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2004 DIGILAW 429 (AP)

M. Surya Rao v. District Collector, Land Acquisition, Kakinada, E. G. District

2004-04-03

N.V.RAMANA

body2004
N. V. RAMANA, J. ( 1 ) THE petitioner who claims to be cultivating tenant of land in an extent of Ac. 1-11 cents, belonging to Respondent no. 4-Temple, situated in Sy. No. 143/3, kandregula Village, Pedapudi Mandal, East godavari District, has filed this writ petition praying for the following relief: to issue a writ, order or direction, more particularly one in the nature of writ of mandamus declaring the action of respondent No. 1 in issuing the impugned notification under Section 4 (1) of the land Acquisition Act, 1894 vide Ref. No. G2/5825/2003, dated 20-9-2003 for acquiring the land to an extent of Ac. 1-11 cents belonging to Respondent No. 4- devasthanam situated in Sy. No. 143/3 (wrongly mentioned in notification as sy. No. 194/2) Kandregula Village, pedapudi Mandal, East Godavari District, and quash the same as highly illegal, arbitrary and contrary to the instructions issued by the Government vide G. O. Ms. No. 444, dated 19-9-1995 and the subsequent G. Os. and pass such other order or orders in the interest of justice. ( 2 ) THE petitioner claims to be a cultivating tenant of land in an extent of ac. 1-11 cents in Sy. No. 143/3, Kandregula village, Pedapudi Mandal, East Godavari district, belonging to Respondent No. 4- devasthanam, for the last more than 30 years, on periodical leases, and presently he is holding a lease valied upto 2004-05 and is paying the rents regularly. The petitioner states that being a small farmer, he applied to the authorities under the A. P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short the endowments Act ) for alienation of the land, which is under cultivation, in his favour. He is raising crops in the land, and presently there is standing crop. While so, it is the case of the petitioner that Respondent No. l- district Collector, issued notification under section 4 (1) of the Land Acquisition Act, 1894 (for short the Act ) on 20-9-2003 for acquisition of the land in his possession by wrongly mentioning the survey number as 194/2. The petitioner submits that the notification issued by Respondent No. l runs contrary to the statutory directions issued by the Government in G. O. Ms. No. 444, rev. Endowments-II Department, dated 19-9-1995, wherein procedure for acquisition of the lands belonging to the Charitable and endowments Institutions, is prescribed. The petitioner submits that the notification issued by Respondent No. l runs contrary to the statutory directions issued by the Government in G. O. Ms. No. 444, rev. Endowments-II Department, dated 19-9-1995, wherein procedure for acquisition of the lands belonging to the Charitable and endowments Institutions, is prescribed. The petitioner states that any acquisition of land by Respondent No. l shall only be subject to the provisions of Section 80 of the Endowments Act, which provides for calling for objections from persons interested in the land and obtaining permission from the Commissioner of Endowments. The petitioner states that inasmuch as before issuance of notification, Respondent No. l had neither called for objections nor obtained permission from the Commissioner of endowments, the notification cannot be sustained and is liable to be set aside. ( 3 ) HEARD the learned Counsel for the petitioner, the learned Government pleader for Land Acquisition and the learned standing Counsel for Respondent No. 4- devasthanam. ( 4 ) THE learned Counsel for the petitioner submits that the petitioner is a small farmer and a cultivating tenant of respondent No. 4 in an extent of Ac. 1-11 cents in Sy. No. 143/3, Kandregula Village, pedapudi Mandal East Godavari District, for the last more than 30 years and presently, is holding a lease, which is valid upto 2004-05, and while so, Respondent No. 1 issued Notification under Section 4 (1) of the Act, seeking to acquire the land under his cultivation by wrongly mentioning the survey number as 194/2, which is illegal and arbitrary. The learned Counsel submits that the impugned Notification issued by respondent No. l is vague, for it neither furnishes the correct particulars nor mentions the correct survey number in relation to the land in possession of the petitioner, and therefore, cannot be sustained. In support of his contention that a vague notification vitiates the very acquisition process itself, the learned Counsel placed reliance on the judgment of the Apex Court in Madhya pradesh Housing Board v. Mohd Shaft, (1992) 2 SCC 168 . In support of his contention that a vague notification vitiates the very acquisition process itself, the learned Counsel placed reliance on the judgment of the Apex Court in Madhya pradesh Housing Board v. Mohd Shaft, (1992) 2 SCC 168 . ( 5 ) THE learned Counsel for the petitioner submits that the purpose for which respondent No. l sought to acquire the land is for providing house sites to poor, and having regard to the fact that the land under cultivation of the petitioner, which is sought to be acquired by Respondent No. l is located in the midst of agricultural fields, the same is not useful for providing house sites to poor, and on the other hand, it is more useful for agricultural purposes for an irrigation channel passes through it. The learned Counsel submits that there are vast extents of Government porambaoke lands vacant in the village, and without acquiring the said lands, the action of Respondent no. l in seeking to acquire the land belonging to Respondent No. 4, which is under his cultivation, is not proper. ( 6 ) THE learned Counsel for the petitioner submits that before proceeding to acquire the land belonging to a Charitable or an Endowment Institution, Respondent no. l is required to follow the procedure contained in Section 80 of the Endowments act, which provides for calling for objections from persons interested in the land, and inasmuch as no such procedure was followed before seeking to acquire the land belonging to Respondent No. 4, which is under his cultivation, the Notification is liable to be set aside. He further submits that as per the executive instructions issued by the Government in G. O. Ms. No. 444, rev. Endowments-II Department, dated 19-9-1995, and the said executive instructions being binding, Respondent No. 1 was under an obligation to seek permission of the commissioner of Endowments before seeking to acquire the land belonging to a charitable or Endowments Institution, and inasmuch as no such permission was obtained by Respondent No. l before issuing the impugned Notification, the same cannot be sustained. In support of his contention that the executive instructions issued by the government in respect of acquisition of lands belonging to Charitable and Endowments institutions are binding on the authorities under the Land Acquisition Act, placed reliance on the judgment of the Full Bench of this Court in Yadaiah v. Government of a. P. , 1983 (1) ALT 233. He thus submitted that the writ petition has to be allowed. ( 7 ) THE learned Government Pleader for Land Acquisition for Respondent Nos. 1 to 3 and the learned Standing Counsel for respondent No. 4 on instructions submitted that there is no Government land available in the village for acquisition for providing house sites to poor, and therefore, respondent No. 1 sought to acquire the land belonging to a Charitable or an Endowment institution, and upon identifying the land belonging to Respondent No. 4, which is under the cultivation by the petitioner, issued the impugned Notification, seeking to acquire the land. The petitioner is merely a tenant of Respondent No. 4, and he cannot claim to have better rights than what Respondent no. 4 has. The petitioner being a tenant of respondent No. 4 and a person interested can claim his share of compensation in respect of the land under his cultivation, and at any rate, he cannot question the acquisition proceedings. They, thus prayed for dismissal of the writ petition. ( 8 ) THOUGH the petitioner contends that respondent No. 1 has issued the impugned notification without following the directions issued by the Government in G. O. Ms. No. 444, dated 19-9-1995, the fact remains that the said G. O. stood superseded by reason of the directions issued by the Government in G. O. Ms. No. 456, Revenue (Endt. II) department, dated 29-9-1995, and as such, the petitioner cannot place any reliance thereon. Be that as it may, the instructions issued by the Government in the said G. O. being merely administrative in nature, not having any statutory force, are not enforceable. No. 456, Revenue (Endt. II) department, dated 29-9-1995, and as such, the petitioner cannot place any reliance thereon. Be that as it may, the instructions issued by the Government in the said G. O. being merely administrative in nature, not having any statutory force, are not enforceable. The question as to whether administrative instructions issued by the government in exercise of their executive power, not backed by any statutory power, was considered by the Apex Court in J. R. Raghupathy v. State of A. P. , (1988) 4 scc 364 , and it was held: even assuming that any breach of the guidelines was justiciable, and that the Government while accepting the recommendations of the Cabinet Sub-Committee directed that the Mandal Headquarters should be at place x rather than place y as recommended by the Collector concerned in a particular case, the utmost that the High Court could have done was to quash the impugned notification in a particular case and direct the Government to reconsider the question. There was no warrant for the High Court to have gone further and directed the shifting of the Mandal Headquarters to a particular place. The High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ petitioners. (emphasis supplied) ( 9 ) IN view of the aforementioned judgment of the Apex Court, the contention of the petitioner that the impugned notification is liable to be set aside for the reason that the same has been issued without following the procedure contemplated in G. O. Ms. No. 444, dated 19-9-1995, cannot be accepted and more so when the said G. O. stood superseded by reason of another G. O. issued by the Government in G. O. Ms. No. 456, dated 29-9-1995. This apart, it may be noticed that a Division Bench of this court in W. A. No. 904 of 1999, dated 26-7- 1999, while considering the question of enforceability of the guidelines issued by the government in the subsequent G. O. , namely g. O. Ms. No. 456, dated 29-9-1995. This apart, it may be noticed that a Division Bench of this court in W. A. No. 904 of 1999, dated 26-7- 1999, while considering the question of enforceability of the guidelines issued by the government in the subsequent G. O. , namely g. O. Ms. No. 456, dated 29-9-1995, held thus: the guidelines laid down in the G. O. are meant for the internal working of the government, and they cannot create any enforceable rights separately in the writ petitioners. The interests of the petitioners appellants are properly taken care of by the state and that they will be entitled to appropriate compensation in accordance with law for possessing title, if they have any. (emphasis supplied) ( 10 ) IN the above view of the matter, reliance placed by the learned Counsel for the petitioner on the judgment of the Full bench of this Court in Yadaiah v. Government of A. P. (supra) in support of his contention that executive instructions issued by the Government being binding, the authorities are bound to follow them in letter and spirit, is of no avail to him. ( 11 ) BE that as it may, it may be noticed that the Government issued G. O. Ms. No. 456, dated 29-9-1995 mainly with a view to speed up the procedure involved in acquiring the lands belonging to Religious and Charitable Institutions and Endowments for the purpose of providing house sites to the members of the weaker sections by evolving a method under which the District collectors concerned are authorized to take advance possession of the identified lands, framed guidelines to achieve the objectives thereof. One of the guidelines states that when no Government or other alternate land is available in an area, the district Collectors concerned shall identify the Endowments land within their jurisdiction suitable for the purpose of providing house sites. Even this G. O. was superseded by reason of another G. O. issued by the government in G. O. Ms. No. 363, Revenue (Endts. II) Department, dated 26-4-1999. In the instant case, it is the specific case of the Government that there is no Government land or other alternative available in the area for the purpose of providing house sites to poor, and therefore, Respondent No. 1 identified the land belonging to Respondent no. 4, which admittedly is under cultivation by the petitioner. II) Department, dated 26-4-1999. In the instant case, it is the specific case of the Government that there is no Government land or other alternative available in the area for the purpose of providing house sites to poor, and therefore, Respondent No. 1 identified the land belonging to Respondent no. 4, which admittedly is under cultivation by the petitioner. That being the case of the government, no exception can be taken to the action Respondent No. 1 in identifying the land belonging to Respondent No. 4 which is under cultivation of the petitioner for the purpose of providing house sites to poor, and more so when the power of assessing the suitability or otherwise of the land for the purpose for which it is sought to be acquired, is vested in Respondent No. l. Apart from that, the petitioner admittedly, is a tenant of Respondent No. 4, and he cannot claim to have better rights than what respondent No. 4 has and at best, he being in possession of the land as a tenant, and a person interested in the land, can claim his share of compensation, which may be awarded by the Land Acquisition Officer for acquisition thereof. This aspect of the matter was considered by a learned Single judge of this Court in B. Jagannayakulu v. District Collector, 1999 (3) ALT 733 , wherein he held thus: a tenant cannot have more rights than the owner. When the question of acquisition of land comes, if the owner cannot defeat the provisions of Land Acquisition Act can a tenant defeat such provisions? Under section 11 of the Tenancy Act change of ownership in lands which are under tenants is possible. So, by issuing a notification under Section 4 of the Land Acquisition act, the State has expressed its intention to take the lands into their own ownership. Under the Land Acquisition Act, State can become the owner of any property provided the property is taken for a public purpose and after following the procedure Laid down by the Land Acquisition Act. Change of ownership is not barred under the A. P. Tenancy Act, therefore, State can become owner of the land which are owned by landlords whether they are temples or private. individuals. Change of ownership is not barred under the A. P. Tenancy Act, therefore, State can become owner of the land which are owned by landlords whether they are temples or private. individuals. Once the land is taken in the ownership of the State, the A. P. Tenancy act, 1956 becomes inoperative by virtue of section 18 of the same Act Section 18 of the Tenancy Act lays down that, nothing in the Tenancy Act shall apply to the lands owned by the State Government or the central Government. Acquisition, per se, is not barred under the Tenancy Act. Change of ownership, is also not barred under the tenancy Act. There cannot be any bar to the State Government to take the lands into its possession under the provisions of land Acquisition Act which are in the possession of tenants at a particular point of time. ( 12 ) THE petitioner being a tenant of respondent No. 4 and a person interested in the land belonging to Respondent No. 4 by reason of his cultivation of the said land, can well seek his share of compensation that may be awarded by the Land acquisition Officer in lieu of acquisition thereof, but he certainly cannot question the acquisition proceedings on mere technicalities. ( 13 ) THE contention of the petitioner that the inasmuch as the survey number of the land has been mentioned wrongly in the impugned Notification and is vague, the acquisition proceedings should vitiate, is misconceived. It may be noticed that the impugned Notification contains all the particulars, which an acquisition Notification is required to contain. Except wrong mentioning of survey number, the details and particulars, such as, the provision of law under which the Notification has been issued, the nature of land, to whom the land belongs, the extent of land required, the purpose of which it is required etc. , are mentioned correctly, and therefore, it cannot be said that the impugned Notification is vague and the acquisition proceedings should vitiate. The Apex Court in State of karnataka v. Narasimhamurthy, AIR 1996 sc 90 , held that omission to publish the name of the owner in the Notification, does not vitiate the acquisition proceedings. In the instant case, though the name of the petitioner is mentioned in the Notification, the survey number of the land has been wrongly mentioned. The Apex Court in State of karnataka v. Narasimhamurthy, AIR 1996 sc 90 , held that omission to publish the name of the owner in the Notification, does not vitiate the acquisition proceedings. In the instant case, though the name of the petitioner is mentioned in the Notification, the survey number of the land has been wrongly mentioned. That by itself will not vitiate the acquisition proceedings, and more so when such an error can be corrected by issuance of an errata or corrigendum, and more so when no prejudice is shown to have been caused to the petitioner by wrong mentioning of the survey number. In that view of the matter, reliance placed by the learned Counsel for the petitioner on the judgment of the Apex Court in Madhya Pradesh Housing Board v. Mohd Shaft (supra), in support of his contention that a Notification which is vague, vitiates the acquisition proceedings, is of no avail to him. ( 14 ) INSOFAR as the contention of the petitioner that unless and until permission of the Commissioner of Endowments is obtained, notification under Section 4 (1) of the Act, could not have been issued by Respondent no. 1 is concerned, a learned Single Judge of this Court in W. P. No. 3062 of 2004, while repelling similar contention placing reliance on the judgment of the Apex Court in state of A. P. and others v. Nallamilli ramireddy and others, 2001 (7) SCC 708 , held that the contention that for acquisition of land under the provisions of the Land acquisition Act, prior permission under the endowments Act has to be obtained is misconceived, and in view of the same, the contention of the petitioner that before seeking to acquire the land belonging to respondent No. 4, Respondent No. l was under an obligation to obtain permission from the Commissioner of Endowments, merits no consideration, and is liable to be rejected. ( 15 ) THE learned Counsel for Respondent no. 4-Temple submitted that Respondent no. l is not paying the market value for the acquired land. ( 15 ) THE learned Counsel for Respondent no. 4-Temple submitted that Respondent no. l is not paying the market value for the acquired land. Once the land belonging to a private individual or an endowment or a charitable institution is acquired by the government invoking the provisions of the Land Acquisition Act, 1894, it goes without saying that individual or endowment or charitable institution whose land is acquired, is entitled to compensation as per the market rate prevailing in the area. If respondent No. l is not paying compensation according to the prevailing market rate, it is always open to Respondent No. 4-Temple to approach Respondent No. l, for appropriate compensation as per the prevailing market value of the land. ( 16 ) THE learned Counsel for the petitioner submits that there is standing crop in the acquired land and he be permitted to harvest the same. If any standing crop is in existence in the acquired land, Respondent no. 1 shall permit the petitioner to harvest the same. ( 17 ) IN the result, the writ petition is devoid of any merit, and the same is accordingly dismissed. No costs.