Konduru Roasamma, Kadapa Dist vs Prl Secy, Irrigation Cad Dept., ...
2022 Latest Caselaw 3037 AP

     HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
              WRIT PETITION No.38727 of 2017
ORDER:

This Writ Petition is filed by the petitioner herein seeking

a Mandamus while questioning the inaction of the respondents

in making payment / compensation for the land in an extent of

Ac.0-19 cents, situated in Sy.No.25/20B of Rangampalli

village, Atlur Mandal, YSR Kadapa District and for the 11 sweet

orange trees existing in the said land along with interest at the

rate of 9% and 15% p.a. for the first year and second year

respectively till the realization of the amount from the date of

taking advance possession.

This Court has heard Sri Ch. Krishna Reddy, learned

counsel for the petitioner and the learned Government Pleader

for Land Acquisition appearing for the respondents.

After hearing the learned counsel for the petitioner this

Court notices that there is no essential dispute between the

parties about the extent of the land or the ownership of the

petitioner.

The essential issues that arise in this case are:-

a) Whether the said land contained the sweet orange

trees?

b) Whether the advance possession of the land was

taken in August, 1994?

c) Whether the delay in fling the writ would defeat the

rights of the parties?

Sri Ch. Krishna Reddy, learned counsel for the petitioner

argues in line with what is stated in the Writ affidavit and

submits that the Section 4 (1) Notification was published under

Land Acquisition Act, 1894 on 12.08.1991 and a Draft

Declaration was published in the Gazette in January, 1992. It

is mentioned that there are sweet orange trees existing in the

land of the petitioner. Initially, he states the land was proposed

to be acquired in 1991 but ultimately it transpires that an

extent of the land measuring Ac.0-19 cents in Sy.No.25/20B

along with 11 sweet orange trees was excluded. Later this land

was acquired under an Award dated 31.10.2016 but the trees

were excluded from the calculation. Learned counsel for the

petitioner argues that the exclusion of the trees in the

subsequent Award dated 31.10.2016 is totally incorrect. He

relies upon the Award dated 24.01.1994 which contains a draft

declaration which shows that the land was registered in the

name of petitioner's husband and it contained 11 sweet orange

trees. Therefore, it is the contention of the learned counsel for

the petitioner that the trees are in existence. He also points

out that the existence of the trees is admitted in the counter at

more than one place. Lastly, it is submitted that the second

round of inspections, (which are relied upon by the

Respondent-State), were done behind back of the petitioner

and that the State cannot rely upon the same. He also submits

that the land is submerged in the backwaters and the

contentions being urged by the respondents that there are no

fruit bearing trees is incorrect. Therefore, he submits that the

petitioner is entitled for relief.

As far as the issue of possession is concerned, learned

counsel for the petitioner points out that advance possession

of land was taken over on 03.08.1994 itself. It is specifically

averred in his petition that the classification of the land was

also changed in the revenue records as 'Irrigation Department

poramboke land'. Learned counsel therefore, submits that this

change in the revenue records clearly proves that advance

possession of the land was taken over prior to the 2nd Award of

the year 2016. He relies upon the fact that in the initial

Notification mentioned the petitioner's land and that the land

was excluded from the 1st Award and included in the 2nd Award

of 2016. Therefore, learned counsel for the petitioner argues

that possession, which was taken over prior to the first Award

of 1994, is still with the respondent and therefore the petitioner

is entitled to interest etc., as claimed for.

In reply to this, learned Government Pleader for Land

Acquisition argues that there are no fruit bearing trees at all in

the land. He points out that inspections were carried out prior

to the finalization of the 2nd Award which reveal that there are

no fruit bearing trees in the property at all. A joint inspection

report dated 23.11.2011 is relied upon by the learned

Government Pleader. It is also stated that subsequent

inspection took place in 2015, which also did not disclose the

existence of trees. Therefore, learned Government Pleader

argues that fruit bearing trees are not in the property at all.

With regard to possession he argues that in the counter

affidavit the State has set out in detail about the procedure for

taking over possession and that it is asserted more than once

that the State did not take over the possession of the property,

much less on 03.08.1994. He points out that the petitioner did

not file any document to show that possession was actually

taken over on 03.08.1994. It is also urged that even if some

entries are made wrongly in revenue records as 'irrigation

poramboke' they do not lead to a conclusion that possession of

the land was taken over on 03.08.1994. He also argues that

the detailed counter affidavit and its averments with regard to

possession aspect has not been denied with clarity in the

rejoinder affidavit that is filed. Learned Government Pleader

also submits that both these issues viz., taking over of physical

possession and the existence of trees are questions of facts

which cannot be decided in a proceeding under Article 226 of

the Constitution of India. Therefore, he submits that both the

writ petitions should be dismissed.

COURT:

As far as the trees are concerned this Court notices that

the petitioner has urged that there are 11 sweet orange trees in

the property. A reading of the counter affidavit makes it very

clear that at more than one place the respondent has clearly

pleaded about the trees. In fact, page No.2 of the counter it is

clearly mentioned that initially Ac.156.08 cents was proposed

to be acquired including "petitioner's land and trees". In the

same paragraph it is later asserted that Award No.5 dated

24.01.1994 was passed leaving the "petitioner's land and

trees". However, in the later part of the counter also it is clearly

urged that the Government has not taken possession of the

land and trees, but in the other part of the counter and in reply

to para-7 it is clearly mentioned that the joint inspection was

carried out on 23.11.2011 and no trees were found in the land.

Similarly, an inspection was also carried out on 29.06.2015

before submission of the preliminary notification and no trees

were found in the land. Thus, the counter confuses the issue

about the existence or non-existence of the trees. It is also a

fact that in the preliminary notification dated 29.06.2015 these

trees were not included and objections were filed by the

petitioner. In the rejoinder, the petitioner is also raised an

interesting issue about the subsequent inspections stating that

the land was fully submerged by them and it is impossible for

the respondents to come to a conclusion about the existence or

non-existence of the trees. Therefore, a serious doubt is raised

about the two inspections, which are referred to in the

respondent's counter. Admittedly, in these inspections the

petitioner was not party also. Therefore, this appears to be an

afterthought. An admission in the course of pleading more so

in a Writ Petition deserves greater weight and hence the State

cannot deny about the existence of trees now.

The other issue is about the advance possession being

taken. The petitioner states that possession was taken on

03.08.1994 as mentioned in the Writ affidavit. This date is very

strongly denied by the respondents. The available documents

do not show that possession was actually taken on this specific

date i.e. 03.08.1994. Taking over of possession is normally

borne out by the record like the panchnama etc. No

documentary proof is filed in this case to support the

contention that possession was taken over on 03.08.1994. The

petitioner relies upon the change in the classification of the

land as 'irrigation department poramboke land'. The procedure

for taking over possession of the land and for making changes

has however been described in detail in the counter filed by the

State. This aspect of the procedure has not been denied with

clarify in the rejoinder. This shows that the procedure for

taking over possession is a long procedure. In the counter

affidavit as mentioned earlier it denied at more than one place

that advance possession of land was taken over. This aspect is

not denied in the rejoinder that is filed. in these circumstances

this Court cannot conclude that advance possession was taken

on 03.08.1994.

The last issue raised is about the delay, learned

Government Pleader for Land Acquisition argues that the Writ

Petition is filed with a lot of delay. This Court is of the opinion

that in view of the settled law on the subject including the

judgment of the Hon'ble Supreme Court of India in Tukaram

Kana Joshi and Others v Maharashtra Industrial

Development Corporation and others1 mere fact that there

is a delay in a case like this cannot be a sole ground to throw

out the entire matter. The petitioner has raised protests in

2015 and 2016 when the property was acquired and the Writ

Petition was filed in 2017. Therefore, it cannot be said that

there is inordinate delay. Admittedly, the land was excluded in

the first acquisition and acquired in the second acquisition

only. Hence, this Court holds that there is no delay to dismiss

the writ petition.

On the question of fact whether there are sweet orange

trees etc., this Court has to agree with the submission made by

the petitioner. If the petitioner was dissatisfied with the

payment of compensation, it's calculation or the value to be

attached to the trees etc., she should have sought reference

and file an appropriate application questioning the award

amount etc., as per the Act 30 of 2013. The principle laid by

the Division Bench in W.A.No.334 and 335 of 2021 clearly

comes to the aid of the respondent-State.

The petitioner who had an option of effective alternative

remedy did not take steps to seek reference to the authority for

determination of the proper compensation. Nevertheless, as

the proviso to Section 64 gives the power to condone delay and

the Writ was filed in 2017 (against the Award of October, 2016)

the petitioner is given the liberty of filing an appropriate

2013 (2) ALD 7

application under Section 84 of the Act 30 of 2013 with a delay

condonation petition. As this is a beneficial legislation this

view is taken. In addition, an investigation into facts may also

be needed to determine the issue involved. Hence, the Writ

Petition is partially allowed with reference to the trees only.

There shall be no order as to costs.

Consequently, the Miscellaneous Applications pending,

if any, shall also stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:29.06.2022 Ssv

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

WRIT PETITION No.38727 of 2017 Date:29.03.2022 ssv