while contesting the claim of the appellants for eviction."
It was further held that:
"For the reasons above, the Court''s irresistible conclusion will be that proceedings under the Laud Acquisition have been initiated with an intention to defeat the decree in favour of the appellants and thus for an unauthorized purpose; the notification aforementioned, issued to acquire the property for the said purpose, is hit by malice in law."
It follows from the above that the notification issued in the present case u/s 4(1) of the Act is vitiated by malice in law and, therefore, it is declared as void.
In view of the above, the Writ Petition is allowed and the Notification u/s 4(1) of the Land Acquisition Act is quashed. The petitioner, who received compensation amount of Rs.2,60,968-68 ps. is directed to refund the same with interest @ 12 % per annum from 1992 till the date of refund within four weeks from the date of receipt of copy of this order. No costs.