Land Acquisition Act sec.6, 11 and 11 A - Award should be made with in two years from the date of sec. 6 notice - Challenged - Their lordships held that once an award was approved within the period of two years, there is compliance of Section 11-A of the Act and it is not necessary that there can be a formal pronouncement of award by issuing prior notice to the parties to make it valid. In the instant case, substance of Section 6 declaration was displayed in the village on 30.11.2008 and the award was approved on 29.11.2010. Thus, the award was made as mandated by Section 11- A of the Act within two years.=
challenging notification dated 13.09.2008 issued under
Section 4(1) of the Land Acquisition Act, 1894 (for short, the 'Act') and
draft declaration dated 13.11.2008 issued under Section 6 of the Act and the
award dated 29.11.2010 opposing the acquisition of their lands.=
Section 4(1) notification was issued on 13.09.2008 proposing to
acquire the land to an extent of Ac.103.14 guntas for the public purpose i.e.,
to provide house site pattas to the project displaced persons. Section 6
declaration was published in the Gazette on 14.11.2008. According to the
petitioners, paper publication of Section 6 declaration was made on 15.11.2008
in Eenadu Telugu daily newspaper and on 17.11.2008 in Deccan Chronicle English
daily newspaper and award was passed on 29.11.2010 acquiring the lands of the
petitioners.
first point award passed more than two years
That the
award was not passed on 29.11.2010 as contended by the respondents, but it was
anti dated later. He, therefore, submitted that the award is vitiated as it is
in violation of Section 11-A of the Act.
another point rehabilitation scheme
Therefore,
as per the rehabilitation policy of the Government notified under G.O.Ms.No.68,
dated 08.04.2005, land of the petitioners could not have been acquired as it is
in violation of the said policy. The policy is based on public interest. To
rehabilitate one person, another person cannot be made landless poor. =
Conclusions
First point
In the said G.O., guidelines are
prescribed to identify the lands for acquisition. The guideline relied by
petitioners deals with a situation where if an alternate Government land is
available, which can be utilized for the public purpose, for which the
acquisition is contemplated, the land of small farmer should not be acquired.
In the instant case, no other Government land was available and, therefore,
lands of the petitioners had to be acquired.
Second point
She further contended that as per Section 6, all the
modes of notification of draft declaration has to be complied with and for the
purpose of computation of period of two years as prescribed in Section 11-A, the
last of the notifications have to be taken as the starting point and the
locality notification being 30.11.2008, an award had to be passed on or before
30.11.2010 and in the instant case, the award was passed on 29.11.2010.
Actual passing of an award is only the ministerial act and as per the
mandate of Section 11 what is required is approval of the draft by the competent
authority and such approval was granted by the Joint Collector on 29.11.2010.
As a consequence to the approval by the Joint Collector, an award was pronounced
on the same day.
In Bailamma case, Supreme Court considered the scope of Section 11-A of
the Act. The contention advanced to nullify the award passed by the competent
authority was that after the approval granted by the Government on the draft
award, the Collector must sign the award as approved and inform the parties
concerned. If the Collector fails to do so within the period prescribed by
Section 11-A of the Act, the entire proceedings of acquisition must be deemed to
be lapsed.
It is held that,
"There can be no doubt that after the award is approved the same becomes an
offer to be made to the persons interested, and this can be done by either
giving notice to the persons interested of the date on which he may orally
pronounce the award, or by giving written notice of the award to the persons
interested"
30. It is further held that award which was already signed by the Collector
becomes an award as it is approved by the Government without any alteration and
there was really no necessity for the Collector to sign the award again, nor
does Section 11 requires that for the purpose of pronouncing the award notice
should be given by the Collector to the persons interested. Supreme Court
affirmed the decision taken by the High Court, wherein it was held that an
award was validly made and signed and approved by the Government within the
period prescribed under Section 11-A of the Act.
As held by the Supreme Court, once an award was approved within the period
of two years, there is compliance of Section 11-A of the Act and it is not
necessary that there can be a formal pronouncement of award by issuing prior
notice to the parties to make it valid. In the instant case, substance of
Section 6 declaration was displayed in the village on 30.11.2008 and the award
was approved on 29.11.2010. Thus, the award was made as mandated by Section 11-
A of the Act within two years.
33. Petition fails on both counts. I see no merit in the writ petition.
Accordingly, the writ petition is dismissed. No costs.
2014 (March. Part) judis.nic.in/judis_andhra/filename=10995
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.6860 of 2011
11-03-2014
Anumula Lachi Reddy s/o.Mallaiah, Aged about 54 yrs Agriculturist,
r/o.Vardhavelli (V), Boinipalli Mandal, Karimnagar district and two
others...Petitioners
The District Collector, Karimnagar District, Karimnagar and
others....Respondents
Counsel for the petitioners : Sri V.V.Ramana Rao
Counsel for the Respondents: Government Pleader for
Land Acquisition for
Respondent Nos.1 and 2
<Gist :
>Head Note:
?Cases referred:
1. 2011 (5) ALD 447
2. APLJ (2) 1981 Page 93
3. AIR 1990 Karnataka 2
4. (1995) 1 Supreme Court Cases 133
5. (2006) 2 Supreme Court Cases 416
6. (1989) 1 Supreme Court Cases 113
7. 1994 (2) ALT 117
8. 1991 (1) ALT 28
9. AIR 1980 Andhra Pradesh 205
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No. 6860 of 2011
Dated: 11.03.2014
The Court made the following:
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.6860 of 2011
ORDER:
The petitioners are challenging notification dated 13.09.2008 issued under
Section 4(1) of the Land Acquisition Act, 1894 (for short, the 'Act') and
draft declaration dated 13.11.2008 issued under Section 6 of the Act and the
award dated 29.11.2010 opposing the acquisition of their lands.
2. Petitioners were holding different extent of agricultural lands in
Vardavelli village and Kodurupaka village in Boinipalli Mandal, Karimnagar
District. Section 4(1) notification was issued on 13.09.2008 proposing to
acquire the land to an extent of Ac.103.14 guntas for the public purpose i.e.,
to provide house site pattas to the project displaced persons. Section 6
declaration was published in the Gazette on 14.11.2008. According to the
petitioners, paper publication of Section 6 declaration was made on 15.11.2008
in Eenadu Telugu daily newspaper and on 17.11.2008 in Deccan Chronicle English
daily newspaper and award was passed on 29.11.2010 acquiring the lands of the
petitioners.
3. Heard Sri V.V.Ramana Rao, counsel for the petitioners and the learned
Government Pleader for Land Acquisition.
4. Learned counsel for the petitioners submitted that petitioners had
agricultural land in Vardavelli and Kodurupaka villages. The land of the
petitioners in Kodurupaka village was also acquired for Mid Manair Project
through different notifications. Small bit of land in Kodurupaka village and
land in Sy.No.57 was only two bits of land left with the petitioners and total
extent of land owned by the petitioners is less than Ac.5.00 guntas. Therefore,
as per the rehabilitation policy of the Government notified under G.O.Ms.No.68,
dated 08.04.2005, land of the petitioners could not have been acquired as it is
in violation of the said policy. The policy is based on public interest. To
rehabilitate one person, another person cannot be made landless poor. The
intendment of G.O., is to save small farmers from acquisition proceedings.
Learned counsel contended that this was the only source of livelihood to the
petitioners and the Land Acquisition adversely affected them.
5. The last of the publications of the draft declaration was dated
17.11.2008, when the same was notified in Deccan Chronicle English daily
newspaper. No locality publication was made on 30.11.2008 and that was invented
only to justify their action of passing an award within two years. That the
award was not passed on 29.11.2010 as contended by the respondents, but it was
anti dated later. He, therefore, submitted that the award is vitiated as it is
in violation of Section 11-A of the Act.
6. Initially intention expressed was to acquire Ac.103.14 guntas, but
Ac.12.08 guntas in Sy.Nos.59 and 60 of Vardavelli village was excluded and the
action of the respondents in selective exclusion of land proposed for
acquisition is arbitrary and discriminatory. It is discriminatory to exclude
portion of the land as belonging to schedule caste people and include the land
of the petitioners, who are also small and marginal farmers and belong to
Backward classes.
7. In support of his contentions, learned counsel relied on following
decisions: 1) Uppalapati Brahmamma and others v. State of Andhra Pradesh and
others1; 2) Kattamreddi Radhakrishna Reddy and others Vs. the District
Collector, Nellore and another2; and 3) Gadigeppa Mahadevappa Chikkumbi v. State
of Karnataka and others3.
8. Learned Assistant Government Pleader submitted that Section 6 of the Act
prescribed three modes of notification of draft declaration. The draft
declaration was published in gazette on 14.11.2008 and paper publications were
made on 15.11.2008 and 17.11.2008; the draft declaration was sent to the
Tahasildar for publication in the locality. The Tahasildar issued proceedings
dt.30.11.2008 for local publication and thereafter it is published in the
locality. All the required formalities i.e., approval of the competent authority
for the draft declaration and release of financial sanction were obtained by
29.11.2010 and award was pronounced on 29.11.2010. Notice of award under
Section 12(2) of the Act in Form-9 (A) was issued and served on 29.11.2010 to
the concerned pattedars. Consequent to the passing of the award, possession of
the land was also taken and handed over to the Executing Agency i.e., APEWIDC,
Jagityal on 04.01.2011. She further contended that as per Section 6, all the
modes of notification of draft declaration has to be complied with and for the
purpose of computation of period of two years as prescribed in Section 11-A, the
last of the notifications have to be taken as the starting point and the
locality notification being 30.11.2008, an award had to be passed on or before
30.11.2010 and in the instant case, the award was passed on 29.11.2010.
9. Actual passing of an award is only the ministerial act and as per the
mandate of Section 11 what is required is approval of the draft by the competent
authority and such approval was granted by the Joint Collector on 29.11.2010.
As a consequence to the approval by the Joint Collector, an award was pronounced
on the same day.
10. In addition to her contention that the award was made within two years as
mandated by Section 11-A of the Act, she further contended that making of the
award means approval by the competent authority and as approval of the competent
authority was within two years, the award is valid. She further submitted that
the date as 24.11.2008 in the notice issued in Form-6 was wrongly typed and
petitioners cannot take advantage of wrong date typed when the record clearly
discloses Form-6 notice was actually dated 26.04.2010 and that the locality
publication was made on 30.11.2008. As the notices issued under Sections 9(3)
and 10 were refused by petitioners on 21.05.2009, notices were pasted on the
door of the residences of the petitioners.
11. Learned Assistant Government Pleader further submitted that G.O.Ms.No.68
has no application to the instant case. In the said G.O., guidelines are
prescribed to identify the lands for acquisition. The guideline relied by
petitioners deals with a situation where if an alternate Government land is
available, which can be utilized for the public purpose, for which the
acquisition is contemplated, the land of small farmer should not be acquired.
In the instant case, no other Government land was available and, therefore,
lands of the petitioners had to be acquired. She further contended that the
land of the petitioners was in a compact black and, therefore, it could not have
been excluded. She further submitted that there was due compliance of the
provisions of Land Acquisition Act and acquisition was for a public purpose
i.e., to provide house-site pattas to the persons, who were displaced from their
lands due to submergence in irrigation project.
12. It is further contended that though initially proposal was to acquire the
land to an extent of 103.14 guntas, the acquisition was restricted to Ac.91.06
guntas. Ac.12.08 guntas standing in Sy.Nos.59 and 60 was purchased by the
Government earlier under the scheme for the welfare of poor Scheduled Caste
people and land was allotted to them and, therefore, it was felt not desirable
to acquire the said land, and therefore, deleted from the acquisition. This was
a valid reason and the same reason cannot be extended to other lands acquired.
13. Out of the proposed acquisition of 91.06 acres, the parties have consented
to an extent of 85.31 acres including Ac.14.00 in Sy.No.57 and accordingly
consent awards were passed on 25.07.2009, 04.08.2009 and 07.08.2009 towards
different extent of land totaling Ac.85.31 guntas. Insofar as the remaining
extent of land i.e., Ac.5.15 guntas, award was passed on 29.11.2010. The land
of the petitioners in Sy.Nos.51 and 57 are part of compact block of Ac.91.06
guntas and it is not possible to exclude the land of the petitioners.
14. In support of her contentions, learned Government Pleader placed reliance
on the following decisions.
i) State of Haryana and another Vs. Raghubir Dayal4
ii) Bailamma (Smt) Alias Doddabailamma (dead) and
others Vs. Poornaprajna House Building cooperative
Society and others5
iii) Kaliyappan V. State of Kerala and others6
iv) G.Gnanesha and others V. The Special Deputy
Collector, Land Acquisition (General), Hyderabad and
others7
15. The points that arise for determination in this case are:
i) whether not excluding the land of the petitioners was illegal and arbitrary;
and
ii) whether the award is vitiated on the ground that the award is not made
within two years from the date of publication of draft declaration ?
16. POINT NO.1:
In G.O.Ms.No.68, government notified guidelines to the land acquisition officer
to explore the possibility of excluding the acquisition of land of the farmer
whose total extent of land is less than Ac.5.00 guntas, if by acquiring the
entire land of such farmer, he would become landless person, whereas there is an
alternate government land available, which can be utilized for the public
purpose for which the acquisition was intended.
17. As submitted by the learned Assistant Government Pleader, such contingence
did not arise in this case as there was no government land available and
exclusion of the land of the petitioners would only mean resorting to
acquisition of some other land. Even otherwise, orders in G.O.Ms.No.68 are
guidelines for Land Acquisition Officers and cannot be enforced and even if
there is violation, it cannot be a ground to assail the land acquisition
proceedings, which were otherwise validly made.
18. In Uppalapati Brahmamma, this Court held that petitioners therein being
small farmers, there was no justification to acquire the land of small farmers
for the purpose of providing house sites to the weaker sections. It is held
that in a welfare state, in order to benefit one section of people, another
section of equally disadvantaged cannot be deprived of their lands and
eventually their livelihood. In the said case, though an alternative land was
available, but the proposal to acquire the alternative land of the bigger
landlord was not agreed to on the ground that the pathway is required to be
formed through the lands of the petitioners. This Court held that such
objection was not valid.
19. In Gadigeppa Mahadevappa Chikkumbi, High Court of Karnataka held that as
the petitioner therein was rendered landless destitute the acquisition of land
is illegal. The acquisition was quashed on the ground that the action deprived
the petitioner of his sole means of livelihood and rendered him landless.
Karnataka High Court held that fundamental right to pursue his avocation is
usurped. His right to life is seriously jeopardized. His right to carry on his
occupation assured under Article 19(1)(g) of the Constitution is taken away.
The Court held that acquisition liberating the petitioner from his inalienable
right to avocation is unconstitutional.
20. In Kattamreddi Radhakrishna Reddy, Section 5-A enquiry was dispensed with
and urgency clause incorporated in Section 17(4) of the Act was invoked. This
court held that the matter where urgency clause is required to be invoked,
existence of objective facts would be a precondition for invoking such
exceptional power. The Court found that the District Collector did not act
honestly in exercising his statutory powers of acquisition. Court also held
that purpose of acquisition was providing house sites to poor Harijans and when
there is an alternative land available, resorting to acquisition was wholly
unnecessary. This judgment do not come to the aid of the petitioners.
21. Identical issue was considered by this Court in two decisions. In Manyam
paramayya and others Vs. Government of Andhra Pradesh8. The contention urged
was on earlier two occasions land of the petitioners was acquired and repeated
acquisition offends Article 21 and Article 300-A of the Constitution. Rejecting
their contention, this Court held as under:
" .... The law, however, recognizes the right of the State, in exercise of its
power of eminent domain, to acquire the land of any person when it is needed for
public purpose. Such acquisition cannot be questioned on the ground of hardship
and inconvenience. Private interest must always yield to public interest."
22. Similar issue was also considered by the bench of two judges of this
court in Ashurkhana Nalasahabgadda at Sangareddy and others Vs. District
Collector, Medak and another9. It was contended that for providing house sites,
petitioners and their shareholders were deprived of their only source of
livelihood and they are rendered landless defeating the public interest sought
to be achieved. The division bench held as under:
"Even the other contention does not merit acceptance. May be the petitioners
have no other land of their own than the one being acquired, but that does not
establish that the present acquisition is not for a public purpose. What land
should or not be acquired is primarily a matter lying thin the jurisdiction of
and dependent upon the satisfaction of the authorities concerned. Unless the
selection of the particular land is shown to be based on a colourable exercise
of the power, the discretion cannot be interfered with by this court in exercise
of its power under Art.226 of the Constitution of India. We are therefore,
unable to hold that the acquisition is bad for the reason that the petitioners
would be rendered landless as consequence of the impugned acquisition. It is
for the petitioners to make representation in this behalf and for the concerned
authorities to consider the same. This court, however, cannot issue any writ,
direction or order on the ground of any hardship caused to the petitioners and
their shareholders".
23. The Land Acquisition Act does not impose any fetters on the acquisition of
land except the requirement of 'public purpose'. Once 'public purpose'
requirement is satisfied, the extent of land acquisition and persons from whom
such acquisition is intended, have no relevance and are external to the
provisions of the Act. Thus, as held by this court in the above two decisions
and in view of the provisions of the Act, it cannot be said that the acquisition
of land of the petitioners is vitiated merely on the ground that petitioners
were small farmers and would be ousted from their only source of livelihood.
24. There is no merit in the further contention of the learned counsel for the
petitioners that while excluding the land to an extent of Ac.12.08 guntas, land
of the petitioners was not excluded. As contended by the respondents, this
piece of land was purchased by the Government from the original pattedars for
the purpose of providing land to the landless poor scheduled caste candidates
under a special scheme formulated by the Government for the welfare of poor
scheduled caste people. Under this Scheme, Government purchased the land from
the private pattedars, and allotted to landless poor scheduled caste persons at
a reasonable price determined, which was payable by them over a period of time.
Acquisition of such land would have displaced them. Having regard to the
peculiar circumstances, Government felt it desirable to exclude that portion of
the land which was originally proposed for acquisition. The distinction brought
out by the government is just and reasonable and action of the Government cannot
be said to be palpably illegal, arbitrary or discriminatory to nullify the
acquisition when such acquisition was in due compliance of the Act.
25. POINT NO.2:
The contention of the petitioners rest on the assumption that there was no
locality publication after 17.11.2008 and, therefore, the award dated 29.11.2010
is beyond the period of two years and, therefore, is invalid in view of the
provision contained in Section 11-A of the Act.
26. Perusal of the original records produced by learned Assistant Government
Pleader disclose that the contention of the petitioners is not valid. The
letter of the Tahasildar, which sought to communicate the draft declaration for
locality notification is dated 30.11.2008 and, therefore, the locality
publication date has to be taken at least as 30.11.2008, but not earlier. This
is one of the three modes of notification of draft declaration and this is the
date to be reckoned as the starting point for computation of two years, within
which the award has to be passed. Thus, there is no merit in the contention of
the learned counsel for the petitioners that there was no locality publication
after 17.11.2008.
27. It is next contended that even assuming that the locality publication was
made on 30.11.2008, the award was not notified by the competent authority within
two years, whereas even according to the assertion of the respondents the draft
notification for publication of award was put up before the Joint Collector on
29.11.2010 and the Joint Collector only approved the draft award, but award was
not notified by him nor by Land Acquisition Officer and, therefore, no award was
passed as mandated by Section 11-A within two years.
28. In Kaliyappan case, Supreme Court held that "to make an award" in this
Section 11-A means 'sign the award' and that is ordinary meaning to be ascribed
to the words 'to make an award'.
29. In Bailamma case, Supreme Court considered the scope of Section 11-A of
the Act. The contention advanced to nullify the award passed by the competent
authority was that after the approval granted by the Government on the draft
award, the Collector must sign the award as approved and inform the parties
concerned. If the Collector fails to do so within the period prescribed by
Section 11-A of the Act, the entire proceedings of acquisition must be deemed to
be lapsed. It is held that,
"There can be no doubt that after the award is approved the same becomes an
offer to be made to the persons interested, and this can be done by either
giving notice to the persons interested of the date on which he may orally
pronounce the award, or by giving written notice of the award to the persons
interested"
30. It is further held that award which was already signed by the Collector
becomes an award as it is approved by the Government without any alteration and
there was really no necessity for the Collector to sign the award again, nor
does Section 11 requires that for the purpose of pronouncing the award notice
should be given by the Collector to the persons interested. Supreme Court
affirmed the decision taken by the High Court, wherein it was held that an
award was validly made and signed and approved by the Government within the
period prescribed under Section 11-A of the Act.
31. Learned Single Judge of this Court in G.Gnanesha, held that there is no
provision in the Land Acquisition Act, which precludes the award from being
passed even if funds for payment of compensation as per the award are not made
available to the Land Acquisition Officer.
32. As held by the Supreme Court, once an award was approved within the period
of two years, there is compliance of Section 11-A of the Act and it is not
necessary that there can be a formal pronouncement of award by issuing prior
notice to the parties to make it valid. In the instant case, substance of
Section 6 declaration was displayed in the village on 30.11.2008 and the award
was approved on 29.11.2010. Thus, the award was made as mandated by Section 11-
A of the Act within two years.
33. Petition fails on both counts. I see no merit in the writ petition.
Accordingly, the writ petition is dismissed. No costs.
Miscellaneous petitions if any pending in these writ petitions shall stand
closed.
__________________________
JUSTICE P.NAVEEN RAO
Date:07.03.2014
challenging notification dated 13.09.2008 issued under
Section 4(1) of the Land Acquisition Act, 1894 (for short, the 'Act') and
draft declaration dated 13.11.2008 issued under Section 6 of the Act and the
award dated 29.11.2010 opposing the acquisition of their lands.=
Section 4(1) notification was issued on 13.09.2008 proposing to
acquire the land to an extent of Ac.103.14 guntas for the public purpose i.e.,
to provide house site pattas to the project displaced persons. Section 6
declaration was published in the Gazette on 14.11.2008. According to the
petitioners, paper publication of Section 6 declaration was made on 15.11.2008
in Eenadu Telugu daily newspaper and on 17.11.2008 in Deccan Chronicle English
daily newspaper and award was passed on 29.11.2010 acquiring the lands of the
petitioners.
first point award passed more than two years
That the
award was not passed on 29.11.2010 as contended by the respondents, but it was
anti dated later. He, therefore, submitted that the award is vitiated as it is
in violation of Section 11-A of the Act.
another point rehabilitation scheme
Therefore,
as per the rehabilitation policy of the Government notified under G.O.Ms.No.68,
dated 08.04.2005, land of the petitioners could not have been acquired as it is
in violation of the said policy. The policy is based on public interest. To
rehabilitate one person, another person cannot be made landless poor. =
Conclusions
First point
In the said G.O., guidelines are
prescribed to identify the lands for acquisition. The guideline relied by
petitioners deals with a situation where if an alternate Government land is
available, which can be utilized for the public purpose, for which the
acquisition is contemplated, the land of small farmer should not be acquired.
In the instant case, no other Government land was available and, therefore,
lands of the petitioners had to be acquired.
Second point
She further contended that as per Section 6, all the
modes of notification of draft declaration has to be complied with and for the
purpose of computation of period of two years as prescribed in Section 11-A, the
last of the notifications have to be taken as the starting point and the
locality notification being 30.11.2008, an award had to be passed on or before
30.11.2010 and in the instant case, the award was passed on 29.11.2010.
Actual passing of an award is only the ministerial act and as per the
mandate of Section 11 what is required is approval of the draft by the competent
authority and such approval was granted by the Joint Collector on 29.11.2010.
As a consequence to the approval by the Joint Collector, an award was pronounced
on the same day.
In Bailamma case, Supreme Court considered the scope of Section 11-A of
the Act. The contention advanced to nullify the award passed by the competent
authority was that after the approval granted by the Government on the draft
award, the Collector must sign the award as approved and inform the parties
concerned. If the Collector fails to do so within the period prescribed by
Section 11-A of the Act, the entire proceedings of acquisition must be deemed to
be lapsed.
It is held that,
"There can be no doubt that after the award is approved the same becomes an
offer to be made to the persons interested, and this can be done by either
giving notice to the persons interested of the date on which he may orally
pronounce the award, or by giving written notice of the award to the persons
interested"
30. It is further held that award which was already signed by the Collector
becomes an award as it is approved by the Government without any alteration and
there was really no necessity for the Collector to sign the award again, nor
does Section 11 requires that for the purpose of pronouncing the award notice
should be given by the Collector to the persons interested. Supreme Court
affirmed the decision taken by the High Court, wherein it was held that an
award was validly made and signed and approved by the Government within the
period prescribed under Section 11-A of the Act.
As held by the Supreme Court, once an award was approved within the period
of two years, there is compliance of Section 11-A of the Act and it is not
necessary that there can be a formal pronouncement of award by issuing prior
notice to the parties to make it valid. In the instant case, substance of
Section 6 declaration was displayed in the village on 30.11.2008 and the award
was approved on 29.11.2010. Thus, the award was made as mandated by Section 11-
A of the Act within two years.
33. Petition fails on both counts. I see no merit in the writ petition.
Accordingly, the writ petition is dismissed. No costs.
2014 (March. Part) judis.nic.in/judis_andhra/filename=10995
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.6860 of 2011
11-03-2014
Anumula Lachi Reddy s/o.Mallaiah, Aged about 54 yrs Agriculturist,
r/o.Vardhavelli (V), Boinipalli Mandal, Karimnagar district and two
others...Petitioners
The District Collector, Karimnagar District, Karimnagar and
others....Respondents
Counsel for the petitioners : Sri V.V.Ramana Rao
Counsel for the Respondents: Government Pleader for
Land Acquisition for
Respondent Nos.1 and 2
<Gist :
>Head Note:
?Cases referred:
1. 2011 (5) ALD 447
2. APLJ (2) 1981 Page 93
3. AIR 1990 Karnataka 2
4. (1995) 1 Supreme Court Cases 133
5. (2006) 2 Supreme Court Cases 416
6. (1989) 1 Supreme Court Cases 113
7. 1994 (2) ALT 117
8. 1991 (1) ALT 28
9. AIR 1980 Andhra Pradesh 205
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No. 6860 of 2011
Dated: 11.03.2014
The Court made the following:
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.6860 of 2011
ORDER:
The petitioners are challenging notification dated 13.09.2008 issued under
Section 4(1) of the Land Acquisition Act, 1894 (for short, the 'Act') and
draft declaration dated 13.11.2008 issued under Section 6 of the Act and the
award dated 29.11.2010 opposing the acquisition of their lands.
2. Petitioners were holding different extent of agricultural lands in
Vardavelli village and Kodurupaka village in Boinipalli Mandal, Karimnagar
District. Section 4(1) notification was issued on 13.09.2008 proposing to
acquire the land to an extent of Ac.103.14 guntas for the public purpose i.e.,
to provide house site pattas to the project displaced persons. Section 6
declaration was published in the Gazette on 14.11.2008. According to the
petitioners, paper publication of Section 6 declaration was made on 15.11.2008
in Eenadu Telugu daily newspaper and on 17.11.2008 in Deccan Chronicle English
daily newspaper and award was passed on 29.11.2010 acquiring the lands of the
petitioners.
3. Heard Sri V.V.Ramana Rao, counsel for the petitioners and the learned
Government Pleader for Land Acquisition.
4. Learned counsel for the petitioners submitted that petitioners had
agricultural land in Vardavelli and Kodurupaka villages. The land of the
petitioners in Kodurupaka village was also acquired for Mid Manair Project
through different notifications. Small bit of land in Kodurupaka village and
land in Sy.No.57 was only two bits of land left with the petitioners and total
extent of land owned by the petitioners is less than Ac.5.00 guntas. Therefore,
as per the rehabilitation policy of the Government notified under G.O.Ms.No.68,
dated 08.04.2005, land of the petitioners could not have been acquired as it is
in violation of the said policy. The policy is based on public interest. To
rehabilitate one person, another person cannot be made landless poor. The
intendment of G.O., is to save small farmers from acquisition proceedings.
Learned counsel contended that this was the only source of livelihood to the
petitioners and the Land Acquisition adversely affected them.
5. The last of the publications of the draft declaration was dated
17.11.2008, when the same was notified in Deccan Chronicle English daily
newspaper. No locality publication was made on 30.11.2008 and that was invented
only to justify their action of passing an award within two years. That the
award was not passed on 29.11.2010 as contended by the respondents, but it was
anti dated later. He, therefore, submitted that the award is vitiated as it is
in violation of Section 11-A of the Act.
6. Initially intention expressed was to acquire Ac.103.14 guntas, but
Ac.12.08 guntas in Sy.Nos.59 and 60 of Vardavelli village was excluded and the
action of the respondents in selective exclusion of land proposed for
acquisition is arbitrary and discriminatory. It is discriminatory to exclude
portion of the land as belonging to schedule caste people and include the land
of the petitioners, who are also small and marginal farmers and belong to
Backward classes.
7. In support of his contentions, learned counsel relied on following
decisions: 1) Uppalapati Brahmamma and others v. State of Andhra Pradesh and
others1; 2) Kattamreddi Radhakrishna Reddy and others Vs. the District
Collector, Nellore and another2; and 3) Gadigeppa Mahadevappa Chikkumbi v. State
of Karnataka and others3.
8. Learned Assistant Government Pleader submitted that Section 6 of the Act
prescribed three modes of notification of draft declaration. The draft
declaration was published in gazette on 14.11.2008 and paper publications were
made on 15.11.2008 and 17.11.2008; the draft declaration was sent to the
Tahasildar for publication in the locality. The Tahasildar issued proceedings
dt.30.11.2008 for local publication and thereafter it is published in the
locality. All the required formalities i.e., approval of the competent authority
for the draft declaration and release of financial sanction were obtained by
29.11.2010 and award was pronounced on 29.11.2010. Notice of award under
Section 12(2) of the Act in Form-9 (A) was issued and served on 29.11.2010 to
the concerned pattedars. Consequent to the passing of the award, possession of
the land was also taken and handed over to the Executing Agency i.e., APEWIDC,
Jagityal on 04.01.2011. She further contended that as per Section 6, all the
modes of notification of draft declaration has to be complied with and for the
purpose of computation of period of two years as prescribed in Section 11-A, the
last of the notifications have to be taken as the starting point and the
locality notification being 30.11.2008, an award had to be passed on or before
30.11.2010 and in the instant case, the award was passed on 29.11.2010.
9. Actual passing of an award is only the ministerial act and as per the
mandate of Section 11 what is required is approval of the draft by the competent
authority and such approval was granted by the Joint Collector on 29.11.2010.
As a consequence to the approval by the Joint Collector, an award was pronounced
on the same day.
10. In addition to her contention that the award was made within two years as
mandated by Section 11-A of the Act, she further contended that making of the
award means approval by the competent authority and as approval of the competent
authority was within two years, the award is valid. She further submitted that
the date as 24.11.2008 in the notice issued in Form-6 was wrongly typed and
petitioners cannot take advantage of wrong date typed when the record clearly
discloses Form-6 notice was actually dated 26.04.2010 and that the locality
publication was made on 30.11.2008. As the notices issued under Sections 9(3)
and 10 were refused by petitioners on 21.05.2009, notices were pasted on the
door of the residences of the petitioners.
11. Learned Assistant Government Pleader further submitted that G.O.Ms.No.68
has no application to the instant case. In the said G.O., guidelines are
prescribed to identify the lands for acquisition. The guideline relied by
petitioners deals with a situation where if an alternate Government land is
available, which can be utilized for the public purpose, for which the
acquisition is contemplated, the land of small farmer should not be acquired.
In the instant case, no other Government land was available and, therefore,
lands of the petitioners had to be acquired. She further contended that the
land of the petitioners was in a compact black and, therefore, it could not have
been excluded. She further submitted that there was due compliance of the
provisions of Land Acquisition Act and acquisition was for a public purpose
i.e., to provide house-site pattas to the persons, who were displaced from their
lands due to submergence in irrigation project.
12. It is further contended that though initially proposal was to acquire the
land to an extent of 103.14 guntas, the acquisition was restricted to Ac.91.06
guntas. Ac.12.08 guntas standing in Sy.Nos.59 and 60 was purchased by the
Government earlier under the scheme for the welfare of poor Scheduled Caste
people and land was allotted to them and, therefore, it was felt not desirable
to acquire the said land, and therefore, deleted from the acquisition. This was
a valid reason and the same reason cannot be extended to other lands acquired.
13. Out of the proposed acquisition of 91.06 acres, the parties have consented
to an extent of 85.31 acres including Ac.14.00 in Sy.No.57 and accordingly
consent awards were passed on 25.07.2009, 04.08.2009 and 07.08.2009 towards
different extent of land totaling Ac.85.31 guntas. Insofar as the remaining
extent of land i.e., Ac.5.15 guntas, award was passed on 29.11.2010. The land
of the petitioners in Sy.Nos.51 and 57 are part of compact block of Ac.91.06
guntas and it is not possible to exclude the land of the petitioners.
14. In support of her contentions, learned Government Pleader placed reliance
on the following decisions.
i) State of Haryana and another Vs. Raghubir Dayal4
ii) Bailamma (Smt) Alias Doddabailamma (dead) and
others Vs. Poornaprajna House Building cooperative
Society and others5
iii) Kaliyappan V. State of Kerala and others6
iv) G.Gnanesha and others V. The Special Deputy
Collector, Land Acquisition (General), Hyderabad and
others7
15. The points that arise for determination in this case are:
i) whether not excluding the land of the petitioners was illegal and arbitrary;
and
ii) whether the award is vitiated on the ground that the award is not made
within two years from the date of publication of draft declaration ?
16. POINT NO.1:
In G.O.Ms.No.68, government notified guidelines to the land acquisition officer
to explore the possibility of excluding the acquisition of land of the farmer
whose total extent of land is less than Ac.5.00 guntas, if by acquiring the
entire land of such farmer, he would become landless person, whereas there is an
alternate government land available, which can be utilized for the public
purpose for which the acquisition was intended.
17. As submitted by the learned Assistant Government Pleader, such contingence
did not arise in this case as there was no government land available and
exclusion of the land of the petitioners would only mean resorting to
acquisition of some other land. Even otherwise, orders in G.O.Ms.No.68 are
guidelines for Land Acquisition Officers and cannot be enforced and even if
there is violation, it cannot be a ground to assail the land acquisition
proceedings, which were otherwise validly made.
18. In Uppalapati Brahmamma, this Court held that petitioners therein being
small farmers, there was no justification to acquire the land of small farmers
for the purpose of providing house sites to the weaker sections. It is held
that in a welfare state, in order to benefit one section of people, another
section of equally disadvantaged cannot be deprived of their lands and
eventually their livelihood. In the said case, though an alternative land was
available, but the proposal to acquire the alternative land of the bigger
landlord was not agreed to on the ground that the pathway is required to be
formed through the lands of the petitioners. This Court held that such
objection was not valid.
19. In Gadigeppa Mahadevappa Chikkumbi, High Court of Karnataka held that as
the petitioner therein was rendered landless destitute the acquisition of land
is illegal. The acquisition was quashed on the ground that the action deprived
the petitioner of his sole means of livelihood and rendered him landless.
Karnataka High Court held that fundamental right to pursue his avocation is
usurped. His right to life is seriously jeopardized. His right to carry on his
occupation assured under Article 19(1)(g) of the Constitution is taken away.
The Court held that acquisition liberating the petitioner from his inalienable
right to avocation is unconstitutional.
20. In Kattamreddi Radhakrishna Reddy, Section 5-A enquiry was dispensed with
and urgency clause incorporated in Section 17(4) of the Act was invoked. This
court held that the matter where urgency clause is required to be invoked,
existence of objective facts would be a precondition for invoking such
exceptional power. The Court found that the District Collector did not act
honestly in exercising his statutory powers of acquisition. Court also held
that purpose of acquisition was providing house sites to poor Harijans and when
there is an alternative land available, resorting to acquisition was wholly
unnecessary. This judgment do not come to the aid of the petitioners.
21. Identical issue was considered by this Court in two decisions. In Manyam
paramayya and others Vs. Government of Andhra Pradesh8. The contention urged
was on earlier two occasions land of the petitioners was acquired and repeated
acquisition offends Article 21 and Article 300-A of the Constitution. Rejecting
their contention, this Court held as under:
" .... The law, however, recognizes the right of the State, in exercise of its
power of eminent domain, to acquire the land of any person when it is needed for
public purpose. Such acquisition cannot be questioned on the ground of hardship
and inconvenience. Private interest must always yield to public interest."
22. Similar issue was also considered by the bench of two judges of this
court in Ashurkhana Nalasahabgadda at Sangareddy and others Vs. District
Collector, Medak and another9. It was contended that for providing house sites,
petitioners and their shareholders were deprived of their only source of
livelihood and they are rendered landless defeating the public interest sought
to be achieved. The division bench held as under:
"Even the other contention does not merit acceptance. May be the petitioners
have no other land of their own than the one being acquired, but that does not
establish that the present acquisition is not for a public purpose. What land
should or not be acquired is primarily a matter lying thin the jurisdiction of
and dependent upon the satisfaction of the authorities concerned. Unless the
selection of the particular land is shown to be based on a colourable exercise
of the power, the discretion cannot be interfered with by this court in exercise
of its power under Art.226 of the Constitution of India. We are therefore,
unable to hold that the acquisition is bad for the reason that the petitioners
would be rendered landless as consequence of the impugned acquisition. It is
for the petitioners to make representation in this behalf and for the concerned
authorities to consider the same. This court, however, cannot issue any writ,
direction or order on the ground of any hardship caused to the petitioners and
their shareholders".
23. The Land Acquisition Act does not impose any fetters on the acquisition of
land except the requirement of 'public purpose'. Once 'public purpose'
requirement is satisfied, the extent of land acquisition and persons from whom
such acquisition is intended, have no relevance and are external to the
provisions of the Act. Thus, as held by this court in the above two decisions
and in view of the provisions of the Act, it cannot be said that the acquisition
of land of the petitioners is vitiated merely on the ground that petitioners
were small farmers and would be ousted from their only source of livelihood.
24. There is no merit in the further contention of the learned counsel for the
petitioners that while excluding the land to an extent of Ac.12.08 guntas, land
of the petitioners was not excluded. As contended by the respondents, this
piece of land was purchased by the Government from the original pattedars for
the purpose of providing land to the landless poor scheduled caste candidates
under a special scheme formulated by the Government for the welfare of poor
scheduled caste people. Under this Scheme, Government purchased the land from
the private pattedars, and allotted to landless poor scheduled caste persons at
a reasonable price determined, which was payable by them over a period of time.
Acquisition of such land would have displaced them. Having regard to the
peculiar circumstances, Government felt it desirable to exclude that portion of
the land which was originally proposed for acquisition. The distinction brought
out by the government is just and reasonable and action of the Government cannot
be said to be palpably illegal, arbitrary or discriminatory to nullify the
acquisition when such acquisition was in due compliance of the Act.
25. POINT NO.2:
The contention of the petitioners rest on the assumption that there was no
locality publication after 17.11.2008 and, therefore, the award dated 29.11.2010
is beyond the period of two years and, therefore, is invalid in view of the
provision contained in Section 11-A of the Act.
26. Perusal of the original records produced by learned Assistant Government
Pleader disclose that the contention of the petitioners is not valid. The
letter of the Tahasildar, which sought to communicate the draft declaration for
locality notification is dated 30.11.2008 and, therefore, the locality
publication date has to be taken at least as 30.11.2008, but not earlier. This
is one of the three modes of notification of draft declaration and this is the
date to be reckoned as the starting point for computation of two years, within
which the award has to be passed. Thus, there is no merit in the contention of
the learned counsel for the petitioners that there was no locality publication
after 17.11.2008.
27. It is next contended that even assuming that the locality publication was
made on 30.11.2008, the award was not notified by the competent authority within
two years, whereas even according to the assertion of the respondents the draft
notification for publication of award was put up before the Joint Collector on
29.11.2010 and the Joint Collector only approved the draft award, but award was
not notified by him nor by Land Acquisition Officer and, therefore, no award was
passed as mandated by Section 11-A within two years.
28. In Kaliyappan case, Supreme Court held that "to make an award" in this
Section 11-A means 'sign the award' and that is ordinary meaning to be ascribed
to the words 'to make an award'.
29. In Bailamma case, Supreme Court considered the scope of Section 11-A of
the Act. The contention advanced to nullify the award passed by the competent
authority was that after the approval granted by the Government on the draft
award, the Collector must sign the award as approved and inform the parties
concerned. If the Collector fails to do so within the period prescribed by
Section 11-A of the Act, the entire proceedings of acquisition must be deemed to
be lapsed. It is held that,
"There can be no doubt that after the award is approved the same becomes an
offer to be made to the persons interested, and this can be done by either
giving notice to the persons interested of the date on which he may orally
pronounce the award, or by giving written notice of the award to the persons
interested"
30. It is further held that award which was already signed by the Collector
becomes an award as it is approved by the Government without any alteration and
there was really no necessity for the Collector to sign the award again, nor
does Section 11 requires that for the purpose of pronouncing the award notice
should be given by the Collector to the persons interested. Supreme Court
affirmed the decision taken by the High Court, wherein it was held that an
award was validly made and signed and approved by the Government within the
period prescribed under Section 11-A of the Act.
31. Learned Single Judge of this Court in G.Gnanesha, held that there is no
provision in the Land Acquisition Act, which precludes the award from being
passed even if funds for payment of compensation as per the award are not made
available to the Land Acquisition Officer.
32. As held by the Supreme Court, once an award was approved within the period
of two years, there is compliance of Section 11-A of the Act and it is not
necessary that there can be a formal pronouncement of award by issuing prior
notice to the parties to make it valid. In the instant case, substance of
Section 6 declaration was displayed in the village on 30.11.2008 and the award
was approved on 29.11.2010. Thus, the award was made as mandated by Section 11-
A of the Act within two years.
33. Petition fails on both counts. I see no merit in the writ petition.
Accordingly, the writ petition is dismissed. No costs.
Miscellaneous petitions if any pending in these writ petitions shall stand
closed.
__________________________
JUSTICE P.NAVEEN RAO
Date:07.03.2014
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