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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS._4345-4429_/2013
[Arising out of S.L.P.(Civil) Nos. 10230-10314/2012]
JAYAMMA & ORS. … APPELLANTS
VERSUS
THE DEPUTY COMMISSIONER,
HASSAN DIST., HASSAN AND ORS. … RESPONDENTS
J U D G M E N T
KURIAN, J.:
Leave granted.
2. Whether the High Court, under Article 226 of the
Constitution of India, can compel the State to
complete the acquisition proceedings initiated under
Section 4(1) of the Land Acquisition Act (for short ‘the
Act’), is one of the short questions arising for
consideration in these cases. Another short question
is – Whether writ can be issued compelling the Land
Acquisition Collector/Officer to implement the
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REPORTABLEPage 2
instruction issued to him by the Government
otherwise than under the procedure under the Act?
SHORT FACTS
3. The writ petitioners/appellants herein having their
property in Mukundur village, Hassan Taluk in
Karnataka State approached the High Court for
following directions:
“Issue Writ of Mandamus directing Deputy
Commissioner and Land Acquisition Officer to pass
the award as per the directions of the Principal
Secretary, Revenue Department, Government of
Karnataka and the decision of State Government
dated 19.11.2009.”
4. The letter dated 19.11.2009 from the Principal
Secretary to Government, Revenue Department,
addressed to the Deputy Commissioner, Hasan
District, reads as under:
“Sir,
Sub:- Framing award in respect of
Mukundooru, Gaddebindenahalli and
Chikkagondanahalli villages which are
acquired as seepage affected villages at
Hassan District - Reg.
Ref:- Your Letter No. BhuSwaSa-150:2008-09
dated 11.09.2009.
With regard to the above subject, your
attention is attracted towards your letter. As it is
already decided in the order No. RD 120 REH 1992
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dated 15.04.1999 to shift these villages with
regard to seepage, due to Hemavathi Irrigation
canal project, it was already informed in the
earlier letter dated 16.03.1999 that, there is no
necessity to submit the same afresh before high
level committee presided by the Regional
Commissioner and further to frame award in
respect of these villages.
In furtherance, it is clearly ordered by the
Hon’ble Chief Minister to frame award with regard
to Mukundooru village and disburse compensation
amount, it is already informed in the letter dated
30.07.2009 bearing No. RD 113 BhuSwaHa 2009
to initiate action as per the said order. Wherefore,
I am directed to inform you to initiate action as
already directed by the Governor (sic
Government).”
5. The petitioners’ case was that on account of the
seepage from the distributory canal of the reservoir,
they had suffered serious damage to their houses
and, on their representations, the Government had
already taken a decision to acquire the property. The
land acquisition officer, according to the petitioners,
had on 15.04.1999, initiated proceedings under
Section 4 of the Land Acquisition Act and, thereafter,
Section 6 Declaration was issued. However, the
proceedings got lapsed since no award was passed
within the period prescribed under Section 11A of the
Act.
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6. It is seen as per Annexure-P2 – Notification dated
27.10.2007, that the Land Acquisition Collector had
initiated proceedings under Section 4(1) of the Act
for acquiring the lands of the petitioners and it was
followed by Section 6 declaration dated 15.10.2008
published on 23.10.2008. Since, no serious steps
were taken to complete the acquisition by passing
the awards, it appears, the petitioners approached
the High Court under Article 226 of the Constitution
of India in 2011 for a direction to compel the land
acquisition collector to act as per the instruction
issued by the Government and to complete the
acquisition proceedings. The learned Single Judge, by
order dated 07.03.2011 disposed of the writ petitions
directing the land acquisition collector and the State
to pass awards in the case of the petitioners and a
few others within four weeks from the receipt of the
Order. There was also a further direction that the
petitioners should vacate the property if they were
still in possession and that they should handover
possession prior to the receipt of the compensation.
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7. Aggrieved, land acquisition collector, State and
others filed Writ Appeals leading to the impugned
Judgment dated 09.12.2011. It was contended that
the hardships on account of seepage could be
resolved by constructing ‘a drainage canal’ and
acquisition for that reason was not necessary and not
in contemplation also. The Judgment of the Single
Judge was set aside and the Appeals were disposed
of with the direction to complete the canal project
within three months. It was also clarified that the
petitioners were free to initiate appropriate legal
action in case there was still seepage. Thus,
aggrieved, the writ petitioners filed the Special Leave
Petitions.
8. Under Section 11A of the Land Acquisition Act, the
Collector is to pass the award under Section 11 within
a period of two years from the date of the publication
of the declaration and, in case no award is made
within that period, the entire proceedings for
acquisition of the land would lapse. In the instant
case, the declaration under Section 6 dated
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15.10.2008 published on 23.10.2008 had already
lapsed by the time the writ petitioners had
approached the High Court. This crucial factual
position, unfortunately, has not been taken note of
by the High Court. The Court cannot compel the land
acquisition collector to pass awards in respect of the
land acquisition proceedings which had already
lapsed. That apart, under the scheme of the Land
Acquisition Act, the Government is at liberty to
withdraw from the acquisition of any land of which
possession has not been taken at any stage prior to
the passing of the award. In case the owner, in
consequence of such withdrawal, has suffered any
damages, he is entitled to compensation in that
regard, under Section 48 of the Act, which reads as
follows:
“48. Completion of acquisition not
compulsory, but compensation to be
awarded when not completed.-(1) Except in
the case provided for in section 36, the
Government shall be at liberty to withdraw from
the acquisition of any land of which possession has
not been taken.
(2) Whenever the Government withdraws from any
such acquisition, the Collector shall determine the
amount of compensation due for the damage
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suffered by the owner in consequence of the
notice or of any proceedings thereunder, and shall
pay such amount to the person interested,
together with all costs reasonably incurred by him
in the prosecution of the proceedings under this
Act relating to the said land.
(3) The provisions of Part III of this Act shall apply,
so far as may be, to the determination of the
compensation payable under this section.”
9. In the case on hand, there is no question of any such
Notification on withdrawal since the proceedings had
already lapsed. Admittedly, no possession had been
taken. Therefore, Section 36 does not apply. Whether
to acquire a particular property or not is for the
Government to decide. It is not within the jurisdiction
of the Court to compel the Government to acquire
any property, otherwise than as per the Land
Acquisition Act. No doubt, the High Court exercises
judicial review of administrative action or inaction.
But having regard to the various facts and
circumstances or factors, it is for the Government to
consider at the permissible stage as to whether a
particular property is to be acquired or whether an
Award is to be passed pursuant to proceedings
already initiated under Section 4(1) of the Act. The
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Act is a complete code as far as such decisions are
concerned and Government is well within their
jurisdiction to act as per the scheme provided under
the Act. Even otherwise, the writ petition was wholly
misconceived. The prayer is for direction to the land
acquisition collector to act in terms of letter issued to
the land acquisition collector by the secretary to the
Government.
10. Even otherwise, the writ petition was wholly
misconceived. The prayer is for direction to the land
acquisition collector to act in terms of letter issued to
the land acquisition collector by the secretary to the
Government.
If a subordinate authority in the
Government does not act in terms of the direction or
instruction issued by the superior authority, it is not
for the Court to compel that subordinate authority to
comply with the instruction or direction issued by the
superior authority, if it is not otherwise governed by a
statutory procedure. Court is not the executing forum
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of the instruction issued by the Government to its
subordinates. That jurisdiction lies elsewhere under
the scheme of the Constitution. Therefore, on that
count also, the writ petition was liable to be
dismissed.
11. Yet with all these, the fact remains that the
residential houses of the petitioners are in the
seepage affected area in Mukundur village coming
under 6th District Minor Hemavathi Left Bank Canal.
Despite decades long efforts made by the petitioners,
it appears even the cement concrete lining to the
canal has been done only recently and that too in
order to avoid the acquisition for which twice
notifications had already been issued. It has to be
noted that the agricultural land of the petitioners had
already been acquired and what remained was only
the residential part. Petitioners had the grievance
that on account of the seepage, there was dampness
resulting also in cracks on the building. In view of the
miseries suffered by these poor persons, we are of
the view that it will not be just and fair to relegate
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them to workout their remedies before the civil court
for damages, at this instance of time. Therefore, in
the interests of justice and in order to do complete
justice, we order that each of the petitioners shall be
paid a lump sum amount of Re.1 lakh each towards
damages for the hardships they have already
undergone on account of seepage resulting in
dampness and cracks to their residential buildings.
The respondents 7/8 shall see that the amount as
above is deposited in the bank account of the
respective petitioner within three months. We,
however, make it clear that this Judgment shall not
stand in the way of the respondents, if so required or
warranted in public interest, acquiring the disputed
lands.
12. Subject to the above, the appeals are dismissed. No
costs.
………………………………J.
(G.S. SINGHVI)
………………………………J.
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(KURIAN JOSEPH)
New Delhi;
May 6, 2013.
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