K.Sarswathamma vs The State Of Andhra Pradesh
2022 Latest Caselaw 677 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.7457 OF 2018

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 Respondent No.6 refusing to pay the compensation awarded through the Award Nos.LA/NH4-4 Gangavaram/ Gangavaram/1/2017 dated 19.09.2017 for the lands in an extent of 445-170 sq.mts in Sy.No.702/1, 526.110 mts in Sy.No.703/1, 364.230 sq.mts in Sy.No.204/1, 1011.750 sq.mts in Sy.No.704/2A, 809 sq.mts in Sy.No.705, 607.050 sq.mts in Sy.No.706, 364.230 sq.mts in Sy.No.707/2, 80.940 sq.mts in Sy.No.708/2, 566.580 sq.mts in Sy.No.709/2, 971.280 sq.mts in Sy.No.709/3, 323.760 sq.mts in Sy.No.709/4B, 1861.620 sq.mts in Sy.No.714/2, 1011.750 sq.mts in Sy.No.711/4 and Supplementary Award No.NH-4-4/ Gangavaram/ Gangavaram/01/2017 dated 15.12.2017 in Voucher Nos.18,19,20,21,22,23 & 25 forthwith for formation of Bangalore-Chennai Express Way at the instance of Respondent Nos. 7 to 9 as arbitrary, illegal, quite contrary to the procedure envisaged under the provisions of the National Highways Act, 1956 and well established legal position apart from being violative of fundamental and Constitutional Rights guaranteed under Articles 14,19,21 & 300-A of the Constitution of India and consequently direct Respondent No.6 to pay the compensation awarded through the Award Nos.LA/NH4-4 Gangavaram/ Gangavaram/1/2017 dated 19.09.2017 and Supplementary Award No.NH-4-4/Gangavaram/ Gangavaram/01/2017 dated 15.12.2017 in Voucher Nos.18,19,20 ,21,22,23 & 25 forthwith."

The allegations made in the affidavit in brief are that, the

first petitioner‟s husband late K. Krishnaiah succeeded land

admeasuring an extent of 445-170 sq.mts in Sy.No.702/1, 526.110

mts in Sy.No.703/1, 364.230 sq.mts in Sy.No.204/1, 1011.750

sq.mts in Sy.No.704/2A, 809 sq.mts in Sy.No.705, 607.050 sq.mts

in Sy.No.706, 364.230 sq.mts in Sy.No.707/2, 80.940 sq.mts in

Sy.No.708/2, 566.580 sq.mts in Sy.No.709/2, 971.280 sq.mts in MSM,J WP.No.7457 of 2018

Sy.No.709/3, 323.760 sq.mts in Sy.No.709/4B, 1861.620 sq.mts

in Sy.No.714/2, 1011.750 sq.mts in Sy.No.711/4, hereafter

referred as „the subject land‟ by way of inherence and through self

acquisition, executed an unregistered „Will‟ dated 06.12.1992 in

favour of the first petitioner. Thus, the first petitioner succeeded

the property either under „Will‟ or under general rules of

succession and she was in possession and enjoyment of the same.

Having recognizing the first petitioner‟s possession and enjoyment

of the subject property based on the „Will‟ executed in her favour,

mutated her name in revenue records, pattadar pass books, title

deeds, Form 1-B Adangals were issued in her favour.

While so, the daughters of the first petitioner who were

married much prior to execution of the „Will‟ filed O.S.No.56 of

2008 on the file of Additional Senior Civil Judge, Chittoor against

the petitioners for partition of the suit schedule property and

prayed for preliminary decree claiming 1/6th share each in the

subject land, obtained exparte decree initially and later, it was set-

aside and the same is pending for adjudication.

While so, Respondent No.6 issued notification under

Section 3A of the National Highways Act, 1956, (hereinafter

referred to as „the Act, 1956‟) for acquisition of the subject land for

formation of Bangalore-Chennai Express Way through Notification

dated 17.04.2015 and published the same on 16.07.2015 and

declaration under Section 3D of the Act, 1956 on 12.04.2016.

Thereafter, Respondent No.6 published a Public Notice dated

09.05.2016 in the local daily newspapers dated 20.05.2016 as MSM,J WP.No.7457 of 2018

contemplated under Section 3G(3) of the Act, 1956 and fixing the

dates of hearing as contemplated under Section 3G(4) of the Act,

1956. As there were no objections for passing Awards in favour of

the first petitioner payment of compensation for the subject land

either from Respondent Nos. 7 to 9 or any third parties,

Respondent No.6 passed Awards dated 19.09.2017 in favour of the

first petitioner for determining the compensation of the subject

land. Respondent Nos. 7 to 9 did not raise any objection

whatsoever either to the Notification issued under Section 3A of

the Act, 1956 as contemplated under Section 3-C of the Act, 1956

or during the award enquiry as is contemplated under Section 3-G

of the Act, 1956. As there were no objections whatsoever with

regard to issuance of the Notification under Section 3-A

publication of Gazette under Section 3-D and issuance of the

notices for award enquiry under Section 3-G of the Act, 1956,

Respondent No.6 has passed the Awards dated 19.09.2017

mentioned above in favour of the first petitioner.

While so, Respondent Nos. 7 to 9 got issued legal notice

dated 20.10.2017 through their Advocate to Respondent No.6

stating that they filed suit against the petitioners in O.S.No.56 of

2008 on the file of Additional Senior Civil Judge, Chittoor, for

partition of the subject land and the said suit was decreed exparte

and passed a preliminary decree declaring that the petitioners and

Respondent Nos. 7 to 9 are entitled to 1/6th share each and called

upon Respondent No.6 not to pay compensation awarded in favour

of the first petitioner for the subject land, though the above Awards

were passed in favour of the first petitioner.

MSM,J WP.No.7457 of 2018

It is also contended that, Respondent Nos. 7 to 9 suppressed

the fact that the said exparte judgment and decree dated

23.08.2012 were set-aside vide order dated 21.03.2017 and the

said suit is pending for adjudication, while issuing legal notice.

Whereas, Respondent No.6 is refusing to pay compensation

awarded in favour of the first petitioner basing on the legal notice

issued by Respondent Nos.7 to 9.

It is contended that, no objections were filed at any stage of

the proceedings, the Awards dated 19.09.2017 and Supplementary

Awards dated 15.12.2017 were passed and the Awards have

attained finality, as there is no provision whatsoever to challenge

the said award having not submitted any objections either under

Section 3-C or any other provision of the Act, 1956. Further, mere

pendency of the suit cannot be any hindrance for payment of

compensation which is already awarded in favour of the first

petitioner. Therefore, the inaction of Respondent No.6 in refusing

to pay compensation awarded in favour of the first petitioner at the

instance of Respondent Nos. 7 to 9 and also referring the legal

notice dated 20.10.2017 got issued by them is illegal and contrary

to the well established legal principles of law. Therefore, these

petitioners invoked the jurisdiction of this Court under Article 226

of the Constitution of India, questioning the action of Respondent

No.6.

None of the respondents filed counter affidavit in the writ

petition.

MSM,J WP.No.7457 of 2018

During hearing, Ms. S. Parineeta, learned counsel for the

petitioners reiterated the contentions urged in the affidavit, while

specifically contending that, in the absence of any provision in

reference to civil court due to pendency of the suit, Respondent

No.6 is bound to pay compensation and this view is fortified by the

judgment of the Full Bench of the Apex Court in G.H. Grant v.

State of Bihar1. On the strength of the principle, learned counsel

for the petitioners would submit that, failure of Respondent No.6 to

pay compensation to Petitioner No.1 on the basis of the notice

issued by Respondent Nos.7 to 9 alleging that suit is pending for

partition is illegal and arbitrary and requested to issue a direction

as sought for.

Whereas, learned Assistant Government Pleader for Land

Acquisition submitted that, on account of pendency of the suit, to

protect the interest of both the parties to the suit, including the

State, compensation was not paid and there is a specific provision

under Section 3H of the Act, 1956 which permits Respondent No.6

to deposit the amount into civil court and thereby, the contention

of the petitioners holds no substance and requested to dismiss the

writ petition by issuing appropriate direction, if necessary.

Considering rival contentions, perusing the material

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

"Whether Respondent No.6 be directed to pay the compensation awarded to Petitioner No.1, though O.S.No.56 of 2008 is pending on the file of Additional Senior Civil Judge Court, Chittoor, for partition of the

(1965) 3 SCR 576 MSM,J WP.No.7457 of 2018

property which is the subject matter of the writ petition and other properties, declaring that the plaintiffs therein/Respondent Nos. 7 to 9 are entitled to claim 1/6 th share in the property?

P O I N T:

Petitioner No.1 is the wife, Petitioner Nos. 2 & 3 are the sons,

whereas, Respondent Nos. 7 to 9 are the daughters of the deceased

K. Krishnaih. Petitioner No. 1 is claiming to be the owner of the

property acquired by Respondent No.6 under testamentary

dispossession i.e unregistered „Will‟ dated 06.12.1992. Thus,

Petitioner No. 1 became absolute owner of the property. It is also

contended that, name of Petitioner No.1 was mutated in the

revenue records, including Form 1-B Adangals, pattadar

passbooks and title deeds were issued based on the unregistered

„Will‟ dated 06.12.1992, whereas Respondent Nos.7 to 9 are

disputing the very execution of „Will‟ dated 06.12.1992, while

claiming that they are also entitled to claim 1/6th share along with

Petitioner Nos. 2 & 3 being the legal heirs of deceased

K. Krishnaiah. Respondent Nos.7 to 9 who are the daughters of

deceased K. Krishnaiah filed O.S.No.56 of 2008 is pending on the

file of Additional Senior Civil Judge Court, Chittoor and the suit is

admittedly pending for partition. Copies of the orders of the Trial

Court are filed along with the writ petition. Both parties did not

dispute pendency of the suit for partition filed by Respondent Nos.

7 to 9 claiming 1/6th share in the subject property, acquired by

Respondent No.6, so also passing Awards dated 19.09.2017 and

Supplementary Awards dated 15.12.2017 in favour of Petitioner MSM,J WP.No.7457 of 2018

No.1 based on the „Will‟ dated 06.12.1992, as no objections were

raised at any stage of the land acquisition proceedings under

Section 3 of the Act, 1956.

The first petitioner is claiming her right to recover

compensation under Awards dated 19.09.2017 and Supplementary

Awards dated 15.12.2017, based on the unregistered „Will‟ dated

06.12.1992. Whereas, Respondent Nos. 7 to 9, though married, are

claiming 1/6th share disputing the unregistered „Will‟ allegedly

executed by their father in favour of Petitioner No.1. The dispute is

pending for adjudication in O.S.No.56 of 2008 before the

Additional Senior Civil Judge Court, Chittoor. Respondent Nos. 7

to 9 issued legal notice to Respondent No.6 annexing copies of

certain documents contending that the „Will‟ itself is disputed by

Respondent Nos. 7 to 9 and it is pending for adjudication in

O.S.No.56 of 2008 before the Additional Senior Civil Judge Court,

Chittoor.

As on today, no information is placed on record by either of

the parties to the writ petition about the stage of O.S.No.56 of

2008, though it is sufficiently old. On the other hand, it is

submitted to the Court that the claim in O.S.No.56 of 2008 is

pending for adjudication. Whereas, Respondent No.6 though no

counter affidavit is filed, contended that, Respondent No.6 is

entitled to deposit the amount to the credit of civil court invoking

Section 3(H) of the Act, 1956, as there is a clear dispute between

the petitioners and Respondent Nos.7 to 9 regarding the „Will‟

allegedly executed by late K. Krishnaiah.

MSM,J WP.No.7457 of 2018

In view of these contentions, it is appropriate to advert to the

law declared by the Hon‟ble Apex Court with reference to the

provisions of the Act, 1956. According to the petitioners, when an

Award is passed, the Acquisition Authority has no option except to

pay compensation to the persons entitled to claim compensation as

per the Award and placed reliance on the judgment of the Full

Bench of the Apex Court in G.H. Grant v. State of Bihar (referred

supra). In Paragraph No.7 of the judgment, the Court held as

follows:

"The Land Acquisition Officer, after issuing notice calling for objections, decides on the three matters prescribed in s. 11, i.e., the true area of the land, the amount of compensation and the apportionment of the compensation. Before making the apportionment of the compensation he can resort to any of the following three methods: (i) to accept an agreed formula; (ii) to decide for himself; and (iii) to refer to the Court if he thinks that the decision of the Court is necessary. But once the award is made, it becomes final and it can be reopened only in the manner prescribed, i.e., by way of a reference under s. 18 of the Act. This construction makes for the smooth working of the provisions of the Act and does not lead to any anomalies. It also does not affect the right of the aggrieved parties to proceed in the manner prescribed by the Act for getting the award vacated or modified', as the case may be. It is said that if this view be accepted, a person who acquires a right after the award by transfer inter vivos or by devolution of interest will be without a remedy. I do not see any difficulty in that regard. Under s. 18 he may ask for a reference. He may apply to be brought on record after the reference is made to the Court. It may also be that he may proceed in a civil Court to recover the compensation from the persons who received' it on the basis of his title. On the other hand, the contrary view will lead to an incongruous position. It enables the Land Acquisition Officer to reopen a final award in the teeth of the express provisions of s. 12 of the Act. It further enables him to make a reference without any period of limitation and thus to disturb the rights finally settled by the award. I, therefore, hold that the Land Acquisition Officer cannot make a reference under s. 30 of the Act in the matter of apportionment of compensation after the award has been made by him apportioning the compensation under s. 11 and' has been filed under s. 12 thereof."

MSM,J WP.No.7457 of 2018

In the same judgment, the Full Bench of the Apex Court

discussed about various contentions raised in the appeals in

Paragraph No.14 as follows:

The Collector had no authority to refer the matter under Section 30 after he had apportioned the amount of compensation under Section 11(2) of Land Acquisition Act,1894, since title to compensation is derived solely from and on the date of the award, the notification under Section 3 of the Bihar Land Reforms Act did not deprive Dr. Grant of his right to receive compensation and the State Government was not "a person interested" within the meaning of the Land Acquisition Act, and could not apply for a reference under Section 30."

The above contentions were discussed at length and

ultimately in Paragraph No.22, the Court noted the purport of

Section 31 of the Land Acquisition Act. According to Section 31 of

the Land Acquisition Act, the Collector is bound to tender payment

of compensation awarded by him to the persons entitled thereto

according to the award and that a right in the amount of

compensation arises to the person to whom compensation is

directed to be paid under the award and therefore, the only

persons who can raise a dispute under Section 30 are those whose

names are set out in the award. This contention stands refuted by

the plain terms of Section 30. The Collector is not authorized to

decide finally the conflicting rights of the persons interested in the

amount of compensation. He is primarily concerned with the

acquisition of the land. In determining the amount of

compensation which may be offered, he has, it is true, to apportion

the amount of compensation between the persons known or

believed to be interested in the land, of whom, or of whose claims, MSM,J WP.No.7457 of 2018

he has information, whether or not they have appeared before him.

But the scheme of apportionment by the Collector does not finally

determine the rights of the persons interested in the amount of

compensation. The award is only conclusive between the Collector

and the persons interested and not among the persons interested.

The Collector has no power to finally adjudicate upon the title to

compensation, that dispute has to be decided either in a reference

under Section 18 or under Section 30 or in a separate suit.

Payment of compensation therefore under Section 31 to the person

declared by the award to be entitled thereto discharges the State,

from its liability to pay compensation (subject to any modification

by the Court), leaving it open to the claimant to compensation to

agitate his right in a reference under Section 30 or by a separate

suit.

The dispute between the State of Bihar and Dr. Grant has

been expressly referred by the Collector to the Court for decision.

Under the Bihar Land Reforms Act, the title of Dr. Grant to the

Land notified for acquisition became vested' in the State, and there

fore the right to compensation for the land acquired devolved upon

the State. A dispute between Dr. Grant and the State as to their

conflicting claims to the compensation amount was clearly a

dispute which could be referred under Section 30 of the Land

Acquisition Act to the Court and was in fact referred to the Court.

The Hon‟ble Supreme Court was unable to agree with counsel for

Dr. Grant that the reference made by the Collector under Section

30 was incompetent, because the State was not interested in the

compensation amount on the date when the award was made. The MSM,J WP.No.7457 of 2018

right of the State of Bihar has undoubtedly arisen after the award

was made, but once the title which was originally vested in

Dr. Grant stood statutorily transferred to the State, it was open to

the State to claim a reference, not because the State was a person

interested' in the compensation amount before the date of the

award, but because of the right which has arisen since the award

was made.

In the above judgment, the Apex Court succinctly held that,

when there is a dispute between rival claimants, though not they

appeared before the Acquisition Officer, still, they can claim

compensation awarded under the Award. When such claim is

made, the Collector is bound to make reference under Section 30

of the Land Acquisition Act or in a separate suit. Merely because

Awards are passed under Section 11(2) of the Land Acquisition Act,

Respondent Nos. 7 to 9 herein are not precluded from raising any

objections and seek for reference under Section 30 of the Land

Acquisition Act or to claim compensation by a separate suit.

Therefore, the contention of the petitioners that, merely because

Awards are passed, Respondent No.6 is bound to pay

compensation to Petitioner No.1 is without any merit and the same

is hereby rejected. However, as contended by the learned Assistant

Government Pleader for Land Acquisition, the amount of

compensation awarded to the first petitioner is deposited in the

civil court invoking Section 3H of the Act, 1956, which enables the

respondent - Collector to deposit the same and it reads as follows.

MSM,J WP.No.7457 of 2018

"3H. Deposit and payment of amount.--

(1) The amount determined under section 3G shall be deposited by the Central Government in such manner asmay be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land.

            (2) As soon as may be after the amount          has
            been deposited under sub-section (1),           the
            competent authority shall on behalf of          the
            Central Government pay the amount to            the
            person or persons entitled thereto.

            (3) Where several persons claim to be

interested in the amount deposited under sub- section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.

(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated.

(5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof.

(6)Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of subsections (2) to (4) shall apply to such deposit.

Thus, from Section 3H of the Act, 1956, when the Collector

received a notice from Respondent No.6 to 9 rightly deposited the

amount to protect the interests of both the parties and to discharge MSM,J WP.No.7457 of 2018

the liability of the Collector i.e State invoking Section 3H(4) of the

Act, 1956, such deposit is only to protect the interest of all

claimants and to discharge the liability of the State, but not

otherwise.

The contention of the learned counsel for the petitioners

that, when once Awards are passed, Respondent No.6 is bound to

pay the amount is devoid of merit, as discussed above and this

Court cannot exercise its discretionary power to issue writ of

mandamus to pay the amount awarded under the Award in favour

of the first petitioner based on the „Will‟, which is the subject

matter for adjudication in O.S.No.56 of 2008 pending on the file of

Additional Senior Civil Judge, Chittoor and this Court cannot

exercise such discretion. However, the petitioners may approach

the competent civil court to get their dispute adjudicated at the

earliest or in the alternative, seek permission of the Court for

release of undisputed share of petitioners, subject to the result of

O.S.No.56 of 2008.

It is pertinent to note that, Petitioner No.1 is the wife and

Petitioner Nos. 2 & 3 are the sons of deceased K. Krishnaiah.

However, in some of the Notices/Awards dated 19.09.2017, the

name of the first petitioner is mentioned as Smt. Saraswatamma

w/o Krishnaiah and in majority of the Notices/Awards dated

19.09.2017, the name of the first petitioner is mentioned as

Smt. K. Saraswathamma w/o Bhaskaraiah. Similarly, in some the

Supplementary Awards dated 15.12.2017 also, the names of the

first petitioner and her husband‟s name are referred as MSM,J WP.No.7457 of 2018

Smt. K. Saraswathamma w/o Bhaskaraiah and in few other, it is

mentioned as Smt. Saraswatamma w/o Krishnaiah. However, on

examination of the material on record, there is any amount of

discrepancy in the names of the first petitioner and her husband.

The Notices/Awards were issued in favour of the first petitioner

and Supplementary Awards were passed in her favour only. But,

the first petitioner set-up a different claim altogether that the

Awards were passed in favour of Petitioner Nos. 2 & 3 on the

strength of the unregistered „Will‟ dated 06.12.1992. But, on

verification, it is otherwise. Therefore, there is any amount of

inconsistency in the case of the petitioners and the petitioners

appear to have approached this Court with unclean hands to claim

discretionary relief in the writ petition.

The reason for disinclination to exercise discretionary

jurisdiction under Article 226 of the Constitution of India is, in

case Respondent Nos.7 to 9 succeed in their claim in O.S.No.56 of

2008 pending on the file of Additional Senior Civil Judge, Chittoor,

it would be difficult for them to recover the amount of

compensation paid to Petitioner Nos. 2 & 3. To avoid such

cumbersome procedure for recovery of the amount in the event of

Respondent Nos. 7 to 9 succeeding in the pending suit and to

protect their interest, it is difficult to exercise equitable jurisdiction

in favour of these petitioners. In view of my foregoing discussion, I

find no ground to issue writ of mandamus in favour of these

petitioners, exercising extraordinary jurisdiction under Article 226

of the Constitution of India and the writ petition is liable to be

dismissed.

MSM,J WP.No.7457 of 2018

In the result, writ petition is dismissed. However, liberty is

granted to the petitioners to approach the Civil Court i.e.

Additional Senior Civil Judge, Chittoor to request for expeditious

disposal of O.S.No.58 of 2008 pending on its file for adjudication.

On filing an application for expeditious disposal, the Additional

Senior Civil Judge, Chittoor may consider the request, since the

suit is sufficiently old (OR) otherwise approach the civil court

where the amount of compensation awarded in favour of the first

petitioner is deposited invoking Section 3H(4) of the Act, 1956 and

make appropriate application for early disposal of the claim, in

accordance with law. No costs.

Consequently, miscellaneous applications pending if any,

shall stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 08.02.2022 SP