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2012 Supreme(AP) 582
High Court of Andhra Pradesh
L. NARASIMHA REDDY
Nagarala Nirvasithula Welfare Association
Versus
The Govt. of A.P. & Others
Writ Petition No.553 of 2012
Decided On : 09-07-2012
For the Petitioner:Gangarami Reddy, Advocate.
For the Respondents: G.P. for Land Acquisition.
Headnote:
Constitution of India, 1950 – Article 14 – Land Acquisition Act – Sections 4(1), 5-A and 6 – Notification – Awarded compensation – Denying to pay compensation – Petitioner is an Association of persons entire came under submergence, as part of Irrigation Project of Balancing Reservoir – A notification under Section 4(1) of the Land Acquisition Act was published. Enquiry under Section 5-A of Act was dispensed with and declaration under Section 6 of the Act was published – An award was passed through which compensation was awarded for structures alone – No compensation was paid for the land on which the houses were constructed petitioner contends that there was no justification for respondents in denying compensation for land on which houses were constructed respondents filed a counter affidavit – Stated that draft notification and draft declaration under Sections 4(1) and 6 of Act respectively were issued in respect of houses – As regards the compensation for the land, it is stated that the instructions issued by the Government G.O which are to effect that compensation in such cases shall be paid for structures only; were followed – Held, Assuming that vests in the Government, there exists a tacit approval or assignment in favour of the members of the petitioners enabling them to construct houses is evident from the fact that houses constructed by the members of the petitioner-association were notified for acquisition. A house cannot exist in vacuum and invariably it has to be on land. Law does not permit recognition of rights with regard to structures excluding the land on which they were made approach runs contrary to the purport of the definition of immovable property under the Transfer of Property plot of land, on which the construction is made to the knowledge, can be deemed to have been assigned, particularly when the Government paid compensation for the structure Larger Bench of this Court in LAO-cum-RDO held that even where the land of assignee is resumed to Government, ex gratia almost on par with the market value, must be paid. Apart from the reasons stated above, there exists an act of discrimination on the part of the respondents petitioners have filed a copy of the award, in respect of the houses in the neighbouring village which too were acquired, for the purpose of same project summary of the award reads that compensation was awarded separately for the area of 10,799 square meters at the rate of Rs.150/-per square meter and value of the structures thereon, estimated at Rs.7,81,42,492/-, was awarded. Except stating that the case of the petitioner stands on a different footing, the respondents did not justify the differential treatment – Writ petition is allowed.
The petitioner is an Association of persons of Nagarala Village, Pebbair Mandal, Mahaboobnagar District. The entire village of Nagarala came under submergence, as part of Bheema Irrigation Project of Rangasamudram Balancing Reservoir. Apart from the land, 264 houses were also effected. A notification under Section 4(1) of the Land Acquisition Act (for short ‘the Act’) was published on 26.07.2008. Enquiry under Section 5-A of the Act was dispensed with and declaration under Section 6 of the Act was published on 09.09.2008. An award was passed on 18.02.2009 through which compensation was awarded for the structures alone. No compensation was paid for the land on which the houses were constructed. The petitioner contends that there was no justification for the respondents in denying the compensation for the land on which houses were constructed.
The respondents filed a counter affidavit. It is stated that draft notification and draft declaration under Sections 4(1) and 6 of the Act respectively were issued in respect of 264 houses of Nagarala Village, covering an area of 43,823 square meters. The fact that award was passed on 18.02.2009 in respect of the houses is also admitted. As regards the compensation for the land, it is stated that the instructions issued by the Government in G.O.Ms.No.76, dated 13.04.2006 and Memo, dated 04.06.2007, which are to the effect that compensation in such cases shall be paid for structures only; were followed. According to the respondents, the place, where the houses were constructed, being Gramakantam, vests in the Government and the question of paying compensation for the Government land does not arise. It is also stated that the structures alone were notified in the proceedings and not the land. The respondents further state that the members of the petitioner-association constructed houses on Government land and that they are not entitled to receive compensation for the said land.
Sri P.Gangarami Reddy, learned counsel for the petitioner submits that except stating that the houses were constructed on Gramakantam, the respondents are not able to establish as to how the land belongs to Government. He contends that the expression ‘Gramakantam’ connotes the use of the land viz., place, where houses can be constructed, in contrast to other uses such as agriculture, grazing, tanks etc. Learned counsel further submits that Section 2 of the A.P. Land Encroachment Act, which lists the properties that are vested in the Government clearly excludes the house sites or their backyards. He has placed reliance upon the judgment of the Madras High Court in RengarajaIyengar vs. Achikannu Ammal and another (1959(2) M.L.J. 513)and the Executive Officer, Kadathur Town Panchayat vs. Swaminathan (2004(2) M.L.J. 708).
Learned Government Pleader for Land Acquisition on the other hand submits that though the members of the petitioner-Association may have constructed houses and lived therein for a long time, they did not derive any right over the house sites. He submits that the members of the petitioner-Association failed to prove independent title over the sites and the inescapable conclusion is that the entire area on which the houses were constructed was held by the Government. According to him, the members of the petitioner-Association were extended fair treatment through payment of the cost of the structures.
As observed earlier, the entire village of Nagarala came under submergence of a Reservoir of Bheema Project. Recognizing its obligation, the Government issued notifications under Sections 4(1) and 6 of the Act. It is true that what was requisitioned by the Irrigation Department was the area and not the structures. However, the structure would include the site on which construction was made. The 3rd respondent herein passed award, dated 18.02.2009 in respect of structures alone. For this, he relied upon certain instructions issued by the Government, The basis for denying compensation for the plots of
