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2013 DIGILAW 170 (KER)

Ramdas Ramanna v. Government of A. P.

2013-02-27

G.BHAVANI PRASAD, GODA RAGHURAM, R.SUBHASH REDDY

body2013
ORDER : 1. This writ petition is referred to the Full Bench, in view of the reference made by one of us (R. Subhash Reddy, J), by order dated 3rd February 2010. The question referred is; “Whether Section 4 and Section 17(5)(a) and (b) of Land Acquisition Act, 1894, as amended by the provisions under the A.P. State Amendment Act, 1983, will continue to be in force or not, in the light of the amendments made to the Principal Act, by the Land Acquisition (Amendment) Act, 1984”. The aforesaid reference is made in view of different opinions expressed by two Division Benches of this Court. In the case of Vana Adamma and others v. District Collector, Srikakulam and another, 1991 (1) APLJ 330 , a Division Bench of this Court has taken the view that sub-section (5) of Section 17 introduced by the State Amendment, has become repugnant and void after the Central Amendment Act 68 of 1984, and therefore, it cannot be enforced. In a subsequent judgment, another Division Bench of this Court, for which, one of us (RSR, J) is a party, in the case of Dandu Trinadha Raju v. District Collector, Visakhapatnam, 2006 (2) ALT 9 , has held that Section 17(5)(a) and (b) of the Act, which are introduced by A.P. Amendment Act 9 of 1983 in its application to the State of Andhra Pradesh, will continue to apply and the said provisions are not in conflict with the provision under Section 17(3-A) of the Act which is introduced by Central Amendment i.e. the Land Acquisition (Amendment) Act 68 of 1984. 2. The facts of the case in brief are as under: The Executive Engineer (Investigation Division), A.P.GENCO, Hyderabad, has submitted a requisition to the District Collector, Warangal, for acquiring land admeasuring Ac.1029.24 gts., situated at Chelpur village of Ghanpur Mandal in Warangal District, for the purpose of construction of 1 X 500 MW Thermal PowerStation. For the said purpose, patta lands to an extent of Ac.787.39 gts. are notified for acquisition and the Government has approved the draft notification and declaration vide G.O.Rt.No.319, Energy (PR-IV) Department, dated 14lh December 2005, and notification under Section 4(1) of the Land Acquisition Act was issued by invoking urgency clause. The owners of major extent of land have given consent, and therefore, award was passed to that extent and possession was also taken. The owners of major extent of land have given consent, and therefore, award was passed to that extent and possession was also taken. The petitioners in this writ petition, who are the owners of land to an extent of Ac.29.33 gts., have not given their consent, and hence, award is not passed with regard to the said land and possession is also not taken 3. The acquisition is questioned on several grounds and one of the grounds raised in the writ petition is that the invocation of urgency clause under Section 17(4) of the Act is illegal. It is the case of the petitioners that having notified the lands of petitioners by invoking urgency clause, respondents have not conducted any inquiry and not taken possession, as such, declaration published under Section 6 of the Act, is illegal. 4. During the course of earlier hearing it was argued on behalf of petitioners that in view of the provisions under Section 17(5)(a) and (b) of the Land Acquisition Act in its application to the State of Andhra Pradesh, as the respondents have failed to take possession of land within three months, the provision under Section 5-A of the Act shall apply as if there is no such direction that Section 5-A shall not apply, and the period of 30 days referred under Section 5-A shall be reckoned from the date of expiry of three months specified in Clause (a) of Section 17, Per contra, it was contended on behalf of respondents that subsequent to introduction of Section 17(5)(a) and (b) by A.P. Amendment Act 9 of 1983, there is an amendment by Amending Act 68 of 1984 to the Principal Act, by the Parliament, and by the said Act, before taking possession of the notified land, respondents have to tender 80% of the estimated compensation and the amount paid or deposited under Section 17(3-A) shall be taken into account while determining the amount of compensation to the acquired land, as such, in view of the said amendments, the Central Act will prevail over the State Amendment, and in view of such amendments, petitioners are not entitled to seek any directions to conduct inquiry, based on the provisions under Section 17(5)(a) and (b) of the Land Acquisition Act. 5. 5. When this reference was listed for hearing on 27th July 2012, in view of the general importance of the matter, we requested the learned Advocate-General to assist this Court. 6. Heard Sri S. Lakshma Reddy, learned counsel appearing for petitioners and the learned Advocate- General appearing for the State and also Sri K. Chidambaram, learned Counsel appearing for the requisition department. 7. It is contended by Sri S. Lakshma Reddy, counsel for petitioners that Section 17 of the Land Acquisition Act, 1894 confers extraordinary powers on the authorities, under which, they can dispense with normal procedure under Section 5-A of the Act in exceptional cases of urgency. It is submitted that the inquiry contemplated under Section 5-A of the Act is the right conferred on the interested persons of the land to put-forth their objections in the event of conducting inquiry. It is contended that the very fact that possession is not taken for a considerable time indicates that there is no real urgency, and only to meet such eventuality, Section 17(5)(a) and (b) is inserted by A.P. Amendment Act 9 of 1983.It is submitted that Section 17(3-A), which provides to tender payment of 80% of compensation before taking possession of land, is no way in conflict with the provisions under Section 17(5)(a) and (b) of the Act. It is submitted by the learned counsel that the said two provisions take care of two different situations and there is no room for conflict in the areas in which they operate. The learned counsel has placed reliance on the judgment of Supreme Court in the case of Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and others, 2010 (5) SCJ 368 , which was rendered, referring to earlier judgment of Constitutional Bench of the Hon’ble Supreme Court in the case of M. Karnnanidhi v. Union of India, (1979) 3 SCC 431 , in which, the Supreme Court has enunciated the principles to be applied for determining the repugnancy between the law made by the Parliament and the law made by the State Legislature. Reliance is also placed on the judgment of Supreme Court in the case of M/s.Kanaka Gruha Nirman Sahakara Sangha v. Smt.Narayanamma, AIR 2002 SC 3659 . 8. Reliance is also placed on the judgment of Supreme Court in the case of M/s.Kanaka Gruha Nirman Sahakara Sangha v. Smt.Narayanamma, AIR 2002 SC 3659 . 8. On the other hand, it is submitted by the learned Advocate-General appearing for the State that in view of the amendment made to the Central Act by introducing provisions under Section 17(3-A) and (3-B) by Amendment Act 68 of 1984, which prescribe for payment of 80% of compensation before taking possession of land, such provisions are inconsistent with the provisions introduced by the State Amendment under Section 17(5)(a) and (b). Precisely, it is contended that in view of the Amending Act 68 of 1984 by Central Amendment, the provisions under Section 17(5)(a) and (b) are inoperative, as they are inconsistent and repugnant with the provisions inserted by the Central Act. The learned Advocate- General, in support of his argument, has placed reliance on the judgments of Supreme Court in the case of Senjeevanagar Medical and Health Employees Co-operative Housing Society v. Mohd. Abdull Wahab and others, AIR 1996 SC 3360 , in Shaik Kahham Saheb v. District Collector, Khammam, AIR 1991 A.P. 43 and in the case of Kanthimathy Plantation Private Limited v. State of Kerala, (1989) 4 SCC 650 . 9. Having regard to the arguments advanced by the learned counsel for the parties, the only question which needs to be addressed to answer the reference is whether the amendments made to Section 17 of the Land Acquisition Act by Act 68 of 1984 will run repugnant” to the provisions under Section 17(5)(a) and (b) of the Land Acquisition Act. 9. Having regard to the arguments advanced by the learned counsel for the parties, the only question which needs to be addressed to answer the reference is whether the amendments made to Section 17 of the Land Acquisition Act by Act 68 of 1984 will run repugnant” to the provisions under Section 17(5)(a) and (b) of the Land Acquisition Act. Before we propose to answer the reference, it is apposite to refer to Article 254 of the Constitution of India, which reads as under : “254 (1) : If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matter enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and received his assent,prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.” Prior to A.P. Amendment to the Land Acquisition Act by virtue of Act 9 of 1983, the Principal Act contained only sub­sections (1) to (4) in Section 17. By virtue of the Amendment, Section 17 (5)(a) and (b) are introduced, which read as under : “17(5)(a) : In any case where the State Government have directed under subsection (4) that the provisions of Section 5-A shall not apply, the Collector shall take possession of the land within three months thereof. By virtue of the Amendment, Section 17 (5)(a) and (b) are introduced, which read as under : “17(5)(a) : In any case where the State Government have directed under subsection (4) that the provisions of Section 5-A shall not apply, the Collector shall take possession of the land within three months thereof. (b): If, however, the Collector fails to take possession of the land within the aforesaid period of three months, the provisions of Section 5-A shall apply as if there is no such direction that Section 5-A shall not apply, and in all such cases the period of thirty days referred in Section 5-A shall be’ reckoned from the date of expiration of three months specified in clause (a).” From a reading of the aforesaid provisions, it is clear that in cases where possession of land is not taken within the period of three months, inquiry as contemplated under Section 5-A of the Land Acquisition Act shall be conducted, because, it was noticed that in a large number of cases, where there is no real urgency, authorities were invoking urgency clause, but were not taking possession for a considerable time, within which, inquiry could have been initiated and completed. Only to curtail such kind of situations, a specific amendment is made to Section 17 of the Act by adding sub-section (5)(a) and (b). The same is clear from the Statement ofobjects and reasons of the Land Acquisition (Andhra Pradesh Amendment and Validation) Act of 1983. In the Statement of objects and reasons itself, it is categorically stated that in cases where possession of land could not be taken by the Collector within a period of three months after dispensing with the provisions of Section 5-A, the provision of said Section shall apply. 10. Subsequently, Parliament has enacted the Land Acquisition (Amendment) Act 68 of 1984, amending various provisions of the Land Acquisition Act, 1894. The amendments which are relevant for the purpose of this reference are set out in Section 13 of the Amending Act. By virtue of the Amending Act, Section 17 is amended by introducing sub-sections (3-A) and (3-B) into the Principal Act. The amendments which are relevant for the purpose of this reference are set out in Section 13 of the Amending Act. By virtue of the Amending Act, Section 17 is amended by introducing sub-sections (3-A) and (3-B) into the Principal Act. Subsections (3-A) and (3-B) of Section 17 read as under: “17 (3-A): Before taking possession of any land under sub-section (1) or subsection (2), the Collector shall, without prejudice to the provisions of sub-sec.(3),- (a) Tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled there to, and (b) Pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, sub-section (2), except the second proviso thereto, shall apply as they apply to the payment of compensation under that section. (3-B): The amount paid or deposited under sub-section (3-A), shall be taken into account for determining the amount of compensation required to be tendered under Sec.31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under S.11, the excess may, unless refunded within three months from the date of the Collector’s award, be recovered as an arrear of land revenue.” By the aforesaid amendment, a clause is introduced, providing for payment of 80% of compensation before taking possession under Section 17(1) and (2) of the Act. Having regard to the provisions referred above, it is necessary to examine whether the provisions introduced by Amendment Act 68 of 1984, particularly, Section 17 (3- A) and (3-B) run repugnant to the provisions under Section 17(5)(a) and (b) of the Land Acquisition Act, which are introduced by virtue of the A.P. Amendment Act 9 of 1983. 11. The principles to be applied for determining the repugnancy between the law made by the Parliament and the law made by the State Legislature were considered by a Constitutional Bench of the Hon’ble Supreme Court in the case of M.Kanmanidhi (4 supra). The same principles were further followed by the Hon’ble Supreme Court in the case of Zameer Ahmed Latifur Rehtnan Sheikh (3 supra). In the aforesaid cases, the Hon’ble Supreme Court has laid down the following principles : 1. The same principles were further followed by the Hon’ble Supreme Court in the case of Zameer Ahmed Latifur Rehtnan Sheikh (3 supra). In the aforesaid cases, the Hon’ble Supreme Court has laid down the following principles : 1. That in order to decide the question of repugnancy, it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. 2. That there can be no repeal by implication unless the inconsistency appears on the fact of the two Statutes. 3. That where the two Statutes occupy a particular field, but thereis room or possibility of both the Statutes operating in the same field without coming into collision with each other, no repugnancy results. 4. That where there is no inconsistency but a Statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the Statutes continue to operate in the same field. The issue whether any repugnancy arises between the State Act and the Central Act referred above, is to be examined by applying the aforesaid principles. In normal course, in the acquisitions covered by the provisions under the Land Acquisition Act, an inquiry is to be conducted for hearing the objections of the persons interested, under Section 5-A of the Act. However, special powers are conferred in cases of urgency, under Section 17 of the Act, for dispensing with such inquiry. While elaborately considering the scope of the provisions under Sections 4, 5-A and 17 of the Land Acquisition Act, the Hon’ble Supreme Court, in the case of Union of India v. Krishanlal Arneja and others, (2004) 8 SCC 453 , has held as under: “Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. Theauthority must have subjective-satisfaction of the need for invoking urgency clause under Section 17keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e., whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally, urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or in fructuous. A citizen’s property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration.” 12. Further, elaborate analysis has also been made by the Hon’ble Supreme Court in the case of Radhy Shyam v. State of U.P., 2011 (4) SCJ 751 = (2011) 5 SCC 553 = 2011 (6) ALT 10.1 (DN SC). Further, elaborate analysis has also been made by the Hon’ble Supreme Court in the case of Radhy Shyam v. State of U.P., 2011 (4) SCJ 751 = (2011) 5 SCC 553 = 2011 (6) ALT 10.1 (DN SC). In the said judgment, after surveying the entire case law on the subject, it is held that the property of a citizen cannot be acquired by the State and/or its agencies instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however laudable it may be, does not entitle the State to invoke the urgency provisions, because, same have the effect of depriving the owner of his right to property without being heard. Only in case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons. In the same judgment, it is further held that Section 17(1) r/w. 17(4) confers extraordinary power upon the State to acquire the private property without complying with the mandate of Section 5- A of the Land Acquisition Act. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that the time of few weeks or months, which is likely to be taken for conducting inquiry under Section 5-A, will, in all probability, frustrate the public purpose for which the land is proposed to be acquired. 13. From the aforesaid judgments, it is clear that in normal course, authorities are empowered to acquire the lands of private citizens only by conducting inquiry under Section 5-A of the Land Acquisition Act, and only in cases of extraordinary real urgency which cannot brook any delay, inquiry under Section 5-A can be dispensed with. It is implicit from the A.P. Amendment Act 9 of 1983 that in cases Where urgency clause is invoked by dispensing with inquiry, if possession is not taken within the period of 90 days, the provision with regard to conduct of inquiry as contemplated under Section 5-A of the Act will automatically apply. It is clear from the said provision that it is intended to safeguard the interest of citizens not to deprive them of their property without conducting inquiry in cases where there is no real urgency. It is clear from the said provision that it is intended to safeguard the interest of citizens not to deprive them of their property without conducting inquiry in cases where there is no real urgency. It is clear from the said provision itself that having invoked the urgency clause, when possession is not taken within the period of 90 days, it cannot be said that such cases are urgent in nature and that cannot brook any delay. Section 17(5)(a) and (b) will operate only in specific areas where the authorities notify the land under the provisions of the Land Acquisition Act by invoking urgency clause under Section 17 of the Act, but fail to take possession within the period of 90 days. As a protective measure to safeguard the interests of citizens and to give a fair opportunity by conducting inquiry, such provisions under Section 17(5)(a) and (b) are introduced by State Amendment Act 9 of 1983. 14. By way of the provisions under Section 17(3-A) and (3-B) of the Act, it is made compulsory for payment of 80% of the compensation before taking possession of land. It is clear that such amendment is intended to ensure that the land owner will be paid 80% of the estimated compensation before taking possession of his land, because, the owner of land will not be in a position to utilize the same immediately thereafter. A reading of the provision under Section 17(3-A) read with Section 11-A of the Land Acquisition Act makes it clear that two years outer limit is provided for passing of Award after publication of declaration and only with an intention not to deprive the compensation within the interregnum period, Section 17(3-A) is brought into force for payment of 80% of approximate compensation even before passing of Award while taking possession of land. 15. Having regard to the objectives referred above, we are of the view that there is no inter se conflict between the two provisions i.e. Section 17(3-A) and (3-B) introduced by the Parliament by Amending Act 68 of 1984, and Section 17(5)(a) and (b) which are introduced by the A.P. Amendment Act 9 of 1983. Both the provisions referred above, take care of different situations. Both the provisions referred above, take care of different situations. Section 17(5)(a) and (b) is intended to revive inquiry under Section 5-A in cases where urgency clause is invoked but possession is not taken within the period of 90 days, whereas, Section 17(3-A) and (3-B) take care of payment of compensation before taking possession of the notified land. By applying the principles as laid down by the Hon’ble Supreme Court in M. Karnnanidhi (4 supra) in Zameer Ahmed Latifur Rehman Sheikh (supra), we are of the view that there is no repugnancy nor any inconsistency between the above provisions. Both the provisions will operate in their respective areas without giving any scope either for repugnancy or collision. 16. Coming to the judgment relied on by the learned counsel for petitioners in the case of M/s. Kanaka Gruha Nirman Sahakara Sangha (supra), in the said case, the Hon’ble Supreme Court has considered the question whether any inconsistency arises with regard to the provisions under the Land Acquisition Act 1 of 1894 as amended by Amended Act 68 of 1984 and the provisions of Land Acquisition (Mysore Extension and Amendment) Act 17 of 1976. By the Mysore Act, the Land Acquisition Act was made applicable to the State of Mysore with certain amendments and one of the amendments was a provision which was introduced empowering the Deputy Commissioner to issue notification for acquisition, which could be exercised by the appropriate Government. In the aforesaid judgment, the Hon’ble Supreme Court, by applying the principles in the case of M. Karunanidhi(supra), has held that there is no repugnancy between the Central Act and the Amending Act of Mysore. 17. In the case of Senjeevanagar Medical and Health Employees Co-operative Housing Society (supra), on which reliance is placed by the learned Advocate- General, the Hon’ble Supreme Court has considered the scope of Section 4-A of the Land Acquisition Act with regard to rigour of prescription of 40 days time for its publication. In the aforesaid judgment, the Hon’ble Supreme Court has held that the requirement of local publication of Section 4(1) notification within the period of 40 days got diffused in view of the amendments made to Section 4 of the Land Acquisition Act by Amending Act 68 of 1984. In the aforesaid judgment, the Hon’ble Supreme Court has held that the requirement of local publication of Section 4(1) notification within the period of 40 days got diffused in view of the amendments made to Section 4 of the Land Acquisition Act by Amending Act 68 of 1984. Even in Shaik Kahham Saheb (supra), an identical question was considered by a Full Bench of this Court and held that the period of 40 days mentioned under Section 4 is no longer valid in view of the amendments made to Section 4(1) of the Land Acquisition Act, 1894 by Amending Act 68 of 1984. In the case of Kanthimathy Plantation Private Limited (supra), the only question which arose for consideration was in the absence of any specific provision in the Central Act 68 of 1984 amending the Land Acquisition Act 1 of 1894, whether the acquisition proceedings initiated under the Kerala Land Acquisition Act, 1861 can be continued or not. Having regard to the issue involved in the present case, this judgment is not relevant. 18. As discussed above, we are of the considered view that the provisions under Section 17(3-A) and (3-B) which are introduced by Parliament by Amending Act 68 of 1984 and the provisions under Section 17(5)(a) and (b) which are introduced by the A.P. Amending Act 9 of1983 operate in two different situations, as such, by applying the principles laid down by the Hon’ble Supreme Court in the case of M. Karunanidhi (supra), there is no repugnancy, either expressed or implied, between the two provisions. Both the provisions operate in two different areas. We answer the reference accordingly, approving the view taken by the Division Bench of this Court in the case of Dandu Trinadha Raju (supra). Registry to post the matter before the appropriate Court by obtaining orders from Hon’ble The Chief Justice.