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Judgment
The petitioners 1 to 3 and respondent No.3 are brothers. The petitioner Nos.4, 5, 6 and respondent No.4 are the daughters-in-law of the family. By issuing a notification u/s 4(1) of Land Acquisition Act, 1894 (hereinafter called as the Act) dated 17-11-1998 the first respondent proposed to acquire an extent of Ac.4-19 cents in S.No.248/2B and 249/2 of Venkatagiri village and Mandai, Nellore District. The award proceedings were initiated and the Land Acquisition Officer, the second respondent herein is yet to make an award u/s 12 of the Act. It may be noted that the petitioners were not given notice under Sections 9(3) and 10 of the Act. There is another important chapter in the litigation. The petitioners herein filed a suit against the respondents 3 and 4 herein being OS No. 19 of 1998 on the file of 1st Additional District Judge, Nellore for partition of properties in S.No.246/2, 247/2, 249 and 248/2. Concedingly, the land in two survey numbers which is sought to be acquired by the second respondent do not form part of the plaint schedule. However, it is admitted by both the sides that the plaintiffs (petitioners herein) filed an interlocutory application under Order VI, Rule 17 praying for amendment of the plaint. The same is pending. It is also the case of the parties that the competent authority granted title pass-book and record of rights pass-book in favour of the 4th respondent. Aggrieved by the same, the petitioners herein carried the matter in appeal u/s 5(1) of the Andhra Pradesh Record of Rights in Land and Pattedar Pass-Books Act, 197i. The same is pending.
Apprehending that the Land Acquisition Officer might pass award in favour of the respondents 3 and 4, the petitioners jointly made a claim statement before the Land Acquisition Officer. In the claim statement they also brought to the notice of the Land Acquisition Officer that having come to know that award proceedings are pending, they gave a notice requesting to be put on notice. As no notice is issued, they were constrained to make the claim statement. They also prayed the Land Acquisition Officer to award a compensation of Rs.4,00,000/- per acre and apportion the amount among all the four brothers. It is to be noticed that the petitioners 1 to 3 never intended to appropriate the entire compensation for themselves and in fact they asked for equal shares among four brothers including the 3rd respondent herein. However, the Land Acquisition Officer did not pass any orders considering the claim petition. Apprehending that an award might be passed and that the entire compensation amount might be paid to the respondents 3 and 4, the petitioners filed this writ petition for a declaration that the action of the second respondent in not referring the dispute u/s 30 of the Act to the civil Court is illegal and for a consequential direction to pay the compensation to all the interested parties. The respondents 3 and 4 entered appearance and filed counter-affidavit. The main submission in the counter-affidavit is that the property in question exclusively belongs to respondent 3 and 4, and that by their conduct the petitioners themselves have admitted to this. To substantiate this, they cited two instances. Firstly, the partition suit filed by the petitioners wherein no relief is sought in respect of the property in question and secondly the factum that the competent authority has issued Record of Rights passbook to respondents 3 and 4. Therefore, the respondents would desire this Court to draw an inference that the petitioners have no manner of right in the property. Based on this counter, the learned senior Counsel Sri A. T.M. Ranga Ramanujam has vehemently contended that this is not a case where the petitioners should be shown any indulgence either by the Land Acquisition Officer or by this Court in making a reference u/s 30 of the Act. It is also further contended that even in the pending suit, an interlocutory application under Order XXXIX, Rules 1 and 2 CPC is filed by the petitioners seeking injunction against the Land Acquisition Officer not to pay compensation to defendents 1 and 2 therein and the same is pending. The petitioners cannot pursue two parallel remedies and therefore he prays this Court to exercise powers under Article 226 of the Constitution of India.
I have heard the learned Counsel and the Government Pleader for Land Acquisition.
The limited prayer that is sought from this Court is that a direction to the respondents to act in accordance with land in considering the claim statement made by the petitioners. Before the award is passed, the Land Acquisition Officer is under a statutory obligation to give notice to all the persons interested. During the award enquiry he is under obligation not only to hear the objections of the persons but also issue notice to all the persons who are interested in the property and in the compensation that may be paid. This position is not even disputed by the learned senior Counsel for the respondents 3 and 4. He even brought to the notice of this Court a judgment of this Court in Afzal Bee Vs. The Special Deputy Collector and Others, . This Court held thus:
"If Sections 11, 29, 30 and 18 are read together, it becomes obvious that the Land Acquisition Officer has the jurisdiction to apportion the compensation among the persons interested while making an award. That necessarily means that he has the jurisdiction to decide questions of title if such questions are raised before him. But instead of deciding the question of title himself, he has the option to refer such questions to the Court u/s 30 of the Act. Naturally, where complicated questions of title arise, the Land Acquisition Officer may himself deal with them and incorporate his decision in the award. If he does so and if a party is aggrieved by the apportionment of compensation, such party may seek a reference u/s 18 of the Act."
The petitioners herein have issued a notice to the LAO calling upon to issue notice to the petitioners. As no notices were received by them, they approached this Court apprehending that the LAO might pass award without hearing them. The facts in this case compel this Court to entertain this writ petition, though at this stage it is filed apprehending some adverse action and no adverse order is passed against them. It is to be noticed that the relationship of petitioners and respondents 3 and 4 is not denied and therefore prima facie the petitioners are justified in contending that they have an enforceable right with regard to the compensation to be awarded by the LAO. Even otherwise, the rule that writ jurisdiction is not attracted on mere apprehension is concedingly not an inflexible rule.
The main plank of attack as mentioned earlier is that the petitioners have no claim or right in the property in question. It is well settled that all matters concerning land acquisition are to be decided by the appropriate authorities and the Courts vested with jurisdiction under the Act. To emphasise this, I may say that if the LAO is not paying compensation, the person cannot approach the civil Court and seek mandatory injunction against the LAO. Similarly, if the compensation is not paid after the land is acquired a suit is not maintainable. Likewise, if the notification u/s 4(1) of the Act mentions the lands of the citizens, a suit cannot be filed against the Government to delete the lands from the notification. This is the law declared by the Supreme Court in two recent judgments.
In Laxmi Chand and others Vs. Gram Panchayat, Kararia and others, , the Hon''ble Supreme Court held that when a suit is implicdly barred the jurisdiction of a civil Court u/s 9 of CPC 1908 (hereinafter called as the Code) cannot be invoked. The Supreme Court further held:
"Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the civil Court to try all suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The scheme of the Act is complete in it self and thereby the jurisdiction of the civil Court to take cognizance of the case arising under the Act, by necessary implication stood barred. The civil Court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional Courts viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil Court."
In S.P. Subramanya Shetty and others Vs. Karnataka State of Road Transport Corporation and others, , again the Supreme Court reiterated the legal position and held as under:
"In view of the settled legal position that the notification had become final and the proceedings had attained finality, the civil suit was not maintainable. This Court has repeatedly held that a civil suit relating to acquisition proceedings is not maintainable and by implication, the cognizance wider Section 9 CPC is barred. The Court cannot issue mandatory injunction against the State to denotify the acquisition u/s 48. Therefore, the question of granting an injunction against the authority from proceeding in accordance with law does not arise."
Therefore, the question of petitioners approaching the civil Court by way of interlocutory application under Order XXXIX, Rules 1 and 2 in my view is insignificant. Further, it is well settled that seeking "right remedy" (proper remedy) in a wrong forum is not a bar to approach the Constitutional Court. It is also well settled that when the fundamental rights and constitutional rights are violated, the doctrine of waiver and doctrine of acquiescence have no place and cannot be pressed into service to defeat the interests of the parties.
The learned Counsel for the parties have not made any other or further submissions except the submissions to which this Court already adverted to above.
For the reasons above, a direction shall issue to the second respondent to consider the claim petition filed by the petitioners in accordance with law. It is made clear that filing to the claim petition is itself seriously disputed. The LAO is also directed to go into this question after giving notice to all the parties concerned and take action in accordance with law. The writ petition is accordingly disposed of. No costs.