Telangana High Court

E. P. Vinay Sagar vs The Land Acquisition Officerrdo on 3 March, 2023

Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy

       THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                  AND
        THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY


                   WRIT APPEAL No.535 OF 2008

JUDGMENT: (Per the Hon'ble Sri Justice C.V.Bhaskar Reddy)

       Heard Mr. K. M. Mahender Reddy, learned counsel

for the appellants; Ms. P. Bhavana Rao, learned counsel

appearing for respondent Nos.1 and 2; Mr. Thoom

Srinivas, learned counsel appearing for respondent No.3;

and Mr. Eranki Phani Kumar, learned counsel appearing

for respondent Nos.4 and 5.

2. This writ appeal, under Clause 15 of the Letters

Patent, is directed against the order dated 08.02.2008

passed by the learned Single Judge in W.P.No.25051 of

1998, filed by appellant No.1 seeking compensation for

the acquired land admeasuring Ac.1.39 guntas in Survey

No.778/E situated at Kamareddy, Nizamabad District, so

far it went against him directing the respondents to take

the date of notification issued under Section 4(1) of the

Land Acquisition Act, 1894 (briefly "the Act of 1894"

hereinafter) i.e., 20.04.1972 as criteria for computation of

market value under Section 23 of the Act of 1894.

3. The first appellant is the writ petitioner. Since the

first appellant died during the pendency of the writ

appeal, his legal representatives were brought on record

as appellant Nos.2 to 5.

4. The brief facts leading to disposal of the writ appeal,

as summed up in the writ petition, are stated as under:-

The petitioner claims that his father was the

absolute owner of land admeasuring Ac.2.05 guntas in

Survey No.778/E situated at Kamareddy, Nizamabad

District. In the year 1971, a requisition was made by

respondent No.3/APSRTC (briefly "the Corporation",

hereinafter) for to an extent Ac.12.33 guntas in Survey

No.778/AA etc., which includes the land of the

petitioner's father to an extent of Ac.1.39 guntas forming

part of Survey No.778/E, for the purpose of construction

of bus depot and bus stand at Kamareddy. A draft

notification under Section 4(1) of the Act of 1894 was

issued on 24.01.1972 and published in the District

Gazette dated 20.04.1972. Draft declaration was

approved by the Government on 25.09.1972, published

in the District Gazette on 23.11.1972 and possession of

the land was taken on 22.03.1974 and handed over to

the Corporation. It is the case of the petitioner that the

Government had taken possession of land to an extent of

Ac.11.15 guntas, including the land of his father, in

November, 1971 without initiating land acquisition

proceedings and award was passed on 20.01.1976 to an

extent of Ac.9.16 guntas excluding the land of the

petitioner's father. It is his further case that his father

expired on 11.04.1975 and because of his occupation as

a Government employee residing at a distant place, he

was not aware of the acquisition proceedings.

Subsequently, having come to know that his land was in

illegal occupation of the respondent No.3 Corporation, he

submitted representations to respondent Nos.2 and 3 for

payment of compensation, and obtained succession

certificate from the Mandal Revenue Officer vide letter

No.A1/1135/93 dated 13.07.1994. Respondent No.2

after verification of the records and the award passed in

proceedings No.a2/4272/71 dated 20.01.1976, informed

respondent No.3 that the land in Survey No.778/E

admeasuring Ac.1.39 guntas was acquired, but since the

whereabouts of the deceased pattadar (father of the

petitioner) or his successors were not known, award was

confirmed to the extent of Ac.9.16 guntas excluding the

land of the petitioner. Thereafter, the petitioner

approached different authorities by submitting

representations requesting them to intervene in the

matter. Some correspondence between the different

functionaries of the Government ensued, but without any

fruitful results and this constrained the petitioner to file

the subject writ petition.

5. Upon receipt of notice in the writ petition, the

respondents entered their appearance and filed their

counter affidavits. In their counter affidavits the

respondents have not disputed that they are the

occupants of the subject land without paying

compensation. However, in the counter affidavit filed by

respondent No.1, it is stated that the possession of the

subject land was taken on 22.03.1974 and as successors

of the original pattadar could not be found, the land

claimed by the petitioner was excluded from the award.

It is further stated that the petitioner after lapse of 18

years has approached the Mandal Revenue Officer

claiming that his deceased father is the owner of the land

and without paying compensation, possession of the land

was taken for the purpose of respondent No.3

Corporation. In the counter affidavit filed by respondent

No.3, it is stated that as the father of the petitioner died

before passing of the award, the addresses of his legal

heirs could not be secured and award could not be

passed in respect of the land of the petitioner's father. It

is further stated that the subject land was taken

possession invoking urgency clause under Section 5-A of

the Act of 1894 dispensing with the regular enquiry and

possession thereof was taken on 22.03.1974. It is also

stated that the petitioner filed the present writ petition

with an inordinate delay of 22 years, the plea of delay

and laches was set up as defence to the claim put forth

by the petitioner. It is further stated that the petitioner is

not diligent in prosecuting his case and as the delay has

not been satisfactorily explained, the writ petition as filed

is not maintainable and the same is liable to be

dismissed on the sole ground of delay and laches.

6. Basing on the above contentions of the respective

parties, the learned Single Judge, after adverting to the

factual antecedents and after exhaustively referring to the

various provisions of the Act of 1894, recorded a finding

to the effect that the father of the petitioner was the

absolute owner of the subject land, he died before

passing of the award i.e., possession was taken on

22.03.1974, whereas petitioner's father died on

11.04.1975 and award was passed on 20.01.1976. The

learned Single Judge has referred to various

correspondence that ensued between respondent Nos.2

and 3 and stated that even before ten years prior to

institution of the writ petition, the petitioner has been

making efforts ventilating his grievances and submitted

representations to the respondents, issued legal notice

dated 28.07.1997 and respondent No.3 Corporation

having received the legal notice has not issued any reply,

as such there is no intentional unexplained delay on the

part of the petitioner in pursuing the reliefs. Basing on

the factual foundation of the facts, the learned Single

Judge observed that petitioner's property was taken over

by the respondents without sanction in law, the writ

petition cannot be thrown out on the ground of delay and

laches. Further, the learned Single Judge, after referring

to Section 6(1) of the Act of 1894 which prescribes time

limit for publication of declaration, Section 11 of the Act

of 1894 which mandates that the Collector shall make an

award within a period of two years from the date of

publication of the declaration, and the 4(1) notification

issued in the year 1972 which has not culminated into

passing of an award, held that the procedure adopted by

the respondents for taking possession of the subject land

is not permissible in law and declared the same as illegal

and strongly deprecated the action of the respondents in

taking possession.

7. In this backdrop of the case, the learned Single

Judge directed the respondents to pay compensation

towards damages for the inordinate delay in passing the

award and wrong deprival of use of property in addition

to payment of the market value of the land as on the date

of publication of Section 4(1) notification i.e., 20.04.1972.

It was also directed that for the purpose of computing the

damages, market value prevailing on 30.09.1998 shall be

taken into consideration, as there is a delay of 14 years

on the part of the petitioner in approaching the

respondents for payment of compensation.

8. The first appellant, dissatisfied with the order

passed by the learned Single Judge to the extent it

directed the respondents to compute the damages taking

into consideration the market value prevailing on

30.09.1998 instead of the date of passing of orders in the

writ petition i.e., 08.02.2008, has filed the present

appeal.

9. We have extensively considered the submissions of

the learned counsel for the parties and perused the

record.

10. We do not find existence of any disputed question of

fact much less complicated disputed questions of fact

which need determination in these proceedings. From

the specific averments made in the writ petition, which

are not disputed by the respondents and which are

supported by the revenue records appended to the writ

petition, it is evident that the first appellant's father is the

owner of the subject land. It is also not disputed by the

respondents that they are the occupants of the subject

land without payment of any compensation. There is

nothing brought on record before this Court by the

respondents that they had followed due process of law for

acquiring the subject land. Even if it is admitted that the

successors of the original owner are not traceable, the

respondents are under obligation to conclude the land

acquisition proceedings by passing award and depositing

the amount into the Court. It is admitted that the

respondents had passed an award for an extent of

Ac.9.16 guntas excluding the land of the petitioner to an

extent of Ac.1.39 guntas which is in their occupation

unauthorisedly. In view of the admitted position, we find

that the subject land claimed by the appellants is in

unauthorised occupation of the respondents from

20.04.1972 and continues to be so even as on date.

11. The unauthorised occupation of the State

Government of immovable properties of citizens gives rise

to recurring cause of action to the aggrieved persons and

the ground of delay and laches cannot come in their way

to assert their rights before the appropriate forum as held

by the Supreme Court in Vidya Devi vs. State of

Himachal Pradesh1.

12. In the present case, the grievance of the appellants

is limited to the extent of fixation of market value not as

on the date of notification but as on the date of deciding

the writ petition. Notification under Section 4(1) of the

Act of 1894 was issued in the year 1972, possession of

the land was taken in the year 1974, award was passed

in the year 1976 excluding the land of the appellants, the

writ petition came to be filed in the year 1998 i.e., after

two decades of the taking over of possession of land by

respondent No.3 Corporation. Even though there is some

correspondence which shows that the first appellant

made his efforts to ventilate his grievance before the

authorities but he has not taken recourse of approaching

appropriate forum questioning their action of denial of

payment of compensation. The learned Single Judge,

after referring to the various judgments and the

principles laid down by the Supreme Court in a catena of

(2020) 2 SCC 569

judgments and the contingencies prevailing at the

relevant point of time, has held as follows:-

"After a careful consideration of various options, I feel, interest of justice would be met if the petitioner is paid compensation towards damages for the inordinate delay in passing the award and wrongful deprival of use of property in addition to payment of the market value of the land as on the date of publication of notification, namely, 20.04.1972. For the purpose of computing the damages, market value prevailing on 03.09.1998 shall be taken in to consideration. I have taken the said date instead of taking the value as on today, because, there is a delay of about 14 years on the part of the petitioner in approaching the respondents for payment of compensation. Therefore, to balance the equities, the date of filing of writ petition is taken as the relevant date to award damages to the petitioner.

The respondents shall pass award taking 20.04.1972 as the relevant date for computation of market value in accordance with Section 23 of the Act. Besides this amount, the difference between the market value prevailing on 03.09.1998 and 20.04.1972 calculated in accordance with Section 23 of the Act shall be paid to the petitioner towards damages for the wrongful deprivation of his property without paying compensation to him. As respondent No.1 raised the plea that the deceased land owner left behind his daughter besides the petitioner, he shall determine this issue in the award enquiry, after notice to the legal heirs of the deceased land owner and apportion the compensation in accordance with law.

Respondent No.1 shall pass the award in terms as directed above, within a period of two months from the date of receipt of a copy of this order and serve the copy of the same along with payment of compensation to the petitioner and other legal heirs, if any, of the deceased land owner, within two weeks after passing of the award."

13. This Court while admitting the writ appeal on

19.06.2008 had stayed the implementation of the order

passed by the learned Single Judge. During the

pendency of the appeal, the Act of 1894 was repealed and

replaced with the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (briefly "the Act of 2013",

hereinafter). In the hearing, a contention was advanced

that the appellants should be paid compensation under

the Act of 2013.

14. Another core issue is that the respondents herein

have not chosen to challenge the order of the learned

Single Judge which implies that they are ready to

implement the order for paying the compensation to the

appellant as determined in the writ petition. The

appellant now taking advantage of the pendency of

litigation and the interim order passed by this Court,

submits that in view of illegal taking over of possession of

land for the benefit of respondent No.3 Corporation and

in the absence of depositing the compensation in the

Court, the notification issued under Section 4(1) of the

Act of 1894 dated 20.04.1972 lapses and the present writ

appeal has to be allowed as prayed for.

15. No doubt, it is true that the respondents herein

have taken possession of the land of the appellants

unauthorisedly and utilised the said property for their

purpose. Nonetheless in view of appellants obtaining

interim order in this writ appeal, it cannot be said that

there is inaction on the part of respondent authorities or

agencies atleast from the date of interim order granted by

this Court. Therefore, the claim of the appellants that

they are entitled for initiation of land acquisition

proceedings under the Act of 2013 is untenable and

cannot be countenanced. In fact as on the date of

granting interim order dated 19.06.2008 by the Division

Bench of this Court, it was in nobody's imagination that

the Act of 1894 would be replaced by the Act of 2013

which gives more benefits to the land losers/land owners.

16. Further, in the case of Indore Development

Authority vs. Manoharlal2 a Constitution Bench of the

Supreme Court in paragraphs 338 and 346 held as

follows:-

"338. A wrongdoer or in the present context, a litigant who takes his chances, cannot be permitted to gain by delaying tactics. It is the duty of the judicial system to discourage undue enrichment or drawing of undue advantage, by using the court as a tool. In Kalabharati Advertising v. Hemant Vimalnath Narichania ((2010) 9 SCC 437), it was observed that courts should be careful in neutralizing the effect of consequential orders passed pursuant to interim orders. Such directions are necessary to check the rising trend among the litigants to secure reliefs as an interim measure and avoid adjudication of the case on merits. Thus, the restitutionary principle recognizes and gives shape to the idea that advantages secured by a litigant, on account of orders of court, at his behest, should not be perpetuated; this would encourage the prolific or serial litigant, to approach courts time and again and defeat rights of others- including undermining of public purposes underlying acquisition proceedings. A different approach would mean that, for instance, where two landowners (sought to be displaced from their lands by the same notification) are awarded compensation, of whom one allows the issue to attain finality- and moves on, the other obdurately seeks to stall the public purpose underlying the acquisition, by filing one or series of litigation, during the pendency of which

(2020) 8 SCC 120

interim orders might inure and bind the parties, the latter would profit and be rewarded, with the deemed lapse condition under Section 24 (2). Such a consequence, in the opinion of this Court, was never intended by Parliament; furthermore, the restitutionary principle requires that the advantage gained by the litigant should be suitably offset, in favour of the other party.

346. In matters of land acquisition, this Court has frowned upon, and cautioned courts about delays and held that delay is fatal in questioning the land acquisition proceedings. In case possession has not been taken in accordance with law and vesting is not in accordance with Section 16, proceedings before courts are to be initiated within reasonable time, not after the lapse of several decades."

17. Admittedly, in this case the State has initiated land

acquisition proceedings on 24.01.972 and the adjoining

land owners were paid compensation. Since the

whereabouts of original landowner and his successors-in-

interest were not known, the acquisition proceedings

were not concluded to the extent of the land of the

appellants is concerned. As a consequence, the

appellants were not paid compensation and ultimately

they had to approach the Court for redressal of their

grievance.

18. In view of the aforesaid discussion on the facts and

circumstances of the case, we do not hesitate to hold