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CHEQUE BOUNS CASE

. It is not uncommon that the Government assigns its land to various persons, mostly landless poor. Irrespective of the length of time for which the assigned land was under the enjoyment of the assignee, ex-gratia is payable to him in the event of land being resumed to the Government for public purpose. Even if the land was resumed to the Government within two years from the date of assignment, the ex-gratia which is almost equivalent to market value, has to be paid, as though he is the absolute owner of the property for decades together. When such is the requirement under law, the petitioners, who are pattadars and absolute owners of the land, for decades together, cannot be denied the compensation. In the ordinary course of things, the respondents must be required to initiate proceedings under the Act and take further steps in accordance with law. However, this Court feels that the procedure under the Act can be dispensed with, in view of certain special circumstances that exist in this case. The first is that the Government made an attempt to restore the tank, which existed in ancient times. The second is that an amount of Rs.15,000/- per acre was paid to the effected persons in the year 2003. In the earlier round of litigation, this Court found that the amount that was already paid is inadequate. The publication of notification at this length of time would lead to several complications. Thirdly, in the recent past, there was sudden and unforeseen escalation of prices and an award, if at all, is to be passed on the basis of the existing market value. In such a case, the Government may even be compelled to take a decision to abandon the tank, sacrificing the interests of the citizens in the locality, than to incur huge expenditure. According to the petitioners, the market value of their land in the year 2002 was in the range of Rs.50,000/- per acre. Even if it is to be taken as Rs.45,000/-, they received Rs.15,000/- per acre and the balance is only Rs.30,000/-. If the escalation at 10% per year is taken into account, there would be 90% increase on Rs.30,000/-. Since the petitioners are being denied the benefit of solatium, additional market value and interest, it is felt that they can be paid compensation/damages at the rate of Rs.60,000/- per acre. Therefore, the writ petition is allowed directing the respondents to pay a sum of Rs.60.000/- per acre to the petitioners. If the amount is paid within four months from today, it shall not carry any interest. In default, it shall carry interest at the rate of 12% per annum from the date on which the amount of Rs.15,000/- per acre was paid. There shall be no order as to costs.

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY

One of the Kirti toranas of Kakatiya Dynasty

One of the Kirti toranas of Kakatiya Dynasty (Photo credit: Wikipedia)

Writ Petition No.33676 of 2010

02.02.2012

Akkenapalli Sumander Reddy and others

The Govt. of A.P. and others

Counsel for the Petitioners : Sri D.Prakash Reddy

Counsel for the Respondents: G.P. for Land Acquisition

ORDER:
The petitioners claim to be the owners of different extents of land in
various survey numbers of Ramsagar and Kistampet Village, Cherial Mandal,
Warangal District. It is stated that on a representation made by the residents
of the surrounding villages, the Government has initiated steps for restoration
of a tank known as ‘Polai Cheruvu’ as a Percolation Tank under a special
programme. Survey is said to have been conducted to identify the land that
would be effected, in the event of the tank being brought into existence. The
petitioners contend that without initiating any proceedings under the Land
Acquisition Act, 1894 (for short ‘the Act’), the respondents have brought into
existence a tank and that their lands got sub-merged in it.
On an earlier occasion, they filed W.P.No.23974 of 2002, pleading that the
action of the respondents in rendering their lands to be sub-merged without
initiating the proceedings under the Act, is arbitrary and illegal. The writ
petition was disposed of on 28.02.2006, directing the District Collector,
Warangal, the 2nd respondent herein, to consider the representation that may be
submitted by the petitioners. On a consideration of such representation, the
2nd respondent passed an order dated 17.05.2006, stating that there existed a
tank about 500 years ago at the concerned place, and that the steps taken by the
Government are only in the nature of restoration of the tank. He observed that
though the records show that the petitioners are the pattadars of the land, the
fact that it was the tank bed of ‘Polai Cheruvu’, cannot be ignored. Feeling
aggrieved by the said order, the petitioners filed W.P.No.17959 of 2006. This
Court did not endorse the stand taken by the 2nd respondent. It was also
observed that the compensation of Rs.15,000/- paid on earlier occasion is
inadequate. The 2nd respondent was directed to re-consider the entire issue.
The writ petition was accordingly disposed of on 26.08.2009.
Thereafter, the 2nd respondent passed an order dated 23.12.2009, rejecting
the case of the petitioners and observing that the compensation that was paid
earlier is adequate. Hence, this writ petition.
The petitioners contend that the revenue records clearly demonstrate that
the lands are held in patta by them and there is not even a trace of right of
the Government, over the lands. They submit that the lands owned by them can be
taken by the Government, only after initiating the proceedings under the Act.
On behalf of the respondents, a detailed counter-affidavit is filed. Reference
is made to the proceedings that have ensued earlier. It is stated that the
petitioners were in occupation of tank bed land and such occupation does not
confer any right of ownership. It is also stated that the restoration of tank
is a public purpose and that there is no necessity for the Government, to pay
the compensation to the petitioners. The
2nd respondent has also stated that the interests of the petitioners were
already protected by paying ex-gratia @ Rs.15,000/- per acre.
Sri D.Prakash Reddy, learned Senior Counsel appearing for the petitioners,
submits that the impugned order runs contrary to the specific observations and
directions made by this Court on two earlier occasions. He contends that the
very fact that the lands were recorded as patta, in the names of the petitioners
and that there is no entry anywhere in the revenue or irrigation records about
the existence of tank, establishes that the petitioners are the absolute owners
of the lands. He submits that when the law, as it stands, now mandates that the
Government is under obligation to pay compensation, in the form of ex-gratia,
even when the lands assigned to citizens are resumed, for public purpose, the
petitioners cannot be treated on a lesser footing. He contends that the
respondents are under obligation to initiate proceedings under the Act and to
pay compensation as per law.
Learned Government Pleader for Land Acquisition, on the other hand,
submits that though the records depict that the petitioners are pattadars of the
lands in different survey numbers of the two villages, the undisputed fact is
that the pattas are in respect of tank bed land. He contends that once the land
is part of an irrigation tank, possession for any length of time, or the type of
entries in the revenue records, will not change the character thereof. He
submits that the petitioners are not entitled to any further relief.
The petitioners are pattadars in respect of lands in various survey
numbers of Ramsagar and Kistampet Villages. It is not in dispute that the tank
was brought into existence by the Government, recently, over the said lands. It
hardly needs any mention that whenever the lands held by a private individual
are taken over by the Government for any public purpose, the compensation as
provided for under the Act, must be paid.
The ground on which the respondents denied payment of compensation to the
petitioners is that there existed an irrigation tank about 500 years ago, and
since it breached, the tank bed was being used for cultivation by many
individuals. In case the records disclose the existence of such tank, exercise
of rights of cultivation for any length of time by individuals does not alter
the classification. It is also settled principle of law that if an irrigation
tank existed and mentioned as such in the records maintained by the Irrigation
or Revenue Department, the persons cultivating the bed of such tank do not
derive any rights, nor can they prevent the storage of water in it. If,
however, the records do not disclose the existence of tank, at all the rights of
private individuals cannot be adversely effected by the Government, in the
process of forming a tank.
When the petitioners approached this Court at the first instance, the 2nd
respondent was directed to examine the matter in detail. Being the Head of the
Revenue Department in the District, the 2nd respondent was supposed to verify
the records maintained by his Department or those maintained by the Irrigation
Department. However, in forming an opinion on this aspect, the 2nd respondent
passed an order dated 17.05.2006, observing inter alia as under:.
“… On verification of Revenue Records, it is found that the lands are
shown as patta lands. In the Village maps pertaining to Ramsagar and Kistampet
are also verified and found that there is no mention of existing of any tank in
the Villages. However, the record shows the status of the land for the past
fifty to seventy years only. Hence, the history of the villagers of Ramsagar
and Kistampet have been verified in the light of physical existence of a bund
covering Ac.104.20 gts., and breached at many places. History says that Polai
cheru is an ancient tank formed during the Kakatiya Dynasty and was breached
during the rule of Pllava Raju. Thus, the said tank is approximately 500 years
old. …”

From a perusal of this, two aspects become clear; a) The revenue records
demonstrate that the lands are shown as patta lands and that there is no mention
as to the existence of tank in the two villages; and b) any reasonable exercise
of the discretion or power ought to have led to a conclusion that the lands
owned by any pattadar can be taken over only by paying compensation. The 2nd
respondent, however, imported his knowledge in history and took the view that
there existed a tank, when the area was ruled by Kakatiya Dynasty, but was
breached under Pallava Rajus’ rule. There cannot be any better instance of
improper and lopsided exercise of power, than this. Absolute rights vested in
citizens, cannot be trampled in such a manner on the basis of such farfetched
presumption.
Even if the understanding or knowledge of the offer was correct, he was
required to be guided by the entries in the records. When the order, dated
17.05.2006, was challenged before this Court in W.P.No.17959 of 2006, it was
observed that the amount paid to the petitioners in the form of ex-gratia is
inadequate and the 2nd respondent was directed to reconsider the matter.
Unfortunately, another incumbent, who held the Office of the 2nd respondent,
just ignored the observation made by this Court. According to him, the ex-
gratia of Rs.15,000/-, per acre, was adequate. This is nothing short of
nullifying the orders of this Court. The stand taken by different incumbents
from time to time that held the Office of the 2nd respondent is reprehensible.
Instead of being a source of emulation for other officials in the District, they
have acted on the basis of their personal knowledge or views, going to the
extent of ignoring the records maintained by their own department and treating
the direction issued by this Court, as of no consequence. The petitioners have
been subjected to prolonged and unnecessary litigation.
There is another angle from which the matter can be examined. It is not
uncommon that the Government assigns its land to various persons, mostly
landless poor. Irrespective of the length of time for which the assigned land
was under the enjoyment of the assignee, ex-gratia is payable to him in the
event of land being resumed to the Government for public purpose. Even if the
land was resumed to the Government within two years from the date of assignment,
the ex-gratia which is almost equivalent to market value, has to be paid, as
though he is the absolute owner of the property for decades together. When such
is the requirement under law, the petitioners, who are pattadars and absolute
owners of the land, for decades together, cannot be denied the compensation.
In the ordinary course of things, the respondents must be required to
initiate proceedings under the Act and take further steps in accordance with
law. However, this Court feels that the procedure under the Act can be
dispensed with, in view of certain special circumstances that exist in this
case. The first is that the Government made an attempt to restore the tank,
which existed in ancient times. The second is that an amount of Rs.15,000/- per
acre was paid to the effected persons in the year 2003. In the earlier round of
litigation, this Court found that the amount that was already paid is
inadequate. The publication of notification at this length of time would lead
to several complications. Thirdly, in the recent past, there was sudden and
unforeseen escalation of prices and an award, if at all, is to be passed on the
basis of the existing market value. In such a case, the Government may even be
compelled to take a decision to abandon the tank, sacrificing the interests of
the citizens in the locality, than to incur huge expenditure.
According to the petitioners, the market value of their land in the year
2002 was in the range of Rs.50,000/- per acre. Even if it is to be taken as
Rs.45,000/-, they received Rs.15,000/- per acre and the balance is only
Rs.30,000/-. If the escalation at 10% per year is taken into account, there
would be 90% increase on Rs.30,000/-. Since the petitioners are being denied
the benefit of solatium, additional market value and interest, it is felt that
they can be paid compensation/damages at the rate of Rs.60,000/- per acre.
Therefore, the writ petition is allowed directing the respondents to pay a
sum of Rs.60.000/- per acre to the petitioners. If the amount is paid within
four months from today, it shall not carry any interest. In default, it shall
carry interest at the rate of 12% per annum from the date on which the amount of
Rs.15,000/- per acre was paid. There shall be no order as to costs.

____________________
(L.NARASIMHA REDDY, J)
02.02.2012

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