THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT APPEAL No.535 OF 2008
JUDGMENT: (Per the Hon'ble Sri Justice C.V.Bhaskar Reddy)
Heard Mr. K. M. Mahender Reddy, learned counsel
for the appellants; Ms. P. Bhavana Rao, learned counsel
appearing for respondent Nos.1 and 2; Mr. Thoom
Srinivas, learned counsel appearing for respondent No.3; and Mr. Eranki Phani Kumar, learned counsel appearing for respondent Nos.4 and 5.
2. This writ appeal, under Clause 15 of the Letters Patent, is directed against the order dated 08.02.2008 passed by the learned Single Judge in W.P.No.25051 of 1998, filed by appellant No.1 seeking compensation for the acquired land admeasuring Ac.1.39 guntas in Survey No.778/E situated at Kamareddy, Nizamabad District, so far it went against him directing the respondents to take the date of notification issued under Section 4(1) of the Land Acquisition Act, 1894 (briefly "the Act of 1894" hereinafter) i.e., 20.04.1972 as criteria for computation of market value under Section 23 of the Act of 1894. 2
3. The first appellant is the writ petitioner. Since the first appellant died during the pendency of the writ appeal, his legal representatives were brought on record as appellant Nos.2 to 5.
4. The brief facts leading to disposal of the writ appeal, as summed up in the writ petition, are stated as under:-
The petitioner claims that his father was the absolute owner of land admeasuring Ac.2.05 guntas in Survey No.778/E situated at Kamareddy, Nizamabad District. In the year 1971, a requisition was made by respondent No.3/APSRTC (briefly "the Corporation", hereinafter) for to an extent Ac.12.33 guntas in Survey No.778/AA etc., which includes the land of the petitioner's father to an extent of Ac.1.39 guntas forming part of Survey No.778/E, for the purpose of construction of bus depot and bus stand at Kamareddy. A draft notification under Section 4(1) of the Act of 1894 was issued on 24.01.1972 and published in the District Gazette dated 20.04.1972. Draft declaration was approved by the Government on 25.09.1972, published in the District Gazette on 23.11.1972 and possession of 3 the land was taken on 22.03.1974 and handed over to the Corporation. It is the case of the petitioner that the Government had taken possession of land to an extent of Ac.11.15 guntas, including the land of his father, in November, 1971 without initiating land acquisition proceedings and award was passed on 20.01.1976 to an extent of Ac.9.16 guntas excluding the land of the petitioner's father. It is his further case that his father expired on 11.04.1975 and because of his occupation as a Government employee residing at a distant place, he was not aware of the acquisition proceedings. Subsequently, having come to know that his land was in illegal occupation of the respondent No.3 Corporation, he submitted representations to respondent Nos.2 and 3 for payment of compensation, and obtained succession certificate from the Mandal Revenue Officer vide letter No.A1/1135/93 dated 13.07.1994. Respondent No.2 after verification of the records and the award passed in proceedings No.a2/4272/71 dated 20.01.1976, informed respondent No.3 that the land in Survey No.778/E admeasuring Ac.1.39 guntas was acquired, but since the whereabouts of the deceased pattadar (father of the 4 petitioner) or his successors were not known, award was confirmed to the extent of Ac.9.16 guntas excluding the land of the petitioner. Thereafter, the petitioner approached different authorities by submitting representations requesting them to intervene in the matter. Some correspondence between the different functionaries of the Government ensued, but without any fruitful results and this constrained the petitioner to file the subject writ petition.
5. Upon receipt of notice in the writ petition, the respondents entered their appearance and filed their counter affidavits. In their counter affidavits the respondents have not disputed that they are the occupants of the subject land without paying compensation. However, in the counter affidavit filed by respondent No.1, it is stated that the possession of the subject land was taken on 22.03.1974 and as successors of the original pattadar could not be found, the land claimed by the petitioner was excluded from the award. It is further stated that the petitioner after lapse of 18 years has approached the Mandal Revenue Officer 5 claiming that his deceased father is the owner of the land and without paying compensation, possession of the land was taken for the purpose of respondent No.3 Corporation. In the counter affidavit filed by respondent No.3, it is stated that as the father of the petitioner died before passing of the award, the addresses of his legal heirs could not be secured and award could not be passed in respect of the land of the petitioner's father. It is further stated that the subject land was taken possession invoking urgency clause under Section 5-A of the Act of 1894 dispensing with the regular enquiry and possession thereof was taken on 22.03.1974. It is also stated that the petitioner filed the present writ petition with an inordinate delay of 22 years, the plea of delay and laches was set up as defence to the claim put forth by the petitioner. It is further stated that the petitioner is not diligent in prosecuting his case and as the delay has not been satisfactorily explained, the writ petition as filed is not maintainable and the same is liable to be dismissed on the sole ground of delay and laches. 6
6. Basing on the above contentions of the respective parties, the learned Single Judge, after adverting to the factual antecedents and after exhaustively referring to the various provisions of the Act of 1894, recorded a finding to the effect that the father of the petitioner was the absolute owner of the subject land, he died before passing of the award i.e., possession was taken on 22.03.1974, whereas petitioner's father died on 11.04.1975 and award was passed on 20.01.1976. The learned Single Judge has referred to various correspondence that ensued between respondent Nos.2 and 3 and stated that even before ten years prior to institution of the writ petition, the petitioner has been making efforts ventilating his grievances and submitted representations to the respondents, issued legal notice dated 28.07.1997 and respondent No.3 Corporation having received the legal notice has not issued any reply, as such there is no intentional unexplained delay on the part of the petitioner in pursuing the reliefs. Basing on the factual foundation of the facts, the learned Single Judge observed that petitioner's property was taken over by the respondents without sanction in law, the writ 7 petition cannot be thrown out on the ground of delay and laches. Further, the learned Single Judge, after referring to Section 6(1) of the Act of 1894 which prescribes time limit for publication of declaration, Section 11 of the Act of 1894 which mandates that the Collector shall make an award within a period of two years from the date of publication of the declaration, and the 4(1) notification issued in the year 1972 which has not culminated into passing of an award, held that the procedure adopted by the respondents for taking possession of the subject land is not permissible in law and declared the same as illegal and strongly deprecated the action of the respondents in taking possession.
7. In this backdrop of the case, the learned Single Judge directed the respondents to pay compensation towards damages for the inordinate delay in passing the award and wrong deprival of use of property in addition to payment of the market value of the land as on the date of publication of Section 4(1) notification i.e., 20.04.1972. It was also directed that for the purpose of computing the damages, market value prevailing on 30.09.1998 shall be 8 taken into consideration, as there is a delay of 14 years on the part of the petitioner in approaching the respondents for payment of compensation.
8. The first appellant, dissatisfied with the order passed by the learned Single Judge to the extent it directed the respondents to compute the damages taking into consideration the market value prevailing on 30.09.1998 instead of the date of passing of orders in the writ petition i.e., 08.02.2008, has filed the present appeal.
9. We have extensively considered the submissions of the learned counsel for the parties and perused the record.
10. We do not find existence of any disputed question of fact much less complicated disputed questions of fact which need determination in these proceedings. From the specific averments made in the writ petition, which are not disputed by the respondents and which are supported by the revenue records appended to the writ petition, it is evident that the first appellant's father is the 9 owner of the subject land. It is also not disputed by the respondents that they are the occupants of the subject land without payment of any compensation. There is nothing brought on record before this Court by the respondents that they had followed due process of law for acquiring the subject land. Even if it is admitted that the successors of the original owner are not traceable, the respondents are under obligation to conclude the land acquisition proceedings by passing award and depositing the amount into the Court. It is admitted that the respondents had passed an award for an extent of Ac.9.16 guntas excluding the land of the petitioner to an extent of Ac.1.39 guntas which is in their occupation unauthorisedly. In view of the admitted position, we find that the subject land claimed by the appellants is in unauthorised occupation of the respondents from 20.04.1972 and continues to be so even as on date.
11. The unauthorised occupation of the State Government of immovable properties of citizens gives rise to recurring cause of action to the aggrieved persons and the ground of delay and laches cannot come in their way 10 to assert their rights before the appropriate forum as held by the Supreme Court in Vidya Devi vs. State of Himachal Pradesh1.
12. In the present case, the grievance of the appellants is limited to the extent of fixation of market value not as on the date of notification but as on the date of deciding the writ petition. Notification under Section 4(1) of the Act of 1894 was issued in the year 1972, possession of the land was taken in the year 1974, award was passed in the year 1976 excluding the land of the appellants, the writ petition came to be filed in the year 1998 i.e., after two decades of the taking over of possession of land by respondent No.3 Corporation. Even though there is some correspondence which shows that the first appellant made his efforts to ventilate his grievance before the authorities but he has not taken recourse of approaching appropriate forum questioning their action of denial of payment of compensation. The learned Single Judge, after referring to the various judgments and the principles laid down by the Supreme Court in a catena of 1 (2020) 2 SCC 569 11 judgments and the contingencies prevailing at the relevant point of time, has held as follows:-
"After a careful consideration of various options, I feel, interest of justice would be met if the petitioner is paid compensation towards damages for the inordinate delay in passing the award and wrongful deprival of use of property in addition to payment of the market value of the land as on the date of publication of notification, namely, 20.04.1972. For the purpose of computing the damages, market value prevailing on 03.09.1998 shall be taken in to consideration. I have taken the said date instead of taking the value as on today, because, there is a delay of about 14 years on the part of the petitioner in approaching the respondents for payment of compensation. Therefore, to balance the equities, the date of filing of writ petition is taken as the relevant date to award damages to the petitioner.
The respondents shall pass award taking 20.04.1972 as the relevant date for computation of market value in accordance with Section 23 of the Act. Besides this amount, the difference between the market value prevailing on 03.09.1998 and 20.04.1972 calculated in accordance with Section 23 of the Act shall be paid to the petitioner towards damages for the wrongful deprivation of his property without paying compensation to him. As respondent No.1 raised the plea that the deceased land owner left behind his daughter besides the petitioner, he shall determine this issue in the award enquiry, after notice to the legal heirs of the deceased land owner and apportion the compensation in accordance with law.12
Respondent No.1 shall pass the award in terms as directed above, within a period of two months from the date of receipt of a copy of this order and serve the copy of the same along with payment of compensation to the petitioner and other legal heirs, if any, of the deceased land owner, within two weeks after passing of the award."
13. This Court while admitting the writ appeal on 19.06.2008 had stayed the implementation of the order passed by the learned Single Judge. During the pendency of the appeal, the Act of 1894 was repealed and replaced with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (briefly "the Act of 2013", hereinafter). In the hearing, a contention was advanced that the appellants should be paid compensation under the Act of 2013.
14. Another core issue is that the respondents herein have not chosen to challenge the order of the learned Single Judge which implies that they are ready to implement the order for paying the compensation to the appellant as determined in the writ petition. The appellant now taking advantage of the pendency of 13 litigation and the interim order passed by this Court, submits that in view of illegal taking over of possession of land for the benefit of respondent No.3 Corporation and in the absence of depositing the compensation in the Court, the notification issued under Section 4(1) of the Act of 1894 dated 20.04.1972 lapses and the present writ appeal has to be allowed as prayed for.
15. No doubt, it is true that the respondents herein have taken possession of the land of the appellants unauthorisedly and utilised the said property for their purpose. Nonetheless in view of appellants obtaining interim order in this writ appeal, it cannot be said that there is inaction on the part of respondent authorities or agencies atleast from the date of interim order granted by this Court. Therefore, the claim of the appellants that they are entitled for initiation of land acquisition proceedings under the Act of 2013 is untenable and cannot be countenanced. In fact as on the date of granting interim order dated 19.06.2008 by the Division Bench of this Court, it was in nobody's imagination that 14 the Act of 1894 would be replaced by the Act of 2013 which gives more benefits to the land losers/land owners.
16. Further, in the case of Indore Development Authority vs. Manoharlal2 a Constitution Bench of the Supreme Court in paragraphs 338 and 346 held as follows:-
"338. A wrongdoer or in the present context, a litigant who takes his chances, cannot be permitted to gain by delaying tactics. It is the duty of the judicial system to discourage undue enrichment or drawing of undue advantage, by using the court as a tool. In Kalabharati Advertising v. Hemant Vimalnath Narichania ((2010) 9 SCC 437), it was observed that courts should be careful in neutralizing the effect of consequential orders passed pursuant to interim orders. Such directions are necessary to check the rising trend among the litigants to secure reliefs as an interim measure and avoid adjudication of the case on merits. Thus, the restitutionary principle recognizes and gives shape to the idea that advantages secured by a litigant, on account of orders of court, at his behest, should not be perpetuated; this would encourage the prolific or serial litigant, to approach courts time and again and defeat rights of others- including undermining of public purposes underlying acquisition proceedings. A different approach would mean that, for instance, where two landowners (sought to be displaced from their lands by the same notification) are awarded compensation, of whom one allows the issue to attain finality- and moves on, the other obdurately seeks to stall the public purpose underlying the acquisition, by filing one or series of litigation, during the pendency of which 2 (2020) 8 SCC 120 15 interim orders might inure and bind the parties, the latter would profit and be rewarded, with the deemed lapse condition under Section 24 (2). Such a consequence, in the opinion of this Court, was never intended by Parliament; furthermore, the restitutionary principle requires that the advantage gained by the litigant should be suitably offset, in favour of the other party.
346. In matters of land acquisition, this Court has frowned upon, and cautioned courts about delays and held that delay is fatal in questioning the land acquisition proceedings. In case possession has not been taken in accordance with law and vesting is not in accordance with Section 16, proceedings before courts are to be initiated within reasonable time, not after the lapse of several decades."
17. Admittedly, in this case the State has initiated land acquisition proceedings on 24.01.972 and the adjoining land owners were paid compensation. Since the whereabouts of original landowner and his successors-in- interest were not known, the acquisition proceedings were not concluded to the extent of the land of the appellants is concerned. As a consequence, the appellants were not paid compensation and ultimately they had to approach the Court for redressal of their grievance.
18. In view of the aforesaid discussion on the facts and circumstances of the case, we do not hesitate to hold 16 that the learned Single Judge has rightly computed the damages and market value payable to the petitioner prevailing as on 03.09.1998 and the same does not call for any interference by this Court in exercise of Letters Patent jurisdiction.
19. The writ appeal is accordingly dismissed. There shall be no order as to costs.
Miscellaneous applications, pending if any, shall stand closed.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ C.V.BHASKAR REDDY, J 03.03.2023 JSU