Andhra Pradesh High Court - Amravati

Brig. Bollina Venkatrao, vs State Of Andhra Pradesh, Rep. By ... on 8 May, 2023

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                                                                      W.P.No.26571 of 2013
                                                                                      VS,J




           HONOURABLE SMT. JUSTICE V. SUJATHA

               WRIT PETITION No.26571 of 2013

ORDER:

The present writ petition came to be filed under Article 226

of the Constitution of India seeking the following relief:

"...to issue an order, direction or writ more particularly in the nature of Writ of Mandamus declaring the action of the respondent authorities in (a) in publishing a notification No.E-

auction/MSTC/APRSCL/EO/2013, dated 24.08.2013, calling for e-tenders to sell the land in an extent of Ac.20.08 cents, (b) not re-conveying the land in an extent of Ac.3.08 cents in Sy.No.730/2B of Tanuku fields, West Godavari District, in favour of the petitioner, as arbitrary, illegal, null and void and opposed to public policy against the principles of natural justice and violative of Article 300A of Constitution of India and consequently direct the 2nd respondent authority to re- convey the land in an extent of Ac.3.08 cents in Sy.No.730/2B of Tanuku fields, West Godavari District..."

2. The petitioner is the absolute owner and possessor of

agricultural land admeasuring an extent of Ac.3.08 cents in

Sy.No.730/2B of Tanuku, West Godavari District. The

Government of Andhra Pradesh has acquired the said land along

with some other lands for the purpose of construction of houses

under Rajiv Swagruha Scheme of the 2nd respondent corporation,

for the purpose of providing houses for the public. Thereafter, the

land acquisition officer passed an award No.1 of 2009, dated

W.P.No.26571 of 2013 VS,J

18.02.2009, acquiring an extent of Ac.20.08 cents which includes

the petitioner's land and thereafter, compensation was also paid

to the petitioner.

3. While the matter being so, in the month of January

2013, the petitioner came to know that the said land acquired by

the 2nd respondent corporation through the 3rd respondent has

not been utilized for the purpose for which it has been acquired.

Thereupon, the petitioner, along with other land owners have

submitted a representation to the respondent authorities

including the concerned Hon'ble Minister, requesting to re-convey

the land as they are ready to re-pay the compensation received by

them. Pending the said writ petition by the petitioner, including

the land owners, the respondent authorities have issued

notification dated 24.08.2013, calling for tenders for the sale of

the subject land through e-tenders, which were acquired under

the Award No.1 of 2009, challenging which the present writ

petition is filed, with a request to direct the 2nd respondent

authority to re-convey the land in an extent of Ac.3.08 cents on

repayment of compensation received by the petitioner as per

Section 101 of the Right to Fair Compensation and Transparency

in Land Acquisition and Rehabilitation and Resettlement Act,

2013, which reads as follows:

W.P.No.26571 of 2013 VS,J

"101. Return of unutilized land: When any land acquired under this Act remains unutilized for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government.

Explanation: For the purpose of this section, "Land Bank" means a governmental entity that focuses on the conversion of Government owned vacant, abandoned, unutilized acquired lands and tax-delinquent properties into productive use."

4. When the writ petition came up for admission on

12.09.2013, this Court was pleased to pass the following interim

order:

"While I see no reason to interdict the auction, the subject lands shall not be delivered to the auction purchaser until further orders."

5. The respondents have filed a counter affidavit

including vacate stay petition, admitting the fact regarding

passing of the award dated 18.02.2009 and have further stated

that as the compensation was duly paid in the proceedings

already culminated into a Award under the provisions of the Land

Acquisition Act under Section 11(2) of the Act, the writ petition is

not maintainable. The subject property cannot be re-conveyed to

the petitioner as the respondent corporation would suffer

irreparable loss and injury as funds are required to augment of

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the other on-going projects. As such, the respondent has taken a

considered decision, on the directions of the Government to

develop certain projects, complete certain un-finished projects,

develop certain projects into plots and sell and alienate the land.

6. The counter affidavit further states that there are

several projects in this nature and it would be virtually

impossible for the respondent corporation to generate the

requested funds to carry on the projects and the respondents

would particularly suffer more projects where the projects are

already started, but, could not be finished for want of specific

funds. The counter also states that the amendments to the Land

Acquisition Act would not apply to the instant acquisition in so

far as the award was passed in the year 2009.

7. The learned counsel for the petitioner had stated that

as per Section 101 of The Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013, which deals with Return of unutilized

land, reads as follows:

"101. Return of unutilized land: When any land acquired under this Act remains unutilized for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate

W.P.No.26571 of 2013 VS,J

Government by reversion in the manner as may be prescribed by the appropriate Government.

Explanation: For the purpose of this section, "Land Bank" means a governmental entity that focuses on the conversion of Government owned vacant, abandoned, unutilized acquired lands and tax-delinquent properties into productive use."

8. The respondents have further stated that the claim in

the present writ petition is only with regard to an extent of

Ac.3.08 cents. But, however, the owners of the remaining extent

of land i.e., Ac.17.00 cents in the same notification dated

29.11.2013 have filed a writ petition No.26204 of 2013, wherein,

this Court was pleased to grant an interim order as in the present

writ petition. But, thereafter, in the year 2017, i.e., on

17.03.2017, the counsel for the petitioner therein sought

permission to withdraw the writ petition. Subsequently, the writ

petition was dismissed as withdrawn on 17.03.2017 and

requested this Court to close this present writ petition also as the

relief sough in the present writ petition is similar to that in

W.P.No.26204 of 2013.

9. The learned counsel for the petitioner relied upon a

judgment reported in (2022) 4 Supreme Court Cases 728,

wherein, under similar circumstances, the Hon'ble Supreme

Court has observed as follows:

W.P.No.26571 of 2013 VS,J

"10. Thus understood, there is no reason to assume that the landowners cannot request the State Government to consider such representation inviting a decision of the State, within the realm of Section 101-A of the 2013 Act. This provision is certainly not in the nature of giving a vested right to the landowners regarding de-notification of the acquired land nor does it follow that upon denotification, the lands, in question must return to the erstwhile owners only. It will be open to the State Government to denotify the acquired land on such terms and conditions as may be expedient, in public interest. Thus, the provision empowers the State to denotify the lands acquired under the 1894 Act.

11. Viewed thus, the conclusion of the Division Bench in the impugned order, that the land owners cannot be allowed to approach the State Government to exercise its power under Section 101A of the 2013 Act, may not be an accurate statement of law and needs to be understood in the above terms.

12. Accordingly, we set aside the impugned judgment. We make it clear that the writ petitioners - land owners may approach the State Government in reference to Section 101A of the 2013 Act, which representation can be considered by the State Government (State of Haryana) on its own merits; keeping in mind the constricted power given to the State Government to denotify the acquired land if it becomes unviable or non-essential, in public interest and to do so on such terms as may be considered expedient.

13. The fact that the land owners have already constructed some structures on the acquired land, which has vested in the State Government, by itself can be no reason to denotify the acquired land. It can be done only if the State Government is fully satisfied that the land has become unviable or non- essential for the purpose of development and in particular for reason for which it was so acquired."

W.P.No.26571 of 2013 VS,J

10. In contra, the learned counsel appearing for the

respondents had relied upon a judgment in (2020) 8 Supreme

Court Cases 129, between Indore Development Authority Vs.

Manoharlal and Others, wherein the Hon'ble Supreme Court,

under similar circumstances, held as follows:

"116. It is apparent from a plain reading of Section 16 (of the 1894 Act) that the land vests in the Government absolutely when possession is taken after the award is passed. Clearly, there can be lapse of proceedings under the 1894 Act only when possession is not taken. The provisions in Section 11-A of the 1894 Act states that the Collector shall make an award within a period of two years from the date of the publication of the declaration under Section 6 and if no award is made within two years, the entire proceedings for acquisition of the land shall lapse. The period of two years excludes any period during which interim order granted by the Court was in operation. Once an award is made and possession is taken, by virtue of Section 16, land vests absolutely in the State, free from all encumbrances. Vesting of land is automatic on the happening of the two exigencies of passing award and taking possession, as provided in Section 16. Once possession is taken under Section 16 of the 1894 Act, the owner of the land loses title to it, and the Government becomes the absolute owner of the land."

11. The above principle was also followed by this Court in

a judgment in 2021 SCC OnLine AP 4191, between Madar Khan

gari shag Khan Vs. State of Andhra Pradesh, wherein this

Court has held as follows:

W.P.No.26571 of 2013 VS,J

"22. In view of the law declared by the Apex Court, more particularly, in the conclusion extracted in the judgment referred above, it is clear that Section 101 of Act No.30 of 2013 has no application to the land acquired under Act No.1 of 1894. But, if it is lapsed on account of Section 24(2) of Act No.30 of 2013, Section 101 can be invoked and the land can be returned to the land holder, though advance possession was taken. But, in the instant case, question of lapsing does not arise, as the Award was passed and reference under Section 18 was made and enhanced compensation was paid. Therefore, the provisions of Act No.30 of 2013 have no application to the present facts of the case, since the land acquisition proceedings were not lapsed in terms of Section 24(2) of Act No.30 of 2013."

12. Further, the learned counsel appearing for the

respondents has relied upon a judgment in Vijaypal V. State of

Uttar Pradesh and as well as in Leelawanti V. State of

Haryana, wherein the Court held as follows:

"19. If Para 493 is read in the manner suggested by the learned counsel for the appellants then in all the cases the acquired land will have to be returned to the owners irrespective of the time gap between the date of acquisition and the date on which the purpose of acquisition specified in Section 4 is achieved and the Government will not be free to use the acquired land for any other public purpose. Such an interpretation would also be contrary to the language of Section 16 of the Act, in terms of which the acquired land vests in the State Government free from all encumbrances and the law laid down by this Court that the lands acquired for a particular public purpose can be utilized for any other public purpose.

W.P.No.26571 of 2013 VS,J

22. The approach adopted by the High Court is consistent with the law laid down by this Court in State of Kerala v. M.

Bhaskaran Pillai, (1997) 5 SCC 432 and Govt. of A.P. V. Syed Akbar, (2005) 1 SCC 558. In the first of these cases, the Court considered the validity of an executive order passed by the Government for assignment of land to the erstwhile owners and observed:

"4. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, LA by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilized for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only thorough the public auctions so that the public also gets benefited by getting a higher value.

24. For the reasons stated above, we hold that the appellants have failed to make out a case for issue of a mandamus to the respondents to release the acquired land in their favour. In the result, the appeal is dismissed without any order as to costs"

W.P.No.26571 of 2013 VS,J

13. For better understanding of the case, this Court feels

it relevant to refer to Section 16, of the Land Acquistion Act,

1894, which reads as follows:

"16 Power to take possession. --When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances."

14. From the above, it appears that the land has been

acquired by the Government of Andhra Pradesh vide the award

passed by the land acquisition officer dated 18.02.2009.

Thereafter, in the year 2013, the Right to Fair Compensation and

Transparency in Land Acquisition and Rehabilitation and

Resettlement Act came into existence i.e., the year in which the

petitioner has filed the present writ petition. On a perusal of the

affidavit, it appears that the land has been acquired in the year

2009 i.e., the year in which the Land Acquisition Act, 1894 is in

existence but not the Right to Fair Compensation and

Transparency in Land Acquisition and Rehabilitation and

Resettlement Act, 2013.

15. In view of the facts and circumstances stated above,

this Court feels it appropriate to dismiss the present writ petition

as it would be contrary to the language of Section 16 of the Act,