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2020 DIGILAW 6 (AP)

Tommidella Renuka v. State of A. P.

2020-01-08

M.SATYANARAYANA MURTHY

body2020
JUDGMENT : M. SATYANARAYANA MURTHY, J. 1. This writ petition under Article 226 of Constitution of India is filed, questioning the action of respondent Nos. 2 and 3 in taking steps to pay compensation amount to fifth respondent herein for lands in Sy. No. 164/1, 2 and 3 in an extent of Ac. 4.46 cents situated at Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District, is contrary to provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short Act 30 of 2013) and Rules, 2014 declare the same as illegal, arbitrary and violative of Articles 14, 21 and 300-A of Constitution of India, consequently direct respondent Nos. 1 to 4 to pay award amount to petitioner. 2. The petitioner is one Tommidella Renuka, claimed writ of mandamus alleging that on 06.10.1968 her father purchased an extent of Ac. 4.68 cents in Sy. No. 164/1, 2 and 3 (old R.S No. 164) of Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District from Atti Gangamma. The Special Deputy Tahsildar (TW) No. 1, K.R. Puram, filed a complaint vide S.R. No. 49/92 before Special Deputy Collector Tribal Welfare K.R. Puram that property purchased by father of petitioner is contrary to provisions of A.P.S.A.L.T. Reg. 1/59. As Section 4(1) of former Act correspond to Section 3 (1) of Reg. 1/59 read with Section 4 (1) of the Agency Tracts Interest and Land Transfer Act, 1917. The said authority after elaborate enquiry by order dated 04.12.1992, disallowed the petition filed by Special Deputy Tahsildar (TW) No. 1, K.R. Puram, no appeal is preferred against the said order. 3. When fifth respondent trying to interfere with possession and enjoyment of property, petitioner filed W.P. No. 9889/2007, the same was disposed of by order dated 01.05.2007. Pursuant to the said order, Special Deputy Collector, Tribal Welfare, K.R. Puram passed order in S.R. No. 119/2006 dated 22.06.2007 in favour of petitioner, taking into consideration of the order passed by Special Deputy Collector, Tribal Welfare, K.R. Puram, dated 04.12.1992 in S.R. No. 49/92. 4. Originally the property was purchased by father of petitioner, the same was given to her in the year 2001, since then she has been in possession and enjoyment of the same. In recognition of her possession and title, revenue authorities issued pattadar passbook and title deed in her favour and her name is also mutated in revenue records. 5. 4. Originally the property was purchased by father of petitioner, the same was given to her in the year 2001, since then she has been in possession and enjoyment of the same. In recognition of her possession and title, revenue authorities issued pattadar passbook and title deed in her favour and her name is also mutated in revenue records. 5. Second respondent herein issued notification dated 04.07.2016 to acquire petitioner's land for the purpose of allotment of house plots to tribal's whose villages were submerged in Polavaram Project. The name of petitioner was shown at serial nos. 165 to 167 in the notification, as persons interested. Subsequently third respondent herein passed an award in her favour, obtained her signature on necessary documents for depositing award amount to the credit of her bank account. 6. While the matter stood thus, fifth respondent filed W.P. No. 31350 of 2016 before this Court and this Court was pleased to pass an interim direction dated 17.09.2016 in W.P.M.P. No. 38785 of 2016. On account of interim order, compensation amount was not paid to petitioner and fifth respondent without disclosing real facts, approached this Court and obtained interim order. Immediately, petitioner filed W.V.M.P. No. 1390 of 2017 to vacate the interim order, but respondent Nos. 1 to 4 have not filed any counter, surprisingly, fifth respondent withdrawn W.P. No. 31350 of 2016 on 25.07.2017, as third respondent assured that compensation will be paid to fifth respondent, if he withdrew the writ petition. Third respondent is taking steps to pay compensation to fifth respondent under the provisions of Act 30 of 2013. Therefore, petitioner approached this Court for the relief stated above. 7. Third respondent filed counter, denying the material allegations, inter-alia contending that the property was acquired by following necessary procedure under Act 30 of 2013, in the notification issued on 10.11.2016 in A.P. Gazette Extra-ordinary issue No. 144, Declaration under Section 19 (1) of Act 30 of 2013 was published. In the said notification, name of petitioner Tommidella Renuka was shown as pattadar and enjoyer in respect of land in Ac. 4.46 cents in Sy. No. 164/1, 2 and 3 of Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District. 8. In the said notification, name of petitioner Tommidella Renuka was shown as pattadar and enjoyer in respect of land in Ac. 4.46 cents in Sy. No. 164/1, 2 and 3 of Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District. 8. It is specifically contended that fifth respondent is not aware of filing of W.P. No. 9889/2007 by this petitioner, orders passed by Special Deputy Collector, Tribal Welfare, K.R. Puram and others, based on W.P. No. 9889/2007 and other orders passed by Special Deputy Collector, Tribal Welfare, K.R. Puram subsequently. It is the specific contention of third respondent that petitioner attended enquiry conducted by third respondent on 13.12.2016 at Gram Panchayat Office, Swarnavarigudem and claimed compensation for the entire extent, producing documentary evidence held by her, but fifth respondent filed W.P. No. 31350 of 2016, obtained interim order dated 17.09.2016 in W.P.M.P. No. 38785 of 2016. By virtue of interim orders of this Court, payment of compensation to petitioner was kept in abeyance. Later fifth respondent has withdrawn the writ petition and the same was dismissed. 9. Third respondent admitted that fifth respondent is non-triabal and not produced any documentary evidence, establishing his ownership and title to property acquired by fifth respondent, third respondent is not aware of proceedings of Tahsildar for providing police protection dated 24.10.2009 and also expressed ignorance as to why fifth respondent has withdrawn the writ petition filed by him, while admitting dismissal. Therefore, the reason for non-payment of compensation is only due to order passed by this Court in W.P. No. 31350 of 2016, not otherwise, prayed for dismissal of this writ petition. 10. Along with counter, third respondent field Photostat copy of land acquisition award bearing No. 06/2016-17 R&R dated 25.02.2017. 11. Fifth respondent filed independent counter, denying material allegations in the affidavit filed along with writ petition inter-alia contending that mother of fifth respondent Atti Gangamma acquired the property by registered settlement deed vide document No. 1045/1960, dated 25.07.1960 executed by Singaladevi Papamma reserving her right to life with vested reminder. Papamma died, hence, Gangamma became the absolute owner of property and she was in possession and enjoyment of the same with valid title. Thereafter, the said property was mortgaged with Agricultural Development Bank, Jangareddygudem on 24.12.1977, vide registered document No. 437/1977 by creating equitable mortgage over the schedule property. Thereafter, mortgage debt was discharged. Papamma died, hence, Gangamma became the absolute owner of property and she was in possession and enjoyment of the same with valid title. Thereafter, the said property was mortgaged with Agricultural Development Bank, Jangareddygudem on 24.12.1977, vide registered document No. 437/1977 by creating equitable mortgage over the schedule property. Thereafter, mortgage debt was discharged. Thus, the allegation made by petitioner that her father purchased the property under registered sale deed from Atti Gangamma on 06.10.1968 is incorrect, there is no transfer of title from mother of fifth respondent to father of petitioner validly. 12. It is specifically contended that petitioner's father encroached the land of fifth respondent's mother, a complaint was lodged by Special Deputy Collector (TW) K.R. Puram in S.R. No. 119/2006. During the course of enquiry, fifth respondent appeared before Special Deputy Collector (TW) in which he categorically stated that petitioner's father created false and fabricated documents. After completion of enquiry Special Deputy Collector concluded that petitioner's father forcibly encroached the schedule mentioned land, misguided the officers at various stages and obtained favourble order. Accordingly, ejectment order was passed against petitioner's father in S.R. No. 119/2006 dated 15.02.2007, issued Form-F ejectment decree, directing Mandal Revenue Officer to restore the schedule property to fifth respondent. Accordingly, panchanama was conducted by Revenue Inspector, Jeelugumilli and Village Revenue Officer, Mulagalampalli to restore the schedule land to fifth respondent on 21.06.2017. Thus, based on fabricated and unregistered agreements of sale, father of petitioner, influenced Special Deputy Collector (TW), obtained order in his favour in S.R. No. 49/92. In the said proceedings neither fifth respondent nor his grandmother was a party. Hence, the decision of Special Deputy Collector is not binding on fifth respondent and that apart entries in revenue records does not confer any title in immovable property. Therefore, in view of order passed by Special Deputy Collector and Panchanama dated 21.06.2017, fifth respondent alone is in possession and enjoyment, thereby, fifth respondent is entitled to receive compensation, prayed to dismiss the writ petition, directing third respondent to pay compensation to fifth respondent. 13. The petitioner filed reply to counter, reiterating the allegations made in the complaint, while asserting about proceedings initiated against her father in S.R. No. 49/92 and order passed by Special Deputy Collector, K.R. Puram, dated 04.12.1992 became final, since no appeal is preferred. 13. The petitioner filed reply to counter, reiterating the allegations made in the complaint, while asserting about proceedings initiated against her father in S.R. No. 49/92 and order passed by Special Deputy Collector, K.R. Puram, dated 04.12.1992 became final, since no appeal is preferred. Thereby, the petitioner alone is entitled to recover compensation payable for the land acquired by third respondent, requested to direct third respondent to pay compensation. 14. During hearing, the learned counsel for petitioner mainly contended that when fifth respondent filed writ petition and withdrawn, without reserving right to renew his request at appropriate stage, in the absence of any such leave granted by the Court, fifth respondent is not entitled to raise any plea before this Court, in the present writ petition that he is the owner of property. On this sole ground the petition is liable to be dismissed. The learned counsel for petitioner Sri S. Appadhara Reddy also asserted that various orders passed by Special Deputy Collector (TW) are sufficient to conclude that petitioner is the owner of property, sought for direction against third respondent for payment of amount awarded. 15. Whereas the learned Assistant Government Pleader for Land Acquisition contended that when there is dispute with regard to title as to entitlement to receive compensation, special procedure is provided under Act 30 of 2013 and the alternative remedy to Land Acquisition Department is to make a reference to competent Authority under Section 77 of Act 30 of 2013, prayed to dismiss the petition, permitting third respondent to make reference under Section 77 of Act 30 of 2013. 16. Whereas, learned counsel for fifth respondent Sri P.R.K. Amarandra Kumar contended that even in the absence of obtaining any leave, fifth respondent is entitled to set up defence permissible under law and in view of facts narrated in the counter, more particularly, order passed by Special Deputy Collector (TW) and panchanama dated 21.06.2017, fifth respondent alone is entitled to receive compensation for the land in dispute in Sy. No. 164/1, 2 and 3 of Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District, prayed to dismiss the writ petition. 17. No. 164/1, 2 and 3 of Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District, prayed to dismiss the writ petition. 17. Considering rival contentions, perusing the material available on record, the point that arise for consideration is: Whether this Court can exercise power of judicial review under Article 226 of Constitution of India and issue direction to third respondent to pay compensation to petitioner when fifth respondent set up rival claim, more particularly, when a remedy under Act 30 of 2013 is available? 18. Point: The petitioner's main contention is that the property was purchased by her father who died, later she became the owner of property of an extent of Ac. 4.46 cents in Sy. No. 164/1, 2 and 3 (old R.S. No. 164) of Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District. The right of petitioner is upheld by Special Deputy Collector Tribal Welfare in S.R. No. 49/92, based on the complaint of Special Deputy Tahsildar (TW) No. 1 of K.R. Puram. Since no appeal is preferred against the order passed in S.R. No. 49/92, the order became final. However, petitioner also filed W.P. No. 9889 of 2007, the same was disposed of by order dated 01.05.2007, in pursuance of the said order, Special Deputy Collector (TW) K.R. Puram passed order in S.R. No. 119/2006 dated 22.06.2007 in favour of petitioner. Since then, she is in possession and enjoyment of property in her own right. 19. Whereas, fifth respondent is contending that property was encroached by father of petitioner, setting up fabricated documents and the contention of petitioner was turned down by Special Deputy Collector in S.R. No. 119/2006 dated 15.02.2007 in Form-F in respect of same property. But to the proceedings in S.R. No. 49/92 or 119/2006 dated 22.06.2007, fifth respondent is not a party. S.R. No. 119/2006 was filed by Special Deputy Tahsildar (TW), Polavaram against Thommedella Surya Chandra Rao, Swarnavarigudem village, Jeelugumilli Mandal, West Godavari District, but the same was allowed, passing decree in favour of Special Deputy Collector (TW), directing Mandal Revenue Officer to eject T. Surya Chandra Rao, restore the schedule property to Atti Satyanarayana/fifth respondent herein. Therefore, there are rival claims between petitioner and fifth respondent in respect of property in dispute acquired by Land Acquisition Officer/third respondent herein. Therefore, there are rival claims between petitioner and fifth respondent in respect of property in dispute acquired by Land Acquisition Officer/third respondent herein. But for one reason or the other in the declaration published in newspaper under Section 19 (1) of Act 30 of 2013, the name of Tommidella Renuka is shown against serial Nos. 165 to 167 as owner of an extent of Ac. 4.46 cents in Sy.Nos.164/1, 2 and 3. Later an award enquiry was conducted, passed an award No. 06/2016-17 R&R dated 25.02.2017. The petitioner's name was not shown, but one Atti Satyanarayana's name is shown as owner for the land being claimed by petitioner. Therefore, the award was passed, not in favour of fifth respondent and not in favour of petitioner. When no award is passed against the petitioner, question of issuing direction to pay compensation to petitioner does not arise, merely, because of appearance of her name at serial Nos. 165 to 167 for an extent of Ac. 4.46 cents in Sy. No. 164/1, 2 and 3 as owner. Thus, there is clear dispute with regard to title to property acquired by third respondent. In such case, this Court cannot issue direction to pay compensation to any one of rival claimants, whose names are appearing in declaration published under Section 19 (1) of Act 30 of 2013 and award was passed in favour of fifth respondent in award No. 06/2016-17 R&R, dated 25.02.2017, exercising power of judicial review under Article 226 of Constitution of India. 20. Merely because name of petitioner is appearing at serial Nos. 165 to 167, it is difficult to conclude that she is entitled to claim compensation, awarded for land acquired for an extent of Ac. 4.46 cents in Sy. No. 164/1, 2 and 3. The final order passed by third respondent is only an award which entitles the parties to claim compensation, subject to decision of competent Authority in a reference made to the Authority, when there is a dispute as to title or rival claims. 21. Act 30 of 2013 is a complete code by itself, when special procedure is prescribed under Chapter X for payment of compensation, third respondent is bound to follow procedure for payment of compensation under Sections 77 and 78 of Act 30 of 2013. 22. 21. Act 30 of 2013 is a complete code by itself, when special procedure is prescribed under Chapter X for payment of compensation, third respondent is bound to follow procedure for payment of compensation under Sections 77 and 78 of Act 30 of 2013. 22. According to Section 77 of Act 30 of 2013: (1) on making an award under Section 30, the Collector shall tender payment of the compensation awarded by him to the persons interested, entitled thereto according to the award and shall pay it to them by depositing the amount in their bank accounts unless prevented by someone or more of the contingencies mentioned in sub-section (2). (2) If the person entitled to compensation shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Authority to which a reference under Section 64 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under sub-section (1) of section 64: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. 23. Therefore, a reference shall be made, depositing the amount awarded in the competent Authority in terms of sub-section (2) of Section 77 of Act 30 of 2013, on such deposit the competent Authority shall determine as to who is entitled to claim compensation and on determination, compensation shall be paid to the person who is entitled, but till then this Court cannot issue any direction for payment of compensation to either of parties. 24. 24. The learned counsel for petitioner, while contending that when fifth respondent did not obtain leave to raise such defence, it amounts to abandonment of claim under Order II, Rule 2 of Civil Procedure Code, 1908 (for short C.P.C.), relied on a judgment in Virgo Industries (Eng.) Pvt. Ltd. vs. Venturetech Solutions Pvt. Ltd. (2013) 1 SCC 625 , where the Court while considering the plea raised under Order II, Rule 2 of C.P.C. held that Order II, Rule 1 of C.P.C. requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do to. Order II, Rule 2 of C.P.C. contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order II, Rule 2 of C.P.C. makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. Leave of the Court is contemplated by Order II, Rule 2 (3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where the leave of the Court had been obtained. It is clear from a conjoint reading of the provisions of Order II, Rules 2 (2) and (3) of C.P.C. that the aforesaid two sub-rules of Order II, Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the Court in the first suit. 25. The object behind the enactment of Order II, Rules 2 (2) and (3) of C.P.C. is not far to seek. 25. The object behind the enactment of Order II, Rules 2 (2) and (3) of C.P.C. is not far to seek. The rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the Court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons. 26. Taking advantage of law laid down by the Apex Court, he requested this Court to reject the claim of fifth respondent. But the contention of petitioner as to applicability of Order II, Rule 2 of C.P.C. is liable to be rejected, for the reason that when fifth respondent filed writ petition in W.P. No. 31350 of 2016, withdrawn the same without obtaining any leave of the Court to file any proceedings on the same cause of action, disentitle him to file any proceedings, in view of bar under Order XXIII, Rule 1 of C.P.C. But here fifth respondent set up the same plea which he raised in W.P. No. 31350 of 2016 as defence in the present writ petition filed by petitioner, which will not disentitle him to raise such plea. Therefore, on the ground that claim of petitioner is hit by Order II, Rule 2 of C.P.C. the claim of fifth respondent cannot be rejected. He also contended that when Special Deputy Collector's order became final, fifth respondent cannot re-agitate. This contention was fortified by judgments in Pillarisetti Harinath Babu and Another vs. Special Deputy Collector (Tribal Welfare), Bhadrachalam and Others, (2006) 4 ALT 287 and Anantula Narayana vs. Government of A.P. Social Welfare Department, Hyderabad and Others, (2017) 6 ALT 170 . 27. However, in the present case petitioner and fifth respondent are rival claimants and two different orders are passed in favour of each of the claimants. Therefore, in such case, based on judgment in Pillarisetti Harinath Babu and another (2nd referred supra), it is difficult to decide the rights of parties in a writ petition filed under Article 226 of Constitution of India. None of the above judgments are applicable to the present situation, since the Special Deputy Collector passed orders in favour of both parties in different proceedings. None of the above judgments are applicable to the present situation, since the Special Deputy Collector passed orders in favour of both parties in different proceedings. But in the proceedings in S.R. No. 49/92, fifth respondent was not a party, but whereas, to the proceedings in S.R. No. 119/2006, father of petitioner was a party. Therefore, proceedings in S.R. No. 49/92 are not binding on fifth respondent, whereas, order in S.R. No. 119/2006 is binding on petitioner, as she is claiming title to the property through her father. However, it is not appropriate to record any finding by this Court, at this stage, when both petitioner and fifth respondent set up rival claims, based on documentary evidence. The remedy open to third respondent is to follow procedure under Section 77 of Act 30 of 2013 which is impari materia to Section 30 (1) and 31 of Act 30 of 2013, which deals with settlement of dispute as to the apportionment and payment of compensation or deposit the same into Court which are impari materia with Sections 77 and 78 of Act 30 of 2013. Therefore, third respondent is directed to make a reference to competent Authority under Section 77 of Act 30 of 2013, subject to limitation as per law, depositing amount in the Authority and on making such reference, petitioner and fifth respondent are entitled to prove their independent claim to receive compensation payable as compensation for land acquired under award No. 06/2016-17 R&R, dated 05.02.2017 for an extent of Ac.4.46 cents in Sy. No. 164/1, 2 and 3 of Swarnavarigudem, Jeelugumilli Mandal, West Godavari District. This order does not preclude the competent/appropriate Authority to reject the claim of the parties on the ground of limitation. In such case, the remedy open to the parties, to approach competent Authority under Agency Rules, get declaration of their rights and on such final determination of their rights in the land in dispute, third respondent may permit to withdraw the compensation. 28. In view of my foregoing discussion, I find that it is not a fit case to exercise power of judicial review under Article 226 of Constitution of India directing third respondent to pay compensation to petitioner, since it is a disputed question of fact, in view of law declared by Apex Court in Sanjay Kumar Jha vs. Prakash Chandra Chaudhary and Others in Civil Appeal Nos. 11857 to 11859 of 2018 dated 05.12.2018, more particularly, when a statutory remedy is available to make a reference by third respondent to competent Authority to determine the person who is entitled to receive compensation. Accordingly, the point is answered. 29. In the result, the writ petition is disposed of directing third respondent to make a reference to competent Authority, depositing amount in the competent Authority, to determine as to who is entitled to receive compensation amount, subject to limitation, within one (1) month from the date of this order. There shall be no order as to costs. 30. Consequently, miscellaneous petitions, pending if any, shall stand closed.