K.Moinuddin Quamri vs The Tahsildar
2021 Latest Caselaw 4532 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

               WRIT PETITION NO.21012 OF 2021;
                WRIT PETITION No.576 OF 2020;
           WRIT PETITION NOs.13270 & 20022 OF 2019
               WRIT PETTION NO.33373 OF 2015

COMMON ORDER:

        All these five 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 five writ petitions

by common order, since the issue involved in all the writ petitions

is one and the same. W.P.No.21012 of 2021 is taken as leading

case.

W.P.No.21012 of 2021



        One Madar Khan gari Ishaq Khan and three others filed this

writ petition under Article 226 of the Constitution of India, to

declare the action of Respondent No.1 in issuing G.O.Ms.No.128

Revenue (Assn.V) Department dated 13.02.2021 permitting the

second respondent to take advance possession of the land before

considering the request of the petitioners for recovery of the land to

the petitioner for not utilizing the acquired land for specific

purpose as illegal, arbitrary and consequently set-aside

G.O.Ms.No.128 Revenue (Assn.V) Department dated 13.02.2021.

The petitioners are the owners of land of an extent of Ac.0-65

cents in Sy.No.1227/C2 of Velugodu Village, Velugodu Mandal,

Kurnool District. In the year 1984, the said land has been acquired

by the Government for the purpose of construction of staff quarters

of the Irrigation Department. Though the respondents passed

acquisition proceedings, but the possession was not taken and

accordingly the petitioners have been cultivating the land. The MSM,J WP_21012_2021 & batch

authorities have acquired several lands in the locality apart from

the petitioners land, but they constructed only four staff quarters

in the neighbouring land of an extent of Ac.0-10 cents and they are

in dilapidated condition as they were not occupied because the

project work is completed. The petitioners are ready to repay the

compensation amount together with interest as per the prevailing

market rate. But, the first respondent did not pass any orders.

Subsequently, the petitioners and others made representation on

27.07.2015, but the authorities have not considered their request.

Neighbours of the petitioners filed W.P.No.13270 of 2021

before this Court and the same is pending. In the said writ petition,

the second respondent filed counter affidavit stating that the first

respondent issued G.O.Ms.No.128 Revenue (Assn.V) Department

dated 13.02.2021 permitting the second respondent to take

advance possession of the same. The new Land Acquisition Act i.e.

The Right To Fair Compensation And Transparency In Land

Acquisition, Rehabilitation And Resettlement Act, 2013 (for short

'Act No.30 of 2013') came into force after repealing the old Land

Acquisition Act, 1894 (for short 'Act No.1 of 1894'). Therefore, at

present, Act No.30 of 2013 has to be implemented for the land

acquired during the old Land Acquisition Act i.e Act No.1 of 1894.

As per the existing law, the authorities are required to return the

land when it is not used for specific purpose. Admittedly, the

petitioners land is not utilized for the purpose of for which it was

acquired and at the same time, the petitioners request is pending

before the respondents and before considering the request, the first

respondent erroneously issued G.O.Ms.No.128 Revenue (Assn.V)

Department dated 13.02.2021 permitting the second respondent to MSM,J WP_21012_2021 & batch

take advance possession of the land for the purpose of allotting the

same to house sites to the poor under the scheme 'Navaratnalu

Pedalandariki Illu'. Therefore, G.O.Ms.No.128 Revenue (Assn.V)

Department dated 13.02.2021 without disposing request of these

petitioners is illegal and arbitrary and if G.O.Ms.No.128 Revenue

(Assn.V) Department dated 13.02.2021 is allowed to be

implemented, it would defeat the rights of these petitioners who are

in possession of the property due to non-utilization of the property

for the purpose for which it was acquired and therefore,

G.O.Ms.No.128 Revenue (Assn.V) Department dated 13.02.2021 is

illegal, arbitrary and requested to issue a direction as claimed in

the writ petition.

Learned Assistant Government Pleader for Revenue did not

file any counter affidavit, but advanced arguments.

During hearing, learned counsel for the petitioners would

contend that, in terms of Act No.30 of 2013, when the land was

acquired under Act No.1 of 1894, the respondents are under

obligation to return the unutilized land to the owners, but they did

not take steps to return the unutilized land for the purpose for

which it was acquired, despite the representation made by these

petitioners, while placing reliance on the judgment of the Apex

Court in Indore Development Authority v. Manoharlal and

others1 and requested to grant the relief as claimed in the writ

petition.

Learned Assistant Government Pleader for Revenue would

contend that, merely because the land is not utilized for the

specific purpose once it is vested on the Government under

(2020) 8 Supreme Court Case 129 MSM,J WP_21012_2021 & batch

Section 16 of Act No.1 of 1894, it cannot be divested for mere non-

utilization of the land for the purpose for which it was acquired.

Apart from that, when once the petitioners received compensation

and got enhancement of the compensation in the reference under

Section 18 of Act No.1 of 1894 in L.A.O.P.Nos.476 of 1999 & batch

dated 30.03.2005 on the file of Senior Civil Judge, Atmakur, they

are disentitled to claim relief in the writ petition and it is settled

law that, when the land is acquired for specific purpose, the same

can be utilized for any other purpose other than the purpose for

which it was acquired and requested to dismiss the writ petition.

Considering rival contentions, perusing the material

available on record, the points that arise for consideration are as

follows:

1. Whether non-utilization of the acquired land for the purpose of construction of staff quarters is a ground to return the land to the land holders?

2. When once the land is vested on the Government on payment of compensation to the land holders, whether the State is under obligation to return the land to the land holders?

3. Whether land acquisition proceedings under The Right To Fair Compensation and Transparency In Land Acquisition, Rehabilitation And Resettlement Act, 2013 i.e. Act No.30 of 2013 would govern the proceedings which are issued only long prior to Act No.30 of 2013 came into force. If so, whether G.O.Ms.No.128 Revenue (Assn.V) Department dated 13.02.2021 be declared as illegal and arbitrary and set-aside the same?

MSM,J WP_21012_2021 & batch

P O I N T Nos.1 & 2:

Since these two points are inter connected, it is appropriate

to decide both the points by common discussion.

It is an undisputed fact that the land was acquired in the

year 1984 for Velugodu Project i.e. for construction of staff

quarters for the Irrigation Department. After completion of

acquisition of land, on the application of these petitioners and

others, a reference under Section 18 of Act No.1 of 1894 was made

and an Award was passed by the Senior Civil Judge, Atmakur in

O.P.No.476 of 19999 & batch on 30.03.2005. According to Section

16 of Act No.1 of 1894, the land is deemed to be vested on the

State on passing of Award. But, in the absence of any provision in

Act No.1 of 1894, question of divesting the land i.e. vested on the

State does not arise. It is an undisputed law that, though land was

acquired for specific purpose, the same can be utilized for any

other purpose for which it was acquired.

According to Para 32 of B.S.O.90 of Andhra Pradesh Revenue

Board Standing Orders, when the land is acquired for a specific

purpose, it can be utilized for any other purpose and in view of the

judgment of Apex Court in Gulam Mustafa v. State of

Maharashtra2, land can be utilized for any other purpose and that,

as assignment of land to landless poor is a public use.

Undoubtedly, the State being the owner of the land can

utilize the property for any public purpose, when it was acquired.

1977 AIR 448 MSM,J WP_21012_2021 & batch

However, the State being the owner of the property can utilize the

property for any other public purpose, subject to compliance of

other conditions.

Thus, mere non-utilization of the land for the specific

purpose for which it was acquired is not a ground for return of the

unutilized land to these petitioners, who obtained an Award in

reference made under Section 18 of Act No.1 of 1894 on their

application, received the benefit of compensation together with all

consequential statutory benefits like interest, solatium etc in the

year 2005 itself i.e. almost 8 years prior to commencement of Act

No.30 of 2013. When once the land acquisition proceedings are

completed, the land is vested on the Government and part of the it

is utilized for the purpose for which it was acquired and failure to

utilize another part of the land under the Award is not a ground to

return the property to the land holder(s), since such land can be

utilized for any other purpose, as held by the Apex Court in the

judgment referred supra.

Admittedly, the petitioners made applications for return of

their acquired land while agreeing to return the compensation on

27.07.2015. But, the authorities did not consider their request till

date. While so, the respondents issued G.O.Ms.No.128 Revenue

(Assn.V) Department dated 13.02.2021 granting permission to the

District Collector, Kurnool to take advance possession of Irrigation

department land (i.e.WRD land) to an extent of Ac.19-44 cents in

Sy.Nos.1232 etc., of Velugodu Village and Mandal, Kurnool District

for issue of house sites pattas to the poor in Velugodu Village MSM,J WP_21012_2021 & batch

subject to pending regular transfer proposals from Water

Resources Department to Revenue Department.

It is evident from the G.O. referred above, that the land was

vested on the Water Resources Department in terms of Section 16

of Act No.1 of 1894 and the same cannot be divested on the ground

that it was not utilized for the specific purpose for which it was

acquired.

In order to appreciate the respective contentions advanced

on behalf of the parties, it would be useful to notice relevant

portion of the Standing Order No. 90(32) of Board of Revenue

and Section 54-A of the Act. The Board's standing order "32.

Disposal of land which is no longer required for the public purpose

for which it was acquired.

(1) No land shall be disposed of, under this paragraph, to any person other than the citizen of India, except by the Collector or the Board and with the previous permission of State Government, every grant made under this paragraph shall be subject to the condition that, if the land is alienated without the sanction of Government in favour of any person other than a citizen of India, the grant shall thereupon become null and void.

(2) When land acquired for a public purpose, is subsequently relinquished, it should be disposed of as follows:-

(i) If the land relinquished is likely to be again required for public purposes, it should be merely leased out for such term as may be considered, desirable in each case.

(ii) ................

(iii) ................

(iv) If the land is not declared unfit for permanent occupation under clause (i) or

(ii) above and was agricultural or pastoral land at the time of the acquisition, it should be disposed of in accordance with the following instructions which should not be deviated from without the previous sanction of State Government: -

MSM,J WP_21012_2021 & batch

(3) Such lands should be notified for sale in public auction by giving wide publicity in respect of the sales in the villages by beat or tom-tom and affixing notice of sales in conspicuous places in the villages concerned. The date of sale should be fixed allowing an interval of thirty days between the date of publicity and the date of sale. The land should be sold by public auction subject to the annual assessment. There shall be no upset price except in the case of railway relinquished lands where a minimum or upset price should be fixed in consultation with Railway Administration before auction. If at the time of sale anybody puts forth his claim in respect of any field either as an adjacent owner, or as an original owner or as heir of the original owner, the sale of that field should be stopped and his claim investigated and disposed of in the manner specified in sub- clause (2) and (3). If it is found that his claim is not proved, the field should be sold by public auction."

The amendment to paragraph 32 of Board's Standing Order No. 90(32) brought about by G.O.Ms. No. 783 dated 9.10.1998 reads:

"For paragraph 32 of B.S.O. 90, the following paragraph shall be substituted, namely:-

PARA 32 Utilisation of acquired lands for any other Public Purpose:

"The land acquired for a public purpose under the Land Acquisition Act, 1894 shall be utilized for the same purpose for which it was acquired as far as possible. In case, the land is not required for the purpose for which it is acquired due to any reason, the land shall be utilized for any other public purpose, as deemed it, including afforestation."

In Northern Indian Glass Industries vs. Jaswant Singh &

Ors3 the Apex Court referring to the case of Chandragauda

Ramgonda Patil v. State of Maharashtra4 held that "if the land

was not used for the purpose for which it was acquired, it was

open to the State Government to take action but that did not

confer any right on the respondents to ask for restitution of the

land. Similarly, in C. Padma and Ors., v. Deputy Secretary to

3 (2003) 1 SCC 335 4 (1996) 6 SCC 405 MSM,J WP_21012_2021 & batch

the Government of Tamil Nadu and Ors5, it is held that acquired

land having vested in the State and the compensation having been

paid to the claimant, he was not entitled to restitution of

possession on the ground that either original public purpose had

ceased to be in operation or the land could not be used for other

purpose.

In Kapila Majhi v. State6, the brief facts of the case are that,

the land of the petitioner was acquired by the State Government

under the Land Acquisition Act, 1894 for the establishment of a

paper mill industry. Compensation was awarded. However, the

Paper Mill Company had not taken any step for the establishment

of the paper mill. This was the contention of the petitioner. The

opposite party contended that after acquisition, due compensation

was paid as per the provision of the Land Acquisition Act. It was

further stated that the land was acquired for a public purpose. The

Court held that once the possession of the land is taken under the

provisions of the Act, it vests in the State free from all

encumbrances, whatsoever, it cannot be divested. The land so

acquired cannot be restored to the tenure holder/person interested

even if it is not used for the purpose it was acquired or for any

other purpose. After the acquisition of land, it could be put to use

for the purposes other than for what it was originally declared. The

new owners have the ordinary rights of proprietors and may use

the land as it thinks fit for any purpose. It is not the concern of the

landowner as to how his land is used and whether the land is

being used for the purpose which it was acquired for.

5 [1997] 2 SCC 627

2019 SCC Online Ori 181 MSM,J WP_21012_2021 & batch

Thus, in view of the law declared by the Apex Court and

various High Courts, mere failure to utilize the land for the

purpose for which it was acquired is not a ground to return the

land on vesting of the land in the acquisition department in terms

of Section 16 of Act No.1 of 1894, more particularly, in the present

case, the petitioners raised an objection as to the quantum of

compensation and on the representation, reference was made to

the Senior Civil Judge Court, Atmakur and the Senior Civil Judge

enhanced the compensation, the amount was deposited to the

credit of petitioners amount and the same was utilized by the

petitioners from 2005 i.e. almost for 16 years. Now, these

petitioners cannot make such representation either in 2005 or on

the later date after vesting the property on the Government. The

land is vested on the Government that can be utilized for any other

purpose. Therefore, such proposal to allot the land to houseless

poor under the scheme 'Navaratnalu Pedalandariki Illu', during

pendency of proposal for transfer of land from Water Resources

Department to Revenue Department cannot be declared as illegal

and arbitrary. Hence, in view of the law declared by the Apex Court

in various judgments referred above, the petitioners are not

entitled to claim return of the land unutilized for the purpose for

which it was acquired. Accordingly, both these points are answered

against the petitioners and in favour of the respondents.

P O I N T No.3:

The main contention of the petitioners before this Court is

that, when the land was acquired after advent of Act No.30 of

2013, the provisions of new Act will govern the land acquisition MSM,J WP_21012_2021 & batch

proceedings. In fact, the land acquisition was completed as early as

in the year 1924, Award was passed, land is vested in terms of

Section 16 of Act No.1 of 1894, later Reference was made under

Section 18 of Act No.1 of 1894 to Senior Civil Judge, Atmakur and

the Senior Civil Judge, Atmakur vide Award in O.P.No.476 of 1999

and batch dated 30.03.2005 enhanced the compensation, the

same was paid to the petitioners and other land holders, they

enjoyed the benefits under Act No.1 of 1894, and utilized the

amount for their needs. But the contention of the petitioners before

this Court is that, in view of Act No.1 of 1894, the respondents are

under obligation to return the land to the petitioners, as it was not

utilized and placed reliance on the judgment of the Apex Court in

Indore Development Authority v. Manoharlal and others

(referred supra), Hon'ble Apex Court held that, Section 24 deals

with lapse of acquisition. Section 101 deals with the return of

unutilized land. Section 101 cannot be said to be applicable to an

acquisition made under the Act of 1894. The provision of lapse has

to be considered on its own strength and not by virtue of Section

101 though the spirit is to give back the land to the original owner

or owners or the legal heirs or to the Land Bank. Return of lands is

with respect to all lands acquired under the Act of 2013 as the

expression used in the opening part is "When any land, acquired

under this Act remains unutilized". Lapse, on the other hand,

occurs when the State does not take steps in terms of Section

24(2). The provisions of Section 101 cannot be applied to the

acquisitions made under the Act of 1894. Thus, no such

sustenance can be drawn from the provisions contained in Section

101 of the Act of 2013. Five years' logic has been carried into effect MSM,J WP_21012_2021 & batch

for the purpose of lapse and not for the purpose of returning the

land remaining unutilized under Section 24(2) and finally drawn

the conclusions, but Clauses (6) to (8) re relevant for the purpose of

deciding the controversy and extracted as follows:

6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).

7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).

8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.

In view of the law declared by the Apex Court, more

particularly, in the conclusion extracted in the judgment referred

above, it is clear that Section 101 of Act No.30 of 2013 has no

application to the land acquired under Act No.1 of 1894. But, if it

is lapsed on account of Section 24(2) of Act No.30 of 2013, Section

101 can be invoked and the land can be returned to the land

holder, though advance possession was taken. But, in the instant

case, question of lapsing does not arise, as the Award was passed MSM,J WP_21012_2021 & batch

and reference under Section 18 was made and enhanced

compensation was paid. Therefore, the provisions of Act No.30 of

2013 have no application to the present facts of the case, since the

land acquisition proceedings were not lapsed in terms of Section

24(2) of Act No.30 of 2013.

The law laid down by the Constitutional Bench of the Apex

Court and relied on by the learned counsel for the petitioners is

itself against the contention of the petitioners where it is made

clear the provisions of Act No.30 of 2013 will not govern the land

acquisition proceedings, which is completed under Act No.1 of

1894, but Section 101 of Act No. 30 of 2013 can be invoked only

when the Award is lapsed in terms of Section 24(2) of Act No.30 of

2013.

Learned Assistant Government Pleader for Revenue would

contend that, when once the proceedings are completed, the

question of application of Section 101 of Act No.30 of 2013 does

not arise and placed reliance on judgment of High Court of

Allahabad in Vijaypal and others v. State of Uttar Pradesh7,

wherein reliance was placed on judgment of the Apex Court in

Leelawanti v. State of Haryana8, wherein the Court held as

follows:

"19. If Para 493 is read in the manner suggested by the learned counsel for the appellants then in all the cases the acquired land will have to be returned to the owners irrespective of the time gap between the date of acquisition and the date on which the purpose of acquisition specified in Section 4 is achieved and the Government will not be free to use the acquired land for any other public purpose. Such an interpretation would also be contrary to the language of Section 16 of the Act, in terms of which the acquired land vests in the State Government free from all

2021 Law Suit (All) 474

2012 (1) SCC 66 MSM,J WP_21012_2021 & batch

encumbrances and the law laid down by this Court that the lands acquired for a particular public purpose can be utilised for any other public purpose.

22. The approach adopted by the High Court is consistent with the law laid down by this Court in State of Kerala v. M. Bhaskaran Pillai, (1997) 5 SCC 432 and Govt. of A.P. v. Syed Akbar, (2005) 1 SCC 558. In the first of these cases, the Court considered the validity of an executive order passed by the Government for assignment of land to the erstwhile owners and observed:

"4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, LA by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value.

24. For the reasons stated above, we hold that the appellants have failed to make out a case for issue of a mandamus to the respondents to release the acquired land in their favour. In the result, the appeal is dismissed without any order as to costs."

Based on the law laid down by the Apex Court in the

judgments referred supra, the only prayer claimed in the above

writ petition was to release the land from acquisition proceedings.

Finally, it was concluded that, when once possession was taken,

the petitioners are not entitled to claim any benefit as per the

provisions of Act No.1 of 1894 and not entitled to any relief, as

claimed in the writ petition and dismissed the writ petition.

The principle laid down in the above judgment is though in

support of the respondents, the judgment of the Constitutional

Bench in Indore Development Authority v. Manoharlal and MSM,J WP_21012_2021 & batch

others (referred supra) to conclude that, provisions of Section 101

of Act No.30 of 2013 has no application.

Since the land is already vested on the Government in terms

of Section 16 of Land Acquisition Act, 1894 (Act No.1 of 1894),

though not utilized for the purpose for which it was acquired, the

question of return of land does not arise and thereby,

G.O.Ms.No.128 Revenue (Assn.V) Department dated 13.02.2021

cannot be held to be arbitrary, since the land is already vested on

the Water Source Department and the Government has to follow

appropriate procedure under B.S.O.22(8) of the A.P. Board of

Revenue Standing Orders for transfer of land from one department

to another department. Hence, I find no illegality in G.O.Ms.No.128

Revenue (Assn.V) Department dated 13.02.2021 and consequently,

the writ petition is liable to be dismissed, as I find no merit in the

contentions of the petitioners. Accordingly, the point is held

against the petitioners and in favour of the respondents.

As discussed above, here the proceedings were completed

long back in the year 1984, compensation was paid and

proceedings were closed long back. Therefore, I hold that the

provisions of Act No.30 of 2013, more particularly, Section 101 has

no application to the present facts of the case.

In view of my findings recorded in Point Nos. 1 to 3, I find no

merit in the writ petition and it is liable to be dismissed.

In the result, writ petition is dismissed. No costs.

Consequently, miscellaneous applications pending if any,

shall stand dismissed.

MSM,J WP_21012_2021 & batch

W.P.No.576 OF 2020; W.P. Nos.13270 & 20022 OF 2019; W.P No.33373 OF 2015

In view of my detailed discussion in W.P.No.21012 of 2021,

W.P.No.576 of 2020; W.P.Nos.13270 & 20022 of 2019;

W.P No.33373 of 2015 are also dismissed. No costs.

Consequently, miscellaneous applications pending if any,

shall stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:08.11.2021 SP