N Ananda Reddy vs The State Of Andhra Pradesh,
2021 Latest Caselaw 3284 AP

  THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.12144 OF 2021

ORDER:

The petitioner - N. Ananda Reddy filed this writ petition is

filed under Article 226 of the Constitution of India, questioning the

action of Respondent No.3 in issuing non-statutory proceedings

vide „Order‟ in Rc.No.K/1389/2019 dated 11.05.2021 instead of an

„Award‟ under Section 23 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013, as illegal, arbitrary, violative of principles of natural

justice and not in consonance with the provisions of the said

statute as violative of Articles 14, 19(1)(g), 21 and 300-A of the

Constitution of India and consequently direct Respondent Nos. 1 to

4 to pay compensation and all statutory benefits to the petitioner

by strictly adhering to the provisions of the said statute in respect

of an extent of Ac.1-69 cts of land in Sy.No303/2 of Gollapuram

Village, Hindupur Mandal, Ananthapuramu District.

The petitioner is the absolute owner of a total extent of

Ac.5.05 cts of agricultural land, situated in Sy.No.303/2 of

Gollapuram Village, Hindupur Mandal, Ananthapuramu District.

The petitioner purchased the said land from one K.H. Muniappa

under a registered sale deed bearing Document No.3037/2011

dated 14.03.2011. His vendor, K.H. Muniappa purchased the

aforesaid extent of land, in an auction conducted by the Deputy

Registrar/Officer on Special Duty, Ananthapuramu District

Cooperative Central Bank Ltd, to recover the dues to the said

bank, in EP No.734/95-96, and a certificate of sale dated

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03.07.1996 (Regd. Doc. No.734/1996) was issued in favour of

petitioner's vendor, K.H.Muniappa.

The said land was originally "assigned land" and had

mortgaged by the then owner, with the aforesaid bank, as security

for payment of loan obtained by him. It is permissible in law for

assigned land to be mortgaged in favour of such banks/financial

institutions and it is also permissible to purchase such mortgaged

land, when the same is sold to recover the dues to such

banks/financial institutions. A Division Bench of the High Court

of Andhra Pradesh at Hyderabad in "Sub Registrar,

Srikalahasthi, Chittoor District and another vs K. Guruvaiah1",

held that the bar contained in Section 5 of the A.P. Assigned Land

(Prohibition of Transfers) Act, 1977, does not apply in respect of

assigned land which are sold for recovery of cooperative loans. This

aspect was taken note of again by the High Court, while disposing

of W.P.No.29731 of 2010, by order, dated 29.11.2010. The said

Writ Petition, was filed by petitioner's vendor, K.H. Muniappa,

when Governmental authorities were treating the subject land (an

extent of Ac.5.07 cts in Sy.No.303/2 of Gollapuram Village) as

assigned land, consequently resulting in non-acceptance of

documents presented for registration. Pursuant to the order in

W.P.No.29731 of 2010, the aforementioned sale deed, dated

14.03.2011 was registered in favour of the petitioner, the said

document having been executed by K.H.Muniappa, his vendor,

who was the Writ Petitioner in W.P.No.29731 of 2010.

2009 (2) ALD 250 (DB)

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Pursuant to the execution of aforesaid registered document

dated 14.03.2011, in favour of the petitioner, he was in possession

of the subject land; his name was mutated in the revenue records

and obtained Pattadar Pass Book, vide Khata No. 1161. The

aforementioned transactions, on behalf of the bank and thereafter

by petitioner's vendor, are also reflected in the statement of

encumbrance of property issued by Registration and Stamps

Department.

Certain land in Gollapuram Village was handed over to the

APIIC (R-4) sometime during 2008-2009, for formation of a new

Industrial Park. However, insofar as petitioner's land is concerned,

i.e. an extent of Ac.5.05 cts in Sy.No.303/2 of Gollapuram Village,

no land acquisition proceedings were initiated. Out of Ac.5-05

cents, an extent of Ac. 1.69 cts of the petitioner in Sy.No.303/2 of

Gollapuram Village was illegally taken over by the revenue

authorities and possession thereof was handed over to the APIIC

(R-4), who in turn allotted the same, including it in the schedule of

a registered agreement for sale, dated 05.09.2018 (Doct. No.8275

of 2018) in favour of a private entity (R-6). The recitals in the said

agreement for sale, dated 05.09.2018 would indicate that,

possession of the land covered therein was also handed over to the

said private entity (R-6). The recitals in the said document would

also indicate that for an extent of Ac.2.25 cts (9106.00 sq.mtrs),

which includes petitioner's land, the said private entity (R-6) paid a

total sale consideration of Rs. 1,35,13,304/-, @ Rs.60,05,912/- per

acre.

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The petitioner filed W.P.No.13586 of 2019 before this Court.

This Court, by order, dated 16.09.2019 in W.P.No.13586 of 2019,

directed to maintain status-quo. Further, by order, dated

06.11.2020, this Court directed the matter to be referred for

negotiations before the Negotiations Committee as per the

statutory rules, framed under the Land Acquisition Act. 2013. The

negotiations for voluntary acquisition failed. Despite this, Minutes

of the meeting of the Negotiations Committee, were issued vide

Rc.No.G1/734/2008, dated 08.01.2021. While so, the total extent

of petitioner's land i.e. Ac.5.05 cts was included, even though an

extent of Ac.1-69 cents was actually taken from the petitioner. In

the said Minutes, dated 08.01.2021, it was also stated that "the

matter is being referred to LARR authority", even though no award

was passed, under Section 23 of the Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 ("Land Acquisition Act, 2013).

W.P.No. 13586 of 2019 was finally heard and an order was

passed on 08.03.2021, allowing the writ petition with a direction to

the official respondents to pay compensation to the petitioner in

respect of the land of an extent of Acs.1-69 cents, strictly adhering

to the provisions of the Land Acquisition Act, 2013.

This Court, while allowing W.P.No. 13596 of 2019, observed

and held as follows:

"Apropos the submissions of the learned counsel for the petitioner that the negotiations failed and therefore, the respondents have to put possession of Acs.1-69 cents back to the petitioner or compensation in terms of the Act has to be paid, it is to be appreciated that once the negotiations have not been fructified before the District Level Negotiations Committee, the authorities are required to initiate proceedings under the Act, more particularly, in view of the undertaking dated 06.11.2020 as also in the light of the specific stand by A.P.I.I.C in the additional counter affidavit"

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After disposal of W.P.No.13586 of 2019 by this Court,

without initiating proceedings for land acquisition and without

issuing any notification under Section 11 of the Land Acquisition

Act, 2013, without conducting an award enquiry under Section 23

thereof, without permitting the petitioner to participate in an

award enquiry, an "ORDER" in Rc.No:K/1389/2019, dated

11.05.2021 was passed by the R.D.O./Sub-Collector, Penukonda

(R-3), fixing compensation, styled as "payment of ex-gratia @

Rs.34,60,636/- per acre", in respect of petitioner's private land

that was taken by the authorities. The total compensation awarded

thereunder is Rs.58,48,475/- for an extent of Ac. 1.69 cts of land

belonging to the petitioner. No award under Section 23 of the said

statute was passed.

The "ORDER" in Rc.No:K/1389/2019, dated 11.05.2021, is a

non-statutory order, which is not in consonance with the

provisions of the Land Acquisition Act, 2013 and the same is

challenged in the present writ petition. A plain reading of the

"ORDER" dated 11.05.2021 passed by the R.D.O./Sub-Collector,

Penukonda (R-3), would clearly reveal that the directions of this

Court in W.P.No.13586 of 2019, was not complied with. This Court

directed to pay compensation strictly adhering to the provisions of

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013". The

directions of this Court have been violated by the respondent

herein, by issuance of the "ORDER" in Rc.No:6/1389/2019, dated

11.05.2021.

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It was the mandate, contained in the order of this Court, the

provisions of the Act i.e. the Land Acquisition Act, 2013 are to be

strictly adhered to. Further, the said statute prescribes a

particular procedure, which was not followed by the R.D.O./Sub-

Collector, Penukonda (R-3). The R.D.O./Sub-Collector, Penukonda

(R-3), who is discharging statutory functions as the Land

Acquisition Officer, should have first caused initiation of Land

Acquisition Proceedings by issuance of a notification under Section

11 of the Act, which was not done. Further, Section 23 which

speaks of "enquiry and land acquisition award by Collector" was

not complied with. No award enquiry was conducted, no notice of

any such award enquiry was issued to the petitioner, thereby

resulting in his non-participation in such an award enquiry

stipulated by the statute. No "award" was passed in terms of the

said provision. Further, Section 26 of the Act which speaks of

"Determination of market value by Collector" and also the other

provisions contained in Sections 27 and 28 were not followed i.e.

statutory determination of amount of compensation and

parameters to be considered by Collector in determination of

award. Section 30, which speaks of "award of solatium" was not

adhered to, inasmuch as no award enquiry was conducted to

enable determination of compensation and no award was passed in

terms of the said statute. The purported solatium granted is also

incorrect, as the procedure prescribed in the statute was not

followed.

Further, in the impugned "ORDER", dated 11.0.2021 of the

R.D.O./Sub-Collector, Penukonda (R-3), Section 80 of the Land

Acquisition Act, 2013 was not complied with. Section 80 deals with

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„payment of interest‟ and the petitioner is entitield to be awarded

interest on the compensation amount.. The statutory rate of

interest @ 9% per annum for the first year and further, @ 15% per

annum after the expiry of first year, from the time of taking

possession, has not been complied with. About 3 years have

elapsed since illegal taking of possession by the authorities and the

direction of this Court to strictly adhere to the provisions of the

Act has been totally violated, as the provisions of the statute have

not been followed.

A reading of the impugned "ORDER" in Rc.No:K/1389/2019,

dated 11.05.2021, issued by the R.D.O./Sub-Collector, Penukonda

(R-3) would show that what was purportedly awarded in the said

proceedings is "ex-gratia", as mentioned therein. Further, the

"clarifications" that have been sought for by the R.D.O./Sub-

Collector, Penukonda (R-3), as shown in the aforesaid proceedings,

would by itself, constitute contempt of court. Also, the respondent

herein has again fallen back on the failed negotiations and the

calculation of the purported compensation is taken into account

for the period preceding 3 years from the date of publication of

Form-C, while referring to the constitution of the committee, for

negotiations. The same would constitute violation of the order in

the writ petition. The question of falling back on the failed

negotiations for voluntary acquisition would not arise. The only

option left for the authorities is to initiate Land Acquisition

Proceedings by invoking and strictly adhering to the mandatory

provisions of the Act 30 of 2013. However, this was not done. No

notification under Section 11 was issued. No award enquiry was

conducted and no award was passed in terms of Section 23. The

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other mandatory provisions such as Sections 26, 27 and 28, in the

matter of determination of market value and determination of

amount of compensation, etc., were not followed. Further, Section

30 thereof, which deals with award of solatium was not adhered to

by conducting an award enquiry and passing an award in terms of

Section 23 thereof. Section 80 of the statute was not complied with

and interest from the date of taking possession was not calculated,

as such, Award enquiry was not conducted and statutory award

was not passed in terms of Section 23 of the Land Acquisition Act,

2013.

It is also contended that, land was taken away from the

petitioner for the purpose of establishment of industrial Park and

other land in the immediate vicinity, that had been sold by the

APIIC, were subject matter of allotments, for which, payment was

made by the purchasers at about Rs.57,00,000/- to

Rs.60,00,000/- per Acre during the year 2018. However, in

pursuance of the impugned "ORDER", the basic land value has

been fixed at Rs.34,60,636/-, which is absolutely arbitrary. If an

award enquiry had been conducted and if an opportunity had been

accorded to the petitioner to participate in the same, as per

statute, he would have put-forth his claim. However, this was not

done, resulting in grave injustice to the petitioner, apart from

violation of the provisions of the statute. If a statutory award is

passed and if the petitioner is not satisfied with the grant of

compensation, he can seek a reference for enhancing the

compensation. As no statutory award under Section 23 of the Land

Acquisition Act, 2013 is passed, the petitioner was deprived of this

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statutory remedy, which provides for enhancement of

compensation awarded.

The provisions of the Land Acquisition Act, 2013 deal with

exercise of the power of eminent domain by the State, which is ex-

proprietary in nature. While initiating land acquisition proceedings

and determining the market value/compensation payable, the

provisions of the statute have to be strictly followed. The impugned

"ORDER" in Rc.No:K/1389/2019, dated 11.05.2021 had been

issued in transgression of the mandatory procedure prescribed in

the statute. When a statute prescribes a particular thing to be

done in a particular manner, it has to be done in that manner

alone and in no other manner.

The expression "Law" in Article 300-A of the Constitution

means, legislation i.e. in the instant case, the Land Acquisition

Act, 2013. The petitioner is now sought to be deprived of his

property by issuing a non-statutory "ORDER" in

Rc.No:K/1389/2019, dated 11.05.2021 of the R.D.O./Sub-

Collector, Penukonda (R-3). The payment therein has been

described as "ex-gratia". The procedure followed is unknown to law

and by virtue of the impugned order, the proceeding of the Land

Acquisition Act, 2013 are sought to be bypassed and short-

circuited. It is not permissible in law, for a statutory authority to

render otiose or nugatory the provisions of the Land Acquisition

Act, 2013, by passing a non-statutory order, which is not

contemplated under the statute, and this is what has been done in

the instant case.

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Land acquisition compensation can never be determined by

issuance of non-statutory proceedings, such as the "ORDER" in

Rc.No:K/1389/2019, dated 11.05.2021, issued by the

R.D.O./Sub-Collector, Penukonda (R-3). The said authority has no

jurisdiction to issue a non-statutory "ORDER", instead of passing a

statutory award under Section 23 of the Land Acquisition Act,

2013, by conducting an award enquiry, with the participation of

the land owner.

The R.D.O./Sub-Collector, Penukonda (R-3) had abdicated

statutory discretion vested in the said authority under the

provisions of the Land Acquisition Act, 2013 by simply relying on

the report of the Tahsildar, Hindupur and also by requesting the

District Collector, Ananthapuramu to issue instructions in the

matter. The impugned "ORDER" was passed, under the "oral

instructions received from the APIIC Head Office to pass order for

Ac.1-69 cents immediately to avoid contempt.....". Statutory

discretion can never be surrendered nor can a statutory authority

act under the directions of an extraneous authority, such as APIIC

or the Tahsildar. Therefore, the impugned order in

Rc.No.K/1389/2019 dated 11.05.2021 issued by the Revenue

Divisional Officer/Sub-Collector, Penukonda is not an „Award‟

within the meaning of the provisions of Section 23 of the Land

Acquisition Act, 2013 and the same is illegal, arbitrary, violative of

principles of the Land Acquisition Act, 2013 and violative of

Articles 14, 19(1)(g), 21 and 300-A of the Constitution of India.

Respondent No.3 filed counter affidavit, admitting taking

over an extent of Ac.1-69 cents out of Ac.5.05 cents in

Sy.No. 303-2 of Gollapuram village which was originally assigned

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to one Hakeem Modin Sab S/o Buden Sab vide D.A.RDis No.

32/84 dated 25.10.1974. It is the specific assertion of the third

respondent that the land was resumed by the then Tahsildar,

Hindupur vide RC. No. 51/2007/B, dated 2.1.2008 and handed

over to the APIIC on 20.11.2008.

It is contended that the petitioner's vendor K.H.Muniappa

has filed WP No. 29731 of 2010 before this Court which is disposed

of the writ petition, based on the judgment of the Division Bench in

'Sub Registrar, Srikalahasti, Chittor District and another vs

K.Guruvaiah' (referred supra). In view of the undisputed legal

position, writ petition is allowed. Respondent No.3 (Sub Registrar)

was directed to receive the document that may be presented by the

petitioner in respect of the above mentioned land and register the

same. Further K.H. Muniappa has not obtained pattadar pass

book even though he purchased the land in auction sale in the

year 1997. During field inspection of the land in question for

initiation of proposals for Resumption of the land also revealed

that, he was not in possession of the land. The said purchase was

not brought to the notice of the then Tahsildar, Hindupur while

passing resumption orders. Therefore, the resumption orders were

passed in the name of the assignee on 02.01.2008.

It is contended by the third respondent that the land was

already resumed by the Government by the then Tahsildar during

the year 2008 and handed over to the Zonal Manager on

20.11.2008 itself for establishment of SEZ. But the present writ

petitioner purchased the land vide document No. 3037/2011,

dated 14.3.2011. By the time of purchase of the land by the

petitioner, it is in possession of the APIIC/Respondent No.4, as the

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possession was already handed over during the year 2008. It is

further submitted that, though the registration of the land in

favour of the writ petitioner took place during the year 2011, but

he approached the Revenue authorities for ROR 1B webland

entries during the year 2019 i.e. after lapse of 9 years. Thus, the

petitioner was not in possession of the property.

It is submitted that, land of an extent of Ac 964.27 cents

situated in Gollapuram Village of Hindupur Mandal was not

handed over to the APIIC during the year 2008 - 2009 out of total

extent of Ac.1075.87 cents of Gollapuram village, for which

resumption orders were issued by the then Tahsildar vide Rc

51/2017/B dated 2.1.2008.

The subject land of an extent of Ac.5.05 in Sy.No. 303-2 is

also part and parcel of Ac.1075.87 cents of Gollapuram village

handed over to APIIC - Respondent No.4. Exgratia is approved in

the name of the Assignee, but not paid for the subject land by the

then Tahsildar, noting that shares are not settled. At the time of

taking action for resumption of the subject land, no information

filed before the then Tahsildar in respect of the sale of the land by

the Bank authorities. Therefore, the resumption orders were

passed in the name of the Assignee as per the available records.

The third respondent also admitted about filing of

W.P.No.13586 of 2019 and issue of directions by this Court and

placing of the matter before the District Level Negotiation

Committee, Ananthapuramu duly issuing Form-C Notice. The

petitioner has also appeared before the Committee and after

hearing the petitioner, the District Level Negotiation Committee

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opined that, as the petitioner repeatedly demanded Rs.70,00,000/-

per acre which is not in accordance with Section 26 of LARR Act,

the matter is being referred to LARR Authority under Act 30 of

2013.

In pursuance of the order in W.P.No.13586 of 2019 filed by

petitioner, the District Collector, Ananthapuramu, agreed for

payment of compensation amount in respect of land of an extent of

Ac.1-69 cents in Sy.No.303-2 of Gollapuram village of Hindupur

Mandal, acquired for the purpose of establishment of Industrial

Park in favour of APIIC @ Rs.34,60,636/- per acre, including all

benefits in favour of petitioner.

Though the petitioner has been directed to submit details of

Bank Account for transfer of above compensation amount i.e. (i)

Bank Account Number, (ii) Branch Name & (iii) IFSC code or to

receive cheque for above compensation amount duly submitting

acknowledgement of the cheque, though letter was served through

registered post and also through Tahsildar, he has not complied

the request made by the third respondent.

In the above circumstances and in pursuance of orders of

this Court in W.P.No.13586 of 2019 filed by petitioner, Demand

Draft bearing No.824178, dated. 24.05.2021 drawn on Union Bank

of India, Krikera for Rs.58,48,475/- in favour of petitioner towards

compensation amount for land of an extent of Ac.1-69 cents in

Sy.No.303-2 of Gollapuram village of Hindupur Mandal, acquired

for Industrial Park by Respondent No.4 vide proceedings

Rc.No:K/1389/2019, dated 2-6-2021. But the petitioner has not

received the said Demand Draft and again the petitioner filed the

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present Writ Petition with an intention to drag the proceeding

without any substance in his contention. On this ground alone,

writ petition is liable to be dismissed.

It is further contended that the order was passed duly

following the directions issued by this Court in W.P.No.13586 of

2019, where the Court has ordered to "to pay compensation to the

petitioner in respect of the land of an extent of Acs. 1.69 Cents

referred to above strictly adhering to the provisions of the Act, as

expeditiously as possible, in any event, not later than four weeks

from the date of receipt of a copy of this order. After following the

due process of law and in accordance with the procedure

prescribed under Act 30 of 2013, the compensation amount in

respect of subject land fixed @ Rs.34,60,636/- per Acre. Therefore,

the third respondent passed the order only in strict compliance of

the directions issued by this Court and not violated any of the

provisions or directions issued by this Court.

It is submitted that, the matter has been placed before the

District Level Negotiation Committee, Ananthapuramu duly issuing

Form-C Notice. The petitioner has also appeared before the

Committee. And After following the due process of law and in

accordance with the procedure prescribed in RFCTLARR Act the

compensation amount in respect of subject land is fixed @

Rs.34,60,636/- per Acre including all benefits, in favour of

petitioner.

It is also submitted that, during enquiry before the District

Level Negotiations Committee, the petitioner appeared and

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demanded Rs.70,00,000/- lakhs compensation which is not based

on any material.

Finally, it is contended that, the amount payable to the

petitioner is styled as ex-gratia in the order, which is in lieu of the

compensation only and that the respondents never violated any

directions issued by this Court either willfully or wantonly and

strictly adhered to the provisions of Act 30 of 2013, the order was

passed awarding compensation in the name of ex-gratia to this

petitioner @ Rs.34,60,636/- per acre. Therefore, the writ petition is

not maintainable and liable to be dismissed and finally requested

to dismiss the writ petition against Respondent No.3.

Respondent No.4/APIIC filed separate counter affidavit,

admitting abut handing over of land to an extent of Ac.1-69 cents

in Sy.No.303-2 of Gollapuram village of Hindupur Mandal,

belonging to this petitioner. It is contended that, the Joint

Collector, Ananthapuram has approved the provisional value

statement for an extent of Acs.1075.87 cts in collector's

proceedings vide Rc.No G/734/2008, dated 2.04.2008 which

includes Survey No.303-2 admeasuring land of an extent of

Ac.5.05 cts in Gollapuram Village in Hindupuram Mandal, and an

ex-gratia of Rs.16,59,48,974/-. In pursuance of the request of the

revenue authorities, APIIC has deposited the amount towards

compensation for the land. Subsequent to the disbursement of

compensation the Tahasildar, Hindupur has handed over the

possession of the land admeasuring Ac.1075.84 cents (Which

includes land covered under Act 9/1977) to the APIIC on 4.4.2008,

which also includes Sy.No.303-2 admeasuring Ac.5.05 cents in

Gollapuram Village , Hindupur Mandal, Anathapuram District. The

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Tahsildar, Hindupur, subsequently also issued revised possession

certificate on 20.11.2008 to an extent of Acs.964.26 cts after

deleting Acs.111.58 cts of land. The subject matter land situate in

Sy. No.303/2 of Gollapuram village, was handed over to APIIC in

the month of November 2008 itself and subsequently the subject

matter of land admeasuring Ac.5.05 was subjected to sale

transaction vide sale deed dated 14.03.2011 by which time

possession was with APIIC. The fourth respondent after taking

possession of the said land, developed a layout and started

allotting plots for establishment of industries on the request of

interested entrepreneurs.

It is submitted that, the private party/Respondent No.6

applied for allotment of Plot Nos. 59-C and 59-D for establishment

of recycling unit vide Application ID No.28172 dated 22.05.2018.

The said application was placed before State Level Allotment

Committee meeting and provisional allotment orders were issued

vide Lr.No.28172/APIIC/IP/Gollapuram, Anantapuram,2018 dated

04.06.2018 duly allotting Plot Nos. 59-C and 59-D admeasuring

9106 sq.mts/2.25 cents. Subsequently, agreement for sale was

executed on 05.09.2018 and was registered vide Document

No.8275/2018 dated 09.05.2018. The physical possession of the

plot was also handed over to the company on 05.09.2018 and

Respondent No.7 company after taking possession of the plots

started civil works by duly obtaining the building plan approvals

and also constructed the buildings.

Respondent No.3 passed the order in pursuance of the

directions issued by this Court in W.P.No.13586 of 2019 without

following any order and the claim of this petitioner is contrary to

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the law laid down by the Apex Court in Indore Development

Authority v. Manoharlal and others2 and finally prayed for

dismissal of the writ petition.

During hearing, learned counsel for the petitioner mainly

contended that the petitioner cannot be deprived of the property,

except under the authority of law as per Article 300-A of the

Constitution of India. But, the respondents adopted a different

procedure and passed non-statutory order, awarding Ex-gratia

instead of compensation by following the procedure prescribed

under Act 30 of 2013 and in pursuance of the directions of this

Court in W.P.No.13586 of 2019. Such deprivation of the property

by non-statutory order which is impugned in the writ petition is

contrary to the law laid down by the Apex Court in D.B. Basnett

(dead) through legal Legal Representatives v. Collector, East

District, Gangtok, Sikkim3. On the strength of this principle only,

learned counsel for the petitioner sought to set-aside the impugned

order.

Whereas, Sri K.V. Raghuveer, learned counsel attached to

the office of learned Additional Advocate General would contend

that the nomenclature of compensation is changed into Ex-gratia

only in view of the order dated 11.05.2021 and the authorities

followed Rule 8 of the Rules framed under Act 30 of 2013 and

passed the order dated 11.05.2021 and strictly adhered to the

procedure prescribed under law and the directions issued by the

High Court and finally requested to dismiss the writ petition

against Respondent No.3.

AIR 2020 SC 1496

(2020) 4 SCC 572

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Whereas, Sri J. Ugra Narasimha, learned counsel appearing

for Respondent No.2 vehemently contended that, though

possession was taken long ago, the petitioner did not raise his little

finger claiming right in the property and by the time of handing

land possession, he was not the owner of the property. Since the

amount was resumed under the provisions of Act 9 of 1977 and

having purchased the property after settlement of possession of

property of this petitioner, he is said to be an illegal claimant and

that, Respondent No.3 passed the order strictly adhering to the

procedure prescribed under law and requested to dismiss the writ

petition finally against Respondent No.2.

Other respondents did contest the matter by filing counter

affidavits.

Considering rival contentions, perusing the material

available on record, the point that arises for consideration is:

"Whether the order impugned in this writ petition i.e. Rc.No.K/1389/2019 dated 11.05.2021 passed by Respondent No.3 is based on non-statutory provisions. If not, whether the order depriving the petitioner to enjoy the property of land of an extent of Ac.1-69 cents in Sy.No303/2 of Gollapuram Village, Hindupur Mandal, Ananthapuramu District, is in violation of Articles 14, 21 and 300-A of the Constitution of India. If so, whether the impugned order is liable to be set- aside?

P O I N T:

Since the facts are not in dispute, it is unnecessary to delve

upon the facts once again and suffice it to decide the issue

involved in this matter with reference to various orders passed by

this Court and the law laid down by the Apex Court.

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The subject property was assigned to one Hakeem Modin

Sab, who mortgaged the property with Cooperative Bank to obtain

loan and later, committed default, consequently, the property was

brought to sale in the public auction.

One K.H. Muniappa purchased the property in public

auction conducted by the Deputy Registrar/Officer on Special

Duty, Ananthapuramu District Cooperative Central Bank Ltd, to

recover the dues to the said bank, in E.P No.734/95-96 and

obtained Certificate of Sale dated 03.07.1996 vide Doc.

No.734/1996. Whereas, this petitioner purchased the same from

K.H. Muniappa under registered sale deed bearing Document

No.3037/2011 dated 14.03.2011. But, possession of land to an

extent of Ac.1-69 cts in Sy.No303/2 of Gollapuram Village,

Hindupur Mandal, Ananthapuramu District was allegedly handed

over to Respondent No.4/A.P.I.I.C, who in turn allotted the same,

in favour of a private entity/Respondent No.6 .Though it was an

assigned land, as mortgage of the assigned land is permissible with

the Cooperative Bank, the original assignee mortgaged the property

for realization of the debt, the land was sold in the public auction.

The petitioner purchased the property from K.H. Muniappa under

Registered Sale Deed Doc.No.3037/2011 dated 14.03.2011.

As the registering authority did not register the property,

K.H. Muniappa filed W.P.No.29731 of 2010 and the High Court

passed order on 29.11.2010 directing the Registrar to accept the

documents for registration on its presentation. Later, the petitioner

purchased the property, mutated his name, obtained pattadar

passbooks and title deed in his favour.

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The main grievance of this petitioner before this Court is

that, without following due process of law, the property was

acquired and awarded ex-gratia under a non-statutory order which

is impugned in the writ petition i.e. Rc.No.K/1389/2019 dated

11.05.2021 was passed. Before deciding the legality of the non-

statutory order impugned in the writ petition, it is necessary to

advert to the orders passed by this Court in the earlier round of

litigation filed by this petitioner against the respondents.

W.P.No.13586 of 2019 was filed by this petitioner against

the respondents including Respondent No.7 therein, who is

arrayed as Respondent No.6 in the present writ petition. This

Court vide order dated 06.11.2020 issued an interim direction,

directing the authorities to complete the process as per Rule 8 of

the Rules framed under Act 30 of 2013. Later, it appears that the

negotiations with the Committee failed and a report was submitted

to the concerned authority i.e Sub-Collector-cum-Land Acquisition,

Rehabilitation and Resettlement Authority. However, the matter

was finally heard by the learned single Judge, the petition was

allowed on 08.03.2021. The learned single Judge made clear

observations which are apposite to decide the controversy between

the parties and they are extracted hereunder:

―Apropos the submissions of the learned counsel for the petitioner that the negotiations failed and therefore, the respondents have to put possession of Acs.1.69 cents back to the petitioner or compensation in terms of the Act has to be paid, it is to be appreciated that once the negotiations have not been fructified before the District Level Negotiations Committee, the authorities are required to initiate proceedings under the Act, more particularly, in view of the undertaking dated 06.11.2020 as also in the light of the specific stand by A.P.I.I.C. in the additional counter-affidavit. As contended by the learned counsel for the petitioner, the question of referring the matter to the L.A.R.R. Authority would arise only in the event any person interested who has not accepted the ‗award' (emphasis supplied) seeks reference of the same to the

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authority constituted under Section 51 of the Act. It is profitable to extract Section 64 of the Act, which deals with reference to the Authority, for ready reference, and the same reads as under:

64. Reference to Authority.-

(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Authority, as the case may be, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, the rights of Rehabilitation and Resettlement under Chapters V and VI or the apportionment of the compensation among the persons interested:

Provided that the Collector shall, within a period of thirty days from the date of receipt of application, make a reference to the appropriate Authority: Provided further that where the Collector fails to make such reference within the period so specified, the applicant may apply to the Authority, as the case may be, requesting it to direct the Collector to make the reference to it within a period of thirty days.

(2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made--

(a)person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector‗s award;

(b)in other cases, within six weeks of the receipt of the notice from the Collector under section 21, or within six months from the date of the Collector‗s award, whichever period shall first expire: Provided further that the Collector may entertain an application after the expiry of the said period, within a further period of one year, if he is satisfied that there was sufficient cause for not filing it within the period specified in the first proviso.‖

In Paragraph No.10, the Court observed that, no award has

been passed in terms of the provisions of the Act 30 of 2013.

Therefore, the Court opined that, "in the absence of an award in

terms of the provisions of the Act, the reference has been made to

the L.A.R.R. Authority as was done by the District Level

Negotiations Committee would have no legal efficacy. Therefore, the

submissions of the learned counsel for the petitioner in this regard

needs acceptance. However, in the opinion of this Court, the

petitioner in the facts and circumstances of the case, can be

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granted appropriate relief, instead of a direction to restore

possession".

In Paragraph Nos. 12 and 13, the learned single Judge

concluded as follows:

―12. In the light of the foregoing conclusions, this Court is required to consider the reliefs to be granted in the facts and circumstances of the case, more particularly, in view of the construction of the factory and commencement of operations by respondent No.7 in the subject matter land and the additional counter-affidavit of A.P.I.I.C. offering to pay compensation in terms of the Act, for the reasons specified therein. But for the above position, perhaps, the relief as sought for by the petitioner to restore possession of the land merits acceptance. However, the reliefs can be moulded by this Court on an overall appreciation of relevant aspects and in the interest of Justice. Therefore, keeping in view the undisputed fact that respondent No.7 established factory in the subject matter land and commenced its operations, the relief sought for to restore the land to the petitioner in its original condition, is disallowed. 13. Accordingly, the Writ Petition is allowed with a direction to the official respondents to pay compensation to the petitioner in respect of the land of an extent of Acs.1.69 cents referred to above strictly adhering to the provisions of the Act, as expeditiously as possible, in any event, not later than four weeks from the date of receipt of a copy of this order.‖

In view of the specific direction issued by the learned single

Judge vide order dated 08.03.2021, the official respondents were

directed to pay compensation to the petitioner in respect of the

land of an extent of Ac.1-69 cents, strictly adhering to the

provisions of Act 30 of 2013, as expeditiously as possible, in any

event, not later than four weeks from the date of receipt of copy of

the said order.

In view of the directions issued by the learned single Judge

of this Court in W.P.No.13586 of 2019 dated 08.03.2021, the

present non-statutory award is passed. Even a bare look at the

impugned non-statutory order dated 11.05.2021, it is clear that,

negotiations by the Committee were failed, but still passed a non-

statutory order fixing ex-gratia, instead of payment of

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compensation of Rs.58,48,475/- in terms of provisions of Act 30 of

2013, totally in violation of the order passed by this Court in

W.P.No.13586 of 2019. On the other hand, it is evident that, to

avoid Contempt of Court, the order of the learned single Judge.

The last lines in fifth page of the order of the Land Acquisition

Officer & Sub-Collector, Penukonda, vide Proceedings

Rc.No.K/1389/2019 dated 11.05.2021 reads as follows:

―Further, as per the oral instructions received from the APIIC Head Office to pass order for 1.69 Acres immediately to avoid contempt of the case and to comply with the directions of the Hon'ble High Court, sales occurred ..........‖

From the above, it is clear that the impugned order was

passed on the oral instructions received from APIIC to pass an

order fixing ex-gratia over an extent of Ac.1-69 cents immediately

to avoid contempt of the court and to comply with the directions of

the High Court. Thus, it is clear that the order was passed totally

in contravention of the directions issued by the learned single

Judge of this Court in W.P.No.13586 of 2019 dated 08.03.2021.

Therefore, the order impugned in the writ petition is passed

without any statutory basis. Even otherwise, to acquire the land

under the provisions of Act 30 of 2013, thee must be a notification

for acquisition of the property under Section 11 i.e. publication of

preliminary notification, proposing to acquire the land, calling for

objection for the proposed acquisition and to call for impact

assessment report and declaration shall be filed under Section 19

of the Act, the objections in terms of Section 15 of the Act and

later, declaration has to be published under Section 19 after

considering the report, if any made under Sub-section (2) of

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Section 15 of the Act. Later, an award enquiry shall be conducted

under Section 23 of the Act and pass an appropriate award,

awarding compensation together with statutory benefits. Even to

invoke Rule 8 of the Rules, there must be a preliminary notification

proposing to acquire the land and only after hearing the objections,

the authorities may resort to the procedure under Rule 8 to

constitute negotiations committee for awarding compensation by

consent award. But, no such preliminary notification, as mandated

under Section 11 was issued and failed to follow the procedure

under Act 30 of 2013, but passed the non-statutory order without

any legal basis awarding ex-gratia instead of payment of

compensation for the land acquired, strictly adhering to the

procedure prescribed under Act 30 of 2013. Thus, the third

respondent being the competent authority under the Act, an officer

in the cadre of Sub-Collector is supposed to follow the procedure

prescribed under the Act and Rules framed thereunder and the

directions issued by this Court. But, obviously for different

reasons, in utter deviation of the procedure prescribed under Act

30 of 2013, blatant violation of directions issued by this Court in

W.P.No.13586 of 2019 dated 08.03.2021, passed the impugned

order without any source of authority serendipitously. When the

act of the respondents is to expropriate, the authorities have to

follow the procedure strictly, otherwise the act is vitiated by any

irregularity and such order passed by the authorities is liable to be

set-aside.

When the learned single Judge issued a direction in

W.P.No.13586 of 2019 dated 08.03.2021 to follow the procedure

prescribed under Act 30 of 2013 and award compensation by

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passing appropriate award, it is to be strictly adhered to by the

authority. But, the authority adopted a different procedure which

is unknown to law and passed the impugned order. Such non-

statutory order is nothing but an arbitrary exercise of power

without any source of authority by the third respondent. The act of

the third respondent itself indicates callousness in expropriation of

the petitioner‟s land for an extent of Ac.1-69 cts in Sy.No303/2 of

Gollapuram Village, Hindupur Mandal, Ananthapuramu District.

Therefore, the act of the respondents is wholly arbitrary and

without any authority of law, since the order impugned in the writ

petition is not based on any source or based on law.

The other contention of this petitioner is that, when a

specific procedure is prescribed for awarding compensation by

acquiring the land under Act 30 of 2013, such act must be done in

accordance with the procedure and not in any other manner. But

the third respondent, obviously for reasons best known to him

passed the present impugned non-statutory order and instead of

awarding compensation; granted ex-gratia.

Even payment of ex-gratia, invoking G.O.Ms.No.259 Revenue

(Assn.I) Department dated 21.06.2016 is impermissible under law,

as it is not made by Parliament or State Legislature. Therefore,

taking aid of G.O.Ms.No.259 Revenue (Assn.I) Department dated

21.06.2016 passed by the State for resumption of the assigned

land for public purpose is another illegality and it is in

contravention of the direction issued by this Court in

W.P.No.13586 of 2019 dated 08.03.2021. Therefore, when the

petitioner was deprived of agricultural land of an extent of Ac.1-69

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cents, it is nothing but depriving him his source of livelihood

without following due process of law in violation of fundamental

right guaranteed under Article 21 of the Constitution of India.

When a specific procedure is prescribed under Act 30 of

2013 to deprive the person from property, such procedure is to be

strictly adhered to by any citizen of India who is enjoying the rights

in the property. Such citizen cannot be deprived of property except

by authority of law, vide Article 300-A of the Constitution of India.

So, the law made by the Parliament is Act 30 of 2013 and the

authorities are bound to follow the procedure prescribed under

law, while depriving a citizen of India to enjoy the property. But,

without following such procedure, the third respondent passed the

impugned order.

The Constitutional Bench of erstwhile High Court of Andhra

Pradesh at Hyderabad in "LAO-cum-Revenue Divisional Officer,

Chevella Division and Others Vs. Mekala Pandu and Others4"

referred to a judgment of Supreme Court in "Jilubhai Nanbhai

Khachar Vs. State of Gujarat5". In the said judgment, the

Supreme Court observed as follows:

"Those without land suffer not only from an economic disadvantage, but also a concomitant social disadvantage. In the very nature of things, it is not possible to provide land to all landless persons but that cannot furnish an alibi for not undertaking at all a programme for the redistribution of agricultural land. Agrarian reforms therefore require, inter alia, the reduction of the larger holdings and distribution of the excess land according to social and economic consideration. We embarked upon a constitutional era holding forth the promise that we will secure to all citizens justice, social, economic and political, equality of status and of opportunity; and, last but not the least, dignity of the individual.......Indeed, if there is one place in an agriculture dominated society like ours where citizens can hope to have equal justice, it is on the strip of land which they till and love, the land which assures to

AIR 2004 AP 250

1995 Supp (1) SCC 596

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them dignity of their person by providing to them a near decent means of livelihood."

It is further held:

"Property, therefore, accords status. Due to its lack man suffers from economic disadvantages and disabilities to gain social and economic inequality leading to his servitude. Providing facilities and opportunities to hold property furthers the basic structure of egalitarian social order guaranteeing economic and social equality. In other words, it removes disabilities and inequalities, accords status, social and economic and dignity of person........Property in a comprehensive term is an essential guarantee to lead full life with human dignity, for, in order that a man may be able to develop himself in a human fashion with full blossom, he needs a certain freedom and a certain security. The economic and social justice, equality of status and dignity of person are assured to him only through properly."

(Emphasis is supplied).

The purpose of assignment of land either under the Board

Standing Orders or under the land reforms legislations to the

weaker sections of the society by the State is obviously in

pursuance of its policy to empower the weaker sections of the

society. Having assigned the land, the State cannot deprive him of

the welfare benefit or public assistance. Deprivation of assignee's

right to enjoy the property assigned to him may affect his dignity

and security. It may adversely affect the equality of status and

dignity.

Article 21 of the Constitution of India guarantees right to life.

The right to life includes the right to livelihood. Time and again the

Courts in India held that Article 21 is one of the great silences of

the Constitution. The right to livelihood cannot be subjected to

individual fancies of the persons in authority. The sweep of the

right to life conferred by Article 21 is wide and far reaching. An

important facet of that right is the right to livelihood because, no

person can live without the means of living, that is, the means of

livelihood. If the right to livelihood is not treated as a part of the

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constitutional right to life, the easiest way of depriving a person of

his right to life would be to deprive him of his means of livelihood

to the point of abrogation.

In Re: Sant Ram6 a case which arose before "Maneka

Gandhi vs. Union of India7", the Supreme Court ruled that the

right to livelihood would not fall within the expression "life" in

Article 21. The Court observed:

"The argument that the word "life" in Article 21 of the Constitution includes "livelihood" has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21."

In "Olga Tellis vs. Bombay Municipal Corporation8" the

Apex Court held as follows:

"If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21."

(Emphasis is supplied).

The right to live with human dignity, free from exploitation is

enshrined in Article 21 and derives its life breadth from the

Directive Principles of State Policy and particularly Clauses (e) and

(f) of Article 39 and Articles 41 and 42 and at least, therefore, it

must include the right to live with human dignity, the right to take

any action which will deprive a person of enjoyment of basic right

6 AIR 1960 SC 932 7 AIR 1978 SC 597 8 AIR 1986 SC180

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to live with dignity as an integral part of the constitutional right

guaranteed under Article 21 of the Constitution of India.

In "Delhi Transport Corporation Vs. D. T. C. Mazdoor

Congress9", the Supreme Court while reiterating the principle

observed that the right to life includes right to livelihood. The right

to livelihood therefore cannot hang on to the fancies of individuals

in authority. Income is the foundation of many fundamental rights.

Fundamental rights can ill-afford to be consigned to the limbo of

undefined premises and uncertain applications. That will be a

mockery of them.

The Apex Court in various judgments interpreted the right to

livelihood is a part of right to life under Article 21 of the

Constitution of India. However, if a person is deprived of such a

right according to the procedure established by law which must be

fair, just and reasonable and which is in the larger interest of

people, the plea of deprivation of the right to livelihood under

Article 21 is unsustainable. The Court opined that the state

acquires land in exercise of its power of eminent domain for a

public purpose. The landowner is paid compensation in lieu of

land, and therefore, the plea of deprivation of the right to livelihood

under Article 21 is unsustainable.

Thus, in view of the law laid down by the Apex Court in

various judgments (referred supra), widening the meaning of word

„right to life‟ includes „right to livelihood‟, right to livelihood is a

fundamental right, and it is a part of right to life guaranteed under

Article 21 of the Constitution of India.

(1991)ILLJ395SC

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The Constitutional Bench of erstwhile High Court of Andhra

Pradesh at Hyderabad in "LAO-cum-Revenue Divisional Officer,

Chevella Division and Others Vs. Mekala Pandu and Others"

(referred supra) held that the assignees of the Government lands

are entitled to compensation equivalent to the full market value of

the land and other benefits on par with full owners of the land

even in cases where the assigned lands are taken possession of by

the State in accordance with the terms of grant or patta, though

such resumption is for a public purpose. Even in cases where the

State does not invoke the covenant of the grant or patta to resume

the land for such public purpose and resorts to acquisition of the

land under the provisions of the Land Acquisition Act, 1894, the

assignees shall be entitled to compensation as owners of the land

and for all other consequential benefits under the provisions of the

Land Acquisition Act, 1894. No condition incorporated in

patta/deed of assignment shall operate as a clog putting any

restriction on the right of the assignee to claim full compensation

as owner of the land.

No doubt, as discussed above, right to livelihood of a person

can be deprived in accordance with law.

Article 300-A of the Constitution of India, protects right of an

individual, but such right in the property can be deprived of save

by authority of law.

The right to property is now considered to be not only a

constitutional or a statutory right, but also a human right.

Though, it is not a basic feature of the constitution or a

fundamental right, human rights are considered to be in realm of

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individual rights, such as the right to health, the right to

livelihood, the right to shelter and employment etc. Now, human

rights are gaining an even greater multi faceted dimension. The

right to property is considered, very much to be a part of such new

dimension (Vide: Tukaram Kanna Joshi Vs. M.I.D.C.10)

Right to property of a private individual, though, permitted

to be deprived of, it must be by authority of law. Still, Article 25 (1)

of the Universal Declaration of Human Rights recognized such

right in property as human right, which reads as follows:

"Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."

India is a State Party to the declaration, but the right to

property is not being considered as human right till date by many

Courts.

Right to property in India at present protected not only

under Article 300-A of the Constitution of India, but also

recognized as human right under Article 25 (1) of the Universal

Declaration of Human Rights. A liberal reading of these two

provisions, the intention to protect the land owners only from

Executive fiat, imposing minimal restrictions on the power of the

State to acquire land. This is in sharp contrast to the language

adopted in the Indian Constitution.

AIR 2013 SC 565

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Hence, the only authority of law to deprive a person from his

property is acquisition of land under the provisions of relevant law.

Earlier, the Land Acquisition Act, 1894 permits acquisition

of land of a private individual for various purposes. The land

Acquisition Act, 1894 is repealed, enacting the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013. The said Act is a

complete code governing the procedure for acquisition of land of a

private individual and for payment of compensation to the private

land owners. Therefore, by invoking the provisions of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013, the right of a private

owner in property can be deprived of and the violation of

fundamental right guaranteed under Article 21 i.e. right to

livelihood will not come in the way of State to acquire such land in

view of the law laid down by the Apex Court in "Chameli Singh

Vs. State of Uttar Pradesh" (referred supra).

Therefore, depriving the petitioners‟ livelihood by resuming

the land based on conditions of patta is nothing but violation of

fundamental right guaranteed under Article 21 of the Constitution

of India and such deprivation of right in land is also violation of

Article 25 (1) of Universal Declaration of Human Rights. Such

deprivation is permissible only by authority of law like the Land

Acquisition Act, 1894 or the Act, 2013.

The next question is "What is authority of law?". Whether

G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 or

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any order passed without any authority under law be construed as

law?

Time and again, the Apex Court construed the meaning of

word "Law" not only with reference to Article 13 of the Constitution

of India, but also with reference to Article 300-A and 31C of the

Constitution of India. The Apex Court in "Bidi Supply Co. Vs.

Union of India11" and "Edward Mills Co.Ltd. Vs. State of

Ajmer12" held that the law, in this Article, means the law made by

the legislature and includes intra vires statutory orders.

The orders made in exercise of power conferred by statutory

rules also deemed to be law. (Vide: State of M.P. Vs. Madawar

G.C.13"

The Law does not, however, mean that an administrative

order which offends against a fundamental right will, nevertheless,

be valid because it is not a "law" within the meaning of Article 13

(3) of the Constitution of India (Vide: Basheshar Nath Vs. C.I.T.14

and "Mervyn Coutindo Vs. Collector, Customs Bombay15")

Therefore, whatever legislation made by the legislature alone

can be said to be law within the meaning Article 13 (3) of the

Constitution of India. At the same time, the Apex Court in

"Bishambhar Dayal Chandra Mohan Vs. State of Uttar

Pradesh16" while deciding the issue with reference to Article 300-A

of the Constitution of India defined the word "authority of law",

held that Article 300-A provides that no person shall be deprived of

AIR 1956 SC 479

AIR 1955 SC 25

1955 (1) SCR 599

AIR 1959 SC 149

AIR 1967 SC 52

AIR 1982 SC 33

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his property save by authority of law. The State Government

cannot while taking recourse to the executive power of the State

under Article 162, deprive a person of his property. Such power

can be exercised only by authority of law and not by a mere

executive flat or order. Article 162, as is clear from the opening

words, is subject to other provisions of the Constitution. It is,

therefore, necessarily subject to Article 300A. The word 'law' in the

context of Article 300A must mean an Act of Parliament or of a

State Legislature, a rule, or a statutory order; having the force of

law, that is positive or State made law.

In "Hindustan Times Vs. State of U.P.17" the Apex Court

while referring to "Bishambhar Dayal Chandra Mohan Vs. State

of Uttar Pradesh" (referred supra) held as follows:

―By reason of the impugned directives of the State the petitioners have been deprived of their right to property. The expression 'law', within the meaning Article 300A, would mean a Parliamentary Act or an Act of the State Legislature or a statutory order having the force of law.‖

In view of the law laid down by the Apex Court in the

judgments (referred supra), law means the legislation passed by

the parliament or State Legislation or Statutory rules or orders.

Thus, the Apex Court candidly held that, deprivation of a person

from the property would constitute violation of right to live, as

guaranteed under Article 21 of the Constitution of India.

In addition to the law laid down by the Apex Court in the

judgments referred above, learned counsel for the petitioner has

drawn attention of this Court to recent judgment of the Apex Court

AIR 2003 SC 250

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in D.B. Basnett (dead) through Legal Representatives v.

Collector, East District, Gangtok (referred supra), wherein, the

Supreme Court under the scheme of Land Acquisition Act, 1977,

concluded as follows:

13. That brings us to the question whether the process of acquisition had been followed in accordance with law. No notification has been shown to us of the intent to acquire land Under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the Respondent State in a difficult situation, which was sought to be got over by only relying on a consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. We have also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if we look at the year of acquisition. We even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20.3.1980 of late Man Bahadur Basnett is no doubt a no-objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. There cannot be a presumption of acquisition without following the due process as envisaged Under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspects, except the willingness of late Man Bahadur Basnett to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/Respondent No. 1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence.

14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right Under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed1.

15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 18942 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful3. The law being expropriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire

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the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.

16. We find a detailed discussion about the law as it evolved and the rationale for the said purpose in Vidya Devi4 of which the relevant paragraphs read as under:

10.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed by Article 31 in Part III of the Constitution.

Article 31 guaranteed the right to private property (The State of West Bengal v. Subodh Gopal Bose and Ors.

MANU/SC/0018/1953 : AIR 1954 SC 92), which could not be deprived without due process of law and upon just and fair compensation.

10.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors. MANU/SC/0933/2012 : (2013) 1 SCC 353) in a welfare State, and a Constitutional right Under Article 300A of the Constitution. Article 300A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article (K T Plantation Pvt. Ltd. v. State of Karnataka MANU/SC/0914/2011 : (2011) 9 SCC 1).

To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right Under Article 300A of the Constitution.

Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai MANU/SC/0610/2005 : (2005) 7 SCC 627, wherein this Court held that:

6. ... Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.

In N. Padmamma v. S. Ramakrishna Reddy MANU/SC/7731/2008 : (2008) 15 SCC 517, this Court held that:

21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed.

In Delhi Airtech Services Pvt. Ltd. and Ors. v. State of U.P. and Ors. MANU/SC/0956/2011 : (2011) 9 SCC 354, this Court recognized the right to property as a basic human right in the following words:

30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long

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subsist without the support of property." Property must be secured, else liberty cannot subsist" was the opinion of John Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists.

In Jilubhai Nanbhai Khachar v. State of Gujarat, MANU/SC/0033/1995 : (1995) Supp. 1 SCC 596 this Court held as follows:

48. ...In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession Under Article 300A. In other words, if there is no law, there is no deprivation.

10.3. In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.

10.4. The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.

10.5. In a democratic polity governed by the Rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi and Ors. v. M.I.D.C. and Ors. MANU/SC/0933/2012 : (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the Rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.

This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension."

As discussed above, the Apex Court succinctly held that,

when the citizen is to be deprived of a property by the authority of

law, the authorities have to follow the procedure prescribed under

the statute and any deviation from the procedure prescribed under

the statutes vitiates the act of the authorities.

Apart from that, even assuming that originally the land is an

assigned land, sold in the auction by Cooperative Bank, executing

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a registered sale deed in favour of K.H. Muniyappa and later, the

petitioner purchased the property from K.H. Muniyappa, still in

view of "LAO-cum-Revenue Divisional Officer, Chevella Division

and Others Vs. Mekala Pandu and Others" (referred supra), the

authorities are under the legal statutory obligation to follow the

procedure for fixing compensation payable to the petitioner under

the provisions of Act 30 of 2013. But, the third respondent in

utmost haste and with a view to avoid contempt being initiated

against the third respondent by the petitioner for violation of the

order passed by this Court in W.P.No.13586 of 2019 dated

08.03.2021, passed the non-statutory award which is in clear

violation of Articles 21 and 300-A of the Constitution of India.

Though the order was passed by learned single Judge directing the

third respondent to follow the procedure and a contempt case is

allegedly filed against the third respondent, therefore, I am not

recording any specific finding as to violation of the order either

intentionally, deliberately or wilfully, since the issue is seized by

the learned single Judge who disposed of W.P.No.13586 of 2019.

Therefore, the observations whatever made in the earlier

paragraphs are limited for the purpose of disposing of the present

writ petition and the learned single judge may decide the wilful,

deliberate or intentional violation of the order in the contempt

case, if any pending before the learned single Judge, uninfluenced

by the observations made in this writ petition.

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It is evident from the record that, various orders were passed

including a final order in W.P.No.13586 of 2019 directing the

authorities to follow the procedure under Act 30 of 2013. Despite

it, the respondents passed non-statutory order which is impugned

in the present writ petition and drove this petitioner to this Court

again. Thus, the respondents exhibiting their callousness, passed

a non-statutory order contrary to the directions issued by this

Court in W.P.No.13586 of 2019 and also contrary to the provisions

of Act 30 of 2013. The third respondent being Sub-Collector is

expected to know the purport of the order and the procedure to be

complied under Act 30 of 2013, being a Land Acquisition Officer.

But, for the reason best known to him, this order was passed in

utmost haste to avoid contempt being initiated against this

petitioner for violation of the order in W.P.No.13586 of 2019. Such

haste, illegal and arbitrary action cannot be sustained and

therefore, the order of the respondents impugned in the writ

petition is liable to be set-aside. The respondents/authorities drove

this petitioner unnecessarily again to this Court by their negligent

action in passing this order and made him to incur huge amount

as costs. Therefore, the writ petition is to be allowed with costs of

Rs.50,000/- (Rupees Fifty Thousands only) payable to this

petitioner by the respondents.

In view of my foregoing discussion, the order impugned in

this writ petition is illegal, arbitrary and violative of the procedure

prescribed under Act 30 of 2013 and Articles 14, 21 and 300-A of

the Constitution of India. Accordingly, the order in

Rc.No.K/1389/2019 dated 11.05.2021 is declared as illegal,

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arbitrary, consequently set-aside the same, while directing the

third respondent to follow the procedure prescribed under Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 strictly and pass

appropriate orders for passing award. Any deviation from the

procedure prescribed under the Act may result in serious

consequences.

In the result, writ petition is allowed, with costs of

Rs.50,000/- (Rupees Fifty Thousands only) declaring the non-

statutory order Rc.No.K/1389/2019 dated 11.05.2021 as illegal,

arbitrary, consequently set-aside the same, while directing the

third respondent to strictly adhere to the procedure prescribed

under Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Re-settlement Act, 2013 and pass

appropriate award, in accordance with law, within three months

from the date of receipt of copy of this order.

Consequently, miscellaneous applications, pending if any,

shall stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:01.09.2021

Note: Issue copy by today

SP