Sama Yadaiah Yadi Reddy and ors Vs Special Deputy Collector Land Acquisition General and ors - Citation 441183 - Court Judgment

Judgment:

S.R. Nayak, J.

1. The petitioners 8 in number were the owners of Ac. 16,35 gts of land comprised in Sy.No. 148, situated at Jillalguda village of Saroor Nagar Mandal, Ranga Reddy District, which land hereinafter shortly referred to as the 'schedule land'. The schedule land was the agricultural land and the petitioners used to cultivate the same. There was requisition for the schedule land by the Defence Estate Officer, A.P. Circle, at Secunderabad, the 2nd respondent herein for public purpose i.e., usage for Defence Metallurgical Research Laboratories (DMRL). Although the requisition from the authority was for acquiring the entire land needed for the purpose under the provisions of the Land Acquisition Act, 1894 (for short 'the Act'), only some lands were notified under the provisions of the Act and the remaining required lands were notified only under Requisition and Acquisition of Immovable Properties Act, 1952 (for short 'RAIP Act'). The schedule land was notified under the RAIP Act. The possession of the schedule land was taken on 10-11-1978 pursuant to Memo dated 7-11-1978 issued in Proc.No. J2/1329/1977 by conducting panchanama. After taking the possession of the schedule land, the petitioners were being paid rents under the RAIP Act. Although some other lands owned by the petitioners were notified under the Act for the above said purpose, the schedule land was not notified under the Act.

2. When the matter stood thus, the petitioners pleading discrimination filed WPNo. 4684 of 1987 in this Court questioning the action of the respondents in not acquiring the schedule and under the provisions of the Act on the ground that the lands adjacent to the schedule land are acquired under the provisions of the Act and praying for mandamus to notify the schedule land also under the Act. The above writ petition was allowed by a learned single Judge of this Court by judgment dated 10-7-1987 and a direction was issued to the respondent-authority to issue notification under Section 4(1) of the Act and finalise the proceedings including passing of the award as expeditiously as possible, preferably within a period of one year. As against the said judgment of the learned single Judge, the respondents i.e., the Requisitioning Authority and the Acquisitioning Authority have filed Writ Appeal No. 1768 of 1987 and the said writ appeal was dismissed by a Division Bench of this Court by judgment dated 10-11-1988 directing that the respondent authorities shall proceed under the Act to acquire the schedule land as expeditiously as possible having regard to the fact that the possession was already taken-over by the respondent authorities as far back as in the year 1978. Against the said judgment of the Division Bench, a Special Leave Petition was filed in the Supreme Court with an application for condonation of delay in CMP No. 10907 of 1989. At the stage of considering the delay application, the Apex Court considered the merits of the matter and by its order dated 1-5-1989 dismissed the special leave petition. Inspite of the same, as no steps were taken 'for notifying the schedule land under the Act, the petitioners filed Contempt Case No. 329 of 1989 in this Court. In the counter filed in the first instance in the said contempt case, it was admitted that possession of the schedule land was taken over from the petitioners in November, 1978 and it was also pleaded that steps were being taken to comply with the orders of this Court. However, subsequently, an additional counter-affidavit was filed in the said contempt case stating that the schedule land of the petitioners resembles the land comprised in Sy.No. 24/3 of Sultanvalva village which was already acquired and possession taken. A Division Bench of this Court vide its order dated 10-8-1990 delivered in Contempt Case No. 329 of 1989 held that the possession of the schedule land was taken from the petitioner in the year 1978 and that the respondent authorities were paying the rent to them since then and as such, it is not open for the respondents to reopen the said issue in the contempt proceedings. In that view of the matter, the Division Bench posted the contempt case to 7-9-1990 for reporting compliance. At this stage, an additional affidavit was filed on behalf of the respondent stating that Section 4(1) notification is issued for the purpose of acquiring the schedule land and in that regard, a Gazette Notification dated 4-9-1990 was also placed before the Court. In view of this development, the Division Bench closed the contempt case observing :

'It is expected that the respondents will take expeditious action for completion of land acquisition proceedings as the petitioners right to compensation is being delayed.'

3. Although by the time Section 4(1) notification was issued, the possession of the schedule land was taken and the buildings were constructed for DMRL, an enquiry under Section 5-A was conducted. In Section 5-A enquiry, despite the fact that the plea of the respondent authorities that the schedule land resembles the land comprised in Sy.No. 24/3 of Sultanavala village and that it was already acquired, was rejected in C.C.No.329 of 1989, and despite the fact that the writs issued by the learned single Judge and the Division Bench of this Court in Writ Petition No. 4684 of 3987 and Writ Appeal No. 1768 of 1987 are affirmed by the Apex Court while dismissing the SLP, the said plea was again raised in Section 5-A Enquiry. In Section 5-A Enquiry Report, the Enquiry Officer has opined that inasmuch as the said plea is rejected by this Court, the objection raised is untenable and it is liable to be overruled. Inspite of such report under Section 5-A of the Act and also inspite of the fact that a declaration was published under Section 6 of the Act, award was not passed within the stipulated period as contemplated under Section 11-A of the Act. When the proceedings were delayed, the petitioners filed WP No. 13229 of 1993 seeking direction to the respondents to pass award. Thereafter, the Special Deputy Collector, Land Acquisition (General), Hyderabad, the 1st respondent herein passed the award dated 15-9-1993 in Proceedings No. P/1430/89 fixing the compensation at the rate of Rs. 50/- per Sq.yard, but at the same time denying compensation to the petitioners by stating that the schedule land was already acquired as part of land in Sy.No. 24/3 of Sultanavala village and as such the petitioners are not entitled for grant of compensation as fixed.

4. After the above award was passed by the 1st respondent on 15-9-1993, the petitioners filed CC No. 604 of 1994 complaining that the 1st respondent, by passing the above kind of award, has violated the orders of this Court made in the earlier writ proceedings referred to above. During the course of hearing of the said contempt case, the Court directed the respondent authorities through the learned Advocate- General who represented them to cause an enquiry and verify whether the petitioners were paid any compensation in the earlier acquisition. In the report submitted by the Mandal Revenue Officer, it is stated that there is no relationship and linkage between the petitioners and the awardees of the acquisition of the land comprised in Sy.No. 24 of Sultanavala village and that none of the petitioners are awardees in those earlier land acquisition proceedings. Simultaneously, the petitioners made an application under Section 18 of the Act seeking reference of their case to the civil Court under Section 18 of the Act. However, no orders were passed on the said application within the time on the ground that no compensation is awarded in favour of the petitioners under the award and as such no reference under Section 18 of the Act could be made to the civil Court. Under those circumstances, the petitioners filed the present writ petition being WP No. 9727 of 1998 praying for the following relief:

'For the reasons disclosed in the accompanying affidavit, it is prayed that this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or writs, order or direction, declaring the action of the respondents in not referring the matter under Section 18 of Land Acquisition Act to a competent civil Court for proper determination of the market value of the land and the extent of the land pursuant to award in Procgs. No. P/1430/89, dated 15-9-1993 on the file of the first respondent, as illegal and arbitrary, by further declaring the award to the extent of holding that petitioners are not entitled for compensation with regard to land in Sy.No. 148 of Jillalguda village, Saroornagar Mandal, Ranga Reddy District as illegal and arbitrary, by directing the respondents to forthwith pay the awarded amount of compensation to petitioners by further directing the respondents to refer the matter under Section 18 of Land Acquisition Act to competent civil Court; award costs and pass such other or further orders, as are deemed fit and proper in the circumstances of the case'.

5. Opposing the writ petition, the 1st respondent has filed counter-affidavit dated 8-6-1999. In the counter-affidavit dated 8-6-1999, it is prayed that the counter-affidavit and additional counter-affidavit filed in CC No. 604 of 1994 in WP No. 4687 of 1987 be read as part and parcel of the counter-affidavit in the present writ petition. Further, in the counter-affidavit, it is claimed that since the schedule land is already acquired and the compensation paid treating it as part of the land in Sy.No. 24/3 of Saroornagar village, payment of compensation again to the petitioners in respect of the schedule land does not arise.

6. Since the 1st respondent has adopted the counter-affidavit filed in CC No. 604 of 1994, as counter-affidavit in WP No. 9727 of 1998 also, the relevant averments in the counter-affidavit in support of the plea that the schedule land is already acquired and compensation paid needs to be noticed. In the additional counter-affidavit filed in CC No. 604 of 1994, dated 28-11-1995, it is stated:

'(2) The perusal of the old records reveal that the land covered by Sy.No. 148 of Jillalguda was already acquired in the year of 1968, treating it as a portion of Sy.No. 24/ 3 of Sultanvalva. The details of land acquired out of Sy.No. 24 of Sultanvalva at various times are as follows :

Sy. No.Ac. Gts

24/118.0424/2111.2824/320.3424/42.24

153.10

The extent of Sy.No. 24 as recorded in Pahani and Sethwar is 140.05. But the extent totally acquired comes as 153.10. Thus an extent of 13.05 acres was acquired in excess. The boundaries of this excess extent which was treated as Sy.No. 24/3, fully tallying with the boundaries of Sy. No. 148 of Jillalguda.....

(3) It is submitted that the actual extent of Sy.No. 24 of Sultanvalva village was 140.05 gts and extent acquired in this Sy.No. 153.10 gts which is in excess of 13.05 gts. This extent obviously came from Sy.No. 148 of Jillalguda village. Therefore, Supplementary Sethwar was issued increasing the area of Sy.No. 24 to 153.10 gts in File No. 67/ 2/5/PA/70 and G7/2/6/PA/70 by the Collector, Land Records, Ranga Reddy District but the same was not implemented in Revenue records, that resulted in existence of Sy.No. 148 of Jillalguda village.....'.

7. Sri R.Subhash Reddy, learned Counsel appearing for the petitioners would contend that admittedly possession of the schedule land was taken from the petitioners by conducting panchanama on 10-11-1978 and a Memo dated 7-11-1978 was also issued in this regard for taking possession; the schedule land was never acquired earlier and there no notification issued under the Act notifying the schedule land showing the names of the petitioners as the owners of the land and as such it is totally wrong on the part of the respondent authorities to contend that the schedule land was earlier acquired and that plea of the respondents remains as a plea only, without any proof. The learned Counsel would contend that in the absence of notification issued by the respondent authorities under Section 4(1) of the Act to acquire the schedule land, the respondent authorities cannot be permitted to contend the schedule land was already acquired. In support of this contention, the learned Counsel would place reliance on the judgment of the Supreme Court in Madhya Pradesh Housing Board etc. v. Mohd. Shafi and Ors., : [1992]1SCR657 . The learned Counsel would further contend that simply because the State authorities have paid compensation for Ac. 153.10 gts though the actual extent of land comprised in Sy.No. 24 is only Ac. 140.05 gts, it cannot be said, without any further proof, that the compensation paid towards the excess land was in respect of the schedule land. The learned Counsel would contend that at no point of time in previous writ proceedings, the title and ownership of the petitioners over the schedule land was disputed by the respondent authorities and, therefore, the plea now taken by the respondent authorities that the schedule land is already acquired and compensation paid is untenable inasmuch as it is hit by the doctrine of constructive res judicata. The learned Counsel would alternatively contend that since this Court in Contempt Case No. 329 of 1989 rejected the above plea of the respondents and since even the Enquiry Officer in his report under Section 5-A of the Act has held that the above plea is not tenable in view of the order of this Court in the Contempt Case No. 329 of 1989, this plea now raised is ex facie untenable. The learned Counsel would conclude by contending that there is absolutely no supporting evidence to sustain the plea of the respondent authorities that the schedule land is already acquired and compensation paid.

8. The learned Advocate-General, on the other hand, would contend that the writ petition is liable to be dismissed on the ground of laches inasmuch as though the award was passed as far back as on 15-9-1993, the present writ petition was filed in this Court on 6-4-1998 and no explanation much less satisfactory explanation is offered to condone this enormous delay in approaching this Court. The learned Advocate-General, in support of this contention, would place reliance on the judgments of the Supreme Court in State of Maharashtra v. Digambar, : AIR1995SC1991 and Binod Bihari Singh v. Union of India, : AIR1993SC1245 . The learned Advocate-General would also contend that in none of the earlier writ proceedings, this Court decided the title questions or considered the question whether the petitioners are actually the owners of the schedule land and, therefore, the appropriate course for the petitioners to establish their rights over the schedule land and that the schedule land is not yet acquired by the State under the Act is to approach the competent civil Court and such questions cannot be resolved in a summary proceeding under Article 226 of the Constitution of India. The learned Advocate-General would also contend that even assuming that in acquiring the schedule land, there are certain irregularities on the part of the respondent authorities or that the acquisition is illegal, nevertheless, having regard to the admitted fact that the possession of the schedule land was taken over by the State authorities in the year 1978, the title of the property vested in the State Government by virtue of adverse possession and, therefore, acquiring the same land and paying the compensation to the petitioners under the Act would not arise. In support of this contention, the learned Advocate-General would place reliance on the judgment of the Supreme Court in State of Maharashtra v. Pravin Jethalal Kamdar, : [2000]2SCR134 .

9. Sri R. Subhash Reddy, learned Counsel for the petitioners meeting the contention of the learned Advocate-General that the writ petition is liable to be dismissed in limine on the ground of laches, by way of reply, would contend that since the award passed by the 2nd respondent is in violation of mandamus issued in WP No. 4684 of 1987 and Writ Appeal No. 1768 of 1987, the petitioners bona fide were agitating their grievance by filing the Contempt Case No. 329 of 1989 without any loss of time and subsequently, as an abundant caution pursuant to legal advice, they filed the writ petition. The learned Counsel would contend that the Government and the governmental authorities are not justified in taking shelter under the plea of laches to defeat just claims of the petitioner-citizens and that the Government cannot be permitted to make unlawful gain by depriving the property of the petitioners without payment of compensation. It is appropriate to first deal with the contention of the learned Advocate-General that the writ petition is liable to be dismissed in limine on the ground of delay and laches. It is true that the award was passed as far back as on 15-9-1993 and the writ petition was filed in this Court on 6-4-1998. Thus, one can find considerable delay on the part of the petitioners in instituting the present writ petition after the passing of the award on 15-9-1993. It is true as rightly contended by the learned Advocate-General unless the facts and circumstances of the case clearly justify the laches or undue delay, the applicant for the writ be denied the relief as held in by the Apex Court in State of Maharashtra v. Digamber, : AIR1995SC1991 and large number of other judgments of the Apex Court and this Court. Although delay and acquiescence and the like do not take away the jurisdiction of this Court under Article 226, the Court may refuse to grant relief in the exercise of its jurisdiction where delay affects the merits of the petitioner's claim, or affects the rights of innocent third parties, which had arisen by reason of the lapse of time, there is no reasonable explanation for the delay, and the petitioners negligence in pursuing his rights. It does not, however, constitute a rule of law, but a rule of practice based on discretion, to be exercised in the light of the facts and circumstances of each case. Delay is not an absolute bar to entertain an application under Article 226 where the delay is satisfactorily explained or where the Court finds apparent lack of jurisdiction or illegality or where the Government or the public authority has been holding out hopes to the petitioners from time to time. In Moon Mills Limited v. Meher, AIR 1967 SC 1450, the Supreme Court held that in a petition for certiorari, where the order complained of is manifestly erroneous or without jurisdiction, the Court would be loath to reject the petition simply on the ground of delay. Unless owing to laches inconsistent legal or equitable considerations have arisen which cannot be ignored, e.g., where the other party has been induced to alter the situation, the Court cannot be precluded from rectifying a grave injustice simply because the petitioner did not move in the matter earlier. As regards what length of time constitutes delay, no hard and fast rule can be laid down in the matter and each case should be decided according to its circumstances without adhering to any fixed period, long or short. In other words, there may be inexcusable delay even where the application is filed within 15 or 30 days of the order complained of. On the other hand, the Court may interfere in appropriate cases even where the application is filed beyond considerable period of time. It is because the consideration upon which the High Court refuses to exercise the discretion where the petition is delayed is not limitation because the Constitution has prescribed no limitation for a writ petition, but matters relating to conduct of parties and change in the situation in the interregnum. Therefore, the proper standard seems to be whether in the circumstances of the case, the time that has elapsed can be said to be reasonable or there is proper explanation for the delay. The reasonableness of the delay in filing the writ petition is to be assessed by the Court having regard to the facts and circumstances of each case, where the High Court, after considering the relevant facts and circumstances of the case, comes to the conclusion that the delay made by a party in a given case is not fatal. It would not be justified in refusing the application in each and every case where there is delay in filing the writ petition without examining other attendant facts and circumstances. It is because refusal to entertain belated causes is only a rule of discretion, not of law.

10. In the instant case, after the award was passed on 15-9-1993, the petitioners without any loss of time filed Contempt Case No. 329 of 1989 honestly believing that the award passed by the 2nd respondent was in violation of writs issued in WP No. 4684 of 1997 and Writ Appeal No. 1768 of 1987 and when that contempt case was pending, the petitioners, as an abundant caution and pursuant to legal advice, filed the present writ petition. It is not the case of the learned Advocate-General that on account of the delay in filing the writ petition, the rights or interests of third parties have entered into the arena and if the Court were to grant the relief sought by the petitioners, that would affect the rights of innocent third parties. The Court before refusing an application filed under Article 226 of the Constitution, as per the judgment of the Supreme Court in Moon Mills Limited v. Meher (supra) has to consider two circumstances viz., the length of delay and the acts done during interval and that mere length of delay cannot be the sole consideration to refuse the application unless it is found on account of the delay, certain acts were done involving the interest and legal rights of innocent third parties.

That is not the situation obtaining in the present case. The petitioners have not questioned the legality or validity of the land acquisition proceedings or the compensation fixed by the Land Acquisition Officer. As a matter of fact, the grievance of the petitioner throughout was that the State should acquire the schedule land under the provisions of the Act and pay the compensation. Accordingly, the Land Acquisition Officer has passed the award fixing the rate of compensation, but at the same time denying compensation to the petitioners on the alleged ground that the schedule land was already acquired and the compensation paid and therefore the petitioners are not entitled to the compensation again as per the award dated 15-9-1993. The stand taken by the State Government and its authorities not to pay compensation to the petitioner in respect of the schedule land in terms of the award is ex facie untenable and unjustified for the reasons to be stated presently and since the Court finds violation of substantive rights of the petitioners to receive the compensation in respect of the scheduled land acquired by the State in exercise of its eminent domain power, the State and State authorities are not justified in taking shelter under the plea of laches to defeat just claims of the petitioners. The Supreme Court in H.D. Vora v. State of Maharashtra, : [1984]2SCR693 , entertained the petition despite 30 years delay in moving the Court because the Court found the violation of substantive right of the applicant for the writ. In that view of the matter, I am not inclined to accept the contention of the learned Advocate-General that the writ petition should be dismissed in limine on the ground of delay and laches.

11. The fact that the petitioners are owners of the scheduled land is not in dispute. What is in dispute is whether the schedule land was acquired in the year 1968 as part of Sy.No. 24/3 of Sultanvalva village. According to the respondents-State and State authorities, the schedule land was acquired in the year 1968 itself as part of Sy.No. 24/3 of Sultanvalva village and the compensation was also paid. The Special Deputy Collector, Land Acquisition (General), Hyderabad, who is the Land Acquisition Officer in his award dated 15-9-1993 while denying compensation to the petitioners has justified his action by contending :

'The total extent of S.No. 24 of Sultanvalva (v) is Ac. 140-05 cents. The then LAO (Industries) acquired the land measuring 153-10 gts subdividing the S.No. 24 of Sultanvalva (v) as shown below:

Awardprocs. with date Sy No.Extentacquired

1. C/2150/64 dt. 10-3-196624/PartAc.111-29 gts2. C/396/68 dt. 3-11-196924/1/B2-24'3. C/473/68 dt. 3-11-196924/320-34'4. C/1204/74 dt. 22-4-197724/118-01' TotalAc.153-10gts.

It is also obvious that the extent already acquired is more than that of actual extent of Sy. No. 24 of Sultanvalva (v) and it is evident that the excess land acquired is of Sy. No. 148 which is overlapping in Sy. No. 24/3 of Sultanvalva (v) which was already acquired as discussed above.

Further enquiries made into the matter resulted in noticing that in the year 1954 Zillalaguda and Sultanvalva (v) were transverse surveyed (Angular Survey done with Theodolite) the village boundaries were accordingly determined while planting durable traverse stones on the ground. During this reverse survey, out of the above isolated block, the area of S.No. in question i.e., 148 of Jillalaguda (v) was included within the Sultanvalva (v). Traverse Survey sheets were accordingly prepared which show that the total area of Sultanvalva as recorded on the traverse sheet is Ac.263.14 gts as against the prior survey area of Ac.249.00 gts. This apparently give an impression that the area of S.No. 148 of Zillaguda (v) was included in Sultanvalva as early as 1954 during traverse survey, the revenue records were not corrected which resulted in continuation of S.No. 148 of Jillalaguda in village records. The extent of S.No. 148 was acquired as part of S.No. 24/3 and the possession of which was taken over in the year 1968. At the time of acquisition of land in S.No. 24 the land was measured and whatever, excess land was available was treated as that of area of S.No. 24 of Sultanavala. Corrections in the village map were accordingly made and supplementary sethwar was issued increasing the area of S.No. 24 of Sultanvalva from Ac. 140-05 gts to Ac.153-10 gts in the Collector. Land Records Ref. No. 67/2/5/PA/70 and 07/2/6/ PA/70.

The DMRL at Kanchanbagh, Hyderabad authorities have filed claim petition claiming therein that the land proposed for acquisition in S.No. 148 of Zillalaguda (v) has already been acquired as a part of Sy. No. 24/3 of Sultanvalva (v) vide Procs. No. C.473/68 dated 3-11-3969 of Spl. Dy. Collector, LA (Industries), Hyderabad. The proposed land for acquisition has close resemblance to Sy.No.24/3 of Sultanvalva (v), the possession of which was taken over in the year 1968. This Sy.No. was acquired along with other Sy. Nos. viz., 24/1, 24/Part and 24/1B of Sultanvalva (v) and awardees, therein have received not only award amount, but also enhanced amount under Section 18 of L.A. Act for having referred to Court under said section, which was assigned OP No. 262/73 on the file of the I Addl. Judge, CCC, Hyderabad. The total compensation paid is Rs. l,85,986-59 ps.

Therefore, the DMRL at Kanchanbagh, Hyderabad authorities have claimed the title, interest and right as property was vested with Govt. of India (Min. of Defence). The Defence Estate Officer AP Circle, Sec'bad also filed similar claim petition.

The writ petitioners who filed claim petition jointly pleaded in the WP No. 4684/87 to acquire the lands in S.No.148 of Zillalguda (v) under the provisions of L.A. Act and the Hon'ble High Court passed the orders to that effect. But LAO is not incapacitated or prevented from taking evidence from all interested parties and determine the issue, as to who is the real owner of the property proposed for acquisition in S.No. l48 of Zillalguda (v).'

12. Having regard to the stand taken by the Land Acquisition Officer in his award to deny compensation to the petitioners and which stand is supported by the respondent-State and State authorities, two questions immediately arise for the decision of the Court. The questions are : (i) firstly, whether the schedule land was acquired in the year 1968, as part of Sy.No. 24/3 of Sultanvatva village and compensation was paid as claimed by the respondents (ii) secondly, 'even assuming that the schedule land, as a matter of fact, was acquired in the year 1968 as a part of Sy.No. 24/3 of Sultanvalva village, whether that plea can be entertained and the issue reopened having regard to the orders made by this Court in earlier writ proceedings WP No. 4684 of 1987 and Writ Appeal No. 1768 of 1987 and also the order made in CC No. 329 of 1989.

13. The facts of this case would highlight the maladministration as well as despotic rule on the part of the concerned land acquisition authorities of the State Government. This case also loudly speaks of the arbitrary action on the part of the respondent authorities in denying compensation to the petitioners. It is trite, despite deletion of Clause (e) of Article 19(1) of the Constitution, a private land cannot be appropriated to the State without acquiring such land under the enabling statute and without paying compensation, and if the State is permitted to do so, it would undoubtedly violate the rights guaranteed to the citizens under Articles 14 and 300-A of the Constitution of India. As already pointed out, the respondents do not deny that the petitioners are the absolute owners of the schedule land. The respondents also do not deny that the schedule land was requisitioned in the year 1978 under the provisions of RAIP Act and possession of the schedule land was taken on 10-11-1978 after conducting the panchanama. The contention of the respondents that the schedule land was acquired in the year 1968 itself and the possession was taken over in the year 1969, is not acceptable to the Court for more than one reason. Firstly, nothing is placed before the Court to show that in the year 1968, the schedule land was also acquired along with other lands for usage of DMRL. If the schedule land was acquired as claimed by the State in the year 1968, there was no difficulty for the State authorities to produce Section 4(1) notification. Section 6 Declaration and the award passed by the Land Acquisition Officer. It is not the case of the respondents that the schedule land was acquired in the year 1968 de hors the provisions of the Act either by way of sale or under any other enabling statute. On the other hand, it is the specific case of the respondents that the schedule land was acquired as part of Sy.No. 24/3 of Sultanvalva village under the provisions of the Act. If this plea is correct, Section 4(1) notification issued in the year 1968 should have shown the details of the schedule land in the notification and also the other details of the schedule land, names of the petitioners and their predecessors in title etc. The Supreme Court in Madhya Pradesh Housing Board etc. v. Mohd. Shafi, : [1992]1SCR657 , speaking about the essentials of the process of acquisition under the Act was pleased to observe :

'It is settled law that the process of acquisition has to start with a notification issued under Section 4 of the Act, which is mandatory, and even in cases of urgency, the issuance of notification under Section 4 is a condition precedent to the exercise of any further powers under the Act. Any notification which is aimed at depriving a man of his property, issued under Section 4 of the Land Acquisition Act has to be strictly construed and any serious lapse on the part of the acquiring authority would vitiate the proceedings and cannot be ignored by the Courts. The object of issuing a notification under Section 4 of the Act is twofold. First, it is a public announcement by the Government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the Government for the 'public purpose' mentioned therein; and secondly, it authorises the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the 'public purpose' for which the acquisition proceedings are being commenced but also the 'locality' where the land is situate with as full a description as possible of the land proposed to be acquired to enable the 'interested' persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open to such persons to canvass the non-suitability of the land for the alleged 'public purpose' also.

Thus, it is clear that issuance of a Section 4(1), notification is a sine qua non for valid acquisition of the land under the Act. Since the respondents have not issued Section 4(1) notification in the year 1968, to acquire the schedule land, it is not open for them to state that the schedule land was acquired in the year 1968. Further, no satisfactory proof is placed before the Court by the respondents to show that by the time Section 4(1) notification was issued by the respondents to acquire the land comprised in Sy.No. 24/3 of Sultanvalva village, the schedule land became part of Sy.No. 24/3 and it lost its original identity being Sy.No. 148 of Jililalguda village. Alternatively, it needs to be noticed, if the schedule land was acquired in the year 1968 itself and the possession was taken over in the year 1969, as claimed by the respondents, there was no necessity for the respondents to requisition the same schedule land under the RAIP Act in the year 1978. Further, if the schedule land was acquired and possession was taken over in the year 1968-69, there was no need for respondents again to take over possession of the scheduled land on 10-11-1978 consequent upon the requisition of the schedule land under the RAIP Act. It is also a matter of record, over which there is no controversy, that subsequent to the requisition of the schedule land under the RAIP Act, the petitioners were paid rents. The present plea taken by the respondents is, therefore, quite contrary to their own case and self-destructive. The respondents cannot be permitted to approbate and reprobate. Thirdly, if the schedule land of the petitioners was acquired in the year 1968 as claimed by the respondents, compensation should have been paid to the petitioners or their predecessors in title with regard to the schedule land. However, it is a matter of record that even according to the respondent authorities no compensation was paid to any of the petitioners with regard to the schedule land claimed to have been acquired in the year 1968. As already pointed out, it is not the case of the respondents that the petitioners are not the owners of the schedule land and compensation was paid to the lawful owners of the schedule land. The respondents cannot be permitted to deny the title, and ownership of the petitioners over the schedule land for the reasons to follow is another aspect all these circumstances, set out would falsify the claim of the respondents that the schedule land was acquired in the year 1968 as part of Sy.No. 24/3 of Sultanvalva village and compensation was paid to the land owners.

14. Alternatively even assuming that the schedule land was acquired in the year 1968 as part of Sy.No. 24/3 of Sultanvalva village, then the plea now taken by the respondents to deny compensation to the petitioners is untenable and it is hit by the doctrine of res judicata. It is well settled by the judgments of the Supreme Court in Daryao v. State of U.P., : [1962]1SCR574 , Kunwar Ram Nath v. Municipal Board, : [1983]3SCR321a and Amalgamated Coal Fields Ltd. v. Janapada Sabha, : AIR1964SC1013 , that res judicata and constructive res judicata equally apply to writ proceedings. Further, in Grih Kalyan Kendra Workers' Union v. Union of India, : (1991)ILLJ349SC , the Supreme Court held that question raised and disposed of in earlier writ petition cannot be raised again in another writ petition.

15. The doctrine of res judicata is based on three maxims; (i) nemo debet lis uexari pro una et eaden causa (no man should be vexed twice for the same cause); (ii) interest republicae ut sit finis litium (it is in the state's interest that there should be an end to a litigation); and (iii) res judicata pro veritate occipitur (a judicial decision must be accepted as correct). However, in order to invoke the principle of res judicata, certain conditions are to be satisfied, and they are--(i) the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit, (ii) the former suit must have been a suit between the same parties or between parties under whom they or any of them claim, (iii) such parties must have been litigating under the same title in the former suit, (iv)the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. Section 11 of the Code of Civil Procedure, embodies the principle of res judicata. However, Section 11 of CPC is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in Section 11 has some technical aspects, the general doctrine is founded on considerations of high public policy to achieve the true objectives, viz., that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation. It is well settled by the judgment of the Supreme Court in Jaswant Singh v. Custodian, : AIR1985SC1096 that in order to decide the question whether a subsequent proceeding is barred by res judicata, it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit, and (v) the final decision. Subject-matter of grant of reliefs or the nature of proceedings, in two proceedings need not be the same, that is to say, even if the subject-matter and the relief sought are not the same, yet, if there is a final decision on an issue, arising in the former proceedings, and the same issue arises in the subsequent proceedings, may be as an ancillary of main relief, which was not the subject matter of earlier proceedings, still, the findings on issue in the former proceedings will operate as res judicata in the subsequent proceedings so far as the decision on that particular issue is concerned. In Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu, : [1977]2SCR636 , the Apex Court held that one of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. The bar of res judicata is created by law and the issue relating thereto can be tried as a preliminary issue under Order 14, Rule 22(b).

16. In the instant case, the petitioners filed WP No. 4684 of 1987 in this Court claiming to be the absolute owners of the schedule land and questioning the action of the respondents in not acquiring the schedule land under the provisions of the Act pleading discrimination on the ground that the lands adjacent to the schedule land were acquired under the provisions of the Act and seeking consequential relief to the respondents to notify the schedule land also under the Act for acquisition. At that stage, if the respondents wanted to non-suit the petitioners, they should have pleaded that the petitioners are not the owners of the schedule land or if they were to admit that the petitioners are the owners of the schedule land, but the schedule land was already acquired under the provisions of the Act in 1968 as part of Sy.No. 24/3 of Sultanvalva village and compensation was paid, they should have pleaded that fact. But, the respondents did not contest the claim of the petitioners that they are the absolute owners of the schedule land and they also did not plead that the schedule land was already acquired in, the year 1968 under the Act. The learned single Judge allowed the writ petition and issued direction to the respondents to acquire the schedule land under the Act. That direction issued by the learned single Judge 1 was assailed in WA No. 1768 of 1987, which was ultimately dismissed. While dismissing the writ appeal, the Division Bench emphasised the need to acquire the schedule land as early as possible by observing that admittedly the possession of the land was taken over as far back as in the year 1978. The special leave petition filed by the State and the State authorities was also dismissed by the Apex Court. In that view of the matter, I am of the considered opinion that the principle of constructive res judicata squarely applies to the facts of this case.

17. Explanation IV to Section 11 CPC embodies the principles of constructive res judicata. Principle of constructive res judicata is a point which ought to be taken, if not taken, could also be covered by the principles of res judicata. This is so because, unless this is insisted and done, a party for the same relief, may seek his redressal on few grounds and being unsuccessful on those grounds could in the second innings, by filing fresh petition again raise the remaining grounds for the same relief. It is for the Court to see whether subsequent proceedings arise out of the same cause of action or different. Explanation IV to Section 11 CPC provides that any matter, which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming with the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying constructive res judicata is that whether the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The plea now taken by the respondents that the schedule land was acquired in the year 1968 itself under the provisions of the Act, ought to have been made as a ground of defence when the petitioners filed the Writ Petition No. 4684 of 1987 seeking a direction to the respondents to acquire the schedule land under the provisions of the Act. Since the respondents have not taken such a plea as a ground of defence opposing the writ petition and since they have suffered an adverse writ both at the hands of the learned single Judge and the Division Bench of this Court as well as at the hands of the Apex Court, in terms of the principles of constructive res judicata, the said plea should be deemed to have been heard and decided in earlier writ proceedings, and, therefore, such a plea, cannot be permitted to be raised now.

18. Further, the doctrine of res judicata proper is also attracted in this case. It is relevant to note that in CC No. 329 of 1989, an additional affidavit was filed stating that the schedule land resembles the land already comprised in Sy.No. 24/3 of Sultanvalva village, which is already acquired. A Division Bench of this Court, on consideration of the above plea of the respondents, by its order dated 10-8-1990, held that admittedly the possession of the schedule land was taken over from the petitioners in the year 1978 and the respondent-authorities were paying the rent to the petitioners since then and, therefore, it is not open for the respondents to reopen the issue in the contempt proceedings. The relevant portion of the order dated 10-8-1990 in CC No. 329 of 1989 reads as follows:

'In respect of Sy. No. 148, in the counter-affidavit of the Special Deputy Collector sworn to on 30-11-1989, it was accepted that possession of this land was taken from the petitioners in November, 1978 and steps were being taken for complying with the order of the High Court. Later, it was represented on behalf of the State Government that because of discovery of some material the proceedings to acquire Sy.No. 148 were held up. At the request of the State Govt. several adjournments were given and an additional. Counter-affidavit of the Special Deputy Collector sworn to on 26-7-1990 is filed which states that the respondent received a communication from the Office of the Defence Estates Officer stating that the land in Sy. No. 148 of Zillalaguda resembles the land already acquired and taken possession and described as S.No. 24/3 of neighbouring village Sultanvalva. This appears to be the only objection raised now. Apart from the communication said to have been received from the Defence authorities regarding resemblance of the land there is no other material on this aspect nor is it shown what steps have been taken by the authorities in this behalf. It is not in dispute that after the land was taken possession of from the petitioners in 1978, the respondents have been paying the rent to them. Further, at their request the question of quantum of rent was referred to an arbitrator who has also enhanced the same.

Be that as it may, we do not consider it possible or appropriate to reopen this issue in these contempt proceedings when no such objection was raised either in the writ appeal and even in the SLP. In the first counter-affidavit filed in this contempt petition also no such objection was raised. The objection raised in the additional counter-affidavit is, therefore, not tenable. For reporting compliance with the judgment of this Court, post on 7-9-1990.'

The above order of the Division Bench was allowed to become final and, therefore, the respondents are bound by it and they cannot be permitted to re-agitate the same issue. The learned Advocate-General appearing for the State produced a copy of the notification issued under Section 4(1) of the Act to acquire the schedule land and the Court in view of that development closed the contempt case by observing as follows :

'it is expected that the respondents will take expeditious action for completion of land acquisition proceedings as the petitioners right to compensation is being delayed.'

Despite this, again in Section 5-A enquiry, the respondents raised the same plea and the enquiry Officer rejected that plea by observing--

'.....On behalf of the Defence Estate Officer a counter is put forth stating that the land is already acquired as a part of Sy. No. 24/3 of Sultanvalva village the same cannot be acquired again. This contention is untenable and this was already rejected by the Hon'ble High Court of A.P. in Contempt Case No. 329/89.....'

Further, in the present contempt case, CC No. 604 of 1994 also the same plea was reiterated by the respondents in the course of hearing. In the contempt case, the Court directed the respondent-authorities, through the learned Advocate-General, to make enquiry and to verify whether the petitioners in the present writ petition were paid any compensation in the earlier acquisition proceedings in the year 1968-69. A report was submitted by the MRO, stating that there is no relationship and linkage between the petitioners in the present writ petition and the awardees of Sy. No. 24/3 of Sultanvalva village and none of the petitioners in the present writ petition are awardees in the earlier acquisition proceedings. All these facts cumulatively would go to show that the schedule land was not acquired in the year 1968 as claimed by the respondents as part of Sy. No. 24/3 of Sultanvalva village. Secondly, the present plea of the respondents cannot be permitted to be raised, by applying both the principles of res judicata and constructive res judicata, The State and the State authorities are governed by rule of law enshrined in Article 14 of the Constitution. The State, under the Indian Republic Constitution, is not a despot. Whatever, the State and the State authorities do interfering with the constitutional and legal rights of the citizens and persons should be supported by an authority granted by the law and if the State and the State authorities concerned fail to trace the authority granted by law, then, such action should be condemned as ultra-vires or unconstitutional, as the case may be. This case should open the eyes of the administration and it should take it as an opportunity to introspect its functioning. The caution administered by Lord Hewart in 1929 in his book 'The New Despotism'readily and vividly comes to the mind of the Court when it sees the way in which the claim of the petitioners has been dealt with by the State and its authorities in these rounds of litigations. Simply because the concerned acquisition authorities paid compensation for Ac.153-10 of land while acquiring the land comprised in Sy. No. 24/3 of Sultanvaiva village over and above the actual extent of land comprised in Sy.No. 24/3, i.e., Ac.140-05 cents, it cannot be presumed that the excess land in respect of which compensation was paid, formed part of Sy. No. 24/3 on the date of Section 4(1) notification, nor could it be said that compensation in respect of excess land was paid to the petitioners or their predecessors in title. At any rate, that is not the case of the respondents. On the other hand, after necessary enquiry and verification, the MRO in his report submitted to this Court in the present contempt case, has stated that there is no relationship and linkage between the petitioners in the present writ petition and the awardees of Sy.No. 24/3 of Sultanvaiva village and none of the petitioners in the writ petition are awardees in the earlier land acquisition proceedings, and none of the petitioners in the present writ petition was paid compensation.

19. In the result and for the foregoing reasons, the writ petition is allowed and the impugned award No. P/1430/89 dated 15-9-1993 to the extent it holds that the petitioners are not entitled to compensation with regard to the schedule land, is quashed. I further hold that the petitioners are entitled to receive compensation as determined in the impugned award. In all other respects, the impugned award shall stand unaltered. Further, the first respondent is directed to refer the claims of the petitioners under Section 18 of the Act to the jurisdictional civil Court for enhancement of compensation and for determination of the correct extent of the land. No costs.

Subject	Property;Constitution
Court	Andhra Pradesh High Court
Decided On	Jun-07-2002
Case Number	WP No. 9727 of 1998
Judge	S.R. Nayak, J.
Reported in	2002(5)ALD195; 2003(1)ALT83
Acts	Code of Civil Procedure (CPC) , 1908 - Sections 11; Constitution of India - Article 226
Appellant	Sama Yadaiah @ Yadi Reddy and ors.
Respondent	Special Deputy Collector, Land Acquisition (General) and ors.
Appellant Advocate	R. Subhash Reddy, Adv.
Respondent Advocate	Adv. General

Sama Yadaiah @ Yadi Reddy and ors. Vs. Special Deputy Collector, Land Acquisition (General) and ors. - Court Judgment