IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH
WRIT PETITION NO.4286 OF 2020
AND
WRIT PETITION Nos.12287, 12196 & 12199 OF 2021
#
W.P.No.4286 OF 2020 & 03 other writ petitions
Bodduboina Pedda Gopal,
R/o Patimeedipalli Village,
Atluru Mandal,
Kadapa District & 104 others ..... Petitioners
Vs.
$
The State of Andhra Pradesh
Rep. by its Principal Secretary
Land Acquisition
Secretariat Buildings, Velagapudi
Guntur District ..Respondents
! Counsel for the petitioner : Sri S. Lakshminarayana Reddy ^ Counsel for the respondent :
Learned Assistant Government Pleader for Revenue JUDGMENT PRONOUNCED ON: 28.10.2021 * THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers may be allowed to see the Judgments?
2. Whether the copies of judgment may be marked to Law Reporters/Journals
3. Whether Their Ladyship/Lordship wish to see the fair copy of the Judgment?
MSM,J W.P No.4286 of 2020 & batch 2 * THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY + WRIT PETITION NO.4286 OF 2020 AND WRIT PETITION Nos.12287, 12196 & 12199 OF 2021 % Dated 28.10.2021 # W.P.No.4286 OF 2020 & 03 other writ petitions Bodduboina Pedda Gopal, R/o Patimeedipalli Village, Atluru Mandal, Kadapa District & 104 others ..... Petitioners Vs.
$ The State of Andhra Pradesh Rep. by its Principal Secretary Land Acquisition Secretariat Buildings, Velagapudi Guntur District ..Respondents ! Counsel for the petitioner : Sri S. Lakshminarayana Reddy ^ Counsel for the respondent :
Learned Assistant Government Pleader for Revenue <GIST:
> HEAD NOTE:
? Cases referred
1. 2005 Law Suit (AP) 167
2. W.P.No.14864 of 2007 dated 20.09.2007
3. 2012 Law Suit (SC) 743
4. 2001 Law Suit (SC) 1251
5. (1978) 1 SCC 68
6. (2003) 3 SCC 472
7. W.P.No.14864 of 2007 dated 20.09.2007
8. W.P.No.4128 of 2007 & batch dated 04.08.2008
9. 2021 SCC online Sc 334
10. Civil Appeal No.5728 of 2021 dated 24.09.2021
11. AIR 1974 SC 130
12. AIR 1972 Ker 103, 107 para 5
13. (2010) 1 SCC 512
14. (1979) 4 SCC 176
15. (1985) 3 SCC 737 MSM,J W.P No.4286 of 2020 & batch 3 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO.4286 OF 2020 AND WRIT PETITION Nos.12287, 12196 & 12199 OF 2021 COMMON ORDER:
All these four writ petitions are filed under Article 226 of the Constitution of India by different petitioners, claiming identical relief, as such, I find it expedient to decide all the four writ petitions by common order, since the issue involved in all the writ petitions is one and the same. W.P.No.4286 of 2020 is taken as leading case. W.P.No.4286 of 2020 The relief claimed in W.P.No.4286 of 2020 is as follows:
"To issue writ of mandamus declaring the action of the respondents in not paying compensation to the petitioners in respect of their acquired structures covered under Award No.4/97 which has been finally determined in L.A.O.P.No.437 of 2001 dated 26.02.2002 as confirmed in A.S.No.513 of 2004 dated 09.03.2006 inspite of oral and written representations dated 14.03.2012, 20.10.2015, 29.06.2017 and 05.11.2019 as illegal, arbitrary and violative of Articles 21 and 300-A of the Constitution of India and consequently direct the respondents to pay compensation to the petitioners pursuant to the order and decree passed in L.A.O.P.No.437 of 2001 dated 26.02.2002 as confirmed in A.S.No.513 of 2004 dated 09.03.2006 in pursuance of the written representations dated 14.03.2012, 20.10.2015, 29.06.2017 and 05.11.2019 made by the petitioners."
The petitioners are the permanent residents of Patimeedipalli Village, Atlur Mandal, Kadapa District. The petitioners possessed land in the village and the structures thereon were sought for acquisition for Somasila Project under Notification dated 01.03.1995 under Section 4(1) of the Land Acquisition Act. Thereafter, Award No.4 of 1997 was passed on 24.11.1997, awarding compensation for MSM,J W.P No.4286 of 2020 & batch 4 the structures. The petitioners received compensation amount for the structures under protest, as the compensation awarded by the Land Acquisition Officer for the structures was not commensurate with the value. Thereupon, they sought reference under Section 18 of the Land Acquisition Act for enhancement of compensation awarded, vide Award No.4 of 1997.
In pursuance of the request made by the petitioners, a reference was made to the District Judge, Kadapa, the same was registered as L.A.O.P.No.437 of 2001 and it was disposed of by the District Judge, Kadapa, enhancing compensation for the structures 100% over and above the market value fixed by the Land Acquisition Officer, granting statutory benefits vide decree and order dated 26.02.2002.
Aggrieved by the order passed by the learned District Judge, Kadapa in L.A.O.P.No.437 of 2001, the third respondent preferred A.S.No.513 of 2004 before High Court of Andhra Pradesh at Hyderabad and the same was allowed in part, modifying the direction in L.A.O.P.No.437 of 2001 reducing the enhanced compensation from 100% to 80% over and above the market value fixed by the Land Acquisition Officer and confirmed the same in all other respects i.e. for payment of statutory benefits.
The third respondent paid compensation amount pursuant to the decree passed by the High Court in A.S.No.513 of 2004 dated 09.03.2006 in part, but did not choose to pay additional compensation, interest @ 9% on additional market value and 15% of solatium on the awarded amount as per the order and decree passed in L.A.O.P.No.437 of 2001. The petitioners requested to pay the MSM,J W.P No.4286 of 2020 & batch 5 amount, but the authorities have been postponing the same on one pretext or the other.
The third respondent made the petitioners believe that the compensation would be paid, but they did not pay the same till 2012. The third respondent did not pay compensation despite several oral representations made by the petitioners and the petitioners made written representation dated 14.03.2012 requesting for payment of compensation and the same was acknowledged. Inspite of that, the third respondent did not take any steps for payment of compensation and as such, the petitioners made another representations dated 20.10.2015 and 29.06.2017, but no action has been taken and again the petitioners were constrained to make representation dated 05.11.2019 to the third respondent, stating paid compensation in respect of other claimants pursuant to the orders passed by the High Court in W.P.No.4132 of 2007 & batch dated 20.04.2007 covered by L.A.O.P.No.541 of 2001 dated 09.04.2002, subsequent to orders passed in L.A.O.P.No.437 of 2001, but the third respondent did not pay the compensation to the petitioners till today, thereby, the respondents discriminated these petitioners in -payment of compensation and other benefits.
As the respondents did not pay compensation, the petitioners approached this Court invoking jurisdiction under Article 226 of the Constitution of India, while contending that the writ petition is maintainable, though decree can executed in view of the judgment of the Full Bench of High Court of Andhra Pradesh in Bhamidipati Annapoorna Bhavani v. Land Acquisition Officer, Yeleru MSM,J W.P No.4286 of 2020 & batch 6 Reservoir Project1, where the Court held that, availability of such alternate and efficacious or statutory remedy itself is not a bar in entertaining a writ petition in the given facts and circumstances and also held that, in cases arising out of the Act where the amount of compensation, finally determined has not been paid, a person must first resort to the alternate efficacious remedy of taking out execution and despite taking out execution proceedings, if there is any delay caused by authorities, resort can be had by filing of a writ petition in this Court and, this Court, while exercising its discretionary jurisdiction, in appropriate cases, may issue directions for immediate deposit of the amount of compensation by the State Government or the authorities on whose behalf the land has been acquired. In the instant case, the execution petitions could not be filed because the third respondent had paid part of the compensation and caused delay in payment of balance compensation. Though the petitioners made several representations, no purpose is served. Hence, the writ petition is maintainable and requested to issue a direction as stated above.
Respondent Nos. 1 to 3 filed counter affidavit, denying material allegations, inter alia, explained the circumstances under which the land was acquired and Award was passed, making reference to the District Judge, Kadapa under Section 18 of the Land Acquisition Act vide L.A.O.P.No.437 of 2001, its disposal and passing a decretal order by the learned District Judge, Kadapa, preferring an appeal before the High Court of Andhra Pradesh at Hyderabad in A.S.No.513 of 2004 and enhancement of compensation. Finally, submitted that the then Special Deputy Collector submitted decretal 1 2005 Law Suit (AP) 167 MSM,J W.P No.4286 of 2020 & batch 7 proposals for payment of decretal charges on the difference amount between Court and Land Acquisition Officer i.e. total differential interest amount of Rs.76,27,773/- (including income tax @ Rs.1,14,86/- and Rs.75,13,387/- towards deduction of income tax and decretal charges respectively) to claimants are as follows: No of Rate Rate Differ 12% 30% Total 9 15 % Total Total Income Net claim fixed fixed ence Addl. solatium 5+6) (interest interes Intere payabl tax payabl ants by by (2-3) Market on col.4 24.11.96 t st e deduct e (11-
the LAO value to 24.11. ion 12)
court on 31.08.06 96 to above
Col.4 For 31.08. one
2832 06 for lakh @
days 2832 10%
days
1 2 3 4 5 6 7 8 9 10 11 12 13
102 5958 3310 2648 864 7944 4307 2383 30821 3320 7627 114 7513
565 315 250 565 73 283 43 28 471 773 386 387
The proposal was submitted by the Special Collector (L.A), G.N.S.S., Kadapa vide office Ref.No.B/53/2001 dated 04.09.2006 and the Special Collector (L.A), G.N.S.S., Kadapa sanctioned LOC and issued proceedings vide reference No.A1/574/2006 dated 08.09.2006. Accordingly, the Special Deputy Collector deposited decretal amount of Rs.75,13,387/-.
It is specifically contended that, the Advocate for petitioners informed through his letter dated 02.09.2006 that claimants are willing to receive compensation amount and also informed that they will not go to the Court or Lok Adalat further, in L.A.O.P.No.437 of 2001 and A.S.No.513 of 2004. Finally, it is admitted about the order passed by the District Judge, Kadapa in reference under Section 18 and also extracted operative portion of the orders passed in A.S.No.513 of 2004 dated 09.03.2006. But, it is unnecessary for the purpose of deciding the present issue. At the end, it is stated that the petitioners received decretal amount through District Court vide Cheque No.182968 dated 16.09.2006 and the petitioners filed objections after lapse of 14 years from the date of payment of the MSM,J W.P No.4286 of 2020 & batch 8 decretal amount., as such the writ petition is not maintainable and requested to dismiss the writ petition.
The respondents filed reply affidavit, reiterating the contentions while denying the letter dated 02.09.2006 addressed by the Advocate, while asserting that, such issue is already covered by judgment of this Court, the copy of judgment is also filed along with the reply, for perusal of this Court and finally requested to issue a direction as claimed for.
During hearing, Sri Lakshminarayana Reddy, learned counsel for the petitioners reiterated the contentions urged in the writ petitions, while drawing attention of this Court to the common order in W.P.No.4128 of 2007 & batch dated 04.08.2008 to contend that, addressing letter dated 02.09.2006 by the Advocate is not sufficient to deny payment of compensation. At the end, learned counsel also placed reliance on the judgment of the learned single Judge in Mettukuru Chengamma v. Government of Andhra Pradesh 2, wherein the learned single Judge held that respondents are liable to pay additional market value, as well as solatium within specified period and they cannot avoid payment of compensation awarded to the respondents therein.
Similarly, learned counsel drawn attention of this Court to the judgment of Supreme Court in Tukaram Kana Joshi through Power of Attorney Holder v. M.I.D.C3, so also, the judgment in Sunder v. Union of India4. On the basis of the law laid down in the above judgments, learned counsel requested to issue a direction as claimed.
2 W.P.No.14864 of 2007 dated 20.09.2007 3 2012 Law Suit (SC) 743 4 2001 Law Suit (SC) 1251 MSM,J W.P No.4286 of 2020 & batch 9 Whereas, learned Assistant Government Pleader for Land Acquisition supported the order of the respondents, taking advantage of the letter of the Advocate who allegedly agreed not to claim any amount of compensation approaching Lok Adalat or any other Court. On the basis of the letter of the learned counsel for the petitioner only, the Government did not pay the amount claimed by these petitioners; as such the writ petition is not maintainable after lapse of 14 years from the date of receipt of compensation amount and requested to dismiss the writ petition.
Learned counsel for the petitioners and respondents filed calculation memos and objections thereto, but those memos need not be considered for the present, in the present case.
Considering rival contentions, perusing the material available on record, the points that need to be answered are as follows:
1. Whether Respondent Nos. 1 to 3 can deny payment of compensation on the basis of letter addressed by learned counsel for the petitioners in L.A.O.P.No.437 of 2001 on the file of District Judge, Kadapa and partly confirmed by High Court of Andhra Pradesh in A.S.No.513 of 2004 passed by High Court of Andhra Pradesh at Hyderabad?
2. If not, whether the writ petition is maintainable due to delay and latches and on account of availability of effective, efficacious remedy of execution of an award passed by the referral court in L.A.O.P.No.437 of 2001 and partly confirmed by High Court of Andhra Pradesh at Hyderabad in A.S.No.513 of 2004?
P O I N T No.1:
The facts are not in dispute. The only dispute is about the letter addressed by learned counsel for the petitioner in MSM,J W.P No.4286 of 2020 & batch 10 L.A.O.P.No.437 of 2001 undertaking that the petitioners will not approach Lok Adalat or any other Court claiming any amount, while receiving compensation.
It is an undisputed fact that, land of these petitioners was acquired, reference was made under Section 18 of the Land Acquisition Act, a decree and decretal order was passed by the District Judge, Kadapa in L.A.O.P.No.437 of 2001. At the same time, filing of appeal by the third respondent in A.S.No.513 of 2004 is not in quarrel. According to the petitioners, in L.A.O.P.No.437 of 2001 the Court enhanced compensation payable to the structures @ 100% over and above the compensation already fixed by order and decretal order dated 26.02.2002. But, in A.S.No.513 of 2004 filed by the third respondent, the amount of compensation payable for the structures was reduced to 80%. The basis for non-payment of balance of the amount is letter addressed by the counsel and it is extracted herein.
"I am the Advocate on behalf of the claimants in L.A.O.P.Nos.437/2001, on the file of the District Judge, Kadapa. The Hon'ble Court was pleased to enhance and fixed the market value of the structures at 100% over and above the market valued fixed by the L.A.O. On that the L.A.O preferred appeals against the orders of the learned District Judge, Kadapa. On merits the Hon'ble High Court was pleased to reduce and fixed the market value of the structures at 80% over and above the market value fixed by the L.A.O. The claimants are willing to receive the compensation amount with interest at 9% and 15% on market value. Further the claimants state that they will not go to the Court or Lok Adalat further in the above cases. So, you are hereby requested to deposit the decretal charges in the above cases in the Court of the Hon'ble District Judge, Kadapa."
Taking advantage of this letter, the respondents disowned their liability to pay additional amount of compensation, as awarded in L.A.O.P.No.437 of 2001 and partly confirmed in A.S.No.513 of 2004.
MSM,J W.P No.4286 of 2020 & batch 11 A similar question fell for consideration in W.P.No.14864 of 2007 where the Court vide order dated 20.09.2007 held as follows:
Be that as it may, in these writ petitions, the petitioners are aggrieved by the action of the respondents in not paying interest on the additional market value as well as solatium, which was already deposited by the Land Acquisition Officer. The non- payment of the said interest is admittedly on the basis of a letter addressed by the advocate of the petitioners stating that the petitioners have given up the right in respect of the interest claimed. Aggrieved by the said action, the present writ petitions are filed.
When the matter is taken up for consideration, it is brought to my notice by the learned counsel for the petitioners that having considered the effect of the similar letter addressed by the counsel for the claimants covered by the same notification, W.P.No.14864 of 2007 was disposed of by this Court by order dated 20-09-2007 holding as under:
"The only stand of the respondents is that the claim for interest was given up as per the letter filed by the petitioners and therefore, they cannot make a claim for the same. But, a perusal of the letter no doubt does not make any reference either to additional market value or solatium, which was already deposited by the Land Acquisition Officer, to which the petitioners are entitled to in respect of the properties they have lost. When once the additional market value and solatium has already been deposited by the Land Acquisition Officer, equally, the petitioners are entitled to interest on additional market value as well as solatium, as per the judgments of the Supreme Court. In the circumstances, the respondents are directed to deposit the interest payable on the additional market value as well as solatium within a period of two months, failing which, the petitioners are entitled to file EPs seeking execution of that part of the decree passed by this Court in the appeals. With reference to the amounts already deposited, the Court below is directed to disburse the same without insisting for filing any full satisfaction memos."
The fact that the petitioners herein are also similarly situated and the additional market value as well as solatium to which the petitioners are entitled to has already been deposited by the Land Acquisition Officer has not been disputed by the learned Government Pleader for Land Acquisition.
In the circumstances, following the order in W.P.No.14864 of 2007, these writ petitions are disposed of with a direction to the respondents to deposit the interest payable on the additional market value as well as the solatium within a period of two months from the date of receipt of a copy of this order. No costs.
MSM,J W.P No.4286 of 2020 & batch 12 Relying on the same judgment, the learned single Judge in W.P.No.4128 of 2017 and batch reiterated the same principle. The judgment of the learned single Judge in the writ petitions referred above is binding on this Court, being a coordinate bench. Applying the principle laid down in the above judgment, the letter addressed by the Advocate is not sufficient to deny payment of compensation, since the Advocate cannot correspond with the Government and address such letter to the Government, as he was authroized to appear before the Court, Tribunals, and plead on behalf of the petitioners by virtue of vakalat signed by these petitioners. But, the counsel overstepped from his authority, obviously for different reasons and addressed such letter to the Government which is impermissible under law. When decree and decretal order are passed by the District Judge, partly confirmed by the High Court, when there is a decree in favour of these petitioners and when the petitioners gave up their claim while satisfying themselves for the amount already paid, such letter allegedly addressed by the learned counsel for the petitioners amounts to recording full satisfaction of decree passed in L.A.O.P.No.437 of 2001, affirmed by the High Court of Andhra Pradesh at Hyderabad in A.S.No. 513 of 2004. The letter was addressed by the Advocate on 02.09.2006 but it was not certified as required under Order XXI Rule 1 of C.P.C and the limitation for such certification is one month from the date of payment through Court. But, here, the respondents did not get full satisfaction recorded, only kept the letter with them, though he was not authorized to address such letters i.e. correspond with the Government and address such letters for recording full satisfaction of the decree.
MSM,J W.P No.4286 of 2020 & batch 13 Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice. Accordingly, a set of rules that govern their professional conduct arise out of the duty that they owe the court, the client, their opponents and other advocates. Chapter-II of Bar Council of India Rules deals with Standards of Professional Conduct and Etiquette. An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned. Clause 19 of Section-II thereto says that, an advocate shall not act on the instructions of any person other than his client or his authorised agent, but the Advocate for petitioners in L.A.O.Ps without sense of responsibility issued such letter in total disregard of his duty towards client and the State stooped to such level of belligerency. Therefore, the letter can never be a basis to deny the claim of these petitioners and in view of the law declared by these Courts in the judgments referred above and by applying those principles to the present facts of the case, I hold that the counsel is not entitled to address such letter on MSM,J W.P No.4286 of 2020 & batch 14 behalf of the parties without the signature of these petitioners and such uncertified full satisfaction cannot be a ground to deny payment of balance amount of compensation, thereby, I hold that the respondents are bound to pay balance of compensation, as claimed by the petitioners in the writ petition.
In the instant case on record, despite passing an order and decretal order in L.A.O.P.No.437 of 2001 No.437 of 2001 and partly confirmed in A.S.No.513 of 2004, while making these petitioners to believe that the respondents will pay and disown their liability on the pretext that the counsel for the petitioners in L.A.O.P.No.437 of 2001 No.437 of 2001 addressed letter disclaiming the amount due and that he was not authorized to act prejudicial to the interest even without obtaining signatures of these petitioners.
The State is expected to be a model litigant maintaining ethical standards in prosecuting the litigation being a compulsive litigant. The Government of India in view of certain observations made in various Judgments by the Apex Court in State of Punjab v. M/s.Geeta Iron & Brass Works Ltd.,5 and Chief Conservator of Forest v. Collector6 adopted National Litigation Policy, but it did not yield fruitful results and it totally failed. But, the Government of India being a model litigant is under obligation in common law has not always been clear, but the written policies seek to provide clarity and guidance and what conduct is required of a model litigant. Behind each of the duties is an overreaching duty to act honestly, fairly, with complete propriety and in accordance with the highest professional standards. It goes beyond the requirement for lawyers to 5 (1978) 1 SCC 68 6 (2003) 3 SCC 472 MSM,J W.P No.4286 of 2020 & batch 15 act in accordance with their ethical obligations and merely acting honestly or in accordance with law and court rules. The policies all variously refer to the following specific duties, some of which have long been recognized by the Court:
a) Dealing with claims promptly;
b) Minimising delay in proceedings';
c) Making an early assessment of the prospects of success and
potential liability in claims;
d) Paying legitimate claims without litigation;
e) Acting consistently in the handling of claims and litigation;
f) Endeavouring to avoid, prevent or limit the scope of litigation and
participating in alternative dispute resolution where appropriate;
g) Missing costs in proceedings;
h) Not taking advantage of a claimant who lacks the resources to
litigate a legitimate claim;
i) Not taking technical points unless the agencies interests would be
compromised;
j) Not understanding and pursuing appeals unless there are
reasonable prospects for success or the appeal is otherwise justified in the public interest; and
k) Apologising when the Government or its lawyers have acted wrongfully or improperly.
These guidelines, as recognized by Common Wealth Countries, the litigation in the courts would be minimized though the Government of India or State adopted Litigation Policy, but it did not serve any useful purpose. Therefore, the Government being litigant is at least expected to follow the ethical issues and practical considerations while dealing with a citizen in litigation before the Court and the government is expected to be honest litigant, to minimize the litigation, The State of Andhra Pradesh also adopted State Litigation Policy dated 30.08.2011 and certain guidelines have been issued with objects mentioned in second para of Litigation Policy. The main objects are to manage and conduct litigation in a coordinated and time bound manner; ensure that strong cases are won and weak cases are not pursued needlessly; reduce overall government MSM,J W.P No.4286 of 2020 & batch 16 litigation in courts thereby providing relief to the judiciary etc., and also issued certain directions to prevent and control avoidable litigation and settlement of disputes in alternative dispute resolution system, guidelines for filing of appeals. But without keeping in mind, the litigation policy, framed by State dated 30.08.2011, government agencies and authorities are proliferating the litigation by evasive and un-substantive pleas before court, thereby increasing litigation in the courts, which is contrary to guidelines issued by Apex Court in the judgments referred supra. Thus, to achieve the real object of litigation policy, the procedure must be fair and atleast implementation of Law Commission recommendations would serve purpose to some extent.
In view of the law laid down by the Apex Court and High Court in the judgments referred supra, the State is not supposed to take advantage of said letter allegedly issued by the counsel, State being a fair and compulsive litigant, but invented such theory, which is impermissible under law. Hence, I hold that the letter of advocate is not a ground to avoid payment of compensation which is statutory right. Accordingly, the point is answered in favour of the petitioners and against the respondents.
P O I N T No.2 One of the major contentions is that the writ petition is not maintainable without availing equally efficacious effective and statutory remedy available to the petitioners. Since the decree is executable, the petitioners may approach the executing court to execute the decree and recover the amount, according to the contention of learned Assistant Government Pleader for Land MSM,J W.P No.4286 of 2020 & batch 17 Acquisition. But the learned counsel for the petitioner Sri S. Lakshminarayana Reddy vehemently contended that, even though execution petition can be filed against such an order, still the petitioner can invoke the jurisdiction of the High Court invoking Article 226 of the Constitution of India and placed reliance on judgment of the Full Bench of High Court of Andhra Pradesh in Bhamidipati Annapoorna Bhavani v. Land Acquisition Officer, Yeleru Reservoir Project (referred supra), wherein the Court held as follows:
26. The above discussion would lead us to hold that the power, which the High Court exercises under Article 226 of the Constitution, is a discretionary power. Though the power is discretionary and no limits can be placed upon such discretion, it has been held judicially that power must be exercised along recognised lines and not arbitrarily. There are no limits to such power and it has to be exercised judiciously. However, while exercising this power courts have imposed certain limits in exercise of those powers, which are known as self-imposed limitations. One of the self-imposed restrictions is that High Court generally refrains from entertaining a writ petition when there is adequate and efficacious alternate remedy available to a party, and, when such alternate remedy available is a statutory remedy, such statutory remedy has been duly exhausted. Availability of such alternate and efficacious or statutory remedy itself is not a bar in entertaining a writ petition in the given facts and circumstances. We need not multiply the circumstances in which such discretionary power may be exercised by the Court in such matters despite availability of such alternate, adequate and efficacious remedy. But the limits as noticed in B. Govinda Reddy's case (4 supra) by a learned single Judge of this Court are sufficient that in cases arising out of the Act where the amount of compensation, finally determined has not been paid, a person must first resort to the alternate efficacious remedy of taking out execution and when despite taking out execution proceedings, if there is any delay caused on the part of authorities, resort can be had to filing of a writ petition in this Court and, this Court, while exercising its discretionary jurisdiction, in appropriate cases, may issue directions for immediate deposit of the amount of compensation by the State Government or the authorities on whose behalf the land has been acquired.
27. In view of the above, we hold that the view taken by the Full Bench in Vemula Prabhakar's case (1 supra) that in a matter arising out of the Act, writ petition under Article 226 of the Constitution seeking MSM,J W.P No.4286 of 2020 & batch 18 direction against the State to deposit the amount of compensation determined which has finally been settled will not be maintainable is bad and contrary to the principles of law as noticed hereinabove and accordingly we overrule the same and hold that the view taken by the learned single Judge in B. Govinda Reddy's case (4 supra) is the correct exposition of law."
In an identical situation where the respondent- State adopted a similar practice to deny payment of compensation on the basis of the letter of the counsel. This contention was turned down by the High Court in the judgment referred above. Thus, it is clear that the modus operandi of the petitioner is to avoid payment of compensation by obtaining letters from the advocate. In such case, this Court cannot accept such contention, since such contention was already turned down/rejected by this Court in the earlier writ petitions.
Learned counsel also placed reliance on the judgment of the learned single Judge in Mettukuru Chengamma v. Government of Andhra Pradesh7, wherein the learned single Judge issued direction for payment of compensation, having considered the similar facts arising out of the same acquisition proceedings held that as follows:
"The only stand of the respondents is that the claim for interest was given up as per the letter filed by the petitioners and therefore, they cannot make a claim for the same. But, a perusal of the letter no doubt does not make any reference either to additional market value or solatium, which was already deposited by the Land Acquisition Officer, to which the petitioners are entitled to in respect of the properties they have lost. When once the additional market value and solatium has already been deposited by the Land Acquisition Officer, equally, the petitioners are entitled to interest on additional market value as well as solatium, as per the judgments of the Supreme Court.
In the circumstances, the respondents are directed to deposit the interest payable on the additional market value as well as solatium within a period of two months, failing which, the petitioners are entitled to 7 W.P.No.14864 of 2007 dated 20.09.2007 MSM,J W.P No.4286 of 2020 & batch 19 filed EPs seeking execution of that part of the decree passed by this Court in the appeals. With reference to the amounts already deposited, the Court below is directed to disburse the same without insisting for filing any full satisfaction memos."
In Pallem Chinnakka died per L.R. Rami Reddy v. The Special Deputy Collector, Telugu Ganga Project8, the learned single Judge reiterated the principle laid down in Mettukuru Chengamma v. Government of Andhra Pradesh (referred supra).
Recently, the Division Bench of the Supreme Court in Radha Krishan Industries v. State of Himachal Pradesh & Others9 summarized the following six principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy, despite availability of efficacious alternative statutory remedy under the Act.
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where a. the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; b. there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or c. the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 8 W.P.No.4128 of 2007 & batch dated 04.08.2008 9 2021 SCC OnLine SC 334 MSM,J W.P No.4286 of 2020 & batch 20 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
The same principles were reiterated by the Full Bench of the Apex Court in M/s. Magadh Sugar & Energy Limited v. The State of Bihar10.
It is the specific case of the petitioners that they made several oral representations and finally made written representation for payment of compensation, as claimed in the writ petition. But, for the reasons best known to the respondents, they did not respondent to any of the representation positively or negatively, thereby, there is a demand and denial to discharge of public duty, being a public officer. In such case, writ petition is maintainable. When a public officer failed to discharge his public duty i.e. payment of balance compensation amount and invented such a story of disclaiming balance compensation by the counsel, the counsel is incompetent to address such letter, it is for the petitioners to take appropriate action against such counsel who addressed such letter against the interest of the petitioners. therefore, the writ petition is maintainable under Article 226 of the Constitution of India by applying the principle laid down by the Apex Court and various High Courts in the judgments referred above.
The major contention of the respondents is that, the claim of this petitioner is delayed and there are latches on the part of this 10 Civil Appeal No.5728 of 2021 dated 24.09.2021 MSM,J W.P No.4286 of 2020 & batch 21 petitioner. But, delay and latches in land acquisition proceedings is not a ground to deny the claim. However, in Tukaram Kana Joshi through Power of Attorney Holder v. M.I.D.C (referred supra) the question before the Apex Court was whether the State should be allowed to deprive a citizen of his property without adhering to the law. The Apex Court held that, there are authorities which state that delay and latches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and latches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Articles 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of "eminent domain" and "police power" of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of "absolute power" which in common parlance is also called MSM,J W.P No.4286 of 2020 & batch 22 abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner as a 'subject' of medieval India, but not as a 'citizen' under our constitution.
After dealing with the principles in various judgments relied on by the learned counsel for the petitioners and respondents in detail, the Court concluded in Paragraph No.20 as follows:
"20. Be that as it may, ultimately, good sense prevailed, and learned senior counsel appearing for the State came forward with a welcome suggestion stating that in order to redress the grievances of the appellants, the respondent-authorities would notify the land in dispute under Section 4 of the Act within a period of 4 weeks from today. Section 6 declaration will be issued within a period of one week thereafter. As the appellants have full notice and information with respect to the proceedings, publication in the newspapers either of the notification or of the declaration under the Act are dispensed with. Notice under Section 9 of the Act will be served within a period of 4 weeks after the publication of Section 6 declaration and award will be made within a period of three months thereafter. The deemed acquisition proceedings would thus, be concluded most expeditiously. Needless to say, the market value of the land in dispute will be assessed as it prevails on the date on which the Section 4 notification is published in the Official Gazette. Payment of compensation/award amount will be made to the claimants/persons- interested immediately thereafter, along with all statutory benefits. The appellants shall be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired."
In Sunder v. Union of India (referred supra), the Full Bench of the Supreme Court dealt with the interest under Section 34 of the Land Acquisition Act, 1894 payable on the compensation awarded to the petitioners. But, that was not really an issue, since the claim was already settled by the High Court in the appeal. But, at the cost of repetition, the counsel relied on the judgment where the Apex Court concluded as follows:
"Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act MSM,J W.P No.4286 of 2020 & batch 23 forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of section 28 of the act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of S.28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well."
In our view the aforesaid statement of law is in accord with the sound principle of interpretation. Hence the person entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium. The reference is answered accordingly."
Respondents have acted irresponsibly though they were expected to litigate within expected judicial norms. Respondents like belligerent litigants could not resist the temptation of litigation and have fought their legal battle as if it was a war. The battle otherwise is "uneven" as on one side is a public institution whereas on the other side is a private individual.
In such a case, one is bound to recall the observations made by the Supreme Court in Dilbagh Rai Jerry vs. Union of India11, wherein, the Apex Court made few observations not on the merits but on governmental disposition to litigation, the present case being symptomatic of a serious deficiency and observed that, in this country the State is the largest litigant to-day and the huge expenditure involved make a big draft on the public exchequer. In the contest of expanding dimensions of State activity and responsibility, is it unfair to expect finer sense and sensibility in its litigation policy, the absence of which, in the present case, has led the Railway callously and cantankerously to resist an action by its 11 AIR 1974 SC 130 MSM,J W.P No.4286 of 2020 & batch 24 own employee a small man, by urging a mere technical plea which has been pursued right up to the summit court here and has been negatived in the judgment just pronounced. Instances of this type are legion as is evidenced by the fact that the Law Commission of India in a recent report on amendments to the Civil Procedure Code has suggested the deletion of Section 80, finding that wholesome provision hardly ever utilised by Government, and has gone further to provide a special procedure for government litigation to highlight the need for an activist policy of just settlement of claims where the State is a party. It is not right for a welfare State like to be Janus- faced, and while formulating the humanist project of legal aid to the poor, contest the claims of poor employees under it pleading limitation and the like. That the tendency is chronic flows from certain observations.
In P.P. Abubacker v. Union of India12, the Kerala High Court held that, the State under our Constitution undertakes economic activities in a vast and widening public sector and inevitably get involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook ; for, the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to 12 AIR 1972 Ker 103, 107: para 5 MSM,J W.P No.4286 of 2020 & batch 25 settle the dispute regardless of prestige and other lesser motivations which move private parties to right in court. The lay-out on litigation costs and executive time by the State and the agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Minister of India way back in 1957. This second appeal strikes me as an instance of disregard of that policy. It must be remembered that the State defined within the ambit of State under Article 12 of the Constitution of India, is not an ordinary party trying to win a case against one of its own citizens by hook or by crook. The State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. This Court has no hesitation to conclude that public money has been wasted because of the adamant behaviour of the officers of respondents due to litigious attitude adopted by those officers in pursuing the instant litigation before this Court.
In Urban Improvement Trust, Bikaner vs. Mohan Lal13, the Hon'ble Supreme Court observed that it is a matter of concern that 13 (2010) 1 SCC 512 MSM,J W.P No.4286 of 2020 & batch 26 such frivolous and unjust litigations by Governments and statutory authorities are on the increase. It was further observed that statutory authorities which existed for to discharge statutory functions in public interest should be responsible litigants and cannot raise frivolous and unjust objections nor act in a callous and high-handed manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/ restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected. The Apex Court its view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice.
In Madras Port Trust v. Hymanshu International14, the Hon'ble Supreme Court held that, it is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not 14 (1979) 4 SCC 176 MSM,J W.P No.4286 of 2020 & batch 27 ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.
The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. (vide Bhag Singh & Ors. v. Union Territory of Chandigarh through LAC, Chandigarh15) Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:
(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision making. 15
[(1985) 3 SCC 737] MSM,J W.P No.4286 of 2020 & batch 28 Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to courts and Tribunals."
In view of the perspective pronouncements of the Courts, it is clear that delay and latches i.e. 14 years delay is not a ground to deny the claim of these petitioners and that the writ petition is maintainable, in view of the judgment of the Supreme Court in Sunder v. Union of India (referred supra). However, the State being fair and compulsive litigant, setting up plea of delay and latches is depreciable. Accordingly, the point is answered in favour of the petitioner and against the respondents.
In view of my findings on Point Nos. 1 to 2, Respondent Nos. 1 to 3 are under obligation to pay the balance of compensation interest @ 9% on additional market value and 15% of solatium on the awarded amount to the petitioners for their acquired structures covered under Award No.4/97 which has been finally determined in L.A.O.P.No.437 of 2001 dated 26.02.2002. But, for the reasons best known to them, Respondent Nos. 1 to 3 have set-up a lame excuse for non-payment while pleading payment of compensation did not comply with the directions issued by the High Court in A.S.No.513 of 2004. Such conduct by the Government depriving the petitioners who lost their livelihood due to acquisition of land and structures are deprived of their property which is impermissible under Article 300-A of the Constitution of India. However, the calculation memos filed by these petitioners and respondents needs no further consideration. But, at the appropriate stage, in case of failure to pay compensation if any, in contempt case filed, those calculation memos and MSM,J W.P No.4286 of 2020 & batch 29 objections thereto can be considered. But, at this stage, they are not relevant. Hence, I find that it is a fit case to issue writ of mandamus in the circumstances stated above, while finding no merits in the contentions of learned Assistant Government Pleader for Land Acquisition.
In the result, W.P.No.4286 of 2020 is allowed, declaring the action of the respondents as illegal and arbitrary in not paying the compensation of statutory benefits to the petitioners in respect of their acquired structures covered under Award No.4/1997; while directing the respondents to pay compensation to the petitioners in respect of their acquired structures covered under Award No.4/1997, as determined in L.A.O.P.No.437 of 2001 dated 26.02.2002 and confirmed in A.S.No.513 of 2004 dated 09.03.2006. W.P.No.12287 of 2021 In view of my detailed discussion in W.P.No.4286 of 2020, W.P.No.12287 of 2021 is allowed, declaring the action of the respondents as illegal and arbitrary in not paying the compensation of statutory benefits to the petitioners in respect of their acquired structures covered under Award No.1/1995; while directing the respondents to pay compensation to the petitioners in respect of their acquired structures covered under Award No.1/1995, as determined in L.A.O.P.No.131 of 2001 dated 27.02.2002 and confirmed in A.S.No.162 of 2004 dated 18.03.2006. W.P.No.12196 of 2021 In view of my detailed discussion in W.P.No.4286 of 2020, W.P.No.12196 of 2021 is allowed, declaring the action of the MSM,J W.P No.4286 of 2020 & batch 30 respondents as illegal and arbitrary in not paying the compensation of statutory benefits to the petitioners in respect of their acquired structures covered under Award No.1/1995; while directing the respondents to pay compensation to the petitioners in respect of their acquired structures covered under Award No.1/1995, as determined in L.A.O.P.No.130 of 2001 dated 27.02.2002 and confirmed in A.S.No.452 of 2004 dated 18.03.2006. W.P.No.12199 of 2021 In view of my detailed discussion in W.P.No.4286 of 2020, W.P.No.12199 of 2021 is allowed, declaring the action of the respondents as illegal and arbitrary in not paying the compensation of statutory benefits to the petitioners in respect of their acquired structures covered under Award No.1/1995; while directing the respondents to pay compensation to the petitioners in respect of their acquired structures covered under Award No.1/1995, as determined in L.A.O.P.No.129 of 2001 dated 27.02.2002 and confirmed in A.S.No.153 of 2004 dated 18.03.2006.
Consequently, miscellaneous applications pending if any, shall stand dismissed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:28.10.2021 Note: LR copy to be marked b/o SP