Chaluvadi Yagnanarayana v. The Collector And District Magistrate,

HON'BLE SRI JUSTICE C. PRAVEEN KUMAR WRIT PETITION No. 24533 of 2008 ORDER:

1) The present writ petition came to be filed seeking issuance of writ of mandamus declaring the notification issued by the first respondent in Rc.No.1112/ 08/ G1 dated 28.03.2008 and the declaration issued by the 1st respondent in Rc.No.1112/ 08/ G1, dated 19.10.2008 in respect of the petitioner's land admeasuring Ac.5.84 cents in Sy.No.172 of Mutluru Village, Vatticherukuru Mandal, Guntur and endorsement dated 19.10.2008, as arbitrary, illegal and against public interest; and consequently to setaside the same.

2) The averments in the affidavit filed in support of the writ petition would show that the petitioners claim to be owners and possessors of the land referred to above. It is stated that they are cultivating the said land personally by raising two crops. It is stated that the first respondent issued notification under Section 4

(1) of the Land Acquisition Act, 1894 (for short " Act, 1894" ) on 28.03.2008 to acquire the said land for the purpose of providing house sites to the beneficiaries under Indiramma Scheme. Pursuant to the notification, the second respondent issued notice under Section 5-A of Act, 1894 dated 30.04.2008, directing them to file objections fixing the enquiry date on 16.05.2008. The petitioner submitted their objections through their lawyer on 15.05.2008 stating that they are all small farmers and the income

derived from the lands is the only source for their livelihood and that there are several other government lands in the vicinity. The said objections were rejected on 19.10.2008 and on the same day a declaration under Section 6 of 1894 Act. Challenging the same, the present writ petition came to be filed.

3) A counter came to be filed by the second respondent stating that the land of the petitioners was proposed for acquisition to provide housesites to the beneficiaries under Indiramma housing scheme. Draft notification was approved by the District Collector, Guntur on 28.03.2008 and the same was published in the district gazette on 02.04.2008 and in local newspapers on 06.04.2008. Notices in Form-3 were issued to the interested persons to submit their objections. The petitioners submitted their objections through their counsel on 17.05.2008. Vide Rc.No.1112/ 08-G1/ , dated 19.10.2008 the District Collector, Guntur, rejected the objections. On the same day declaration under Section 6 of 1894 Act came to be issued.

4) By an order dated 10.11.2008 this Court granted interim stay of all further proceedings.

5) Before proceeding further, it would be appropriate to refer to Section 11-A of the Act, 1894.

" Section 11-A : A period within which an award shall be made: The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made

within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.

Explanation: In computing the period of two years referred to in this Section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court, shall be excluded. 6) A perusal of the material placed before the Court would show that the second respondent issued notice under Section 5-A of 1894 Act on 30.04.2008 directing them to file objections fixing the enquiry date on 16.05.2008. The petitioners submitted their objections through their counsel on 17.05.2008, but the same were rejected on 19.10.2008. On the same day declaration under section 6 of the Act came to be issued. Challenging the same the present writ petition came to be filed and this Court granted interim stay of all further proceedings.

As per the Act, the declaration under Section 6 of the Act, 1894 has to be issued within a period of one year from the said date. However, the period of stay if any has to be excluded for the purpose of calculating the period of one year for publication of declaration. Section 11A of the Act, 1894 prescribes passing of an award within a period of two years from the date of said declaration excluding the period of stay/ injunction if any granted by a Court.

7) In the process, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short " the Act 30 of 2013" ) came into force with effect from 01.01.2014. Section 24 (1) (a) of the Act, 2013 prescribes that if the land acquisition proceedings were initiated under the Act and no award under Section 11-A of the Act, 1894 has been made, all the provisions of the Act 30 of 2013 shall apply for determination of compensation.

8) Issue identical to the case on hand came up for consideration before a learned Single Judge of this Court in W.P.Nos.22781 of 2008, 18274 and 18619 of 2009. It was a case where declaration under Section 6 of the Act, 1894 was made in the year 2009 and no award was passed by virtue of status quo order granted by this Court. Dealing with Section 11-A of the Act, 1894, a learned single Judge of this Court held as under: " Under Section 11 (A) of the Act, the award has to be passed within a period of two years from the date of publication of the declaration and in computing the period of two years, the period during which any action or proceeding to be taken in pursuance of the said declaration stayed by the order of Court shall be excluded. Even if that period is excluded and an award is liable to be passed, now it cannot be done under the provisions of the Act, as the action has to be taken as per Section 24 (1) (a) of Act 30 of 2013. The Interplay of Section 11 (A) of the Act and Section 24 (1) (a) of the New Act was considered by the Apex

Court in Laxmi Devi v. St at e of Bihar and ot hers1, wherein the Apex Court held that the acquisition proceedings initiated under the Act are liable to be set aside and the respondents were given liberty to issue a fresh notification, if they so choose, under New Act."

9) In Mohan v. St at e of Maharasht ra2 the Apex Court observed as under:

" In our opinion under Section 11-A what has to be seen is the date of last publication of the declaration under Section 6, and not any subsequent corrigendum to the said declaration. The only circumstance under which the period between the declaration under Section 6 and the award can be extended is mentioned in the explanation to Section 11-A which states: In computing the period of two years referred to in Section 11-A, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court is excluded. There is no mention in Section 11-A that the period after the publication of the declaration under Section and the publication of any corrigendum to the said declaration has also to be excluded. We will be adding words to the statute if we put such interpretation to section 11A, and it is well settled the Court should not add or delete words in a statute."

10) In order to determine the compensation and the period within which an award shall be made, the Act 30 of 2013 provides 1 (2015) 10 SCC 241 2 AIR 2007 SC 2625

a procedure under Sections 25 and 26 of the Act 30 of 2013, which reads as under:

" Section 25. Period within which an award shall be made: The Collector shall make an award within a period of twelve months from the date of publication of the declaration under Section 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that the appropriate Government shall have the power to extend the period of twelve months if in its opinion, circumstances exist justifying the same. Provided further that any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned.

Section 26. Determination of market value of land by Collector:

(1) The Collector shall adopt the following criteria in assessing and determining the market value of the land namely:

(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or (b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or (c) consented amount of compensation as agreed upon under sub-section (2) of Section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher:

Provided that the date for determination of market value shall be the date on which the notification has been issued under Section 11."

11) Under Section 26 of the Act 30 of 2013, the Collector has to determine the market value of the land for the purpose of payment of compensation under Section 24 of the Act 30 of 2013. Methodology to be adopted for arriving at the market value is prescribed under Section 26 of the Act 30 of 2013. Proviso to Section 26 of the Act 30 of 2013 states that the market value shall be as on the date on which the notification under Section 11 of the Act 30 of 2013 has been issued. An argument is advanced saying that Section 11 of the Act 30 of 2013 has to be equated to Section 4 (1) of the Act, 1894.

I am afraid, the same cannot be accepted for the reason that if really the intention of the legislature was to equate Section 11 of the Act 30 of 2013 with Section 4 of the Act, 1894, definitely there would have been some indication to that effect in the Act 30 of 2013. On the other hand, though the Act 30 of 2013 takes care of many situations and shortfalls under the Act, 1894 but it is silent on this aspect. Apart from that it is to be noted that Section 4 of the Act, 1894 does not anywhere indicate fixation of market value. While determining the compensation to be paid in respect of the lands acquired under the Act, 1894, the market value prevailing as on the date of the award is normally taken into consideration. But situation under the Act 30 of 2013 appears to be different.

equated to Section 4 of the Act, 1894 cannot be accepted. On this score, the proceedings under Old Act should lapse, giving liberty to initiate fresh proceedings under the Act 30 of 2013. 12) In cases where lands are acquired for the purpose of housing under Indiramma Housing Scheme, came up for consideration before this Court in W.P.Nos.454 and 14091 of 2009. It was a case where notification under Section 4 (1) of the Act, 1894 was issued for acquiring the land admeasuring Ac.5.85 cents situated in Mudinepalli Village, Krishna District for the purpose of providing house sites to the weaker sections of the society under Indiramma programme. A learned Single Judge of this Court, while dealing with the said issue, held as under:

" This Court granted interim stay of all further proceedings, as a result of which the respondents could not complete the acquisition proceedings. In the meanwhile, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force with effect from 01.01.2014 and seven years have lapsed from the date of publication of Section 4 (1) notification. It is not known whether the earlier scheme of providing house sites to the weaker sections of the society is being pursued by the Government due to changed circumstances."

13) The Government Pleader for Land Acquisition submits that said orders are not challenged and have become final. Further the Government Pleader could not place any material on record to show that the said land is still required for providing house sites to

weaker sections. Infact, a doubt is raised with regard to very existence of the same.

14) For the aforesaid reasons, the writ petition is disposed of and the impugned proceedings initiated under the Act, 1894, are set aside, giving liberty to the respondents to initiate fresh proceedings for acquisition of the above mentioned land of the petitioner, if the land is still required, in accordance with the provisions of the Act 30 of 2013. There shall be no order as to costs.

15) Consequently, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

_________________________ JUSTICE C. PRAVEEN KUMAR 23.02.2017 gkv