P.Sugunamma vs The State Of Andhra Pradesh
2021 Latest Caselaw 3750 AP

      THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                   WRIT PETITION NO.16739 OF 2020

ORDER:

This writ petition is filed under Article 226 of the Constitution

of India, claiming the following relief:

―to issue Writ of Mandamus declaring the action of the respondents in undertaking construction activity in the lands admeasuring an extent of Ac.1-11 cents in Sy.No.301/6, Ac.0-84 cents in Sy.No.305/2, Ac.0-43 cents in Sy.No.305/8, Ac.1-16 cents in Sy.No.301/2, Ac.0-82 cents in Sy.No.305/1, Ac.0-71 cents in Sy.No.301/4, Ac.0-88 cents in Sy.No.301/5, Ac.1-48 cents in Sy.No.305/7 and Ac.1-45 cents in Sy.No.305/5 of the petitioners respectively after forcibly dispossessing the Petitioners without following due process of law and the action of the 2nd Respondent in issuing Orders in ROC.No.G2/1696/2017 dated 28.11.2019 as being arbitrary, illegal, violative of Articles 14, 21 and 300-A of the Constitution of India and provisions of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013, principles of natural justice and consequently set aside the same and to direct the Respondents herein to follow the due process of law under Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013‖

The brief facts of the case are that, the petitioners herein are

landless poor persons and they belong to Schedule Caste. In

recognition of the same, the State of Andhra Pradesh has assigned

the lands in favour of the petitioners in Racharla Village,

Varadaiahpalem Mandal, Chittoor District. Subsequent to grant of

pattas in favour of the petitioners, the revenue authorities have

mutated the names of the petitioners in revenue records and also

issued Pattadar Passbooks. Since the date of grant, the petitioners

are in peaceful possession and enjoyment of the land assigned to

them by raising various crops and are eking livelihood from the

income derived therefrom.

Respondent Nos.3 and 4 have visited land in the month of

October, 2019 and demanded the petitioners to vacate the land MSM,J WP_16739_2021

assigned to them, inasmuch as the land is required for construction

of electricity sub-station. The petitioners herein refused to vacate

and handover the land to respondent Nos. 3 and 4. The Respondent

Nos. 3 and 4 stated that the lands of the petitioners were assigned

lands and that they have the power to take possession and that they

are acting under the instructions of the Respondent No.2.

While the things stood thus, Respondent No.2 passed on order

in ROC No. G2/1696/2017 dated 28.11.2019 fixing ex-gratia for

land losers in the A - Category at Rs.8.25,000/- per acre including

the multiplying factor and solatium payable, stating that the exgratia

shall be released to the eligible assignees by taking consent under

Section 108 of Act 30 of 2013. It is contended that Respondent Nos.

3 & 4 asked the petitioners to vacate the land by taking exgratia

fixed by the second respondent and neither the petitioners were put

on notice nor they were called for any negotiation, as such, the

petitioners raised objections by submitting representation to the

third respondent stating that compensation fixed by the second

respondent is meager and requested to pay compensation of

Rs.20,00,000/- per acre.

Inspite of representation of the petitioners on 12.12.2019 to

the third respondent, there was no response. Further on 10.07.2020,

amount was deposited into the bank accounts of the petitioners and

the respondents forcibly dispossessed the petitioners from their

property and started construction of electrical sub-station in their

land. The petitioners submit that, they have not received any

notice/communication whatsoever from the respondents after they

submitted representation.

MSM,J WP_16739_2021

It is contended that, the act of the respondents in forcibly

dispossessing the petitioners from their land without legally

acquiring or resuming the land is arbitrary and illegal. The

Respondents could have acquired the land of the petitioners under

the Land Acquisition Act 2013 or by resorting to the conditions of

assignment which state that if the land is required for public

purpose then such assigned land can be resumed by the

Government, where the Constitutional Courts held that if the

Government decides to resume assigned land by claiming public

purpose, the procedure laid down by law has to be followed and the

assignee has to be paid compensation for the land lost, as if he is the

full private owner of the land. Even the proceedings of the second

respondent dated 28.11.2019 do not refer to any such resumption

notice or order. On the other hand, mentioning of Section 108 of Act

30 of 2013 and terms such as ‗solatium' and ‗multiplying factor' in

the order of the second respondent dated 28.11.2019 indicate that

the order directing taking possession of petitioners land after

payment of compensation was passed under Act 30 of 2013.

However, the process of acquisition such as Social Impact

Assessment Survey, Notification under Section 11, Declaration

thereafter was not followed. In view of the above, neither there is an

order resuming the land for public purpose nor there is an Award

under Act 30 of 2013.

On perusal of the order of the second respondent dated

28.11.2019, the second respondent sanctioned exgratia of

Rs.8,25,000/- per acre to the land losers in Category A. All the

petitioners fall under Category A of land losers. The compensation so

sanctioned is stated to include the multiplying factor calculation and MSM,J WP_16739_2021

also solatium component payable to land losers under Act 30 of

2013, thereby, the compensation arrived by the second respondent is

erroneous and arbitrary.

It is the specific contention of the petitioners that, Section 26

of the Land Acquisition Act 2012 specifics the manner in which

market value of land under acquisition is to be determined. Once the

mandate of Section 26(1) is followed in arriving at a market value for

the land, the same has to be multiplied with a factor specified in the

First Schedule to the Act. On the amount so arrived, the land losers

are entitled to the additional components of compensation specified

under Section 30 of the Land Acquisition Act 2013. In the case at

hand, the Petitioners have specifically represented that their land is

next to a highway and is close to Sri City (a Special Economic Zone)

and are therefore more valuable than the Rs. 8,25,000/- per acre

sanctioned by the second Respondent. Under Section 26(1), the

Collector shall consider either the basic registration value or the

average sale price for similar land or the consented amount,

whichever is the highest as market value. The land of the petitioners

is situated immediately adjacent to the habitation area of Racherla

village and is thus fit for house sites. The basic registration value for

such land is Rs.11,00,000/- per acre as on 01-08-2019. In the

alternative, as the land of the petitioners is abutting a state highway,

the basic value as fixed by the Government is Rs.6,60,000/- per

acre. Both these values were evidently not considered by the

Respondents herein.

A registered sale deed executed on 08-01-2018 for Ac.3-59

Cents of land for Rs.1,52,58,000/-. The subject land under that sale

deed is in Racherla village, like the lands of the Petitioners and MSM,J WP_16739_2021

moreover the subject land under the sale deed is bound by

Srikalahasti - Satyavedu Road on its East side and that is the same

road which is adjoining the lands of the Petitioners also. The subject

land under the sale deed and the lands of the Petitioners are across

from each other on the same road. In all aspects relevant for

determination of market value, the sale reflected under the above

referred sale deed should be considered for arriving at a market

value for the land of the petitioners. Due to the action of the second

respondent in haphazardly dealing with the constitutional rights of

the petitioners in so far as their property is concerned, the

petitioners are left in a lurch where they have no alternative remedy

except to knock the doors of this Court under Article 226 of the

Constitution of India.

The only Authority under the Land Acquisition Act 2013 vested

with the jurisdiction to adjudicate on disputes about the amount of

compensation etc. is established under Section 51 of Act 30 of 2013.

The exercise of such jurisdiction is by way of a reference under

Section 64 of the Act and such jurisdiction is entirely predicated on

the fact that there is an Award made by the Collector under the Act

30 of 2013 and such Award was not accepted by the land

loser/interest person on any of the grounds which find mention in

Section 64. In the case at hand, the Collector has not made any

Award under the Act in as much as no proceedings, as envisaged

under the Act 30 of 2013, were ever initiated by the State. Therefore,

the process of acquiring the property of these petitioners by passing

the impugned order is illegal, arbitrary and in violation of the law

and therefore, they requested to take into consideration of their MSM,J WP_16739_2021

poverty and loss of their livelihood and pass appropriate order as

requested by the petitioners.

Respondent No.2- District Collector, Chittoor District, filed

counter affidavit, denying material allegations while admitting

passing of the impugned order and explained the reason for

acquisition of the property as to what made the second respondent to

acquire the land of these petitioners.

It is specifically contended that, the Chief Engineer,

APTRANSCO, Vijayawada has placed requisition for acquisition of

land measuring Acs.10-00 cents in Sy.No.301 & 305 of Racherla

Village, Varadaiahpalem Mandal of Chittoor Distrit and the

Tahsildar, Varadaiahpalem has surveyed the land and survey was

done as detailed below:

Sl.No. Sy.No Extent Name of the pattadar Father/ in husband name Acs.

      1         301/2   1.11     K. Jayaram                     Nadamuni
      2         301/3   0.82     M. Sankaraiah                  Jaddaiah
      3         301/4   0.71     K. Masthanamma                 Sankaraiah
      4         301/5   0.89     M. Annemma                     Chengaiah
      5         301/6   1.11     P. Sugunamma                   Polaiah
      6                          T. Devamma (0.52 cents)        Satyanandam
      7         301/7   1.04     M. Bhagyamma (0.52 cents)      Munaswamy
      8         305/2   0.84     K. Veeramma                    Maraiah
      9         305/3   0.43     D. Veeramma                    Venkataramanaiah
      10        305/3   0.44     D. Sugunamma                   Venktaiah
      11        305/4   0.87     Garika Eswaraiah               Chengaiah
      12        305/5   1.11     Y. Hymavathi                   Veeraiah
      13                         P. Hari (0.315 cents)          Krishnaiah
      14        305/7   0.63     P. Jayamma (0.315 cents)       Late P. Ravi
                Total   10.00

It is submitted that, land of Ac.1-11 cents in Sy.No.301-2,

Ac.0-82 cents in Sy.No.301-3, Ac.0-71 cents in Sy.No.301-4, Ac.0-89

cents in Sy.No.301-5, Sy.No.1-11 cents in Sy.No.301-6, Ac.1-04 MSM,J WP_16739_2021

cents in Sy.No.301-7, Ac.0-84 cents in Sy.No.305-2, Ac.0-87 cents in

Sy.No.305-3, Ac.0-87 cents in Sy.No.305-4. Ac/1-11 cents in

Sy.No.305-5, Ac.0-63 cents in Sy.No.305-7 i.e total extent of

Ac.10-00 cents was resumed to the Government as per the

proceedings of the Tahsildar in Roc.No.B/1055/2017 dated

13.11.2017 and the same was served to the assignees by the

Revenue Inspector, Varadaiahapalem.

With regard to DKT lands, the Government issued following

orders as per G.O.Ms.No.259 Revenue (Assn.I) Department dated

21.06.2016:

(i) Whenever the assigned lands are required for public purpose for a project or for alienation to a Government Department or Corporation, the lands shall be resumed as per the conditions of Patta

(ii) The Compensation for the resumed assigned lands shall be paid on part with patta lands as per the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 or any other Land Acquisition Act in force in the State.

Section 26 of Act 30 of 2013 deals with determination of

market value of land by Collector.-

(1) The Collector shall adopt the following criteria in assessing and

determining the market value of the land, namely:--

a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or

b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or

c) consented amount of compensation as agreed upon under sub-section (2) of section 2 in case of acquisition of lands for MSM,J WP_16739_2021

private companies or for public private partnership projects, whichever is higher.

For fixation of market value of the land of these petitioners,

sales, statistics have been collected from Joint Sub Registrar,

Satyavedu for three years from 24.08.2014 to 23.08.2017, details are

disclosed in the counter affidavit, but they are not necessary for the

purpose of deciding the present issue. Hence, they are ignored.

Basing on the basic value of Racherla Village of

Varadaiahaplem Mandal of Agriculture dry land is Rs.3,30,000/- per

acre. Hence, an amount of Rs.3,30,000/- per acre basing on the

basic value register of the Sub Registrar Office is found reasonable.

Accordingly, the exgratia is calculated as follows:

Rs.3,30,000/- x 1.25 = Rs.4,12,500/- + 100% Solatium, i.e. totally Rs.8,25,000/- per acre

As per G.O.Ms.No.571 Revenue Assignment (Department-I)

Dated 14.09.2012:

(iv) Compensation to the assignees who relinquish their D-Form patta land and whose land is resumed for public purpose shall be paid exgratia as per rules in force and on par with private patta lands.

(v) As regards the sivai jamedars, who have been cultivating the land for a long period, without D-Form Patta and whose possession is confirmed by entries in 10(1) and adangal accounts may be paid exgratia without solatium as follows:

Occupation between 5-10 years - 50% exgratia equivalent to market value; Occupation 10 years and above - 100% exgratia equivalent to market value.

(vi) The persons who have purchased assigned lands from DKT patta holders, will not be entitled for any exgratia as it is amounts to violation of the conditions of assignment and contravention of the provisions of A.P. Assigned Lands (POT) Act, 1977.

MSM,J WP_16739_2021

Thus, the second respondent fixed compensation strictly in

accordance with law, as the petitioners gave consent for acquiring

their property only in terms of Act 30 of 2013 after resuming the

land. Hence, there is no illegality in the orders and requested to

dismiss the writ petition.

Respondent No.5 - Chief Engineer (Construction), Vijayawada

filed separate counter affidavit along with a petition to vacate the

stay, admitting about acquisition of property and fixation of

compensation and procedure followed by the second respondent for

acquiring the property fixing exgratia in terms of G.O.Ms.No.259

Revenue (Assn.I) Department dated 21.06.2016 and also explaining

the necessity to acquire the property.

It is submitted that the Government of Andhra Pradesh has

published the Gazette Notification on 20.11.2015 for erection of the

above 220/132 KV Substation at Racherla (Cherivi). AP TRANSCO

has accorded the Administrative approval for erection of 220/132 KV

SS Racherla (Cherivi) in Chittoor District vide Ref 1.0.0 (CE-400 KV

Construction) Ms. No.327, dated 14.12.2016 and the Revised

Administrative approval was accorded for erection of 220/132 KV SS

Racherla (Cherivi) in Chittoor District Vide Ref 1.0.0.(CE

Construction) Ms.No.888,Dt :20.08.2018. The Chief Engineer,

APTRANSCO, Vijayawada has submitted the land alienation/

acquisition proposals to the 2nd Respondent for erection of 220/132

KV SS Racherla for an extent of Ac.10.00 cents of DKT lands in

Sy.No.301 & 305 of Racherla Village, Varadaiahpalem

Mandal,Chittoor District vide. Ref Lr.No.CPT110/SE-PM/220 KV MSM,J WP_16739_2021

Racherla SS/D.No.02/17,Dt:05.06.2017. Accordingly the second

respondent has issued the Proceedings for delivery of advance

possession of the land to the AP TRANSCO for an extent of 10.00

Acres in Sy.Nos. 301 & 305 of Racherla Village, Varadaiahpalem

Mandal in Chittoor District Vide Ref No. REV ESEC(ALN)/116/2017-

E1-CTR-COLL Dt:17.11.2017 for construction of 220/132 KV Sub

Station at Racherla (Cherivi).

It is further submitted that as per above mentioned

proceedings issued by the second respondent, the fourth Respondent

herein handed over the possession of land to the Executive Engineer

/Construction/ APTRANSCO/ Tirupati Dt.19.12.2018 to an extent of

Ac.10-00 cents in Sy.No's. 301/2, 301/3, 301/4, 301/5, 301/6,

301/7, 305/2, 305/3, 305/4, 305/5 and 305/7 Vide

ROC.A/2020/2015 for construction of 220/132 KV Substation at

Racherla (Cherivi).

Further, the second respondent had issued the Demand notice

for an amount of Rs.99,00,000/-(Rupees Ninety nine lakhs only) to

APTRANSCO towards ex-gratia amount for the land to an extent of

Ac.10.00 cents in Sy.No.301 & 305 of Racherla Village

Varadaiahpalem Mandal Vide Roc.No.G2/1696/2017 dated

05.12.2017 for erection of 220/132 KV Substation at Racherla

(Cherivi).

The APTRANSCO has deposited the exgratia amount with the

second respondent for an amount of Rs.99,00,000/-(Rupees ninety

nine lakhs only) vide DD No.958941 Dt:31.07.2018, towards total

market value of the DKT Land for an extent of Ac. 10.0 Cents in Sy MSM,J WP_16739_2021

No.301 & 305 etc., of Racherla village, Varadaihpalem Mandal. Vide

Ref Le.No.EE /Const/TPT/AET/F.128/D.No.657/18, Dt:02.08.2018.

It is contended that the APTRANSCO floated the e-tenders for

erection of 220/132 KV SS Racherla (Cherivi) and its connected

lines. After finalization of the tenders the work was awarded to M/s

Laxmi Transmissions, Secunderabad vide Ref Lr. No. CPT110/ED/

Const/SE (PM)/F.Racherla/D.No.1189/2019, Dt.16.10.2019.

Accordingly the APTRANSCO handed over the site for erection of

220/132 KV Substation at Racherla (Cherivi) on 06.12.2019. The

agency also started the construction activities substation site in the

month of December, 2019 itself.

The agency has completed around 70% works at 220/132 KV

substation Racherla (Cherivi) and the progress of the substation

work is as follows:

Structure foundations : 172/191 No's Structure Erection : 163/210 No's Site leveling work 70% completed Compound wall work 60% completed Control room work 30% completed 3 Nos's Bay Kiosk work 80% completed.

The agency has supplied the construction materials worth

around 28.00 Crores for erection of the above substation and its

connected line works. The supplied materials i.e., GI Tower Parts, GI

Structure Parts, Bolts & Nuts, 220 KV and 132 KV Lighting Arrestor,

220 KV Solid core Insulators, 132 KV Solid core insulators etc., Even

the agency has also arranged the construction machinery at the site

and more than 200 members working personnel are available for

executing the above project and almost 70% work was completed.

MSM,J WP_16739_2021

The erection of 220/132 KV Sub Station at Racherla is very

much essential for 9 hrs Agriculture supply to the farmers and

uninterrupted supply of 24X7 hrs power supply to the general public

in and around Sullurpeta, Tada (Nellore District), Varadaiahpalem

and Sathyvedu Mandal's in Chittoor District and also to meet the

present and future demands of agriculture and Industrial loads

which are coming at Sricity SEZ area and also to improve the voltage

profile, reliability of power supply in and around the above mandals.

Therefore, the above works are crucial for uninterrupted supply of

power and in the interest of public at large.

It is further submitted that the Government of Andhra Pradesh

has given instructions stipulating time and program to APTRANSCO

for completion of the 220/132 KV Substation works and commission

of the Substation on or before 31.03.2021 for 9 hrs agriculture

supply and uninterrupted supply of 24 x 7, Industrial loads of Sricity

SEZ in and around the Sullurpeta, Tada (Nellore District),

Varadaiahpalem and Sathyvedu Mandal's in Chittoor District.

The petitioners filed the present writ petition for compensation

of the DKT lands pertaining to the above substation site. The

APTRANSCO paid an amount of Rs.99,00,000/- on 31.07.2018 for

DKT lands to an extent of Ac.10-00 cents to the Revenue Department

as per the demand notice issued by the second respondent and the

second respondent already paid compensation to the petitioners and

therefore, the fifth respondent has nothing to do with payment of

compensation and requested to dismiss the writ petition by vacating

the interim orders passed by this Court.

MSM,J WP_16739_2021

The petitioners filed rejoinder, reiterating the contentions

urged in the writ petition, while answering few contentions raised in

the counter affidavit filed by Respondent Nos. 2 & 5 and it will be

dealt with at appropriate stage.

During hearing, Sri Siddartha Sharma appearing on behalf of

Sri G.R. Sudhakar, contended that, the land was assigned to the

petitioners on 10.07.2010, being members of depressed class. The

land was not acquired but taken possession of the property by

granting ex-gratia which is impermissible under law and even

according to G.O.Ms.No.259 Revenue (Assn.I) Department dated

21.06.2016, though it is resumed, the petitioners are entitled to

claim compensation on par with private patta holders and that the

act of the respondents is contrary to Sections 26 & 38 of Act 30 of

2013. That apart, the consent was not obtained from the petitioners

by issuing Form-C and no notification was issued for acquiring the

property as mandated under the provisions of Act 30 of 2013, which

is mandatory even for passing consent Award under Section 108 of

Act 30 of 2013. Thus, Respondent No.2 has violated the entire

procedure, as such the order in ROC.No.G2/1696/2017 dated

28.11.2019 is illegal, arbitrary and violative of Articles 14, 21, 300-A

of the Constitution of India and also the provisions of Right to Fair

Compensation and Transparency in Land Acquisition Rehabilitation

and Resettlement Act, 2013, so also, principles of natural justice and

consequently set aside the same and direct the Respondents herein

to follow the due process of law under Act 30 of 2013.

Whereas, learned Government Pleader for Land Acquisition

supported the action of the respondents in passing the impugned MSM,J WP_16739_2021

order, while contending that the Award is passed with the consent of

the petitioners and by following the provisions of Act 30 of 2013, as

such, the same cannot be questioned and that there is no procedural

violation and requested to dismiss the writ petition against

Respondent No.2.

Sri Y. Nagi Reddy, learned Standing Counsel for APTRANSCO -

Respondent No.5 narrated the requirement and purpose of erection

of electrical sub-station, however, requested to vacate the stay at the

end as the work is stalled abruptly.

Considering rival contentions, perusing the material on record,

the point that needs to be answered is:

"Whether the order impugned in the writ petition i.e. ROC.No.G2/1696/2017 dated 28.11.2019 is passed strictly in terms of the provisions of Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. If not, on account of any violation pointed out by the petitioners more particularly for non- compliance of Sections 26, 38 and 108 of Act 30 of 2013 and failure to issue notification for acquisition of the property or failure to follow the procedure prescribed under G.O.Ms.No.259 Revenue (Assn.I) Department dated 21.06.2016 is sufficient to declare the impugned order as illegal and arbitrary. If so, whether the impugned proceedings are liable to be set-aside?

P O I N T:

The District Collector, Chittoor District issued impugned

proceedings i.e. ROC.No.G2/1696/2017 dated 28.11.2019

classifying the land in an extent of Ac.10-00 cents in different

categories (A) to (D). The land in an extent of Ac.8-01 cents of

Racherla Village is classified as Category A and rate per acre is fixed

@ Rs.8,25,000/-, besides classification of other land in the same

village as ‗B' & ‗C'. The petitioners land is in Category A and agreed MSM,J WP_16739_2021

to pay ex-gratia to the petitioners, while authorizing the Land

Acquisition Officer/Revenue Divisional Officer, Tirupati to pay

exgratia to the assignees after satisfying himself about the eligibility

of the assignees before releasing the exgratia amount sanctioned by

taking consent under Section 108 of the Act 30 of 2013. It is also

directed that, the Revenue Divisional Officer, Tirupati shall ensure

that DKT holders or their rightful legal heirs shall be in full

enjoyment/possession of the agricultural land so assigned and

having valid pattas/titles in this regard for which he is claiming

compensation/exgratia. It is clear from the proceedings impugned in

the writ petition that the second respondent himself has instructed

the concerned as to the acquisition of the property as per the

provisions of Act 30 of 2013 or resumption of the land in terms of

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

also, the nature of amount paid to the beneficiaries (assignees) either

as compensation or exgratia. It appears from the order under

challenge that the second respondent- District Collector even without

applying mind as to what order is being passed, whether it is an

Award under Act 30 of 2013 or an order of resumption as per

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

whether the second respondent is ordering payment of compensation

or exgratia. Such direction to Land Acquisition Officer/Revenue

Divisional Officer, Tirupati is totally inconsistent with one paragraph

to other paragraphs in the impugned order. In view of the

inconsistency, beneficiaries are in lurch and parties are put to

serious inconvenience to understand the mind of the second

respondent and the, whether the property is acquired and know the

exact intention of the second respondent as to whether the land is MSM,J WP_16739_2021

ordered to be acquired by invoking Section 108 of Act 30 of 2013 or

ordering resumption of the assigned land in view of G.O.Ms.No.259

Revenue (Assn.I) Department dated 21.06.2016.

The inconsistent proceedings impugned in the writ petition is

challenged on various grounds, mainly on the ground that the order

under challenge is non-statutory order without following the

procedure prescribed under Act 30 of 2013, since the procedure

prescribed under various provisions of Act 30 of 2013 has not been

followed while directing the Land Acquisition Officer/Revenue

Divisional Officer to obtain consent in terms of Section 108 of Act 30

of 2013.

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 for

acquisition of land, while maintaining transparency in land

acquisition and providing rehabilitation and resettlement to the land

losers, in land acquisition proceedings. Chapter IV of Act 30 of 2013

deals with Notification and Acquisition. Section 11 prescribed the

procedure to be followed for publication of preliminary notification

and power of officers. Section 12 further specified the mode of

preliminary survey of land and power of officers to carry out survey.

Section 15 dealt with hearing of objections on the preliminary

notification. According to it:-

(1) Any person interested in any land which has been notified under sub-section (1) of section 11, as being required or likely to be required MSM,J WP_16739_2021

for a public purpose, may within sixty days from the date of the publication of the preliminary notification, object to--

(a) the area and suitability of land proposed to be acquired;

(b) justification offered for public purpose;

(c) the findings of the Social Impact Assessment report. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by an Advocate and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under sub- section (1) of section 11, or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him along with a separate report giving therein the approximate cost of land acquisition, particulars as to the number of affected families likely to be resettled, for the decision of that Government.

(3) The decision of the appropriate Government on the objections made under sub-section (2) shall be final.

Section 16 deals with preparation of Rehabilitation and

Resettlement Scheme by the Administrator. Section 17 deals with

Review of the Rehabilitation and Resettlement Scheme, whereas,

Section 18 deals with approved Rehabilitation and Resettlement

Scheme to be made public and Section 19 deals with the procedure

of publication of declaration and summary of Rehabilitation and

Resettlement.

Section 26 deals with determination of market value of land by

Collector; Section 27 deals with determination of amount of

compensation; Section 28 deals with parameters to be considered by

Collector in determination of award and Section 30 deals with Award

of Solatium. Thus, Chapter IV of the Act prescribed certain

procedure for acquisition of land. But, in the present case, the MSM,J WP_16739_2021

second respondent - District Collector directed the Land Acquisition

Officer/Revenue Divisional Officer to obtain consent under Section

108 of Act 30 of 2013.

Section 108 deals with Option to affected families to avail

better compensation and rehabilitation and resettlement. According

to it:

(1) Where a State law or a policy framed by the Government of a State provides for a higher compensation than calculated under this Act for the acquisition of land, the affected persons or his family or member of his family may at their option opt to avail such higher compensation and rehabilitation and resettlement under such State law or such policy of the State.

(2) Where a State law or a policy framed by the Government of a State offers more beneficial rehabilitation and resettlement provisions under that Act or policy than under this Act, the affected persons or his family or member of his family may at his option opt to avail such rehabilitation and resettlement provisions under such State law or such policy of the State instead of under this Act.

Section 108 permits the affected persons or families to exercise

their option either to accept the compensation by the Collector or to

opt the compensation payable under any other special enactment or

Rules or policy. The question of exercising such option under

Section 108 will arise only in case procedure is followed under

Chapter IV of Act 30 of 2013 and determine the compensation by the

Collector by following the procedure therein. But, here, no such

procedure is followed, no notification was issued for acquisition of

land under Section 11(1), no objections were called for and

consequently failure to comply with the procedure under various

sections under Chapter IV does not arise. Therefore, the order

impugned in the writ petition is a unilateral decision of the second MSM,J WP_16739_2021

respondent in highly bureaucratic manner, even without applying

his mind to the provisions of Act 30 of 2013 and passed such an

order in haphazard manner somehow to scuttle the right of the

petitioners to claim compensation by following fair procedure and

totally in violation of statutory prescription in Chapter IV of Act 30 of

2013. Such act drove these petitioners to a lurch and unable to

understand the purport of the order whether it is under Act 30 of

2013 or under G.O.Ms.No.259 Revenue (Assn.I) Department dated

21.06.2016, as the second respondent ordered to pay exgratia. Thus,

the non-statutory order either in terms of G.O.Ms.No.259 Revenue

(Assn.I) Department dated 21.06.2016 or under the provisions of Act

30 of 2013 is totally irregular, illegal and exercised arbitrarily

without adhering to the statutory procedure prescribed under the

Act and law laid down by various Courts. Therefore, the impugned

order is unsustainable for the reason that, the order is expropriating

the petitioners, for the land in question and when such order is

passed expropriating these petitioners, strict compliance of the

procedure is mandatory, as held by Apex Court in D.B. Basnett

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

District, Gangtok, Sikkim1.

If the principle laid down by the Apex Court in the above

judgment is applied to the present facts of the case, failure to follow

the procedure under Act 30 of 2013 is sufficient to set-aside the

order impugned in the writ petition. However, it is appropriate to

advert to the law laid down by various Courts with regard to

expropriating the owner/holder of the land and rights of such owners

or holders.

(2020) 4 SCC 572 MSM,J WP_16739_2021

As seen from the impugned order, exgratia is ordered to be

paid to the petitioners. 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 the law 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. Therefore, when the petitioners were deprived of their land,

it is nothing but depriving them their 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 the State. 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 Others2‖

referred to a judgment of Supreme Court in ―Jilubhai Nanbhai

AIR 2004 AP 250 MSM,J WP_16739_2021

Khachar Vs. State of Gujarat3‖. 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 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

1995 Supp (1) SCC 596 MSM,J WP_16739_2021

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 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 Ram4 a case which arose before ―Maneka

Gandhi vs. Union of India5‖, 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 Corporation6‖ 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).

4 AIR 1960 SC 932 5 AIR 1978 SC 597 6 AIR 1986 SC180 MSM,J WP_16739_2021

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 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

Congress7‖, 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

(1991)ILLJ395SC MSM,J WP_16739_2021

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.

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.

MSM,J WP_16739_2021

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 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.8)

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

AIR 2013 SC 565 MSM,J WP_16739_2021

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.

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 MSM,J WP_16739_2021

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

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 India9‖ and ―Edward Mills Co.Ltd. Vs. State of Ajmer10‖ 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.11‖

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.12 and

―Mervyn Coutindo Vs. Collector, Customs Bombay13‖)

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

AIR 1956 SC 479

AIR 1955 SC 25

1955 (1) SCR 599

AIR 1959 SC 149

AIR 1967 SC 52 MSM,J WP_16739_2021

―Bishambhar Dayal Chandra Mohan Vs. State of Uttar

Pradesh14‖ 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 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.15‖ 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 Legislature 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.

AIR 1982 SC 33

AIR 2003 SC 250 MSM,J WP_16739_2021

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

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 MSM,J WP_16739_2021

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 unlawful 3. 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 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:

MSM,J WP_16739_2021

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 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.

MSM,J WP_16739_2021

Even otherwise, the second respondent in the impugned order

ordered payment of exgratia, which is contrary to the law laid down

by 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) and reiterated by the Supreme Court in Supreme

Court in ―Jilubhai Nanbhai Khachar Vs. State of Gujarat‖

(referred supra). On this ground also, impugned order is liable to be

set-aside. Apart from that, failure to follow the procedure under Act

30 of 2013 while directing the third respondent - Revenue Divisional

Officer, Tirupati to follow the procedure prescribed under

Section 108 of Act 30 of 2013 is another stumble blocked to uphold

the order impugned in the writ petition, since it is in violation of the

procedural prescription under Chapter IV of Act 30 of 2013.

As the property was assigned to these petitioners, they became

absolute owners of the property and the impugned order is neither

an order of resumption invoking the provisions of Act 30 of 2013

read with the terms and conditions of patta, nor it is an order of

payment of exgratia, without any statutory basis, depriving the

petitioners from enjoying the property. Thus, the order is not backed

by any statutory authority. On this ground also, the order is liable to

be set-aside.

In view of my foregoing discussion, the order under challenge

i.e. ROC.No.G2/1696/2017 dated 28.11.2019 passed by the second

respondent is declared as illegal, arbitrary and violative of Articles

14, 21 and 300-A of the Constitution of India and consequently,

liable to be set-aside.

MSM,J WP_16739_2021

In the result, writ petition is allowed, setting-aside the order

passed by the second respondent in ROC.No.G2/1696/2017 dated

28.11.2019, while directing Respondent Nos. 2 & 3 to follow the

procedure prescribed under Act 30 of 2013 strictly and to pass an

Award for payment of compensation to these petitioners. Any amount

of deviation would attract serious consequences. No costs.

Consequently, miscellaneous applications, pending if any,

shall also stand closed.

__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:24.09.2021

SP