K.Ramasubba Reddy, Kadapa Dist. ... vs Dist. Collector, Kadapa Dist. 4 ...
2022 Latest Caselaw 9388 AP

          *HONOURBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
                        + W.P.No.7650 of 2009

% 07.12.2022
# K.Ramasubba Reddy,S/o Subba Reddy,
Age 72 yrs., Occ: Business,
Medameedipalli Village,
Proddatur Town, Kadapa District
(died Legal Representatives on record)
                                                      ... Petitioners


         Vs.
$ The State of A.P.,
Rep., by its District Collector,
Kadapa District, Kadapa and 7 others.

                                                     ... Respondents
! Counsel for the petitioner : Mr. C.Prakash Reddy

! Counsel for the Respondents : G.P. for Land Acquisition &
                                Standing Counsel for APIIC


< Gist:
> Head Note:
? Cases referred:
1
    2009 (1) ALD 438
2 MANU/AP/0175/1980


3 MANU/AP/0538/1997


4 1996 (6) SCC 445


5 1997 (11) SCC 501


6 2011 (10) Scale 460


7 2009 (17) SCC 27


8 (2019) 15 SCC 1


9 AIR 1966 SC 1593
                                       2




       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                        W.P.No.7650 of 2009
O R D E R:

This writ petition is filed for the following relief:

'to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Certiorari calling of the records relating to Draft Notification under Section 4(1) published in Gazette No.172, Kadapa dated 16.07.1999, the Draft Declaration under Section 6 published in Gazette No.173, Kadapa, dated 17.07.1999 and award No.11/2001-2002, dated 14.02.2002 issued and passed by the 2nd respondent herein repsectively declaring the same as arbitrary, illegal, colorable exercise of power in utter contravention of the provisions of the Land Acquisition Act, 1894 and violative of the fundamental and constitutional rights guaranteed to Petitioner under Articles 14, 19, 21 and 300-A of the Constitution of India and consequently set aside the same in so far as the land (House Plots) in an extent of Ac.3.12 cents in Sy.Nos.497 of Kothapalli Village, Proddatur Town, Kadapa District under registered Sale Deed dated 26.04.1974 belonging to me and pass....

2. This Court has heard Sri C.Prakash Reddy, learned

counsel for the petitioner, Government Pleader for Land

Acquisition, Standing Counsel for APIIC and learned counsel

for unofficial respondents.

3. During the course of hearing as the writ petitioner died,

his legal representatives come on record. For the sake of

convenience the 'writ petitioner' alone is referred though his

legal heirs are on record and are now contesting the matter.

4. The grievance of the petitioner in this case which is well

articulated by Sri C.Prakash Reddy is that he has acquired

land measuring Ac.3.12 cents in Sy.No.497 of Kothapalli

village, Proddatur Town under a registered sale deed dated

26.04.1974. The petitioner claims to be in peaceful

possession and enjoyment of the property even as on date of

filing of the writ petition. As per the learned counsel for the

petitioner, in January 2009, staff of respondent Nos.4 and 5

tried to form a road in the property. The petitioner objected to

the same and thereafter it transpired that the respondents are

claiming rights in the property stating that the land was

acquired under the provisions of the Land Acquisition Act,

1894 (for short 'the Act') by the State Government and handed

over to the 4th respondent.

5. Learned counsel for the petitioner submits that at no

point of time, the petitioner received any notice whatsoever of

the acquisition. It is submitted categorically that the

procedure stipulated under the Act was not followed and by

invoking urgency clause, high handed action was taken for a

large extent of land, but it is asserted that the petitioner's

land measuring Ac.3.12 cents is still in his possession and

enjoyment only. Learned counsel points out that the

essential averments raised by him with regard to the

possession even in January, 2009 are not denied in the

counter. Learned counsel submits that documents obtained

under the Right to Information Act reveal that nobody has

received the compensation for the land. Therefore, it is clear

as per the learned counsel that no attempt was made to serve

the requisite notices at every stage as warranted by the Act.

He points out that the Act is expropriatory legislation and

that therefore, its provisions should be very seriously viewed.

It is also pointed out that K.Konda Reddy, who is the

awardeee died on 08.03.2001, whereas the award was passed

on 14.02.2002. This shows clear non-application of mind

according to the learned counsel. He also points out that in

the award itself, it is mentioned that payment would be made

in the future either to the pattadar, his legal representatives

or 'the rightful owners'. This indicates clearly that the

procedure was not followed by the respondents in acquiring

the petitioner's land. Learned counsel points out that even if

the documents filed by the respondent-State pursuant to the

order of this Court are examined, the name of the writ

petitioner K.Ramasubba Reddy is visible in the publication

made in the Andhra Bhoomi newspaper, in the draft

notification and also in the notification under section 6 of the

Act. Thereafter, in the award, he submits that the name of

K.Ramasubba Reddy-writ petitioner is missing. It is pointed

out that as per these notifications, including the draft

notification and the draft declaration, K.Konda Reddy is

shown as the pattadar and the enjoyer is shown as

K.Ramasubba Reddy-the writ petitioner. Learned counsel

points out that absolutely no reason is pointed out as to why

notice could not be delivered to the petitioner even though his

name appears in the notification/declaration.

6. In reply to the counter filed about lack of mutation in

the petitioner's name, learned counsel relies upon the

judgment of Gubbala Chinna Ganga Rao and another v.

Land Acquisition Officer and Rural Development Officer,

Narsapur, West Godavari District and others1. He also

submits that if the Court comes to the conclusion that the

procedure as stipulated including the statutory notices are

not given, this Court can set aside the award. He relies upon

single Judges' judgments reported in The Class IV

Employees House Building Society v. Tanuboddi

Venkatappa Reddy2 and Uppalapati Krishna Murthy v.

Government of A.P. and others3 in support of his

contention. He also argues that even as on date, land is

vacant and is in possession of the petitioner. According to

him, even the plan filed by him with his additional documents

shows the property as disputed property and it is vacant.

Therefore, he prays for an order.

7. Learned Government Pleader for Land Acquisition on

the other hand argues that the award was published in

February 2002. The writ petition is filed seven years after the

2009 (1) ALD 438 2 MANU/AP/0175/1980

3 MANU/AP/0538/1997

award was passed. Therefore, she submits that in view of

the settled law, namely the judgments reported in State of

Rajasthan & others v. D.R.Laxmi & others4, Municipal

Corporation of Greater Bombay v. The Industrial

Development & Investment Co.Pvt. Ltd., 5 and A.P

.Industrial Infrastructure Corporation Ltd., v.

Chinthamaneni Narasimha Rao & others6, this Court

should not interfere and should dismiss the writ petition. She

submits that a reading of the counter affidavit filed reveals

that the petitioners and the legal representatives of the

petitioner, who come on record, who are claiming to be the

owners of the property did not get their names mutated in the

revenue records. The draft notification is published and

thereafter draft declaration was also published in the locality

and in the local newspapers. Yet the writ petitioner did not file

any objections. It is also submitted that the entire extent of

land has been acquired and handed over to APIIC, who are

now in possession and enjoyment of the property for the

4 1996 (6) SCC 445

5 1997 (11) SCC 501

6 2011 (10) Scale 460

purpose of expansion of the industrial estate. It is also

mentioned that notices under section 9(1) and 10 of the Act

were published on 06.12.2001 and other notices were issued

in the locality by erecting a pole in the land. By way of

beating of drums and tom tom also publicity was given.

Therefore, learned Government Pleader justifies the action

taken. It is also submitted that the entire amount as per the

award was deposited in the Government accounts by way of

challan dated 11.05.2002. Hence, both on the ground of

delay and on the ground of failure of the petitioner to mutate

their names in the revenue records, the learned Government

Pleader submits that the writ petition should be dismissed.

8. For APIIC learned standing counsel relies upon the

counter affidavit filed and argues on similar lines. It is stated

very clearly that the amount awarded has been deposited in

Government accounts and that none of the claimants had

raised any objections at the appropriate stage nor did they get

their names mutated. The submissions of the learned

standing counsel are in line with what has been argued by

the learned Government Pleader.

9. As for as the respondent Nos.6 to 8 are concerned, they

support the case of the petitioner. They state very clearly that

the writ petitioner is the owner of the land in Sy.No.479/1B.

According to this affidavit, the award is passed in the name of

one K.Konda Reddy, who is their father. It is stated

categorically that K.Konda Reddy has nothing to do with the

said land. It is also mentioned that K.Konda Reddy died on

08.03.2001 and the award was passed long thereafter. A

copy of the death certificate is also filed with the implead

application I.A.No.1 of 2022 and the same is pointed out by

the learned counsel. It is reiterated that the writ petitioner is

the actual owner of the property.

10. COURT: The learned Government Pleader as per the

directions of this Court filed the copies of the 4 (1) notification

and section 6 declaration of the Act. In the 4(1) notification

published in Andhra Prabha on 24.06.1999, for land in

Sy.No.479/1B the pattadar is K.Konda Reddy and the person

in enjoyment is K.Ramasubba Reddy. Same publication was

made in Andhra Bhoomi. In addition, the notification under

section 4(1) of the Act published in the District Gazette and

the declaration under section 6 (1) of the Act published in the

Gazette clearly state that the person in enjoyment is

K.Ramasubba Reddy (writ petitioner). However, the

subsequent notices under sections 9 and 10 of the Act refer to

the name of K.Konda Reddy only.

11. If the award is examined, it also refers to the 4(1)

notification dated 16.07.1999 and also the draft declaration

dated 17.07.1999 which clearly refer to the name of

K.Ramasubba Reddy, the writ petitioner.

12. The counter affidavit filed by the State and also APIIC

clearly state that the draft notification was published as per

the entries in the revenue records (para 5 of the counter of

respondent Nos.1 to 3). To the same effect is the counter of

respondent Nos.4 and 5, wherein in para 15, it is stated that

the names have been taken into account basing on the village

accounts and publication of 4(1) notification. In the opinion

of this Court, the fact that the name of the writ petitioner is

published in the 4(1) notification, draft notification and draft

declaration under 6(1) of the Act makes it clear that the

respondents were aware that he is the person who is enjoying

the property. These publications are based on the revenue

records. Therefore, their contentions that notices could not

be served because the petitioner did not mutate his names in

the revenue records does not appeal to this Court and it also

does not appear to be true.

13. A learned single Judge of this Court in a decision

reported in Gubbala Chinna Ganga Rao (1 supra) clearly

held as follows:

7. '..........The Land Acquisition officer is expected to gather information from the Sub-Registrar's office to know whether any registered sale transactions have taken place in respect of the property before the same is notified for acquisition. Thus, mere absence of mutation in revenue records does not absolve the land acquisition officer from the obligation of collecting the necessary information as to the true owner of the property at the time of issuing notification. There is, therefore, some justification for the petitioners in complaining that the land acquisition proceedings were initiated behind their back. The records also do not show that notices were served on the petitioners under Section 9(3) of the Act.'

14. Apart from that, under section 3 of the Transfer of

Property Act, the registration of sale deed is also notice to the

public at large (Azhar Sultana v. B.Rajamani7).

7 2009 (17) SCC 27

15. As far as the Land Acquisition Act is concerned, the

Supreme Court has more than once said that it is an

expropriatory legislation and therefore, it must be very strictly

construed. These State actions have the potential of

depriving a person of his valuable rights in the property.

Therefore, it has to be very strictly construed. (Nareshbhai

Bhagubhai v. Union of India8 and State of M.P. v. Vishnu

Prasad Sharma9). The deprivation can only be by a

procedure established and in accordance with law. Due care

must be exercised and the law should be followed.

16. Learned counsel for the petitioner also relied upon the

Division Bench judgment of the A.P.High Court in

Tanuboddi Venkatappa Reddy (2 supra), wherein the

Division Bench reiterated the legal position that notice should

be served on the occupier of the land and on any other person

who are known to the Collector to be interested in the land or

whom he 'believes' to be interested in the land. Even if the

urgency provision under section 17 of the Act is considered, it

is clear that the Collector is duty bound to publish a notice

8 (2019) 15 SCC 1

9 AIR 1966 SC 1593

under Section 9 of the Act and within 15 days, he can take

possession of the land by tendering 80% of the amount to the

persons interested.

17. Section '9' is headed - Notice to Persons 'Interested'.

Under section 9(1) of the Act, notice is to be published at a

convenient place on or near the land to be taken. Under

section 9(2) of the Act, the notice should state the particulars

of the land so needed and require all persons 'interested' in

the land to appear before the Collector. Under section 9(3) of

the Act, the notice was also to be served on the occupier of

such land and on all such persons known or 'believed' to be

interested therein or to be entitled to act for persons so

interested.

18. A reading of these clauses makes it clear that notice is

to be given at a convenient place on or near the land to be

taken. In addition, the Collector should also serve notice to

the same effect on the occupier of such land and on all

persons known or believed to be interested therein. Even the

agents of such person are authorized to receive such notice.

These sub-sections clearly underline the need for a clear

notice even to persons 'interested'. Lastly, section 9(4) of the

Act says that if a person so interested resides elsewhere, and

he does not have an agent, the notice shall be sent by the

Collector by post to his last known address etc. Therefore,

the importance of notice is more than clearly visible from a

plain language interpretation of these clauses of the Act. The

entire scheme of the Act if examined closely mandates a

notice/objection/hearing etc., before a final award is passed.

Even the emergency/urgency method of acquisition as per

section 17 mandates a notice as per section 9(1) of the Act.

The facts of this case reveal that the draft notification and

draft declaration clearly show that K.Ramasubba Reddy-writ

petitioner as the person in possession of the land. He is thus

more than a person 'interested'. The draft notification/draft

declaration show that he is in occupation and this

information from the revenue records only as per the counter

affidavit. Yet notice was never issued to him at any stage.

19. This Court has to follow what is mentioned in the

Division Bench judgment referred to above and hold in line

with para 12 of the said report that since the person in

occupation and interested is not served with a notice under

section 9(3) of the Act, the action is willfully perverse and the

subsequent proceedings cannot be said to be bona fide. The

order of the lower Court was upheld in this Bench decision.

Similarly, a learned single Judge in the case of Uppalapati

Krishna Murthy (3 supra) held that the notice under section

9(3) of the Act is mandatory. Thereafter, he set aside the said

award also.

20. In this case also, this Court notices that in the counter

affidavit filed, it is clearly stated more than once that the draft

notification was published as per the entries in the revenue

records. Little choice is therefore left for this Court in this

case.

21. The next question that survives is, whether on account

of the delay as alleged, the petitioner is dis-entitled to seek

any relief in this writ ?. As far as the issue of delay is

concerned, writ petitioner has come on record stating that he

has been in possession and enjoyment of the land and that

only in January, 2009, there was an attempt to disturb his

possession when respondent Nos.4 and 5 tried to form roads.

This is mentioned in para 4 and 10 of the writ affidavit.

Interestingly, this averment is not denied in the counter

affidavit. It is stated that thereafter he came to know that an

award was passed and possession was supposedly handed

over to respondent Nos.4 and 5. It is also mentioned that

thereafter he applied under the Right to Information Act, but

the respondents furnished certain information only and not

the rest. Therefore, learned counsel submits that there is no

delay per se in the filing of the writ petition. This submission

does carry some weight and appeals to this Court.

22. This Court also notices that the judgment of the Hon'ble

Supreme Court of India in the case of Vidya Devi vs. The

State of Himachal Pradesh and Ors. in para 12.1 (2) of this

judgment, the learned Judge held that the condonation of

delay in such cases is a matter of judicial discretion and that

there is no period of limitation prescribed for Courts to

exercise their constitutional jurisdiction to do substantial

justice. In para 12.1(iii), by relying upon the earlier judgment

of the Hon'ble Supreme Court, it was held when the demand

for justice is so compelling, the Constitutional Court would

exercise its jurisdiction with a view to promote justice and not

to defeat it.

23. In the case on hand, the petitioner has demonstrated

that notice was never served. Hence, knowledge cannot be

attributed to him. In addition, the petitioner's assertion of

being in possession even in 2009 is not denied in the counter

affidavit. The lands next to industrial estate are also shown

as disputed lands in the map filed by the writ petitioner. This

is a copy of the lay out approved by the Director of Town and

Country Planning and the disputed lands are visible. Apart

from this, the award dated 14.02.2002 also states that

Ac.3.31 cents in Sy.No.497/1B is registered in the name of

K.Konda Reddy. Since acquisition was urgent, it was decided

to proceed as per the names of the pattadars as per the

records. It was decided that in future the payment may be

made either to the pattadar or his legal heirs/successors or

the rightful owners after thorough check up of the title

eligibility as and when they come forward. In the opinion of

this Court, this conclusion is totally contrary to the provisions

of the Act which mandate a notice to be issued to the title

holder, persons in occupation, persons interested in the land

etc., at various stages. At their will and fancy, Officers of the

State cannot acquire or take over the property and state that

they will deposit the money and decide the same when the

claimants or aggrieved parties approach them. This Court

could have condoned the action of the State if they had made

all the attempts possible to serve the notices as required

under law and thereafter proceeded to finalize the award. The

same is not visible from the record. Even the need for

invoking the urgency clause is not visible in this case. Since

it is an expropriatory legislation, it has to be construed very

strictly and before a property is taken over by the State, the

provisions of the law should be strictly and scrupulously

followed.

24. The case on hand falls woefully short of the

requirements of law. Therefore, this Court has no hesitation

to hold that the petitioner is entitled to the relief as prayed

for.

25. In view of passage of time, the following directions are

passed as this Court is of the opinion that the petitioner has

to succeed:

(a)The award No.11 dated 14.02.2002 is set aside in so far as

it relates to land measuring Ac.3.31 cents in Sy.No.497/13

pertaining to the original writ petitioner. (b) Liberty is given

to the respondents to pass a fresh award if they still need the

writ petitioners land by scrupulously following the provisions

of Act 30/2013 (new Land Acquisition Act) within six months

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

26. The writ petition is allowed with the directions as

mentioned supra in para 25. The possession of the petitioner

shall not be disturbed except as per the procedure established

by law. No order as to costs. As a sequel, the miscellaneous

petitions if any shall stand dismissed.

________________________ D.V.S.S.SOMAYAJULU,J

Date: 07.12.2022 Note: L.R. copy be marked.

KLP