Yeredla Narayan Reddy and Others vs Government of A.P. and Others

Y. Bhaskar Rao, J.—These writ petitions are filed seeking a writ of mandamus directing the respondents to pay 80% of the compensation declaring that the respondents are legally obliged and bound to pay 80% of the compensation to the petitioners u/s 17(3-A) of the Land Acquisition Act. (In short ''the Act).

These writ facts of the case are that an extent of Acs. 892-11/2 guntas of land situated at Akkampalli, Duggiyal, Angadipet and Pedda Adisarlapalli in P. A. Palli Mandal of Nalgonda District was the subject-matter of proceedings under the Act. Notification u/s 4(1) of the Act was published in the gazettes on different dates viz., 24-6-1989,11-10-1989,2-12-1989, etc. Declarations u/s 6 of the Act were also issued simultaneously. Urgency clause u/s 17(1) of the Act was invoked. It is stated that possession was also taken by the State Government on different dates viz., 18-9-1989,6-1-1990,9-1-1990, 11-1-1990,2-2-1990 and 27-2-1990. It is stated in the affidavits filed in support of the writ petitions that the possession was also handed over to the requisitioning authority on different dates viz., 19-9-1989,6-1-1990,9-1-1990, 11-1-1990,2-2-1990 and 27-2-1990. According to the petitioners, in an extent of Acs.90-00, huge pits were dugmaking the land unfit for cultivation and in other area, acts of possession were also alleged. The acquisition was for the purpose of construction of Earth Dam of Akkampalli Balancing Reservoir from KM 2-000 to 4-974 and also for Srisailam Left Bank Akkampalli Balancing Reservoir for barrow area and earth bund from KM 0.000 to KM 2.000, etc.

It is contended that the authorities drew funds to a tune of Rs.43 lakhs for the purpose of complying with the provisions of Section 17(3A) of the Act for the purpose of paying 80% of the compensation, which the respondents are statutorily obliged to pay. Since the respondents have not taken any steps in that regard viz., regarding the payment of 80% of the compensation, these writ petitions have been filed seeking a direction to the respondents to pay 80% of the compensation as provided for u/s 17(3A) of the Act.

In the counter-affidavits filed on behalf of the respondents, issuing of the notifications and digging of trial pits by the requisitioning authority have all been substantially admitted .With reference to taking of possession, it is alleged that actual physical possession was not taken, but only symbolic possession was taken. According to the counter-affidavits, the lands continued to be in possession of the petitioners and that the petitioners have been cultivating the same and enjoying the produce raised thereon.

It is stated that though the lands were sought to be acquired for construction of Akkampalli Balancing Reservoir and sanction was also accorded in that regard, the same had to be reviewed in view of the report of the Expert Committee appointed for that purpose. Having regard to the opinion of the Expert Committee and the decision taken by the State Government for supplying drinking water to the twin cities by runner system, the State Government gave up the proposal for acquisition of the land for Akkampalli Balancing Reservoir once for all. Therefore, the State Government decided to issue appropriate proceedings under the Act as the land in question is no more needed for the public purpose for which notifications were published. It is alleged in the counter affidavits that the notifications u/s 4(1) of the Act and the declarations u/s 6 of the Act were published simultaneously which is not in accordance with law after the Act was amended by Act No. 68 of 1984. The result is that the declarations u/s 6 of the Act are void and not est in the eye of law. Since no further declarations u/s 6 of the Act were issued within the period of one year as provided in Clause (ii) of the proviso to Section 6 of the Act, the entire land acquisition proceedings including notifications u/s 4(1) will lapse and therefore, the question of paying compensation as claimed in the writ petitions will not arise, and the question of taking possession also does not arise as physical possession was not taken.

In the first instance, the matter was posted before the learned single Judge and after hearing both parties, the learned single Judge referred the matter to the Division Bench vide order dated 5-4-1994, as the question that raised, is of general importance and is likely to arise frequently and in view of the enormous stakes involved in these proceedings.

The learned counsel for the petitioners Sri Ella Reddy contended that actual physical possession was taken by the respondents pursuant to the invocation of urgency clause u/s 17(1) of the Act, and the possession was also handed over to the requisitiong authority which also dug trial pits, etc., making about Acs. 90-00 of land useless for cultivation and in the other area also, the requisitioning authority performed certain acts on the land and therefore, it cannot be said that the respondents have not taken physical possession of the property. Therefore, the land has vested in the Government as per Section 17(2) of the Act and once the land is vested in the Government, the same cannot be divested. The respondents are liable to deposit 80% of the compensation as provided u/s 17(3A) of the Act. As the respondents have not deposited the said amount of 80%., the petitioners have no other way except to approach this Court. Therefore, they filed the writ petitions.

The learned Addl. Advocate-General contended that the contention that possession of the land was taken is not correct. A symbolic possession was taken and the petitioners are in actual possession of the land and they are enjoying the same. Their contention that the possession of the land was taken and the land vested in the Government as per Section 17(2) of the Act is not correct. In as much as possession is not taken and two years have elapsed and since no award is passed, the entire proceedings including notifications u/s 4(1) of the Act elapsed in view of Section 11-A of the Act. As the entire proceedings including notifications u/s 4(1) of the Act elapsed and no land acquisition proceedings are pending, the writ petitions themselves are not maintainable and the direction to deposit 80% of the compensation cannot be issued. It is further contended by the learned Addl. Advocate General that the notifications u/s 4(1) and declarations u/s 6 of the Act are simultaneously published and therefore Section 6 declaration is non est as per the provisions of this Act. Therefore, on any count, the proceedings elapsed and no proceedings are pending. Consequently, the petitioners are not entitled for the relief prayed for in these writ petitions.

In view of the above contentions, the important question, of law that arises for consideration is, whether non-passing of award in cases where possession is taken u/s 17 of the Act by invoking urgency clause after dispensing with enquiry u/s 5-A of the Act, within the period prescribed u/s 11-A of the Act, results in lapsing of the land acquisition proceedings including notification issued u/s 4(1) of the Act.

To appreciate the above contentions, it is relevant to summarise some of the provisions of the Act.

Section 4(1) of the Act provides for publication of preliminary notification and powers of officers thereupon. The notification u/s 4(1) of the Act will be issued where the land required. After complying with the requirements u/s 4, enquiry u/s 5-A is conducted, if not dispensed with. Where Section 5-A enquiry is dispensed with the possession of the land will be taken invoking urgency clause u/s 17(4) of the Act after issuing notices under Sections 9 and 10 of the Act. Section 11-A of the Act prescribes a period of two years within which the award shall be made and in case, the award is not made within a prescribed period of two years from the date of publication of declaration, the entire proceedings of the land acquisition shall lapse. Where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the time prescribed for making award is two years from the commencement of the Amended .At Explanation provides that in computing the period of two years the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of a Court, shall be excluded. Once possession was taken u/s 16, the land vests in the Government free from all encumbrances. Section 17(1) of the Act empowers the appropriate Government in cases of urgency to take possession of the land after giving notice u/s 9(1) of the Act. Sub-section (2) of Section 17 of the Act envisages that after taking possession of the land as contemplated under Sub-section (1) of Section 17 of the Act, such land absolutely vests in the Government free from all encumbrances. However, the authority shall not take possession of any building or part of a building under Sub-section (2) of Section 17 of the Act, without giving to the occupier thereof at atleast forty eight hours notice, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building. Sub-section (3) of Section 17 of the Act provides for determination of compensation for standing crops. Subsection (3-A) of Section 17 of the Act provides that before taking possession of any land under Sub-sees. (1) and (2) payment of 80% of the compensation as estimated by the Collector be made to the persons interested or entitled thereto unless prevented by anyone mentioned in Section 31(2) of the Act. Subsection (3-B) provides the amount paid or deposited under Sub-section (3-A) will be taken into consideration while determining the amount of compensation.

The contention of the petitioner is that the possession of the entire land was taken and handed over to the requisitioning department on the dates stated supra. Whereas, the learned Addl. Advocate-General contended that according to the respondents only symbolic possession was taken and actual possession was not taken, that the petitioners are still cultivating the land. The same is evidenced from the revenue records maintained by the department. So, the contention that the possession is taken is not correct.

Therefore, now the question to be decided is whether possession was taken over or not. The petitioners, in the affidavits in support of the writ petitions, specifically stated that possession was taken by the State Government on different dates viz., 18-9-1989, 6-1-1990,9-1-1990,11-1-1990,2-2-1990 and 27-2-1990 and the said possession was delivered to the requisitioning authority on different dates viz., 19-9-1989, 6-1-1990,9-1-1990, 11-1-1990, 2-2-1990 and 27-2-1990. In the counter affidavit, it is only stated that symbolic possession alone was taken, without disputing the allegation of having taken possession and further handing over the same to the requisitioning authority. Petitioners have filed material papers. It is relevant to refer to the said material papers which have substantial bearing on this question of possession.

The Memo in Cr. No. C/511 /89, dated 29-3-1990 issued from the office of the Special Deputy Collector (1.A.), S.L.B.C, Deverakonda, which is an intimation given to the petitioners in which information is furnished under (8) columns/including under columns 5 to 7, is relevant. Column No. 5 deals with Gazette No. in which the land is notified. Column No. 6 deals with date of taking over possession and column No.7 deals with date of handing over possession to the project authorities. In column Nos. 6 and 7, dates of taking possession and handing over possession are mentioned. It is further stated that the lands shown above have been taken over and handed over to the nominees of the Executive Engineer, S.L.B.C, Division No. 9, Deverakonda on the same day. The lands are continued to be in possession with the requisitioning Department. The letter of the Executive Engineer, S.L.B.C, Division No. 9, Deverakonda, Nalgonda District, dated 31st March, 1990, recites that advance possession of patta lands to an extent of about 895 acres pertaining to Akkampally Balancing Reservoir Earth Dam portion and barrow area is taken on the dates and handed over by the Special Deputy Collector, Land Acquisition Unit, Deverakonda as mentioned in his letter referred to above i.e., memo, dated 31-3-1990. The Special Deputy Collector, (1.A.), S.L.B.C, Deverakonda in his letter, dated 9-5-1989 addressed to the Special Collector, S.R. Project, Pochampalli, Nizamabad District stated in para No. 3, "the possession of the lands have been taken over from the ryots and delivered the same to the requisitioning department to enter on the land and to commence excavation of work on different dates as indicated in the statement enclosed. Thus, the possession of the lands rest with the requisition department together with structures, trees existing on the lands coming under acquisition." The letter further stated that an amount of Rs. 43 lakhs has been withdrawn by the Special Collector, Kurnool for the purpose of payment of compensation to the claimants. It is also stated in the letter that the inspection confirmed that in bund area, about 90 acres, trial pits have been dug rendering the lands unfit for cultivation by the ryots.

The memo and the two letters are filed as material papers along with affidavits. These memo and letters are not disputed by the learned Addl. Advocate-General. These memo and lettersclearly manifest that the possession of the land was taken and handed over to the requisitioning department. Regarding the contention of the learned Addl. Advocate-General that the ryots are still in possession of the land and cultivating the same, no material is placed before us except a bold statement in the counter. Even taking the view as per the allegations made in the counter, the petitioners have trespassed into the land, it only amounts to trespass into the land and it is always open to the Government to collect the revenue and penalty as contemplated under the provisions of A.P. (Telangana Area) Land Revenue Act and Rules framed thereunder and take appropriate proceedings. By that reason itself, it cannot be said that possession of the land was not taken over by the respondents as contended by the learned Addl. Advocate-General.

Therefore, in view of the above circumstances we have to hold, that possession of the land was taken by the respondents and the same was handed over to the requisitioning department. Accordingly, the contention that symbolic possession was taken is not tenable.

It is secondly contended by the learned Addl. Advocate General where the symbolic possession is taken, the land does not vest in the Government as contemplated u/s 17(1) (2) of the Act. He relied upon the judgment reported in " Jetmull Bhojraj Vs. The State of Bihar and Others, . The facts of that case are quite different from the facts of this case. In that case, possession of land was already taken by various departments for various purposes, thereafter, further proceedings went on. in those circumstances, the question arose whether the possession taken by the Government was symbolic possession or physical possession. Considering those facts, the High Court held that possession was already taken and that the Government''s later proceedings for taking possession are only symbolic possession. Those facts are quite different from the facts of the present case and the same does not apply to the present case.

It is thirdly contended by the learned Addl. Advocate-General, that, as only symbolic possession was taken, the land will not vest in the Government. As we have already found the possession taken was actual physical possession and not symbolic possession as per Section 17(2) of the Act, and therefore the lands have absolutely vested in the Government.

It is fourthly contended by the learned Addl. Advocate-General that as per Section 11-A of the Act, the award is not passed within two years period and so the entire land acquisition proceedings including issue of notification u/s 4(1) of the Act have lapsed. It is to be noticed that Section 11-A of the Act prescribes the said period where declaration u/s 6 of the Act is to be issued after the commencement of the Amended Act of 1984. Otherwise, the entire proceedings will lapse. In this, case, there is no dispute that declaration u/s 6 was issued after the Amendment Act, 1984 came into force. Lapsing of land acquisition proceedings for non-passing of the award u/s 11-A of the Act will apply only if the possession is not taken by exercising power u/s 17 of the Act by invoking urgency clause. Section 17 of the Act empowers the appropriate Government to take possession of the lands in case of urgency after issuing notice as contemplated u/s 9(1) of the Act. As per Sub-section (2) of Section 17 of the Act, on taking such possession, the land absolutely vest in the Government free from all encumbrances. Thus, as per Section 17(2) of the Act, once possession is taken, the land absolutely vest in the Government. There is no provision in the Act contemplating divestment of the land after taking possession, or for withdrawal of the notification as contemplated u/s 48 of the Act. Section 48(1) of the Act empowers the Government to withdraw from the acquisition where possession has not been taken. There is no provision empowering the Government to withdraw the acquisition proceedings u/s 48 where possession is taken u/s 17 of the Act by invoking urgency clause. No such notification is issued in this case. Therefore, once the land absolutely vests in the Government, the same cannot be divested not with standing Section 11-A of the Act. Section 11-A of the Act is not applicable where the land is acquired by invoking urgency clause u/s 17 of the Act. Our view is fortified by the decision of the Supreme Court in Satendra Prasad Jain and Others Vs. State of U.P. and Others, . In that case, the Supreme Court held that Section 11-A can have not application to cases of acquisitions u/s 17 because the lands have already vested in the Government and there is no provision in the said Act by which land statutorily vested in the Government can revert to the owner. Therefore, we have to hold that once the possession is taken by invoking urgency clause u/s 17(4) of the Act, the land absolutely, free of all encumbrances, vests in the Government. So, the land acquisition proceedings do not lapse by virtue of provisions of Section 11-A of the Act as Section 11-A is not applicable where possession of the land is taken by invoking urgency clause u/s 17 of the Act. Therefore, we are not able to agree with the contention of the learned Addl. Advocate General.

It is fifthly contended by the learned Addl. Advocate General that notification u/s 4(1) of the Act and declaration u/s 6 of the Act are published simultaneously. Therefore, Section 6 declaration is void. Further, more than one year elapsed after publication of notification u/s 4(1) and since thereafter no fresh declaration could be published as per the proviso to Section 6, the entire proceedings of acquisition are bad.

The time prescribed for publication of declaration u/s 6 after issuance of notification u/s 4(1) of the Act is three and one year respectively as per proviso (i) to Section 6 of the Act. The above proviso makes it clear where the land is acquired and notification u/s 4(1) is issued, no declaration will be made after the expiry of three years where the notification is published before the commencement of the Land Acquisition (Amendment) Act, 1984 and after the expiry of one year where the notification u/s 4(1) is issued after the commencement of the Land Acquisition (Amendment) Act, 1984.

No doubt the above section clearly laid down that after the expiry of three years and one year respectively as stated supra, no declaration u/s 6 of the Act can be made. But, Section 17(4) of the Act provides as under :

"In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made u/s 6 in respect of the land at any time after the date of the publication of the notification u/s 4, of Sub-section (1)."

As per the above section, where the land is acquireu by invoking urgency clause u/s 17(4), declaration u/s 6 can be made at any time after the date of publication causing notification u/s 4(1) of the Act. The Parliament has specifically made it clear that Section 6 declaration can be made at any time after 4(1) notification where urgency clause is invoked. Whereas, if the land is acquired without invoking urgency clause, specific period of three years and one year respectively, is prescribed for publication of declaration u/s 6. And the same is absent in case where the land is acquired invoking urgency clause. Thus, by reading Section 6 and 17(4) it is evident that where the land is acquired invoking urgency clause, declaration u/s 6 can be published at any time after publication of notification u/s 4(1) and the periods prescribed are applicable to cases where the land is acquired without invoking urgency clause i.e., ordinary cases. Even accepting the contention of the learned Addl. Advocate-General Section 6 declaration is bad, as notification u/s 4(1) and declaration u/s 6 are published on the same date, still it is open to the Government to issue fresh declaration u/s 6 of the Act. We see no force in the contention of the learned Advocate-General in this regard.

Earlier to insertion of Sub-section (3-A) in Section 17 of the Act, there was no obligation on the part of the acquiring authority to deposit any compensation. The Parliament incorporated Sub-section (3-A) in Section 17 by the Land Acquisition (Amendment) Act, 1984. Sub-Section (3-A) reads as under:

Before taking possessions of any land under Sub-section (1) or Sub-section (2), the Collector shall, without prejudice to the provisions of Sub-section (3), --

(a) tender payment of eighty per cent of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, Sub-section (2).

and where the Collector is so prevented, the provisions of Section 31, subsection (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section."

Sub-section (3-A) is an ameliorative provision for the benefit of persons interested in the acquired land. As per the above provision, there is an obligation on the Collector to pay 80% of the estimated amount of compensation to the persons interested, unless the person refuses to accept, or there is no person competent to alienate the land or there is dispute as to the title or as to the appointment of compensation. If the amount is not paid for the above said reasons, the Collector shall deposit it in the Court to which a reference u/s 18 would be submitted. The Parliament has specifically used the words

"the Collector shall tender payment of 80% of the estimated amount of compensation."

The obligation imposed is a mandatory one and the Parliament has explicitly made it clear that 80% of the estimated amount of compensation shall be paid by the Collector, except in the circumstances stated above. As per the principle of interpretation of statutes also where the word ''shall'' is used by the Parliament in a legislation and when the language clearly indicates the intention of the legislature, the Court should interpret it as per the language of the provision when there is no ambiguity. Therefore, we hold that the respondents are obliged and bound to pay 80% of the estimated compensation to the persons interested. We, therefore, hold that where land is acquired by invoking urgency clause u/s 17(4) of the Act, it is obligatory that Collector shall deposit 80% of the estimated amount of compensation before taking possession of the acquired land.

Therefore, in view of the above circumstances, we deem it just and proper to allow the writ petitions and direct the respondents to pay 80% of the estimated compensation to the persons interested and entitled. The respondents are further directed to publish declaration u/s 6 of the Act within a period of two months from today and deposit the 80% of the estimated compensation within a period of six weeks thereafter.

The writ petitions are accordingly allowed in terms of the above directions. No order as to costs.