JUDGMENT
L. Narasimha Reddy, J.
1. This appeal is filed against the order of the learned single Judge in W.P.No.20481 of 1999.
2. The respondents filed the writ petition No.20481 of 1999 seeking a direction to the appellant herein to expedite the passing of award in the proceedings under the Land Acquisition Act (hereinafter referred to as ‘the Act’) in relation to their land notified by the appellant under Sections 4(1) and 6 of the Act. In the affidavit filed in support of the writ petition they alleged inter alia that they are the owners of the land in Sy.Nos.3,4 and5 admeasuring Ac.10-24 guntas in Sultana Bagh village, Bandlaguda revenue Mandal, Hyderabad District. In January, 1997, when the Chief Minister visited the locality, the local residents brought to his notice the unhygienic conditions on account of flooding due to the absence of constructed drain. On the directions of the Chief Minister, the authorities of the Municipal Corporation of Hyderabad mooted proposals for construction of a drain through the lands of the respondents and an extent of 2,026 sq. meters was demarked for the purpose. On the request of the Municipal Corporation, the Collector, Hyderabad issued notification under Section 4(1) of the Act which was published on 7.12.1998. Enquiry under Section 5-A of the Act was dispensed invoking Section 17(4) of the Act and thereafter notification under Section 6 was published on 14.12.1998. The work was entrusted to a contractor through agreement dated 31.3.1998 who in turn dumped the material on the land. The Municipal Corporation has also deposited an amount of Rs.9,89,000/- towards tentative market value to be paid to the respondents.
3. Since there was no progress in the work, an organization called Rural Urban People Aware Society filed W.P.No.12426 of 1999 by way of public interest litigation. The Executive Engineer of the Municipal Corporation filed counter affidavit stating that the material has been dumped, the work is in progress and it will be undertaken at the right earnest. Taking note of the submission in the counter affidavit, a Division Bench of this Court took the view that nothing survives in that writ petition. Despite the same there was no progress. The respondents were issued notice under Sections 9(3) and 10 of the Act way back in January, 1999 and thereafter there was no progress. With a view to ensure early finalisation of the acquisition proceedings, they sought necessary direction from this Court in the writ petition.
The respondents filed counter affidavit stating that the requisitioning department i.e., Municipal Corporation of Hyderabad reviewed its earlier decision and took the plea that the acquisition of large extent of land at huge cost on the Corporation is not feasible and that since the land in question is attracted by the provisions of Urban Land Ceiling Act (for brevity ULC Act), it is not necessary to proceed with the acquisition of land. In that view of the matter, the Municipal Corporation requested the land acquisition authorities to initiate the proposals under Section 48(1) of the Act for withdrawal. Therefore, the appellant ultimately submitted that since the land is not required by the requisitioning department, it is not feasible to proceed with the award enquiry.
The learned single Judge noted the contentions of both the parties and took exception to the attitude exhibited by the Municipal Corporation and the appellant and allowed the writ petition. The appellant challenges the order of the learned single Judge.
The learned Government Pleader for Revenue submits that as long as the possession of the land was not taken, it is open to the Government to withdraw the acquisition proceedings and there cannot be a Mandamus to proceed with the acquisition denying the Government its right to withdraw the proceedings. He submits that since the requisitioning department namely Municipal Corporation of Hyderabad has informed the appellant that they are not interested in requisitioning the land, further proceedings are pending at the level of the Government as regards the issuing of notification under Section 48 of the Act and asking the appellant to proceed with the award enquiry under these circumstances will not be in accordance with law.
Sri A.Anantha Reddy, learned counsel for the respondents on the other hand submits that there was absolutely no bona fides on the part of the Municipal Corporation or for that matter the appellant in proposing to withdraw the acquisition proceedings. He submits that the Executive Engineer, in his counter affidavit filed in W.P.no.12426 of 1999, categorically admitted that the material was dumped over the land and engineering wing of the Municipal Corporation has been repeatedly insisting the appellant to hand over possession, but on account of certain extraneous reasons, the proposals for withdrawal were mooted. He ultimately supports the judgment of the learned single Judge.
It is not in dispute that the appellant had issued notification under section 4(1) of the Act published on 7.12.1998 and declaration under Section 6 was published on 4.12.1998, proposing to acquire the lands of the petitioners admeasuring 2,026 sq. yds. The matter was treated very urgent and enquiry under Section 5-A of the Act was dispensed with. It is a matter of record that the contractor was assigned the proposed work and the material was dumped. Now in the counter affidavit it is stated that the Municipal Corporation does not want to proceed with the work. In the writ petition filed by a voluntary organization, the Corporation gave an undertaking that they will complete the work as early as possible.
With a view to know as to the reasons, which weighed for such drastic change in the matter, we summoned the relevant record. The learned Government Pleader made the relevant record available to us. It is evident that the proposals for acquiring the land were mooted when the Chief Minister noticed certain unhygienic conditions prevailing in the area and instructed the concerned to undertake construction of drainage. The Engineering wing of the Municipal Corporation has undertaken survey and prepared the sketch as well as the estimates. The work was estimated at Rs.32.13 lakhs including the tentative cost of compensation for the land at Rs.9,89,000/-. Necessary proposals were submitted by the Municipal Corporation to the appellant herein.
The appellant addressed a letter dated 10.12.1997 to the Special Officer and Competent Authority, Urban Land Ceiling to know as to whether the land is declared as excess. The Special Officer in turn replied through his letter dated 18.4.1998 stating that the lands of the petitioners including the one under acquisition were earlier held to be excess through order passed under Section 8(4) of the ULC Act and thereafter the appeal preferred by the respondents was allowed by the appellate authority on 18.5.1990 setting aside the order passed under Section 8(4) and a fresh enquiry from the initial stage is in progress. As regards the land proposed for acquisition, the Special Officer stated that he conducted local inspection and has also submitted proposals for exemption of the extent sought to be acquired so as to pave way for acquisition of the land. After taking into account the comments of the Special Officer, the appellant proceeded further.
So far as the requisitioning department, that is, the Municipal Corporation of Hyderabad is concerned, necessary proposals were submitted to the Standing Committee, which, through its resolution dated 21.5.1998 accorded its approval for the work including the acquisition. The same was placed before the General Body of the Corporation which through its resolution No.7 dated 22.5.1998 accorded the approval. Once the urban land ceiling aspect as well as the financial commitment was clear and the concerned authorities under the Act proceeded and issued notifications under Sections 4(1) and 6 as stated above, the Executive Engineer of the Municipal Corporation has been pressing the appellant herein for taking immediate possession. When it was felt that payment of tentative compensation is necessary for taking possession, the Corporation forwarded an amount of Rs.9,89,000/- through cheque dated 3.3.1999 to the appellant. It is not known as to what prevented the appellant to take possession by paying the advance amount as required under Section 17 of the Act. He took up the award enquiry forgetting that urgency under Section 17(4) of the Act was invoked with a view to take advance possession. The respondents submitted their claim statements. The Special Officer and Competent Authority has also submitted a claim statement on 15.2.1999. His claim was that in case the land vests in the Government under the ULC Act, it shall be entitled to receive the compensation and if the land is found to be a retainable area, the respondents shall be entitled to receive the same. It is also pleaded that that till the finalisation of the proceedings under the ULC Act, the compensation may be deposited into the Civil Court.
At this stage an Additional Commissioner of the Municipal Corporation has thrown spanner in the wheel of the proceedings, which themselves, were moving at snail’s pace. The relevant portion of the letter dated 3-6-1999 of the appellant, is as under:
“Award enquiry is under progress. Mean while, the Additional Commissioner, M.C.H. has reviewed the case and held discussion with the Chief Engineer and Executive Engineers, M.C.H. and found that the acquisition of large extent of land at huge cost on the Corporation exchequer is not feasible for construction of open masonry drain and instructed to withdraw the land acquisition proceedings. Further, the land in question is attracted by the provisions of Urban Land Ceiling Act and the case is pending before the Special Officer and Competent Authority, ULC, Hyderabad. The Commissioner, MCH, is pleased to approve withdrawal proposal.
In view of the above and in view of the fact the land acquisition proceedings are no more required by the requisitioning department, I am submitting herewith the withdrawal proposals U/S 48(1) of the Land Acquisition Act in the prescribed form with a request to approve the same and send to Government for their approval and report while allowing a gazette number for publication”
This is how the land acquisition proceedings are sought to be haulted.
From the counter affidavit as well as the letter dated 3.6.1999 it is evident that the reason for deciding not to proceed with the land acquisition proceedings, or for that matter, the work itself is that the cost involved for the work and that the land in question is attracted by the provisions of the ULC act. Both the grounds are absolutely without any basis. It was not as if there was any cost escalation after the acquisition proceedings have been initiated and that the authorities of the Corporation were not aware that the land was attracted by the provisions of the ULC Act. Before sending the proposal for acquisition, the engineering wing of the Corporation has undertaken thorough survey and estimation of the work. The estimated amounts were sanctioned by the Standing Committee and thereafter the General Body of the Corporation. The work was also entrusted to the contractor who in turn has dumped the material. So far as the application of the provisions of ULC Act is concerned, it is evident that even before the proposals for acquisition were forwarded to the revenue authorities, the respondent ascertained the factual as well as the legal aspect from the Special Officer and Competent Authority. There was no changed of situation since then. Further the Special Officer himself submitted a claim statement and thereby amply protected the interest of the State.
The records reveal that the proposal to discontinue the work and withdraw the acquisition proceedings emanated from the Additional Commissioner and was approved by the commissioner. In this context, it needs to be noticed that the entire work and proposals were earlier approved by the Standing Committee and thereafter by the General Body. If any authority or official had any reservation about the work or its viability, the only course open to him was to approach the same authority, which accorded approval. But that does not appear to have taken place.
4. One important aspect is that the decision to give up the work and acquisition has emanated from the Additional Commissioner after he held discussion with the Chief Engineer and Executive Engineer of Municipal Corporation of Hyderabad some time before. This very Executive Engineer filed a counter affidavit in July, 1999 in W.P.No.12426 of 1999 wherein he stated that the Corporation has decided to provide a closed drainage system instead of open drainage system and that the Corporation was committed in providing basic amenities to the residents of old city. It suggests that though he was aware that they have decided to give up the entire work, he had made a deliberate false statement before the Division Bench and thereby misled it. This, prima facie constitutes contempt. This aspect, however, will be dealt with as and when occasion arises. However, what is evident is that there were absolutely no bona fides on the part of the appellant as well as the various authorities of the Municipal Corporation in either initiating or withdrawing the land acquisition proceedings. They have only pretended to act in response to the remarks of the Chief Minister on an important issue relating to hygienity of a large number of residents in the locality. By their inconsistent and irresponsible stands and actions, the appellant and other authorities have not only left the matter where it existed in 1997, but also made the State to incur huge expenditure towards undertaking survey, charges for publication of notifications under Sections 4(1) and 6 of the Act in the newspapers. On the direction of the Municipal Corporation authorities, the contractor has also dumped the material which obviously will not be without any financial commitment.
5. Having regard to these facts and circumstances, the direction issued by the learned single Judge cannot be found fault with. However, while issuing a Writ of Mandamus, the Court cannot deprive an authority from exercising its statutory functions. In this case, the respondents are not able to establish that the possession of their land was taken, in which case it would not have been possible for the appellant or concerned authorities to withdraw the land acquisition proceedings. As long as the possession was not taken it is open to them to withdraw the acquisition proceedings. We cannot deny that power to the State. At the same time, the Court cannot put a seal of approval on the various acts and omissions on the part of the authorities concerned which not only hindered execution of a public work, but had made the State to incur huge expenditure for nothing.
7. A Division Bench of this Court to which one of us (Justice S.R.Nayak ,J) is a party had to deal with almost similar situation in W.A.No.1023 of 1999. Considering the question of public interest in case of acquisition of a land attracted by the provisions of ULC Act, the Bench observed as under;
“The learned Judge himself left it open to the Land Acquisition Collector to refer the dispute as to title if any to the Civil Court under Section 30 of the Land Acquisition Act. It is always open to the appellants to plead before the Land Acquisition authority that the land had vested with the State Government or the State Government has exclusive rights and proprietary interest over the land. If that contention is accepted the question of payment of compensation to the respondent – writ petitioner does not prima facie arise. Ofcourse, that depends on the order to be passed by the Commissioner in the pending appeal. In the alternative, if there is any dispute as to who is entitled to the compensation amount i.e., the writ petitioner who claims through the second respondent or the State Government, that question can also be decided by the Civil Court on a reference made by the Land Acquisition Officer. In either case, the State’s interest will not suffer”
8. Taking into account the factual and legal aspect in the matter, we modify the order of the learned single Judge to the extent indicated below:
(a) Since both the grounds pleaded for withdrawing the acquisition proceedings are found to be not tenable, the concerned authority that is the District Collector, Hyderabad as well as the Commissioner of Municipal Corporation of Hyderabad shall decide within two months from the date of receipt of a copy of this order as to whether they still intend to withdraw the land acquisition proceedings;
(b) In case, it is decided that the proceedings be withdrawn and notification under section 48 of the Act is issued, the Secretary, Municipal Administration, Government of
A.P. shall take steps to identify the persons responsible for making the State to incur the expenditure towards publication of notifications, cost of material and other amounts payable to the contractor, quantify the amounts so incurred by the State and initiate proceedings for recovery of the same from the persons found responsible; this exercise shall be completed within six months from the date of notification issued under Section 48 of the Act, if issued;
(c) In case, it is decided to proceed with the acquisition, the appellant shall proceed with the award enquiry and complete the same within three months from the date of decision as directed in clause (a).
9. With these directions, the writ appeal is partly allowed and the order of the learned single Judge shall stand modified to the extent indicated above.