Full Judgment Text
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CASE NO.:
Appeal (civil) 6546 of 1999
PETITIONER:
Govt. of A.P. & Anr.
RESPONDENT:
Syed Akbar
DATE OF JUDGMENT: 19/11/2004
BENCH:
SHIVARAJ V. PATIL & B.N. SRIKRISHNA
JUDGMENT:
J U D G M E N T
W I T H
CIVIL APPEAL NO. 4110 OF 2000
Shivaraj V. Patil J.
CIVIL APPEAL NO. 6546 OF 1999
The State of Andhra Pradesh is in appeal questioning
the validity and correctness of the impugned order made by
the Division Bench of the High Court in Writ Appeal No. 411
of 1998.
The few facts which are relevant and necessary for the
disposal of this appeal are the following:
An extent of 1573 sq. yds. in survey No. 54/2 of
Kakaguda village in Hyderabad district was acquired by the
State for improvement of Hyderabad-Karimnagar-
Ramagundam Road which included the land of the
respondent to the extent of 8 guntas (968 sq. yds.). After
completing the acquisition proceedings, the possession of
the said land was taken. Aggrieved by the amount of
compensation determined @ Rs. 1400 per sq. yds., the
respondent sought reference under Section 18 of the Land
Acquisition Act,1894 (for short ’the Land Acquisition Act)
seeking enhancement of compensation amount and the
reference is pending disposal before the Reference Court.
Out of the land so acquired, only 424 sq. yds., of land
was utilized and the rest of the land remained vacant. The
Resident Engineer (Roads & Buildings) addressed a letter
dated 27.12.1996 to the Land Acquisition Officer (Special
Collector) informing him that it was difficult to protect the
unused land from future encroachment. Having come to
know about this letter, the respondent made
representations to the District Collector to re-assign unused
land to him and that he was prepared to reimburse the
compensation that had been received by him along with
interest. He also indicated that he was prepared to give up
his claim for enhancement of compensation to that extent
of land. There was no response from the collector. The
respondent filed a writ petition No. 14062/97 in the High
Court seeking a writ of mandamus to the authorities to re-
assign the unused land to him. He based his claim on the
Standing Order No. 90 (32) of the A.P. Board of Revenue.
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A learned Single Judge of the High Court disposed of the
writ petition on 4.7.1997 directing the District Collector to
consider the request of the respondent for re-assigning of
the unused land in the light of the order of the Board of
Revenue aforementioned having regard to the letter of the
Resident Engineer dated 27.12.1996 and by collecting the
amount of compensation already paid with 12% interest.
Pursuant to the directions given in Writ Petition No. 14062
of 1997 the respondent made representation to the
authorities seeking re-assignment of unused land. The
District Collector by his order dated 18.10.1997 rejected
the said representation, holding that the said land was
suitable for construction of Mandal Office. In this order the
District Collector referred to the judgments of the Supreme
Court in State of Kerala and others vs. M. Bhaskaran
Pillai and another [(1997) 5 SCC 432], and Sri Gulam
Mustafa and others vs. State of Maharashtra and
others [AIR 1977 SC 448]. As against this order of the
District Collector the respondent filed another writ petition
No. 33171 of 1997 in the High Court. The learned single
Judge, after considering the contentions of the parties, by
order dated 2.1.1998, allowed the writ petition directing the
authorities to hand over the unused portion of the land to
the respondent by collecting the amount of compensation
already paid with interest at the rate of 12%. It may be
added here itself that para 32 of the Board’s Standing Order
No. 90 was amended by the Government Order dated
9.10.1998 to the effect that in case the land acquired
remains unused for any reason, it could be utilized for any
other public purpose as deemed fit. Aggrieved by the order
of the learned Single Judge, the State filed a writ appeal
before the High Court. By the impugned appeal, the
Division Bench of the High Court held that apart from the
Board’s standing order 90(32), Section 54-A of the Andhra
Pradesh (Telangana Area) Land Revenue Act (for short ‘the
Act’) also supported the case of the respondent. The
Division Bench also took the view that the proposal to
construct Mandal Revenue Office building in the unused
land was an after-thought and was made with a view to
circumvent the order passed by the learned Single Judge
and even otherwise, the unused land in question was so
small that it would not be sufficient to construct any
building. Having held so, the Division Bench of the High
Court dismissed the writ appeal by the judgment which is
under challenge in this appeal.
The facts are not in dispute. The questions that arise
for consideration are whether direction could be given to
the appellants to re-assign unused land to the respondent
which was duly acquired by the authorities and the
acquisition proceedings had become final except that the
reference is pending before the Reference Court only with
regard to enhancement of compensation and whether the
Board’s Standing Order No. 90(32) and Section 54-A of the
Act can be applied for reassignment of the unused land in
favour of the respondent.
Learned counsel for the appellants contended that
once the land is acquired in accordance with law which
vests in the Government free from all encumbrances, no
direction could be given to re-convey the unutilized land
which is part of the acquired land; Section 54-A of the Act
is not at all applicable to the facts of the present case; the
Standing Order No. 90(32) of the Board of Revenue has no
statutory force and at any rate it cannot override the
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provisions of the Land Acquisition Act and that the Division
Bench of the High Court was not correct in observing that
the unused land was not sufficient for the purpose of
construction of the Mandal Revenue Officer; it was for the
concerned authorities to examine the sufficiency or
otherwise of the available land.
In opposition, the learned counsel for the respondent
made submissions supporting the impugned order for the
very reasons stated in it. In his argument, he reiterated
the submissions that were made before the High Court.
According to him, having regard to the facts and
circumstances of the case, this Court may not interfere with
the impugned order exercising jurisdiction under Article 136
of the Constitution.
In order to appreciate the respective contentions
advanced on behalf of the parties, it would be useful to
notice relevant portion of the Standing Order No. 90(32) of
Board of Revenue and Section 54-A of the Act.
The Board’s standing order
"32. Disposal of land which is no longer required
for the public purpose for which it was acquired.
Notes \026 (1) No land shall be disposed of, under
this paragraph, to any person other than the
citizen of India, except by the Collector or the
Board and with the previous permission of State
Government, every grant made under this
paragraph shall be subject to the condition that,
if the land is alienated without the sanction of
Government in favour of any person other than a
citizen of India, the grant shall thereupon
become null and void.
.........................................................
When land acquired for a public purpose, is
subsequently relinquished, it should be disposed
of as follows:-
(i) If the land relinquished is likely to be again
required for public purposes, it should be
merely leased out for such term as may be
considered, desirable in each case.
(ii) ................
(iii) ................
(iv) If the land is not declared unfit for
permanent occupation under clause (i) or
(ii) above and was agricultural or pastoral
land at the time of the acquisition, it should
be disposed of in accordance with the
following instructions which should not be
deviated from without the previous
sanction of State Government: -
Such lands should be notified for sale
in public auction by giving wide publicity in
respect of the sales in the villages by beat
or tom-tom and affixing notice of sales in
conspicuous places in the villages
concerned. The date of sale should be
fixed allowing an interval of thirty days
between the date of publicity and the date
of sale. The land should be sold by public
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auction subject to the annual assessment.
There shall be no upset price except in the
case of railway relinquished lands where a
minimum or upset price should be fixed in
consultation with Railway Administration
before auction. If at the time of sale
anybody puts forth his claim in respect of
any field either as an adjacent owner, or as
an original owner or as heir of the original
owner, the sale of that field should be
stopped and his claim investigated and
disposed of in the manner specified in sub-
clause (2) and (3). If it is found that his
claim is not proved, the field should be sold
by public auction."
The amendment to paragraph 32 of Board’s Standing
Order No. 90(32) brought about by G.O.Ms. No. 783 dated
9.10.1998 reads:
"For paragraph 32 of B.S.O. 90, the following
paragraph shall be substituted, namely:-
PARA 32 Utilisation of acquired lands for any
other Public Purpose:
"The land acquired for a public purpose under
the Land Acquisition Act, 1894 shall be utilized
for the same purpose for which it was acquired
as far as possible. In case, the land is not
required for the purpose for which it is acquired
due to any reason, the land shall be utilized for
any other public purpose, as deemed it,
including afforestation."
Section 54-A of the Act reads:
"Procedure in respect of land acquired for
purpose of public benefit and no more required \026
When agricultural or pasturage land acquired for
public benefit is no longer required, the patta
thereof shall be made in the name of the person
or his successor from whom such land was
acquired, provided he consents to refund the
compensation originally paid to him. If such
person or his successor does not take the land, it
may be given on patta under Section 54."
It is neither debated nor disputed as regards the valid
acquisition of the land in question under the provisions of
the Land Acquisition Act and the possession of the land had
been taken. By virtue of Section 16 of the Land Acquisition
Act, the acquired land has vested absolutely in the
Government free from all encumbrances. Under Section 48
of the Land Acquisition Act, Government could withdraw
from the acquisition of any land of which possession has not
been taken. In the instant case, even under Section 48,
the Government could not withdraw from acquisition or to
re-convey the said land to the respondent as the possession
of the land had already been taken. The position of law is
well settled. In State of Kerala and Ors. Vs. M.
Bhaskaran Pillai & Anr. [(1997) 5 SCC 432], para 4 of
the said judgment reads:-
"4. In view of the admitted position that the
land in question was acquired under the Land
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Acquisition Act, 1894 by operation of Section 16
of the Land Acquisition Act, it stood vested in the
State free from all encumbrances. The question
emerges whether the Government can assign
the land to the erstwhile owners? It is settled law
that if the land is acquired for a public purpose,
after the public purpose was achieved, the rest
of the land could be used for any other public
purpose. In case there is not other public
purpose for which the land is needed, then
instead of disposal by way of sale to the
erstwhile owner, the land should be put to public
auction and the amount fetched in the public
auction can be better utilised for the public
purpose envisaged in the Directive Principles of
the Constitution. In the present case, what we
find is that the executive order is not in
consonance with the provision of the Act and is,
therefore, invalid. Under these circumstances,
the Division Bench is well justified in declaring
the executive order as invalid. Whatever
assignment is made, should be for a public
purpose. Otherwise, the land of the Government
should be sold only through the public auctions
so that the public also gets benefited by getting
a higher value."
In that case, an extent of 1.94 acres of land was
acquired in 1952 for construction of National Highway and
the construction was completed in 1955 in 80 cents of land
and the balance of land remained unused. The remaining
land was sought to be sold to the land owner at the same
rate at which the compensation was awarded under Section
11. This again was challenged in the writ petitions. The
Government tried to sustain the action on the basis of the
executive order issued by the Government for permission
for alienation of the land. On these facts, the position of
law was made clear in para 4 extracted above. Thus, it is
clear that under Section 16 of the Land Acquisition Act, the
acquired land should vest in the State free from all
encumbrances and that any executive order inconsistent
with the provisions of Land Acquisition Act was invalid.
Further that if the land is acquired for a public purpose,
after the public purpose was achieved, the rest of the land
could be used for any other public purpose. In our view,
this decision supports the case of the appellants fully.
In the case Chandragauda Ramgonda Patil & Anr.
vs. State of Maharashtra & Ors. [(1996) 6 SCC 405],
claim of the petitioner for restitution of the possession of
the land acquired pursuant to the resolution of the State
Government was rejected. In para 2, this Court observed
thus:-
"2........ We do not think that this Court would be
justified in making direction for restitution of the
land to the erstwhile owners when the land was
taken way back and vested in the Municipality
free from all encumbrances. We are not
concerned with the validity of the notification in
either of the writ petitions. It is axiomatic that
the land acquired for a public purpose would be
utilized for any other public purpose, though use
of it was intended for the original public purpose.
It is not intended that any land which remained
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unutilized, should be restituted to the erstwhile
owner to whom adequate compensation was
paid according to the market value as on the
date of the notification. Under these
circumstances, the High Court was well justified
in refusing to grant relief in both the writ
petitions."
Yet in another recent decision, this Court in Northern
Indian Glass Industries vs. Jaswant Singh & Ors.
[(2003) 1 SCC 335] referring to the case of Chandragauda
Ramgonda Patil (supra) and other cases held that "if the
land was not used for the purpose for which it was
acquired, it was open to the State Government to take
action but that did not confer any right on the respondents
to ask for restitution of the land". Paras 10 and 11 of the
said judgment read thus:-
"10. In Chandragauda Ramgonda Patil vs. State
of Maharashtra [(1996) 6 SCC 405] it is stated
that the acquired land remaining unutilized was
not intended to be restituted to the erstwhile
owner to whom adequate compensation was
paid according to the market value as on the
date of notification.
11. Yet again in C.Padma Vs. Dy. Secy. To the
Govt. of T.N. [(1997) 2 SCC 627], it is held that
acquired land having vested in the State and the
compensation having been paid to the claimant,
he was not entitled to restitution of possession
on the ground that either original public purpose
had ceased to be in operation or the land could
not be used for other purpose."
From the position of law made clear in the
aforementioned decisions, it follows that (1) under Section
16 of the Land Acquisition Act, the land acquired vests in
the Government absolutely free from all encumbrances; (2)
the land acquired for a public purpose could be utilized for
any other public purpose; and (3) the acquired land which
is vested in the Government free from all encumbrances
cannot be re-assigned or re-conveyed to the original owner
merely on the basis of an executive order.
At the hearing, we specifically asked learned counsel
for the respondent whether the Board’s Standing Order
90(32) was issued under any particular statute, the learned
counsel was not able to point out to any provision of law
under which it was issued. He was not in a position to show
that the said order bears any statutory force. Even
otherwise, as per para 32 of the said order, the land
acquired, no longer required for the public purpose for
which it was acquired, could not be disposed of in favour of
any person other than the citizen of India and that too
without the sanction of the Government . If the land
acquired for the public purpose is specifically relinquished,
such land could be disposed of as stated in the said
paragraph. If the land relinquished is likely to be again
required for public purposes, it should be merely leased out
for such term as may be considered desirable in each case.
If the acquired land was an agricultural land at the time of
acquisition, it should be disposed of inviting for sale in
public auction by giving wide publicity in respect of sale. If
at the time of sale, anybody puts forth his claim in respect
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of any field either as an adjacent owner or as an original
owner, the sale of that field should be stopped and his claim
investigated and disposed of in the manner specified in sub-
clauses (i) and (iv) of Note (2) of the Board’s order 90(32).
If it is found that his claim is not proved, the field should be
sold by public auction. In the case on hand, there is
nothing on record to show that the part of the acquired land
which remained unused was relinquished by the
Government. A letter of Resident Engineer stated that the
unused land was no more required cannot amount to
relinquishment of the said land by the competent authority.
In order to make a claim under para 32 of the said Board’s
Standing Order in the first place, it was necessary that the
competent authority had subsequently relinquished the
unused land. After such relinquishment of the land, the
land had to be notified for sale in public auction. If at the
time of sale of such land, the original owner made a claim,
sale could be stopped and his claim could be investigated
and thereafter the land was to be disposed of in the manner
specified under the said paragraph. Added to this, by virtue
of the amendment to para 32 brought about by G.O.Ms. No.
783 dated 9.10.1998, the land for the public purpose shall
be utilized for the same purpose for which it was acquired
as far as possible and in case the land is not used for the
purpose for which it was acquired due to any reason, the
land shall be utilized for any other public purpose as
deemed fit. It appears this amendment was not brought to
the notice of the High Court.
Chapter V of the Act deals with occupation of khalsa
land and right of occupant. Under Section 54, procedure is
prescribed for acquiring unoccupied land. This Section
enables a person to submit a petition to Tehsildar if he is
desirous of taking unoccupied land. On such application,
the Tehsildar may in accordance with the rules made by the
Government give permission in writing for occupation.
Section 54-A indicates the procedure in respect of land
acquired for the purpose of public benefit and which is no
more required. It is clear from plain and clear language of
the said Section that when an agricultural land acquired for
public benefit is no longer required, the patta thereof shall
be made in the name of the person or his successor from
whom such land was acquired provided he consents to
refund the compensation originally paid to him. This
Section does not say that the agricultural land acquired for
public benefit is no longer required for the purpose for
which it is acquired. This Section can be attracted only in a
case where agricultural land acquired for public benefit is no
longer required not necessarily for the specific purpose for
which it was acquired. Added to this, that the land is no
more required is a decision required to be made by the
competent authority. As in the present case, mere letter of
Resident Engineer that the unused land is no more required
is not enough. When the land is acquired under the Land
Acquisition Act which is vested in the State Government
free from all encumbrances, the question of reconveying
the land as claimed by the respondent could not be
accepted in view of the clear position of law stated in the
decisions of this Court aforementioned. Whether the
unused remaining land out of the acquired land was
sufficient or not for the purpose of construction of Mandal
Revenue Office could not be decided by the High Court. It
was for the competent authorities to decide about the
same. The High Court, in our view, was not right in saying
that the proposal to construct the Mandal Revenue Office in
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the unused land acquired was an after-thought. No
material was placed on record to attribute any mala fides
on the part of the authorities or to support the case that the
proposal to build a Mandal Revenue Office was an after-
thought.
Thus viewed from any angle, we find it difficult to
sustain the impugned order. Consequently, it is set aside
and the writ petition filed by the respondent is dismissed.
The appeal is allowed accordingly. No costs.
CIVIL APPEAL NO. 4110 OF 2000
The building bearing No. 21/1/683 situated at
Kokarwadi, Rikabgunj, Hyderabad belonging to respondent
no. 1 was acquired by erstwhile Hyderabad Government for
Kokarwadi Scheme of the then City Improvement Board.
The award was passed under the Land Acquisition Act on
25.7.1953 and compensation was paid to the respondent
no. 1. In 1956, the Andhra Pradesh Housing Board was
established and all the properties of the then City
Improvement Board stood transferred and vested in the
Andhra Pradesh Housing Board, the appellant herein. Since
the Kokarwadi Scheme was abandoned, the building in
question was leased out to the respondent no. 2. The
respondent no. 1 made representation to the appellant
seeking reconveyance of the building on payment of
compensation amount with interest relying on Standing
Order No. 90(32) of the Board of Revenue. On 28.9.1979,
appellant passed resolution for disposing of the property
and similar other properties to the tenants. On 6.2.1989,
the appellant rejected the representation of the respondent
no. 1. Under the circumstances, the respondent no. 1-
erstwhile owner of the building filed a original suit in City
Civil Court, Hyderabad, seeking a mandatory injunction for
re-conveyance of the building and possession of the same.
The appellant contested the suit. The trial court decreed
the suit in favour of the respondent no. 1 relying on the
Standing Order No. 90(32) of the Board of Revenue. The
respondent no. 2 here who was in occupation of the
property as a tenant was defendant no. 2 in the suit. The
appellant filed first appeal before the 4th Additional Chief
Judge, City Civil Court, Hyderabad. The second respondent
did not prefer any appeal against the decree made by the
trial court. The Addl. Chief Judge dismissed the first appeal
affirming the decree made by the trial court. The appellant
filed the second appeal before the High Court which was
also dismissed. Hence, this appeal.
Learned counsel for the parties in this appeal also
made similar submissions that were made in Civil Appeal
6546 of 1999 bringing to our notice facts of this case.
In the view we have taken in Civil Appeal No.
6546/1999 dealing with the Board’s Standing Order No.
90(32) and Section 54-A of the Act and keeping in view the
settled position of law, this appeal is also entitled to
succeed. Under the circumstances it is unnecessary to deal
with other contentions. Accordingly, this appeal is allowed.
The impugned judgment is set aside and the suit filed by
respondent no. 1 (plaintiff) is dismissed with no order as to
costs.