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2011 DIGILAW 368 (AP)

D. Sarala v. District Collector, Kadapa

2011-04-25

C.V.NAGARJUNA REDDY

body2011
Judgment At the Interlocutory stage, the Writ Petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. This Writ Petition is filed for a mandamus to direct the respondents to pay compensation for the compound wall and zinc sheet shed in Sy.No.40/1 of M.Tummala Palli village, Vemula Mandal, Kadapa District. I have heard Sri N.Parameswara Reddy, learned counsel for the petitioner and the learned Assistant Government Pleader for Land Acquisition representing respondent Nos.1 and 2. The petitioner is the owner of an extent of Ac.4-30 cents situated in the above mentioned survey number. The said property was acquired along with various other extents of lands for establishment of mining and processing plant for respondent No.3-Corporation. The award was passed on 31-10-2007. Before such award was passed, the petitioner is stated to have submitted representations to respondent No.2 for inclusion of a compound wall of 4’ wide and 6’ high, surrounding the land and also a zinc sheet measuring 30’ x 30’. The petitioner claimed compensation of Rs.1,50,000/- in respect of the said property. Evidently, without considering the representations of the petitioner, respondent No.2 passed the award without including the said properties therein. When further representations were made by the petitioner, respondent No.2 addressed letter dated 22-12-2008 to respondent No.1 wherein he sought for instructions for payment of compensation in respect of the compound wall and the zinc sheet which were stated to have been left over in the draft notification “by oversight”. As no instructions were forthcoming from respondent No.1, respondent No.2 has sent a reminder in his reference No.E/1310/2004, dated 20-3-2009. When this reminder did not yield any result, the petitioner got issued legal notice dated 5-1-2009 to the respondents. As the respondents failed to take any action on the said legal notice also, she has filed the present Writ Petition. Separate counter affidavits have been filed by respondent Nos.2 and 3. When this reminder did not yield any result, the petitioner got issued legal notice dated 5-1-2009 to the respondents. As the respondents failed to take any action on the said legal notice also, she has filed the present Writ Petition. Separate counter affidavits have been filed by respondent Nos.2 and 3. In the counter affidavit of respondent No.2, it is inter alia stated that on the petitioner’s representations, a report was submitted by respondent No.2 to respondent No.1 seeking instructions and that respondent No.1 in his endorsement dated 23-5-2009 stated that the structures i.e., wall and zinc shed are not notified in the draft notification proposals, that the inspection reports of the officers have not mentioned the existence of the structures and that the petitioner has not raised any objection at the time of receiving compensation for the land and trees. It is further stated that while submitting the draft declaration proposals by respondent No.2, the land was inspected and that the inspecting team have not found any structures and that on receipt of the representations from the petitioner, a further enquiry was made and a report was submitted to respondent No.1 wherein the fact of existence of a structure over the land was informed and that respondent No.1 observed that probably the zinc shed must have been constructed after publication of the draft notification. In the counter affidavit filed by the Executive Director of respondent No.3, he has mainly objected to the maintainability of the Writ Petition and stated that if the petitioner feels aggrieved by the award she is entitled to seek reference of the dispute under Section 18 of the Land Acquisition Act, 1894 (for short “the Act”). At the hearing, the learned Assistant Government Pleader for Land Acquisition submitted that the petitioner has failed to raise any objections in the award enquiry and that at any rate, she had a right of seeking reference under Section 18 of the Act. At the hearing, the learned Assistant Government Pleader for Land Acquisition submitted that the petitioner has failed to raise any objections in the award enquiry and that at any rate, she had a right of seeking reference under Section 18 of the Act. As regards the first submission of the learned Assistant Government Pleader, the petitioner filed a copy of representation dated 14-3-2008 wherein it is mentioned that on 19-2-2007 respondent No.2 has issued a notice calling upon the petitioner to submit her objections, that on 12-4-2007 the petitioner has attended the office of respondent No.2 personally and submitted written objections and that even before the filing of the said objections on 2-9-2006, written objections were filed wherein existence of the shed and the compound wall was referred to and a claim for compensation was made in respect of the said properties. She also mentioned in the said representation that compensation for the compound wall and the shed was paid in favour of one Dhanikula Krishnaiah whose property is situated in Sy.No.41. Correspondence ensued subsequently between the petitioner and respondent No.2 vide letters dated 10-11-2008 and 23-12-2008 wherein the petitioner kept on reiterating her stand that the compound wall and the shed were in existence and raising objections for removal of the same without paying the compensation. This obviously has led to respondent No.2 addressing letters dated 22-12-2008 and 20-3-2009 to respondent No.1 wherein while admitting the existence of the compound wall and the shed, the former has sought for instructions from the latter for payment of compensation. In this uncontroverted fact situation, it is not possible to accept the contention of the learned Assistant Government Pleader that the petitioner has not raised objections before passing of the award by respondent No.2. If the compound wall and the shed were not in existence, nothing prevented respondent No.2 from giving appropriate reply to the petitioner after he has received the objections claimed to have been given by the petitioner on 2-9-2006 and also on 12-4-2007. It is not the pleaded case of the respondents that respondent No.2 has made any such denial of the petitioner’s claim. Moreover, in his letters dated 22-12-2008 and 20-3-2009, respondent No.2 has admitted the existence of the structures and has not raised any doubt as to whether these structures might have come up after publication of the notification under Section 4(1) of the Act. Moreover, in his letters dated 22-12-2008 and 20-3-2009, respondent No.2 has admitted the existence of the structures and has not raised any doubt as to whether these structures might have come up after publication of the notification under Section 4(1) of the Act. If at all, the doubt raised by respondent No.1 is based only on a mere suspicion and not on the basis of an established fact. Therefore, I have no hesitation to hold that the shed and the compound wall obviously existed prior to the publication of the notification under Section 4(1) of the Act and the respondents have omitted to notify the same in the draft notification issued under Section 4(1) of the Act. As regards the second contention of the learned Assistant Government Pleader, the same can be referred only to be rejected. Under Section 18 of the Act, the right of reference of any dispute is available to a person interested where he has not accepted the award and raised objection with respect to the measurement of the land, the amount of compensation, the persons to whom it is payable and the apportionment thereof. This provision therefore pre-supposes that the award must have included any property with reference to which objections on any of the above four grounds can be raised by the person interested. In the considered opinion of this court, unless the property is included in the acquisition proceedings and award is passed, the occasion for the person interested to raise objection either regarding the measurement of the land or the amount of compensation or the person to whom it is payable or the apportionment thereof would not arise. Therefore, the remedy under Section 18 of the Act is not available to the petitioner. It is only after the property is included in the acquisition proceedings and compensation is fixed, that the petitioner may seek reference to the Civil court if she feels aggrieved by any of the above grounds envisaged in Section 18(1) of the Act. Therefore, the remedy under Section 18 of the Act is not available to the petitioner. It is only after the property is included in the acquisition proceedings and compensation is fixed, that the petitioner may seek reference to the Civil court if she feels aggrieved by any of the above grounds envisaged in Section 18(1) of the Act. For the above mentioned reasons, the Writ Petition is allowed, with the direction to respondent No.2 to include the compound wall and the shed in question, in the acquisition proceedings either by issuing a corrigendum to the notification issued under Section 4(1) of the Act or a fresh notification and pass appropriate award in respect thereof within a period of three months from the date of receipt of this order. Needless to observe that if the petitioner feels aggrieved by the quantum of compensation or on any other aspect mentioned in Section 18(1) of the Act, she shall be free to seek reference of the dispute under Section 18 of the Act.