District Collector, vs K. Ramsubba Reddy Died
2023 Latest Caselaw 5975 AP

Andhra Pradesh High Court - Amravati

District Collector, vs K. Ramsubba Reddy Died on 11 December, 2023

   IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
                           &
       HON'BLE MR. JUSTICE T. MALLIKARJUNA RAO

                  WRIT APPEAL No.822 of 2023


District Collector,
Kadapa District at Kadapa; and two others.
                                                      ... Appellants

                 Vs.

K.Ramsubba Reddy (Died) for LRs 2 to 8,
S/o. Subba Reddy, Business,
R/o. Medameedipalli Village, Proddatur Town,
Kadapa District; and eight others.
                                                    ... Respondents

Counsel for the Appellants : Government Pleader for Land Acquisition

Counsel for the Respondents : Mr. C. Prakash Reddy - R1 to R5

Mr. M. R. S. Srinivas - R6 to R8

Mr. J. Ugra Narasimha - R9

Dt.: 11.12.2023

PER DHIRAJ SINGH THAKUR, CJ:

The present appeal filed under Clause 15 of the Letters Patent

has been preferred against the judgment and order, dated

07.12.2022, passed in W.P.No.7650 of 2009 whereby the writ

2 HCJ & TMR, J

petition was allowed and the Award No.11, dated 14.02.2002 was

set aside so far as it related to the land of the petitioner measuring

three acres and thirty one cents primarily on the ground that the

respondents had failed to serve a notice upon the petitioner under

Section (9) of the Land Acquisition Act, 1894.

2. Briefly stated, the material facts are that land measuring

three acres and twelve cents situate in Sy.No.497, Kothapalli

Village was purchased by the petitioner, K.Rama Subba Reddy in

the year 1974. The said land was sought to be acquired for purposes

of expansion of an industrial estate and to that effect, a notification

under Section 4(1) under the Land Acquisition Act, 1894, (in short,

"the Act, 1894") was issued on 16.07.1999 and a declaration under

Section 6(1) under the 1894 Act was issued on 15.01.2002. Finally,

an Award was passed on 14.02.2002. A writ petition came to be

filed by the petitioner in the year 2009, wherein the acquisition

proceedings as also the Award No.11, dated 14.02.2002, was

challenged primarily on the ground that notice in terms of Section 9

of the 1894 Act had not been served.

3. The petitioner in paragraph No.10 of the writ petition

specifically claimed that he had all along been in possession of the 3 HCJ & TMR, J

property in question notwithstanding the fact that the Award was

passed by the respondent No.2. In the writ petition, it was stated

that respondent Nos.4 & 5, i.e., the Andhra Pradesh Industrial

Infrastructure Corporation, had never tried to interfere with his

possession and enjoyment over the subject land notwithstanding

the fact that they claimed that the possession had been handed over

to them in the year 2009 itself.

3.1. Cause of action was claimed by the petitioner to have accrued

in the month of January, 2009, when respondent Nos.4 & 5 are

stated to have interfered with the rights of the petitioner over the

land in question on the premise that they had already been given

possession of the same by respondent No.2 i.e. the Land Acquisition

Officer and Revenue Divisional Officer, Jammalamadugu, Kadapa

District. It is then the petitioner claims that he got knowledge that

the entire acquisition proceedings had been initiated in the names

of C.Subbaramaiah, T.Subbarayudu, K.Konda Reddy and

K.Maabhoomia and passed an Award on their names, even though,

the petitioner was the absolute owner and in possession of the land

in question.

4 HCJ & TMR, J

4. In reply to paragraph No.10, the official respondents stated

that the possession of the land was taken and given to the

Requisitioning Department i.e., the APIIC Limited on 14.03.2002,

after passing of the Award and further that the Requisitioning

Department had not taken up any works on the acquired lands due

to the pendency of several cases on account of the same Award

before the High Court. With regard to the factum of payment, the

reply affidavit stated that payments had not been made to anybody,

as the Awardees had not appeared before the Land Acquisition

Officer during the Award enquiry proceedings and that the

compensation amount of Rs.18,47,061/- had been deposited in the

Government account vide Challan No.151, dated 11.05.2002.

5. The reply affidavit and in particular the reply to paragraph

No.4 of the petition stated that after taking 'possession' of the land

by the Requisitioning Department, they had developed the land for

formation of roads for expansion of the Industrial Estate and that

the land in question was no longer with the petitioner.

6. The learned single Judge, upon a perusal of the relevant

record including the copies of the notification issued under Section

4 (1) of the 1894 Act and the declaration under Section 6 (1) of the 5 HCJ & TMR, J

1894 Act, found that in the notification under Section 4 (1)

published in Andhra Prabha on 24.06.1999, for land in

Sy.No.479/1B, the pattadar reflected was K.Konda Reddy and the

person in enjoyment of the said property was reflected as

K.Ramsubba Reddy (the writ petitioner). The Gazette notification

also reflected the name of the person in enjoyment as K.Ramsubba

Reddy, while the subsequent notices under Sections 9 & 10 of the

Act referred to the name as K.Konda Reddy only.

7. It was in the aforementioned backdrop, the learned single

Judge held that the notice under Section 9 (1) of the Act, having

not been served on the petitioner, was fatal to the acquisition

proceedings. A finding was also recorded that the petitioner's

assertion of being in possession even in 2009, had not been denied

in the counter-affidavit.

8. Reference was also made to the Award dated 14.02.2002, in

which the name of K.Konda Reddy figures, however, learned single

Judge recorded the submissions of the respondents that since the

requisition was urgent, it was decided to proceed as per the names

of pattadars in the records and that in future the payment would be

made either to the pattadars, their legal heirs/successors or the 6 HCJ & TMR, J

rightful owners after a thorough check of the title and eligibility.

Finally, the learned single Judge proceeded to quash the Award

No.11, dated 14.02.2002, insofar as the land belonging to the

petitioner admeasuring three acres and thirty one cents in

Sy.No.497/1B, while granting liberty to the official respondents to

pass a fresh Award if they still needed the land, by following the

provisions of the New Land Acquisition Act, 2013. A further

direction was issued restraining the respondents from disturbing

the possession of the petitioner over the land in question.

9. Learned counsel for the appellant urged that the view

expressed by the learned Single Judge by placing overwhelming

reliance upon provisions of Section 9(1) of the 1894 Act as

mandatory, was totally misplaced. Reliance, in this regard, was

placed upon May George Vs. Special Tahsildar and Others1,

wherein, it held:

"14. Section 9 of the Act provides for an opportunity to the "person interested" to file a claim petition with documentary evidence for determining the market value of the land and in case a person does not file a claim under Section 9 even after receiving the notice, he still has a right to make an application for making a reference under Section 18 of the Act. Therefore, the scheme of the

1 (2010) 13 SCC 98 7 HCJ & TMR, J

Act is such that it does not cause any prejudicial consequence in case the notice under Section 9(3) is not served upon the person interested.

28. In fact, the land vests in the State free from all encumbrances when possession is taken under Section 16 of the Act. Once land is vested in the State, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that Section 9 notice had not been served upon the person interested, he could still claim the compensation and ask for making the reference under Section 18 of the Act. There is nothing in the Act to show that non-compliance therewith will be fatal or visit any penalty."

10. In view of the clear position of law as enunciated by the

Hon'ble Supreme Court in the aforementioned judgment, we are of

the opinion that failure of the official respondents to serve a notice

under Section 9 of the Act, 1894, would not at all be fatal to the land

acquisition proceedings and therefore did not warrant the setting

aside of such proceedings or the Award, dated 14.02.2002, by the

learned Single Judge on that ground.

10.1 Be that as it may, although no reference had been made

to Section 24(2) of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013 (in short, "the 2013 Act") by the writ Court in the

Judgment and Order impugned, yet considering the statement 8 HCJ & TMR, J

made by the learned counsel for the petitioners that not only were

they still retaining the possession till date but further that even the

compensation had not been paid not only to the petitioners but all

other land holders as per the Award passed, directions were issued

to the respondents on 28.08.2023 to file an affidavit reflecting the

manner in which the possession was taken by the authorities. They

were also directed to file the requisite documents along with the

affidavit. The affidavit was further required to state as to whether

the Awarded compensation was paid to the petitioners or for that

matter whether payment was made to any of the Awardees whose

names were figuring in that Award.

11. It is pertinent to mention that Section 24(2) of the 2013 Act

inter alia envisages that in case land acquisition proceedings had

been initiated under the 1894 Act, where an Award under the said

Section 11 has been made 5 years or more prior to the

commencement of the 2013 Act but the physical possession of the

land has not been taken or the compensation has not been paid, the

said proceedings shall be deemed to have lapsed and the State

Government, if it so chooses, shall initiate the proceedings of such

land acquisition afresh in accordance with the provisions of the

2013 Act.

9 HCJ & TMR, J

12. The provisions of Section 24 of the 2013 Act were lucidly

explained by the Apex Court in the case of Indore Development

Authority Vs. Manoharlal and Others2, wherein the Constitution

Bench held that there would be no lapse of the acquisition

proceedings if one of the conditions envisaged under Section 24(2)

of the 2013 Act remain unfulfilled. In paragraph 366.3, it was held:

".......In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken, then there is no lapse."

12.1 Insofar as the expression "paid" in the main part of the

Section 24(2) of the 2013 Act is concerned, it was clearly held:

"366.4. The expression "paid" in the main part of Section

24(2) of the 2013 Act does not include a deposit of compensation

in court. The consequence of non-deposit is provided in the proviso

to Section 24(2) in case it has not been deposited with respect to

majority of landholdings then all beneficiaries (landowners) as on

the date of notification for land acquisition under Section 4 of the

1894 Act shall be entitled to compensation in accordance with the

provisions of the 2013 Act. ........"

2 (2020) 8 SCC 129 10 HCJ & TMR, J

"366.5. In case a person has been tendered the

compensation as provided under Section 31(1) of the 1894 Act, it

is not open to him to claim that acquisition has lapsed under

Section 24(2) due to non-payment or non-deposit of compensation

in court. The obligation to pay is complete by tendering the amount

under Section 31(1). The landowners who had refused to accept

compensation or who sought reference for higher compensation,

cannot claim that the acquisition proceedings had lapsed under

Section 24(2) of the 2013 Act."

13. An affidavit then was filed by the Revenue Divisional Officer

of Kadapa District dealing with the issues of both taking over of the

possession as also payment of compensation. What is stated in the

affidavit is as reflected hereunder:

"I humbly submit the Land Acquisition proceedings was

initiated for expansion of Industrial Estate, to an extent of

Ac.27.69cts and to that effect 4(1) Notification was issued on

16.07.1999 and 6(1) Declaration was also issued on 17.07.1999,

thereafter 9(1) 9(3) notices were also issued on 15.01.2002 and

Award was passed on 14.02.2002. The land was already handed

over to the Assistant General Manager, APIIC Ltd., Kadapa on

27.02.2002 immediately after passing the Award under Land

Acquisition Act, 1894. I further submit that, on 11.05.2002 the

amount of compensation also deposited into treasury."

11 HCJ & TMR, J

"Hence, I therefore submit that before filing the writ petition

itself the possession was already taken and handed over to the

Requisition body APIIC and inturn alienated to the 3rd parties who

are now under the control and possession of the same with the

respective Industries. Regarding compensation is concern as per

the Judgment of the Indore Development Authority (Point 366.9)

payment of compensation which has been deposited in the

Treasury is also a valid, and if any such deposit will not vitiate the

Land Acquisition Proceedings under 1894 Act. But the Hon'ble

Learned Judge did not consider the same and no reason has been

assigned regarding applicability of Section 24(2) of Act 30 of

2013."

14. On a perusal of the affidavit filed by the official respondents, it

can thus be seen that apart from stating that the entire Awarded

amount had been deposited in the Government Treasury, it has

nowhere been asserted that the amount had been tendered for

payment to the petitioner or majority of claimants under the

Award.

15. The payment would be deemed to have been paid in terms of

Section 24(2) of the Act of 2013 only if the payment had been

tendered in terms of Section 31(1) of the 1894 Act to the land

owners including the petitioner, in which eventuality alone, the 12 HCJ & TMR, J

petitioner could have been prevented from claiming that the

acquisition proceedings had lapsed under Section 24(2) of the 2013

Act as has been held in paragraph No.366.5 of the judgment

reproduced hereinabove. It can thus be held that the deposit of the

compensation in the Government Treasury would not amount to

payment of compensation in the spirit of Section 24(2) of the 2013

Act.

16. The second aspect that requires to be considered is whether

the petitioners are in possession and if not, whether the mode of

taking possession under the 1894 Act, as contemplated under

Section 24(2) of the 2013 Act, was by drawing of inquest

reports/memorandum or not. Inasmuch as once an Award has been

passed and possession taken over, land vests in the State and there

cannot be any divesting of land as envisaged under Section 24(2) of

the 2013 Act. Once possession has been taken, then there is no

lapse under Section 24(2) of the 2013 Act as has been held in

paragraph No.366.7 of the Indore Development Authority case

(supra), which states thus:

"The mode of taking possession under the 1894 Act and as

contemplated under Section 24(2) is by drawing of inquest report/

memorandum. Once Award has been passed on taking possession 13 HCJ & TMR, J

under Section 16 of the 1894 Act, the land vests in State there is

no divesting provided under Section 24(2) of the 2013 Act, as once

possession has been taken there is no lapse under Section 24(2)."

17. However, learned counsel for the appellants relied upon the

judgment rendered by the Apex Court in Tamil Nadu Housing Board

Vs. A.Viswam3. This was a case where a notification under Section

4(1) of the Act of 1894 was issued for purposes of acquiring a large

extent of 339 acres of land for purposes of land development of the

said area and an Award was passed and while the case of the

appellant/the Tamil Nadu Housing Board was that the possession

had been taken by the Land Acquisition Officer and the possession

delivered to the appellant/Tamil Nadu Housing Board, the case of

the respondent, who was an owner of the land measuring one acre

and thirty two cents claimed that the possession was still retained

by him.

17.1 The question before the Apex Court was whether the

possession of the land was taken from the respondent or not. The

Land Acquisition Officer, however, had not been impleaded as a

party to the proceedings. But there were documents to show that

the Land Acquisition Officer had delivered possession to the Tamil

3 (1996) 8 SCC 259 14 HCJ & TMR, J

Nadu Housing Board. The Apex Court noticed the judgment

rendered by the Apex Court in Balwant Narayan Bhagde Vs.

M.D.Bhagwat4. What was stated therein is as under:

"8. ....

There can be no question of taking 'symbolical' possession in

the sense understood by judicial decisions under the Code of Civil

Procedure. Nor would possession merely on paper be enough. What

the Act contemplates as a necessary condition of vesting of the

land in the Government is the taking of actual possession of the

land. How such possession may be taken would depend on the

nature of the land. Such possession would have to be taken as the

nature of the land admits of. There can be no hard and fast rule

laying down what act would be sufficient to constitute taking of

possession of land. We should not, therefore, be taken as laying

down an absolute and inviolable rule that merely going on the spot

and making a declaration by beat of drum or otherwise would be

sufficient to constitute taking of possession of land in every case.

But here, in our opinion, since the land was lying fallow and there

was no crop on it at the material time, the act of the Tehsildar in

going on the spot and inspecting the land for the purpose of

determining what part was waste and arable and should, therefore,

be taken possession of and determining its extent, was sufficient to

constitute taking of possession. It appears that the appellant was

not present when this was done by the Tehsildar, but the presence

(1976) 1 SCC 700

15 HCJ & TMR, J

of the owner or the occupant of the land is not necessary to

effectuate the taking of possession. It is also not strictly necessary

as a matter of legal requirement that notice should be given to the

owner or the occupant of the land that possession would be taken

at a particular time, though it may be desirable where possible, to

give such notice before possession is taken by the authorities, as

that would eliminate the possibility of any fraudulent or collusive

transaction of taking of mere paper possession, without the

occupant or the owner ever coming to know of it."

18. It was in the backdrop of the aforementioned judgment that

the Court noticed from the record that a letter had been written by

the respondent himself admitting the title of the Board to the land

in the said survey number and sought allotment of an alternate site.

It was presumed that unless possession was taken and the

respondent divested of the title, he could not have made a request

to the appellant for providing him alternate site. It was also held

that it was not the respondents' case that he was still continuing to

have title to the land in dispute. It was in those circumstances held

that the possession must have been taken for the land consisting of

339 acres including 1.33 acres claimed by the said respondent.

What weighed with the Court was also the fact that when land was

acquired for land development of a city and a large chunk of 16 HCJ & TMR, J

buildings had already been built up, it could not be possible for the

Housing Board, without delivery of possession to the Housing Board

to construct such massive constructions and leave out only that

part of the land which belonged to the respondent in the said appeal

and that making of a plan would follow only after the land was

taken possession of and that it would be erroneous to believe that

possession still remained with the respondent.

19. Learned counsel for the appellants sought to emphasize that

even in the present case, there was no reason as to why an

exception would be made in regard to the land belonging to the

petitioner, when possession of other contiguous lands was taken

and handed over to the Requisitioning Authority.

20. However, in our opinion, the facts of the case before the Court

were quite different from the one which we are confronted with in

the present Letters Patent Appeal. In the case supra, the Land

Acquisition Officer was not a party to the proceedings before the

Apex Court and a presumption was drawn based upon the

communication addressed by the Land Acquisition Authority

handing over possession to the Housing Board that actual

possession would have been taken, coupled with the fact that 17 HCJ & TMR, J

construction would be possible only after possession was taken and

plans were prepared for the planned development of a city.

21. However, in the present case, the Land Acquisition Officer is

also a party respondent before us, who has filed an affidavit

pursuant to the orders passed on 28.08.2023. In the affidavit,

nothing is stated in regard to manner of taking possession except a

general statement that possession had already been taken and

handed over to the requisitioning body i.e. APIIC, who in turn, had

alienated the land to third parties, who are now under control and

possession of the same. It is, therefore, clear that the averment

made in the affidavit is vague and general. Apart from this, the

respondents have not placed on record any document which would

show that there was any memorandum or Panchanama prepared

by Land Acquisition Officer in the presence of witnesses which

would constitute in law, the taking over of the possession of the

land in question.

22. Having considered the matter, in our opinion, the appellants

have neither proved the actual taking over of the possession of the

land belonging to the respondent nor have they been in a position to 18 HCJ & TMR, J

prove that the compensation was ever tendered for payment to the

petitioner/respondent herein.

23. Be that as it may, we hold that the acquisition proceedings

initiated pursuant to notification dated 16.07.1999 issued under

Section 4(1) of the Act leading to the passing of the Award No.11,

dated 14.02.2002 had lapsed to the extent of the land measuring

three acres and thirty one cents situate in Sy.No.497/13, Kothapalli

Village, Proddatur Town, Kadapa District, and was rightly set aside

by the learned Single Judge. We, however, grant liberty to the

appellants to initiate the process of acquisition afresh under the

provisions of the 2013 Act, if need be.

24. For the reasons aforementioned, the present appeal is found

to be without merit and is, accordingly, dismissed. No costs.

Pending miscellaneous applications, if any, shall stand closed.

DHIRAJ SINGH THAKUR, CJ T. MALLIKARJUNA RAO, J kbs 19 HCJ & TMR, J

HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE & HON'BLE MR. JUSTICE T. MALLIKARJUNA RAO

(per Dhiraj Singh Thakur, CJ)

Dt: 11.12.2023

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