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2003 DIGILAW 1581 (AP)

R. Kanakamma v. District Collector, Nellore Dist

2003-12-26

L.NARASIMHA REDDY

body2003
( 1 ) THIS Writ Petition has a long and chequered career. In a way, this is a continuation of the previous round of litigation. The sole petitioner died during the pendency of the writ petition. Her legal representatives were brought on record. Since there is no conflict of interests, reference in this writ petition to petitioner shall be to herself, her husband and her legal representatives, dependingupon the context. The facts in brief are as under: ( 2 ) THE land in Sy. No. 319/2 of Bit-11 of nellore, admeasuring Ac. 5. 75 cents, belongs to Sri Venugopala Swamy Temple, Nellore (for short the Temple ). One Late Rama swamy, the husband of the petitioner was granted lease in respect of the said land on 24-3-1934 for a period of 50 years. He is said to have raised a mango garden and constructed a farmhouse therein. During the subsistence of the lease, A. P. (Andhra Area) tenancy Area Act came to be enacted in the year 1956 (for short the Tenancy Act ). The tenancy in respect of the land in question was covered by the provisions of the Tenancy act. The Temple filed ATC. No. 37/1981 seeking eviction of the tenant. The same was dismissed. An appeal in ATA. No. 10/1991 filed before the Appellate Authority was also dismissed on 28-1-1991. This order is said to have become final. ( 3 ) ON 6-4-1994, the Revenue Divisional officer and the Mandal Revenue Officer, nellore, respondents 2 and 3 herein, are said to have visited the site and attempted to demarcate and fix the boundaries. Apprehending threat to her possession, the petitioner filed WP. No. 7434/1994 in this court. Interim orders were passed therein. The respondents in the said writ petition, however, contended that the road margin of one of the public roads in the Nellore town was encroached by several persons and to rehabilitate them, the land belonging to the temple was identified. It was also stated that even by the time the interim orders were passed by this court, the land was occupied by the displaced persons. Necessary amendments were made to the writ petition. It was also stated that even by the time the interim orders were passed by this court, the land was occupied by the displaced persons. Necessary amendments were made to the writ petition. Ultimately, the writ petition was allowed through orders dated 18-l-1996, holding that on account of the unauthorized state action, the right of the petitioner under Article 231 of the Constitution is violated, that the petitioner be restored possession of the land within one month from the date of receipt of the copy of the order and that she be paid compensation at the rate of Rs. 6,000/- per acre from the date of dispossession till the date of restoration. ( 4 ) WA. NO. 1127/1996 filed by the respondents therein was dismissed on 18-11-1996. Since the possession was not restored, the petitioner filed CC. No,1470/ 1996. Several developments took place ever since then. At one stage, the State pleaded that in spite of its best efforts; it could not evict the occupants of the land. They filed an application seeking clarification in the said writ petition so as to enable them to initiate proceedings under the Land Acquisition Act (for short the Act ). The learned single judge, who allowed the writ petition, left it open to the respondents to acquire the land under the Act. ( 5 ) IN the meanwhile, the respondents filed slp. No. 3926/1996, against the orders in wa. No. 1127/1996. The Supreme Court passed an order on 10-11-1997 observing that no fault can be found with the decision rendered by the Division Bench of this court in WA. No. 1127/1996, which in turn, confirmed the order of the learned single judge in WP. No. 7473/1994. The issuance of notifications under sections 4 (1) and 6 of the act in relation to the very land was taken note of and it was left open to the petitioner herein to assail the same. So far as the direction as regards restoration of possession is concerned, the Hon ble Supreme Court observed as under:"therefore, the order of restoration of possession as passed by learned single judge and as cpnfirmed by the Divisibn bench in the impugned judgment, deserves to be stayed awaiting final decision in the writ proceedings which the first respondent (petitioner herein) is to file within two weeks from today as informed to us. "it was in this context that this writ petition is filed assailing the validity of the notification, under Section 4 (1) of the Act proposing to acquire the land in SY. No. 319/2. ( 6 ) THE petitioner challenges the validity of the proceedings initiated by the respondents to acquire the land in question on the grounds that the urgency clause under section 17 of the Act was invoked in an arbitrary manner and that the entire proceedings are vitiated on account of malafide exercise of power. It is alleged that there did not exist any urgency for dispensing with the enquiry under Section 5-A of the act, which is the only remedy available to a citizen in the matter of compulsory acquisition. It is contended that the 6th respondent, who was the Chairman of the municipal Council, Nellore, at the relevant point of time, and had also acted as Chairman of the Board of Trustees of the Temple, was the person behind the acquisition. It is alleged that since his efforts to evict the petitioner from the land by invoking the provisions of the Tenancy Act failed, he had inducted his henchmen in to the land forcibly and thereafter had secured the cover of land acquisition by misusing his position and power. ( 7 ) SEVERAL counter affidavits came to be filed in the writ petition dealing with one aspect or the other, depending on the directions issued from time to time. The gist of the same, in so far as the controversy in the present writ petition is concerned, is that it was found absolutely impossible to comply with the directions of this court issued in wp;no. 7473/94 and after obtaining the permission from this court, the proceedings under the Act were initiated. It is their contention that the Temple as well as the commissioner of Endowments have given their consent for acquisition of the land. It is also stated that since the possession of the land was already taken by the time the notice under Section 4 (1) came to be issued, the enquiry under Section 5-A was dispensed with. The respondents further contend that the condition precedent for invocation of the urgency clause viz. . , payment of 80% of the tentative compensation was complied with. It is stated that a sum of Rs. 6. The respondents further contend that the condition precedent for invocation of the urgency clause viz. . , payment of 80% of the tentative compensation was complied with. It is stated that a sum of Rs. 6. 58 lakhs was paid to the Temple and thereby the lands stood vested in the Government under section 17 (1) of the Act. They deny the allegation that the 6th respondent has exerted his force and influence in the matter. ( 8 ) THOUGH the 6th respondent was served with notices, he did not choose to respond in any manner. ( 9 ) SRI C. Kodanda Ram, learned counsel for the petitioner, submits that the 6th respondent has tried his level best to get the petitioner evicted from the land, since it had acquired the value on account of its being proximate to the Nellore town. He submits that having failed in his attempts to get the eviction by invoking the provisions of the tenancy Act, he had instigated his henchmen to forcibly occupy the land. Learned counsel submits thatinitsjudgmentinwp. No. 7473/ 94, this court came heavily upon the acts and omissions on the part of the respondents and had not only directed restoration of possession, but also had awarded compensation. Learned counsel further submits that it was only with a view to put a premium on the unauthorized and unlawful occupation of the land by the encroachers that the proceedings under the Act have been initiated. He submits that there did not exist any basis for dispensing with the enquiry under Section 5-A of the Act. It is also his case that the 6th respondent had used his influence and power in getting the proceedings under the Act initiated and thereby they are tainted with malafides. He relied upon various judgments rendered by the Supreme Court and this court in support of his contentions. ( 10 ) LEARNED Advocate General, appearing for the respondents, other than respondent no. 6, submits that the Government had made its sincere efforts to evict the encroachers and comply with the directions issued by this court in WP. No. 7473/94. He relied upon various judgments rendered by the Supreme Court and this court in support of his contentions. ( 10 ) LEARNED Advocate General, appearing for the respondents, other than respondent no. 6, submits that the Government had made its sincere efforts to evict the encroachers and comply with the directions issued by this court in WP. No. 7473/94. He submits that the fact that the petitioner was paid huge sum towards compensation as directed by this court in the said writ petition, discloses the sincerity on their part and it was only when it became impossible to evict the encroachers that the proceedings under the act have been initiated, duly obtaining he permission from this court. Learned advocate General submits that the declaration by the Government as to the existence of public purpose is treated almost final, except where it is held to be otherwise by the court. It is his case that since the land was in possession of the various beneficiaries, even before the notification under Section 4 (1) was published, and tentative compensation under Section 3a of section 17 of the Act was paid to the Temple, it cannot be said that invocation of urgency clause under Section 17 is tainted with in any manner. ( 11 ) AS regards the allegation of malafides, the learned Advocate General submits that except stating that the proceedings are initiated at the instance of the 6th respondent, the petitioner has not plased, much less established, any facts, which can cinstitute malafides to the degree of annulling the acquisition proceedings. He submits that malafides is a question of fact, which needs to be specifically pleaded and proved, and in the absence of the same, no inference can be drawn that the land acquisition proceedings are tainted with malafides. He submits that malafides is a question of fact, which needs to be specifically pleaded and proved, and in the absence of the same, no inference can be drawn that the land acquisition proceedings are tainted with malafides. He further submits that what ever may have been the right of the petitioner when W. P. No. 7473/ 94 was decided or when the present writ petition is filed, with the judgment of the supreme Court in State of A. P. v. N. Rami reddy upholding Section 82 of the A. P. Charitable and Hindu Religious Institutions and Endowments Act (for short the endowments Act ) the tenancy in favour of the petitioner stood terminated by operation of law and she do not have nay right to make any claim in respect of the land, ( 12 ) THE background of the case, which was referred to in the previous paragraphs, discloses that several proceedings ensued between the parties in relation to AC. 5-75 cents of land in Sy. No. 319/2 at Nellore. The petitioner was successful in the proceedings initiated under the Tenancy Act as well as in the earlier Writ Petition. It has come on record that she was dispossessed in the year 1994 and a direction was issued in WP. No. 7473/ 94 to restore the possession to her. In the same writ petition, the respondents sought the permission of the court to initiate proceedings under the Act. On permission having been granted, they issued notification under Section 4 (1) of the Act. It is not in dispute that the land is held by the Temple and the petitioner is only a tenant. ( 13 ) THE question as to whether Section 82 of the Endowments Act that was upheld by the Supreme Court in N. Rami Reddy case (1 supra) brings about statutory termination of tenancy of the petitioner and the consequences thereof, would be dealt with at a later stage. ( 14 ) THE challenge in this writ petition is to the proceedings initiated under the Act. It is two fold. The first ground of challenge is as to invocation of urgency clause and dispensing with enquiry under Section 5-A of the Act and the 2nd ground is about mala fides. The cumulative effect of these two grounds leads to an allegation that the proceedings are vitiated with the vice of colourable exercise of power. It is two fold. The first ground of challenge is as to invocation of urgency clause and dispensing with enquiry under Section 5-A of the Act and the 2nd ground is about mala fides. The cumulative effect of these two grounds leads to an allegation that the proceedings are vitiated with the vice of colourable exercise of power. ( 15 ) THE Act confers the power of Eminent domain on the State. The petitioner does not challenge the power of the Government to acquire the land. The challenge is only to the procedure adopted therein. Under the scheme of the Act, the Government has to notify its intention to acquire a particular piece of land by publishing a notification under Section 4 (1) of the Act. In the normal course, this is to be followed by an enquiry under Section 5a of the Act. It is only after conducting such an enquiry; that it has to come forward with an ultimate declaration under Section 6 of the Act. Where, however, there exists urgency, the State is conferred with the power to dispense with the enquiry under Section 5-A, by invoking its power under Section 17 (4) of the Act. ( 16 ) THE respondents have dispensed with the enquiry under Section 5-A of the Act in this case. Through the amendment effected in the year 1984, the payment of 80% of tentative compensation under Sub-Section 3-A of Section 17 is made mandatory, and a condition precedent, for invocation or urgency clause. The respondents have complied with this condition. The grievance of the petitioner in the matter of dispensing with enquiry under Section 5-A could have appealed this court, had it been a case where the possession continued with her and where she is the absolute owner of the property. It has come on record that the Temple and the endowment Department have agreed for the land to be acquired and 80% of the tentative compensation was paid to the temple. This is not to say. that the petitioner does not have any say in the matter. It has come on record that the Temple and the endowment Department have agreed for the land to be acquired and 80% of the tentative compensation was paid to the temple. This is not to say. that the petitioner does not have any say in the matter. However, in view of the fact that the possession was already taken and the provisions under Sub- section 3a of Section 17 was complied with, that too with the consent of the owner of the land, it cannot be said that there did not exist any circumstances for dispensing with the enquiry under Section 5-A. ( 17 ) THE next question is as to whether the proceedings are tainted with mala fides. Through a catena of judgments, the Supreme court held that if the allegations as to mala fides are proved to the satisfaction of the court. Where malafides are established, the entire proceedings become vitiated. , The reason is that, in such cases, public purpose becomes only a ruse to advance a private interest. The acquisition tends to be treated and branded as the one tainted with colourable exercise of power. ( 18 ) MALAFIDES, if proved, would vitiate any exercise of power. To assail any proceedings on this ground, the petitioner has to comply with two requirements. Firstly, to implead the person against whom malafides are alleged eonomine; and secondly to plead and establish the facts, which constitute malafides. The petitioner has complied with the 1st requirement. In so far as the 2nd requirement is concerned, it is alleged that being the Managing Trustee of the Temple for some time and thereafter the Chairman of the Municipal Council, the 6th respondent has used his power and influence both to instigate his henchmen to encroach upon the land and thereafter to initiate proceedings under the Act. ( 19 ) TO constitute malafides, the acts alleged against the person should be such that such person had vengeance and grievance against the petitioner or had his own selfish motive to cause harm to the petitioner; and that the power under the statute was used to advance the same. ( 19 ) TO constitute malafides, the acts alleged against the person should be such that such person had vengeance and grievance against the petitioner or had his own selfish motive to cause harm to the petitioner; and that the power under the statute was used to advance the same. What all the petitioner stated against the 6th respondent is as under:"i state that the District Collector, nellore, in connivance with the managing Trustee Sri Anam vivekanandha Reddy and instigated certain persons to occupy our land and about 150 persons had illegally entered into the land with the active support of the revenue authorities and the then m. L. A. Sri J. K. Reddy. The acts of the revenue authorities and the Managing trustee of the Temple, Sri Anam vivekananda Reddy are politically motivated and this fact is confirmed by the Mandal Revenue officer, Nellore in his counter filed in Contempt Case no. 1470 of 1996. In Para 7, it is alleged as under: "the above fact clearly shows that the respondent had no will to implement judgment of this Hon ble Court. It is stated that Mr. Anam Vivekananda reddy using his influence got allotted house sites to his henchmen and followers who are having lot of immovable properties in the Nellore town in the above said land, the above clearly goes to show that Mr. Anam vivekananda Reddy has hand in glove. " ( 20 ) IN the previous writ petition 7473/94, the 6th respondent herein was not impleaded by name. Hence, there was no occasion for this court to record any finding as to his role in the matter. Even if the allegations against the 6th respondent in this writ petition are taken on their face value, this court finds that it cannot be said that the proceedings are vitiated by mala fides. The petitioner did not allege any personal malice on the part of the 6th respondent against her. At the most, the acts alleged by the petitioner against the 6th respondent can be traced to the offices he held viz. , Managing Trustee of the Temple or chairman of the Municipality. ( 21 ) MALA fide exercise of power is one of the facets or factors of the concept of colourable exercise of power. At the most, the acts alleged by the petitioner against the 6th respondent can be traced to the offices he held viz. , Managing Trustee of the Temple or chairman of the Municipality. ( 21 ) MALA fide exercise of power is one of the facets or factors of the concept of colourable exercise of power. In the context of the proceedings under the Act, the supreme Court explained the concept, in srinivasa Cooperative House Building Society vs. Madam Gurumurthy Sastry, as under:"when an act is done by the State under colour of authority of law, it must be for the lawful purpose envisaged under the Act. If the purpose, namely, public purpose envisaged under the Act is not served then the exercise of the power of the declaration under Section 6 must be held to be colourable exercise of the power, though not with evil motive. . . "this was explained further in Bajirao T. Kote vs. State of Maharashtra, in the following terms:-"if the purpose for which the land is being acquired by the State is within the legislative competence of the State, the declaration of the government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the government is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity. Subject to this exception the declaration of the government will be final. "in the judgments relied upon by the learned counsel for the petitioner, different findings on allegations of malafides were recorded, and thereby the acquisition proceedings were set aside. On the facts of the present case, such a finding cannot be recorded. Therefore, it is difficult to hold that there was any mala fide exercise of power on the part of respondent No. 6 or any other officials or that the proceedings are vitiated by mala fides. On the facts of the present case, such a finding cannot be recorded. Therefore, it is difficult to hold that there was any mala fide exercise of power on the part of respondent No. 6 or any other officials or that the proceedings are vitiated by mala fides. ( 22 ) THE A. P. Charitable and Hindu religious Institutions and Endowments Act was enacted in the year 1987, This has replaced the previous Act of A. P. Charitable and Hindu Religious Institutions and endowments Act, 1966. Under Section 82 of the new Act, the existing tenancy in respect of the agricultural lands stood cancelled. This provision was struck down by this court in a batch of writ petitions. Appeals were filed in the Supreme Court. In its decision in n. Rami Reddy case (1 supra), the Supreme court upheld the constitutional validity of section 82 of the Endowments Act. In respect of the tenancies held by landless poor persons, certain options were provided as regards the purchase of the land, in the event of the temple choosing to sell the same. Further, concession was also given in the matter of continuance of leases. In either of the events, the invariable consequence is the statutory termination of the existing lease. ( 23 ) THE petitioner does not fit into the definition of landless poor contained in explanation to Section 82 of the Endowments act in view of the extent of the land. By the time the proceedings were initiated under the Land Acquisition Act, the petitioner was not in possession of the land. That being the case, the claim of the petitioner gets diluted substantially. If she makes any claim, for payment of any part of the compensation, that needs to be dealt with on the merits of the claim and on interpretation of the relevant provisions of the new Act. This court does not intend to undertake any further discussion on this aspect, lest the rights of the parties to this writ petition are affected in any manner in the future proceedings. ( 24 ) FOR the foregoing reasons, this court finds that the proceedings under the Act for acquisition of the land in Sy. No. 319/2 do not suffer from any infirmity or illegality. The writ petition is accordingly dismissed. No costs.