MEHERNOSH H CHENOY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This writ petition has been filed in the year 1991. Petitioners seek a writ directing the respondents to initiate Land Acquisition Proceedings afresh by publication of requisite Notifications and Declarations, so that an award is made in terms of the provisions of the Land Acquisition Act, 1894 (for short 'the Act') with respect to the land in Survey No.171 Mazi Survey No.37 in Thokatta Village. This relief is claimed on the following assertions:

(2.) That the petitioners are cousins and their mothers, who were sisters in between themselves, were daughters of one late Rustomji Jamshedji Chenoy. Petitioners contend that Begumpet Aerodrome was constructed by erstwhile Government of Nizam. The expansion of the Aerodrome was carried in or about November, 1947, and for that purpose land was acquired in phases. In November, 1947, a notification was published under the Hyderabad Land Acquisition Act. In the said publication, survey numbers of the land, sought to be acquired, were published, but the boundaries of the land proposed to be acquired were not described. Draft notification was published in the Gazette No. 39 dated 7th Sherawar 1356 Fasli and Draft Declaration was published in Gazette No.6 dated 10th Dhaix 1356 Fasli. The land bearing Survey No. 171 of Thokatta Village belonging to the petitioners' grandfather Rustomji Jamshedji Chenoy was also sought to be acquired for extension of the Aerodrome. Survey Number 171 is part of the old Survey No.37 referred to in Revenue Records as Mazi Survey No.37 and the then Jagir authorities had granted the patta of an extent of Ac.3-18 guntas to Rustomji Jamshedji Chenoy. The Aerodrome authorities took over possession of the land from the erstwhile Revenue authorities in or about 1948. In April, 1956, a joint claim petition was filed by the father of petitioner No.1, father of Petitioner No.2 and Rustomji Jamshedji Chenoy, claiming compensation for the land acquired. The Special Deputy Collector, Land Acquisition General, Hyderabad, sought information from the Airport authorities about the factum of having taken possession of the land. In 1968, the Begumpet Airport authorities confirmed that land in S.No. 171, belonging to Rustomji Jamshedji Chenoy, was taken over by Director General, Civil Aviation. The Special Deputy Collector, Land Acquisition General was thereupon requested for finalizing the payment of compensation as he was seized of the matter. Thereafter the claim of the petitioners to the title of the land in S.No. 171 was referred to the Board of Revenue, who after careful consideration of the entire matter gave directions in B.P.Rt.No.3374/ 76 dated 24-9-1976 directing the Special Deputy Collector to settle the claim and to pass the award. Instead of passing the award, the Special Deputy Collector, Hyderabad, once again referred the matter to the State Government seeking clarification with regard to applicability of the Urban Land Ceilings Act to the cases pertaining to the lands acquired. According to the petitioners, on Government instructions all the acquisition proceedings were kept in abeyance. But according to the information of the petitioners, the Government was reported to have advised that as the land had already vested in the Government before the enactment of Ceiling Act, it would not make a difference. The petitioners' claim that though there was no impediment for passing of the award and payment of compensation, yet the Land Acquisition Authorities delayed the matter and have not taken any steps for finalisation of the award and payment of the compensation. It is further submitted that the Land Acquisition Proceedings were initiated under Hyderabad Land Acquisition Act. The Land Acquisition Act of 1894 was made applicable to Hyderabad under the Land Acquisition (A.P.Extension and Amendment) Act-XX of 1959 from 15-10-1959. The said Act was amended by Act-68 of 1984. In terms of Section 11 (A) of the Act, an award has to be made within two years from the date of publication of declaration and if no award is made within that period entire proceedings for the Acquisition shall lapse. In case there was a declaration published before the amendment, the award could be made within a period of two years from such amendment. Since the award has not ' been passed before 24th September, 1986, which was the outer limit under the amendment, the respondents were bound to issue a fresh notification. The petitioners further contended that there was no dispute with regard to the title or ownership in respect of the land in S.No. 171. There was no dispute about the applicability of the Land Acquisition Act also. The petitioners have been unjustly deprived of the compensation for the land acquired. The inordinate delay on the part of respondents deprived the petitioners of their land and also the compensation thereof, which is in contravention of the provisions of Article 300-A of the Constitution of India.

(3.) The counter-affidavit was filed by the Land Acquisition Officer, Hyderabad, on behalf of Respondents 1, 2 and 5. It was contended in the counter that the Acquisition had taken place in the year 1948 by the erstwhile State of Hyderabad and the petitioners had approached the Court in the year 1991, after a lapse of 43 years and as such the writ petition was liable to be dismissed on the ground of laches. In the counter-affidavit an explanation has been given as to why the counter had not been filed earlier, as the same was filed on 13-12-2002. It is submitted that on 1-11-2002 a telephonic message was received from the Liaison Officer, High Court, that this writ petition was listed for hearing on 5-11-2002 and that the Government Pleader's Office has no record pertaining to the Said case. Thereafter a thorough search Was made and the record was traced from the Record Room on 2-11-2002. The Government Pleader perused the records and made an endorsement on the file requiring further information in the case. On 7-11-2002 when the writ petition was listed before the High Court, as no counter had been filed, the Court directed appearance of Respondent No.1 on 2-12-2002 along with connected records to facilitate the Court for disposal of the case. The Court further gave liberty to file an application for leave to file counter-affidavit in view of the delay. It is further contended that with great efforts a copy of Draft Notification and Draft Declaration, which were published in Urdu were secured from the Office of the State Archives and thereafter a counter- affidavit was filed. It is contended in the counter-affidavit that the land acquisition proposals were initiated by the erstwhile Hyderabad State to acquire the lands for extension of Begumpet Airport under the provisions of Hyderabad Land Acquisition Act, 1319 Fasli. The then Deputy Collector issued Draft Notification under Section 5 of the Act on 22-9-1356 Fasli to acquire an extent of 133 acres of land in the vicinity of Begumpet Airport covering the Revenue Villages of Thokatta, Patelnagar, Ferozguda, Bholakpur and Begumpet. The said notification was published in Gazette No.39 dated 7th Shehrewar 1356 Fasli at Page Nos.1821 to 1825. The particulars of the lands covered by said notification of Thokatta Village were given in the counter-affidavit. Except for Survey No.37, all other survey numbers were notified as patta lands but Survey No.37/Paiki was shown as Poramboke Sarkari. Though the notification was issued as early as in the year 1948, the petitioners filed an application for the first time after a lapse of 8 years i.e., on 13-4- 1956 claiming that their lands in S.Nos.37/2 and 3 corresponding to new S.No.171 were the subject-matter of notification issued to acquire the lands for extension of Begumpet Airport. The notification does not at all show that Survey Numbers 37/2 and 3 we're notified, and as such the claim of the petitioners that their lands have been notified was without any substance. The lands notified in Gazette by the then Collector were situated in S.No.37/Paike and other survey numbers, for which the petitioners have no claim. It is also contended that even if it is considered that S.Nos.37/2 and 37/3 were also notified, even then, the notification shows that it was Paike land, which is a Sarkari Poramboke. Since the land belongs to the Government, therefore, the question of payment of compensation would not arise. The lands, which were in fact notified, were duly taken possession by the authorities, and an award has been passed except for Survey No.37, since the said land belonged to the Government. There was no record available in the office in respect of Government land utilized for the purpose of extension of Begumpet Aerodrome. All the files relating to Land Acquisition for Begumpet Aerodrome have been closed and made over to the Record Room during the erstwhile regime of Hyderabad State. On 13-4-1956, one Sri Mehernosh H. Chenoy and others filed a joint application before the Collector, Land Acquisition, Hyderabad, to the effect that the first petitioner was the owner of an extent of Ac.3-00 covered under S.No.171 and the said land had been taken over in 1948. On 9-3-1957, a notice was issued to the petitioners to file title deeds but the petitioners failed to submit any documents to establish their title over the property. It is further contended that if the petitioners' land had been taken possession of by the authorities, they should have immediately approached and made their claim, but they kept quiet for more than eight years before for the first time they moved an application in the year 1956. It was accepted however that the Board of Revenue had issued direction to the Land Acquisition Officer to settle the claim and pass award after completing the Award enquiry. Those instructions related to land in S.No.171, which corresponds to old S.Nos.37/2 and 3, which were not notified under Hyderabad Land Acquisition Act, 1319 Fasli. It is contended that the petitioners were trying to take advantage of old S.No.37 and ignoring that there were 25 sub-divisions made out of S.No.37. The total extent of S.No.37 was 1361.17 acres and it was classified as Poramboke Sarkari and out of which the land in S.No.37/Paiki was notified under Hyderabad Land Acquisition Act 1319 Fasli. The contention of the petitioners that their land was notified and acquired for the purpose of extension of Begumpet Aerodrome was absolutely incorrect and baseless.