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P. Appalamurthy and ors. Vs. State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 2715, 5563 and 5564 of 1979 and 1907 of 1980
Judge
Reported inAIR1981AP278
ActsLand Acquisition Act, 1894 - Sections 4, 4(1), 5A, 6, 6(1), 9(1), 9(3), 10, 17(4), 18, 23(1), 48 and 48(1); Constitution of India - Article 226; Andhra Pradesh Housing Board Act - Sections 22A; Urban Land (Ceiling and Regulation) Act, 1976 - Sections 8
AppellantP. Appalamurthy and ors.
RespondentState of Andhra Pradesh and ors.
Appellant AdvocateT. Ramachandra Rao, Adv.
Respondent AdvocateGovt. Pleader and ;G.V.L. Narsimha Rao, Adv.
DispositionPetition allowed
Excerpt:
property - unjustified award - sections 4 (1), 6, 23 (1) and 18 of land acquisition act, 1894 and article 226 of constitution of india - land acquisition officer delayed pronouncement of award - no valid explanation given for delay - no statutory prohibition or restraint against passing of award - power to acquire land in accordance with act thus becomes oppressive and unfair - notification under section 4 (1) cannot be kept pending till arrival of advantageous time for making award - relief can be granted to petitioner an account of inordinate delay in passing award - notification for acquisition liable to be quashed. - - but, before doing that, it is well to mention that it is not the case of the counsel for the respondents that there was any statutory provision prohibiting, or..........of together. in all these four writ petitions, notifications issued under section 4(1) of the land acquisition act are being challenged, inter alia, on the ground that the land acquisition officer has taken an inordinately and unreasonably long time for passing the award; or that no award has been passed in spite of lapse of such a long time, as the case may be.2. so far as w. p. no. 3907/1980 is concerned, the notification under section 4(1) was issued on 29-7-1971. enquiry under section 5-a was held, and the declaration under section 6 was made on 7-12-1972. then, after a delay of about three years, notices under section 9(3) and section 10 were issued on 18-11-1975. the award was, however, passed only on 29-4-1980. meanwhile, this writ petition was filed on 28-4-1980, and.....
Judgment:
ORDER

1. These four writ petitions, which involve a common question of law, can be dealt with and disposed of together. In all these four writ petitions, notifications issued under Section 4(1) of the Land Acquisition Act are being challenged, inter alia, on the ground that the Land Acquisition Officer has taken an inordinately and unreasonably long time for passing the award; or that no award has been passed in spite of lapse of such a long time, as the case may be.

2. So far as W. P. No. 3907/1980 is concerned, the notification under Section 4(1) was issued on 29-7-1971. Enquiry under Section 5-A was held, and the declaration under Section 6 was made on 7-12-1972. Then, after a delay of about three years, notices under Section 9(3) and Section 10 were issued on 18-11-1975. The award was, however, passed only on 29-4-1980. Meanwhile, this writ petition was filed on 28-4-1980, and admitted on 29-4-1980. So far as W. P. No. 2715/79 is concerned, the notification under Section 4(1) is dated 29-8-1968, and the declaration under Section 6 is dated 18-1-1970. Notices under Sections 9(3) and 10 were issued even in Feb., 1970 itself, but the award came to be passed only on 31-3-1979. Meanwhile, the writ petition was filed on 27-3-1979, and admitted on 29-3-1979. W. P. Nos. 5563 and 5564 of 1979 challenge the same notification, though by different parties, interested in different properties.

The notification concerned in these two writ petitions is dated 2-8-1973. (Earlier a notification under Section 4(1) was issued on 30-1-1969, but inasmuch as the declaration under Section 6 was made beyond three years, it lapsed and, accordingly, a fresh notification was issued on 2-8-1973). This notification invoked the power under Section 17(4) of the Act and dispensed with the enquiry under Section 5-A. Thereafter, the declaration under Section 6 was made on 11-7-1974. No award was passed until the filing of the writ petitions. On 7-9-1979 this Court granted stay of all further proceedings, with the result that no award could be passed thereafter.

3. The contention of the learned counsel for the petitioners is that, keeping the acquisition proceedings pending for such a long time, without passing the award and without paying the compensation to the owners, is an arbitrary and unreasonable exercise of power. It is argued that, according to law, the price payable is the market rate prevailing on the date of the notification under Section 4(1). In that view of the matter, the acquisition proceedings must be concluded by the Land Acquisition Officer as early as possible, and without any avoidable delay. The delay of about 8 to 10 years --it is argued -- is unreasonable and oppressive, since by doing so, the owners are deprived of the fair equivalent. Over the last 8 to 10 years the prices have increased several-folds, and paying today the compensation at the rate prevailing about 8 to 10 years earlier is an abuse of power, and the provisions of the Act.

4. In view of the above contentions, I called upon the learned counsel for the respondents to explain the reasons for delay in passing the awards. In fact, I gave an opportunity to the respondents' counsel to file an additional counter-affidavit and also to place the necessary material before the Court, in that behalf. Accordingly, the counsel for the respondents has filed an additional counter-affidavit, and has also placed before me the several letters, memos and Orders of the Government, which I shall refer to presently. But, before doing that, it is well to mention that it is not the case of the counsel for the respondents that there was any statutory provision prohibiting, or disabling the Land Acquisition Officer from passing the award. The entire reliance is upon certain Government Orders. The first proceeding referred to is a letter from the Secretary to Government, Planning and Co-operation Department, dated 7-7-1972, addressed to the Chairman, Andhra Pradesh Housing Board, Hyderabad, a copy of which was marked to the Collector, Visakhapatnam. This was issued with reference to Ordinance No. 3 of 1972, which prohibited the alienation of vacant sites in urban areas. This letter refers to an earlier letter of the Government, dated 21-6-1972, the letter starts :

'In the Government letter cited, you were requested to keep in abeyance all further action in pursuance of the resolution of the Housing Board dated 30-5-1972 in respect of item (12) etc., regarding acquisition of lands pending issue of detailed instructions by the Government.

While the Ordinance does not prohibit acquisition of lands by the Government under the Land Acquisition Act, in view of the impending legislation for imposition of ceiling on urban property and related matter, you are advised to go slow wherever possible with urban land acquisition cases required for Housing Schemes. However, in cases where possession of land had already been given and awards have already been passed by the Land Acquisition Officer, the question of withholding payment of compensation does not arise ...... .......'

The next letter referred to is a U. O. Note, dated 8-8-1972, from the Revenue Department, addressed to several departments, stating that though Ordinance No. 3 of 1972 does not prohibit the acquisition of land under the Land Acquisition Act, the departments 'may go slow, wherever possible, with urban land acquisition cases coming to them for approval'. The next is a Memo dated 15-12-1972 from the Revenue Department, which again informs the Collectors that acquisition of lands may be proceeded with only in urgent cases and that, the other cases may be allowed to wait.

5. G. O. Ms. No. 2, Planning and Cooperation Department, dated 5-1-1973 instructed the various departments, including the Town Planning Trust, Visakhapatnam, that where lands have already been notified under Section 4(1) but no declaration under Section 6 has been made, further action to publish the draft declaration should be postponed at least by one year. It further directed that where the draft declaration has also been published but the lands are not required within six months, they should be de-notified immediately, under Section 48(1) of the Land Acquisition Act. The G. O., further stated :

'.......... In respect of fresh cases of acquisition where the land may be required after an year or so and it is considered expedient to issue a notification under Section 4(1) of the Land Acquisition Act, or Section 22-A of the Andhra Pradesh Housing Board Act, with a view to peg down the compensation payable at the present market rate, the Housing Board/Town Planning Trust, Visakhapatnam may submit specific proposals to Government with full details as to the need for the acquisition of the land in question, the names of the owners of the lands and the total extent of land held by them and the Government will take a decision on the merits of each case ...... .....'

6. Then comes the U. O. Note of the Government of Andhra Pradesh, dated 21-2-1973, issued from the Revenue (G) Department, which stated that where small extents are proposed to be acquired for widening of roads etc., the acquisition can be proceeded with and finalised; but, where there is no urgency, i.e., where the possession of the land is not required to be taken before December. 1973, the acquisition proceedings may be slowed down. It was further directed that where declaration under Section 6 has also been made, taking of possession should be deferred. Where, however, the taking of possession of land cannot be deferred, the department concerned was directed to consider the question of withdrawing from the acquisition altogether. By another Memo dated 2-3-1973, it was again reiterated that, where the declaration under Section 6 has been made, taking of possession may be deferred.

7. On 28-11-1973 the Government of Andh. Pra. issued another Memo, slating that inasmuch as the Land Reforms Ceiling Law is yet to be implemented, the date prescribed in the Memo dated 2-3-1973 (i.e.. 31-12-1973) should be extended up to 30-6-1974. By another Memo dated 10-1-1975, this date was again extended up to 30-6-1975. Under Memo dated 31-7-1975 it was clarified that before acquiring a land, it should be verified whether the landholder has filed a declaration under Section 8 of the Ceiling Act, and also whether he is a surplus-holder. It was directed that the same land should not be acquired both under the Land Ceiling Act, and under the Land Acquisition Act. In a subsequent Memo dated 16-2-1976, it was clarified that so far as the urban lands are concerned, 'all land acquisitions in urban areas coming within the purview of the Urban Land (Ceiling and Regulation) Bill passed by the Parliament, have to be stopped as per the instructions issued in Government telegram No. 614-G2/76, Revenue, dated 30-1-1976 ...... ......'

8. On 2-9-1976, the Government issued yet another Memo stating that in all cases of acquisition of land under the Land Acquisition Act in the Urban Agglomerations coming under the purview of the Urban Land (Ceiling and Regulation) Act. 1976, which are required to be finalised urgently, publication of the notification under Section 4(1) and the declaration under Section 6 can be proceeded with, without taking over possession of the land. Further actions with respect to passing of award, payment of compensation, and taking of possession were directed to be taken up after thorough verification of the holdings under the said Act. With respect to lands belonging to surplus-holders, withdrawal notifications under Section 48 of the Land Acquisition Act were directed to be published promptly, so as to enable the appropriate officer to take over the surplus land under the 1975 Act.

Yet another Memo was issued on 30-11-1977 stating that, in case of such lands, the land acquisition proceedings may be proceeded with up to the stage of award enquiry, without taking over possession of the land. Then on 21-11-1978, the Government in Housing, Municipal Administration and Urban Development Department, issued G. O. Ms. Nos. 965. which reads as follows :

'..... ...... The Vice-Chairman, Urban Development Authority, Visakhapatnam, has submitted proposals in his letter read above, to issue specific orders to proceed with the acquisition without applying the provisions of the Urban Land (Ceiling and Regulation) Act. 1976 and by relaxing the guidelines issued by the Government to pass awards after clearance under Urban Land (Ceiling and Regulation) Act, 1976 for the surplus lands for implementation of Muvvalavani-palem Township under the Integrated Urban Development Programme.

2. The Government after careful examination of the proposals of the Vice-Chairman. Urban Development Authority. Visakhapatnam, permit the Visakhapatnam Urban Development Authority to acquire lands to an extent of 295-86 acres in Muvvalavani-palem shown in the annexure to this order in relaxation of the executive instructions given in Govt. Memo No. 1647/UC/76-3, Revenue, dated 2-9-1976 ...... ......'

The Annexure to this G. O. contains several lands, including the lands concerned in these writ petitions. Learned counsel for the respondents says that, it is only after receiving this G. O., that the land acquisition proceedings were restarted, and in some cases awards passed. In some cases the awards could not be passed on account of receipt of stay orders from this Court. It is explained by him that, it is on account of the above Orders and proceedings of the Government that the land acquisition proceedings in these cases could not be finalised soon after the making of the declaration under Section 6 and that, the said proceedings constitute a valid and sufficient reason for the delay.

9. I am of the opinion that the reasons Assigned by the respondents for the delay in passing the awards, are neither tenable nor acceptable. According to the first paragraph in Section 23(1) of the Act, the compensation payable under the Act is 'market value of the land at the date of publication of the notification under Section 4, Sub-Section (1)'. This compensation is paid only after the passing of the award. It is true that, ordinarily, possession would be taken only after the award is passed; but, in some cases, the urgency clause may be invoked, in which case possession will be taken 15 days after the expiry of the publication of the notice mentioned in Section 9(1). It is equally true that in cases where possession is not taken, the landholder continues to be in possession of the land, reaping the benefit therefrom; and where possession is taken before passing the award, interest is paid from that dale.

But, it cannot be gainsaid that the scheme and intendment of the Act is that the award should be passed as early as possible in the circumstances of the case. It can hardly be denied today that, over the last several years there has been a substantial rise in the prices of agricultural lands, urban vacant sites, and buildings. In case of major towns and cities, the increase has been phenomenal. If the land acquisition authorities are allowed to issue a notification under Section 4(1), and then wait for 10 years to pass the award and pay the compensation, what is ultimately paid to the owner would hardly represent a reasonable and fair compensation. Not only the prices would have risen substantially over the period of 10 years, but the inflation -- which is an equally undeniable fact -- would also have taken away the value of the money ultimately awarded. It must also be noticed that the proceedings under this Act are very simple in nature. Questions of title, or the disputed claims cannot be adjudicated. The price awarded by the Land Acquisition Officer is ultimately in the nature of an offer made by the State.

All that the Land Acquisition Officer has to do after the publication of the declaration under Section 6, is to prepare a statement of valuation and determine what is the reasonable price payable for the land, and then pass an award. This should not, ordinarily, take much of a time. It is a different matter if the land owners themselves obstruct the proceedings, or cause delay by resorting to Courts, or by means of appeals and revisions. In such a case, having themselves caused the delay, they would not be heard to complain. But where the land owners do not, in any manner, contribute to the delay, the Land Acquisition Officer cannot sleep over the matter and take his own time for passing the award. The statutory power conferred upon the State by this Act, viz.. the power of eminent domain, should be exercised reasonably and fairly, which necessarily means that the award must be passed with reasonable expedition. However, if there is any statutory provision which disables the Land Acquisition Officer from proceeding further, or from passing the award, or if there is any statutory provision which prohibits him from doing so, it would certainly constitute a valid explanation.

But, the Government cannot, on account of its expectations, anticipations, and apprehensions, delay the proceedings over an unreasonably long period, and say that those expectations etc., constitute a valid explanation for the delay. I must clarify that once an award is passed, the State can no longer be held responsible for any delay on account of reference to Civil Court. The matter will go to Civil Court only if asked for by the claimant, or if there is a dispute between the claimants. The Slate cannot be blamed for the delay which may occur after the passing of the award. But what is essential is that the award must be passed with reasonable expedition after the publication of the declaration under Section 6. Indeed, the Courts have been insisting that even the declaration under Section 6 must be made without any avoidable delay, after publication of the notification under Section 4(1).

The several proceedings referred to and relied upon by the learned counsel for the respondents, in my opinion, cannot constitute a valid explanation for the delay. They only show that the Government was expecting that because of the Land Ceiling Act, or the Ceiling Act on urban vacant sites, it may get some lands at a very low compensation under those enactments add that, therefore, it need not proceed to acquire those lands at the market value under the Land Acquisition Act. But these very proceedings clearly concede that neither the Ordinance issued in 1972, nor the Acts made thereafter prohibit the acquisition of lands under the Land Acquisition Act. If the Government, wanted to wait for the result of the proceedings- under the ceiling laws, it was welcome to do so, provided it withdrew the notification issued under the Land Acquisition Act. But, it cannot have both ways.

It cannot say that it will keep the notification issued under Section 4(1) of the Land Acquisition Act alive and, at the same time, wait for the result of the proceedings under the ceiling laws, so as to ultimately opt for the more advantageous alternative. This would be an unreasonable and arbitrary exercise of power. A notification cannot be issued for the purpose of pegging down the price, or for freezing the price, as the case may be, and then wait for a convenient and opportune time to pass an award. Such a line of thinking and the course of conduct is alien to the scheme and intendment of the Land Acquisition Act. As the Supreme Court has observed in Ambalal v. Ahmedabad Municipality, : [1968]3SCR207 :

'We are not hereby to be understood as suggesting that after issue of the notification under Sections 4 and 6 the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceedings for assessment of compensation whenever they think it proper to do. It is intended by the scheme of the Act that the notification under Section 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any unreasonable delay ...... .....'

10. Reference in this connection may also be made to the decision of a learned single Judge of the Madras High Court in Krishna Iyer v. State of Madras, (1967) 2 Mad LJ 422. The learned Judge observed :

'As the compensation has to be determined with reference to the date of the notification under Section 4(1), the person whose land is to be acquired may stand to lose if there is a great delay between the notification under Section 4(1) and the notification under Section 6(1) in case prices have risen in the meantime. Though the statute does not prescribe any time limit for issuing the Section 6(1) declaration after the Section 4(1) notification or for passing an award at a subsequent stage, that circumstance does not deprive the aggrieved party of a remedy where undue prolongation of the proceedings has operated in an oppressive manner on the owner of the land, especially in circumstances where land values have increased by leaps and bounds in the intervening time.....'

11. Now coming to the facts of the present cases, it would be Men that in W. P. No. 1907/80, after issuing declaration under Section 6 on 7-12-1972, there was a lull for a period of three years, until the notices under Sections 9(3) and 10 were issued on 18-11-1975. Then again, the Land Acquisition Officer froze the proceedings till 29-4-1980, when he passed the award. Similar is the case in W. P. No. 2715/79, where the notification is indeed earlier, i. e., in August, 1968, and the award was ultimately passed only on 31-3-1979, i.e., after about 11 years. So far as the other two writ petitions are concerned, though the notifications under Section 4(1) are dated 2-8-1973, no award was passed till Sep., 1979, i.e., for a period of more than six years. In the absence of any valid explanation for this delay, and also in the absence of any statutory prohibition or restraint against the passing of award, it must be held that this delay in passing the award makes the very exercise of power, viz., the power to acquire the lands in accordance with the provisions of the Act, unreasonable, oppressive and unfair. Every public authority is bound to act reasonably and fairly in exercise of its power. An arbitrary and unreasonable exercise of power cannot be countenanced by Courts; more so, when it causes prejudice and loss to the citizens.

12. Learned counsel for the respondents argued that the petitioners are guilty of laches and that, the relief must be refused to them on that account I am not satisfied. Firstly, it must be noticed that the delay in approaching the Court is not by it-self fatal, since there u no law of limitation obliging a person to approach the Court within a particular tune. Laches is one of the considerations, which must weigh with the Court in exercise of its discretionary power under Article 226 of the Constitution of India. It must be noticed that, in W. P. No. 1907/80, the petitioner filed the writ petition before the award was passed -- no doubt, the interval is only one day. Similarly, in W. P. No. 2715/79, the writ petition was filed three days earlier to the passing of the award; while in the other two cases, the awards were not at all passed by the date of the interim orders of this Court. I am unable to appreciate how the petitioners can be said to be guilty of laches in approaching this Court.

Having kept the proceedings pending for a long number of years, when the Land Acquisition Officer was about to pass the award, they approached this Court challenging the very notification. True, they could have come earlier but, mom fee delay in passing the award, the worse it is for the respondents. The relief is being granted to the petitioners herein on the ground of inordinate delay on the part of the Land Acquisition Officer in passing the award. In such a case, I am unable to see as to how the respondents can turn round and accuse the petitioners of laches.

13. Accordingly, the impugned notifications in these writ petitions are quashed. It is, however, made clear that this order does not preclude the Government or the appropriate authority, as the case may be, from issuing notifications afresh for acquiring the lands concerned herein, according to law.

14. It is brought to my notice by the learned counsel for the respondents in W. P. No. 2715/79 that a reference under Section 18 has also been made to the Civil Court at the request of the claimants. But that, in my opinion, cannot stand in the way of granting the relief to them in the writ petition, because if the very notification is bad, all subsequent proceedings also fall to ground and become unnecessary. I am not persuaded to hold that because the petitioners have asked for a reference under Section 18 of the Act, they are precluded from challenging the validity of the notification. Similarly, the fact that the petitioners in W. P. No. 5563 of 1979 have purchased the land concerned therein in Dec., 1978, long after the issuance of the notification under Section 4(1) of the Act, cannot be a factor disentitling them from the relief herein. There is no provision in the Land Acquisition Act which prohibits the alienation of a land after the issuance of the notification under Section 4(1).

The purchaser merely stops into the shoes of the vendor, and would be entitled to urge all such contentions as were open to the vendor. The position would have been different if there was a statutory prohibition of alienation, after the issuance of the notification. But, in the absence of any such provision, I do not see any reason to deprive the successors-in-interest of the right to urge all the contentions which were available to, and open to their predecessors-in-interest.

15. The writ petitions are, accordingly, allowed with costs. Advocate's fee : Rs. 150/-in each.


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