HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.8014 of 2008 WRIT PETITION No.13811 of 2008 and WRIT PETITION No.13814 of 2008 Date: October , 2009 WRIT PETITION No.8014 of 2008 Between: 1. K. Nooruddin and 7 others. … Petitioners And 1. The Government of Andhra Pradesh Rep. by its Secretary, Land Acquisition (Industries) Department, Secretariat Buildings, Hyderabad and 3 others. … Respondents * * * WRIT PETITION No.13811 of 2008 Between: 1. Md. Khasim and 9 others. … Petitioners And 1. The Government of Andhra Pradesh Rep. by its Secretary, Land Acquisition (Industries) Department, Secretariat Buildings, Hyderabad and 3 others. … Respondents * * * WRIT PETITION No.13814 of 2008 Between: 1. Achhanala Keshav Kumar and another. … Petitioners And 1. The Government of Andhra Pradesh Rep. by its Secretary, Land Acquisition (Industries) Department, Secretariat Buildings, Hyderabad and 3 others. … Respondents * * * COMMON ORDER: These three writ petitions are being disposed of by a common order in view of the commonality of the factual matrix of these cases and also the commonality of the questions of law which had been put forth by the learned counsel representing the parties. 2. Except certain slight variations, the pleadings of the respective parties, the affidavits filed in support of the writ petitions, the counter- affidavits and the reply affidavit also are substantially the same. 3. Interim orders had been obtained and the same were modified subsequent thereto. All these writ petitions are filed by the writ petitioners challenging initiation of land acquisition proceedings proposing to acquire the lands of the petitioners specified in the respective writ petitions for the purpose of setting up LPG bottling unit for Hindustan Petroleum Corporation Ltd. Counter-affidavits had been filed on behalf of R-1, R-3, R-4 and R-2 as well. Reply affidavits also had been filed. 4. Sri S. Niranjan Reddy, learned counsel representing the writ petitioners would maintain that the purpose for which the land acquisition proceedings had been initiated is not public purpose. The learned counsel also would maintain that though the policy as such cannot be challenged, the policy on the ground of irrationality definitely can be called in question before a writ court. Hindustan Petroleum Corporation Ltd., though a government company, is also a company. The learned counsel also pointed out to the different extents and different survey numbers and further pointed out certain discrepancies which had crept in the notification issued under Section 4 (1) of the Land Acquisition Act (hereinafter in short referred to as “Act” for the purpose of convenience). The learned counsel also would maintain that a request was made for a larger extent, but the proposed acquisition had been ultimately thought of for a lesser extent. No notice was given giving opportunity to raise objections under Section 5-A of the Act. The learned counsel also would maintain that these discrepancies clearly go to show the non-application of mind and the inquiry under Section 5-A of the Act just became an empty formality. Further the learned counsel would maintain that there was no requisition for the purpose of acquisition of these survey numbers. The counsel also pointed out to the Government Memo in this regard and would maintain that these are all lands of landless poor persons or small farmers and apart from this aspect of the matter these acquisitions are the second acquisitions, since certain of the lands of the self same petitioners had been acquired for the purpose of road widening. The learned counsel also pointed out that certain objections had been raised and certain representations had been made, but they were not considered at all. There is no reasonable nexus and there is no satisfaction which is expected to be there and, hence, the land acquisition proceedings are vitiated and the very notification under Section 4 (1) of the Act is liable to be quashed. The learned counsel also relied on several decisions to substantiate his submissions. 5. Learned Government Pleader for Land Acquisition Sri D. Krishna Murthy would maintain that the proposed acquisition is for public purpose and there cannot be any doubt, whatsoever, in this regard. The learned Government Pleader also pointed out that there is no specific averment made in any one of the affidavits filed in support of the writ petitions relating to the alleged variations. The learned counsel also pointed out that inquiry, in fact, was conducted, but having attended the inquiry there was totally non-cooperation, as can be seen from the stand taken from the respective counter-affidavits and hence the declaration under Section 6 of the Act was made in accordance with law. The Award also was made. The learned Government Pleader for Land Acquisition also pointed out that several of these petitioners having failed to file any objections, cannot now contend that there was no opportunity and the opportunity given had not been availed and in such circumstances the writ petitions being devoid of merit, the said writ petitions are liable to be dismissed. The learned Government Pleader for Land Acquisition also relied on certain decisions. 6. Sri P. Roy Reddy, learned Standing Counsel representing R-2 had taken this court through the contents of the counter-affidavit and would maintain that the old Government memo which is being relied on had not been taken as a ground, but even otherwise these are only instructions and in the light of the clear stand taken in the respective counter-affidavits these are not fit matters to be interfered with. The learned Standing Counsel also pointed out that the Government is the best judge to decide which property to be acquired for the public purpose and it is not for the writ petitioners to suggest even otherwise. In the light of the clear legal position, the writ petitions being devoid of merit, the said writ petitions are liable to be dismissed. The learned Standing Counsel also placed reliance on certain decisions to substantiate his submissions. 7. Heard the counsel on record and perused the averments made in the affidavits filed in support of the respective writ petitions, the counter-affidavits filed by the respective respondents and also the reply affidavits filed and the material placed before this Court. 8. W.P.No.8014 of 2008 is filed praying for a writ of Mandamus declaring the action of the respondents in initiating acquisition proceedings and proposed to acquire the lands of the petitioners admeasuring Ac.9-04 guntas in Sy.Nos.294-2A/A, 295/A, 295-3/A, Podaralla village, Bukkarayasamudram Mandal, Anantapur District for setting up of LPG bottling unit for Hindustan Petroleum Corporation Ltd., as illegal, arbitrary, unconstitutional and violative of petitioners’ fundamental and statutory rights and consequently set aside the said acquisition proceedings and direct the respondents not to interfere with the petitioners land in any manner and pass such other suitable orders. 9. Likewise, W.P.No.13811 of 2008 is filed by the writ petitioners praying for a writ of Mandamus declaring the action of the respondents in initiating acquisition proceedings dated 31.10.2007 and proposed to acquire the petitioners’ lands in Sy.No.293-1C (extent Ac.3-25 gts.), Sy.No.293-1H (extent Ac.2-32 gts.), Sy.No.293-1B (extent Ac.1-06 gts.), Sy.No.312-1B (extent Ac.2-85 gts.), Sy.No.293-1G (extent Ac.1- 32 gts.), Sy.No.293-1D (extent Ac.0-96 cents), Sy.No.293-1F (extent Ac.0-96 cents), Sy.No.293-1E (extent Ac.0-96 cents), Sy.No.293-1J (extent Ac.1-34 gts.), Sy.No.293-1K (extent Ac.1-19 gts.) and Sy.No.293-1I (extent Ac.1-16 gts.) situate in Podaralla village, Bukkarayasamudram Mandal, Anantapur District for setting up of LPG bottling unit for Hindustan Petroleum Corporation Ltd., as illegal, arbitrary, unconstitutional and violative of the petitioners’ fundamental and statutory rights and consequently set aside the said acquisition proceedings, dated 31.10.2007, and direct the respondents not to interfere with the petitioners land in any manner and pass such other suitable orders. 10. Likewise, W.P.No.13814 of 2008 is filed praying for a writ of Mandamus declaring the action of the respondents in initiating acquisition proceedings dated 31.10.2007 and proposed to acquire the lands of the petitioners in Sy.No.313-2 (extent Ac.16-48 gts.) and Sy.No.313-1B (extent Ac.1-15 gts.) situate at Thaticherla village, Anantapur Mandal, Anantapur District, for setting up of LPG bottling unit for Hindustan Petroleum Corporation Ltd., as illegal, arbitrary, unconstitutional and violative of petitioners’ fundamental and statutory rights and consequently set aside the said acquisition proceedings, dated 31.10.2007, and direct the respondents not to interfere with the petitioners land in any manner and pass such other suitable orders. 11. In the light of certain slight variations in the respective affidavits filed in support of the writ petitions, the averments made in the respective affidavits filed in support of the writ petitions are being dealt with separately. However, except an additional counter-affidavit filed by R-4 as well in W.P.No.8014 of 2008, almost all the respective stands taken by the contesting respondents being common in all the counter-affidavits, the stands taken in the respective counter-affidavits are being dealt with in common in all these writ petitions. 12. In W.P.No.8014 of 2008 it is averred that the petitioners are absolute owners and possessors of the land admeasuring Ac.21-11 guntas situate at Sy.No.294-2A/A, 295/A, 295-3/A, Podaralla village, Bukkarayasamudram Mandal, Anantapur District. Thus, the petitioners have been in peaceful possession and enjoyment of the lands in question. 13. While so, at the request of respondent No.2 for acquiring land of an extent Ac.58-25 guntas for the purpose of setting up of LPG bottling unit for Hindustan Petroleum Corporation Limited, the first respondent, issued notification under Section 4 of the Act, dated 02.11.2007, which included the petitioners’ land, an extent of Ac.9-04 guntas. 14. It is also averred that immediately after issuance of the said notification the petitioners submitted a representation, dated 08.11.2007, to respondent No.4 with a copy marked to the third respondent and Joint Collector, Anantapur District, stating that they are all small farmers eaking out their livelihood by agriculture and also a huge extent of petitioners’ lands were acquired recently by the Government for the purpose of forming 4 way line road for NH-7 by paying a meagre compensation. Further the petitioners stated that once again acquiring lands for another purpose is untenable and requested not to acquire their land. Without considering the petitioners’ objections/representations, dated 08.11.2007, respondent No.1 published declaration under Section 6 of the Act on 01-01-2008 for acquiring the lands at Podaralla village, Bukkarayasamudram Mandal, Anantapur District, forming part of the petitioners’ lands, for the purpose of setting up LPG bottling unit for HPCL 15. It is also averred that thereafter petitioners along with other owners, whose land was proposed to be acquired, submitted a representation on 11.3.2008 to the third respondent stating that all he persons are small farmers and the lands proposed to be acquired are fertile lands and if the said acquisition is made, it would cause irreparable loss and injury to them. It was further stated that the proposed acquisition is for commercial purpose of a business entity and would not serve any public purpose and requested to drop all further proceedings of acquisition. 16. It is also stated that prior to the notification when the petitioners got to know that their land is going to be acquired for the said bottling unit, the petitioners submitted a representation dated 17.9.2007 to the Hon’ble Chief Minister of A.P. and other Revenue Authorities stating that already there is a bottling plant situate 15 Kms. from Anantapur District which ceased to operate and if at all a new unit is to be opened, it can be opened at the same place instead of acquiring a new land. The petitioners further stated that they are largely depending on agriculture and requested to drop acquisition proceedings pertaining to their land. 17. Further it is stated that on receipt of the said representation, the petitioners were informed by respondent No.4 that the petitioners’ land would not be acquired, as it does not form part of the proposed acquisition for setting up of LPG bottling unit for Hindustan Petroleum Corporation Ltd. Further specific stand had been taken that there is an open Government land of Ac.200-00 available within 2 kms. from the petitioners which can be used for setting up of the said unit. 18. Further specific stand had been taken that the proposed acquisition as per the notification cannot be termed as serving public interest, as it is for commercial gains of a private business entity and further there is an alternate bottling unit available within 15 kms. from Anantapur town which was closed and if at all any bottling unit is to be set up, it can be done in the said land instead of acquiring land by infringing fundamental rights of the petitioners and other persons. 19. Likewise, in W.P.No.13811 of 2008 it was averred that the petitioners are absolute owners and possessors of the lands in Sy.No. 293-1C (extent Ac.3-25 gts.), Sy.No.293-1H (extent Ac.2-32 gts.), Sy.No.293-1B (extent Ac.1-06 gts.), Sy.No.312-1B (extent Ac.2-85 gts.), Sy.No.293-1G (extent Ac.1-32 gts.), Sy.No.293-1D (extent Ac.0- 96 cents), Sy.No.293-1F (extent Ac.0-96 cents), Sy.No.293-1E (extent Ac.0-96 cents), Sy.No.293-1J (extent Ac.1-34 gts.), Sy.No.293-1K (extent Ac.1-19 gts.) and Sy.No.293-1I (extent Ac.1-16 gts.) situate in Podaralla village, Bukkarayasamudram Mandal, Anantapur District and thus, the petitioners have been in peaceful possession and enjoyment of the lands in question. 20. While so, at the request of respondent No.2 for acquiring land of an extent Ac.58-25 guntas for the purpose of setting up of LPG bottling unit for Hindustan Petroleum Corporation Limited, the first respondent, issued notification under Section 4 of the Act, dated 02.11.2007, which included the petitioners’ land, an extent of Ac.9-04 guntas. 21. It is also averred that immediately after issuance of the said notification the petitioners along with owners submitted a representation, dated 08.11.2007, to respondent No.4 with a copy marked to the third respondent and Joint Collector, Anantapur District, stating that they are all small farmers eaking out their livelihood by agriculture. 22. Further it is stated that without considering the petitioners’ objections/representation, dated 08.11.207, the first respondent published declaration under Section 6 on 01.01.2008 for acquiring the lands at Podaralla village, Bukkarayasamudram Mandal, Anantapur District for the purpose of setting up LPG bottling unit for HPCL. The petitioners’ land also forms part of the said notification. 23. It is also averred that thereafter petitioners along with other owners, whose land was proposed to be acquired, submitted a representation on 11.3.2008 to the third respondent stating that all the persons are small farmers and lands proposed to be acquired are fertile lands and if the said acquisition is made, it would cause irreparable loss and injury to them. It was further stated that the proposed acquisition is for commercial purpose of a business entity and would not serve any public purpose and requested to drop all further proceedings of acquisition. 24. It is also stated that prior to the notification when the petitioners got to know that their land is going to be acquired for the said bottling unit, the petitioners submitted a representation dated 17.9.2007 to the Hon’ble Chief Minister of A.P. and other Revenue Authorities stating that already there is a bottling plant situate 15 Kms. from Anantapur District which was ceased to operate and if at all a new unit is to be opened, it can be opened at the same place instead of acquiring a new land. The petitioners further stated that they are largely depending on the agriculture and requested to drop acquisition proceedings pertaining to their land. 25. Further it is stated that there is an open Government land of Ac.200-00 available within 2 kms. from the petitioners’ land which can be used for setting up of the said unit. 26. Further specific stand had been taken that the proposed acquisition, as per the notification, cannot be termed as serving public interest, as it is for commercial gains of a private business entity and further there is an alternate bottling unit available within 15 kms. from Anantapur town which was closed and if at all any bottling unit is to be set up, it can be done in the said land instead of acquiring land by infringing fundamental rights of the petitioners and other persons. 27. Likewise, in W.P.No.13814 of 2008 the writ petitioners averred that the petitioners are absolute owners and possessors of the land in Sy.No.313-2 (extent Ac.16-48 gts.) and Sy.No.313-1B (extent Ac.1-15 gts.) situate at Thaticherla village, Anantapur Mandal, Anantapur District. Thus, the petitioners have been in peaceful possession and enjoyment of the lands in question. 28. While so, at the request of respondent No.2 for acquiring land of an extent Ac.58-25 guntas for the purpose of setting up of LPG bottling unit for Hindustan Petroleum Corporation Limited, the first respondent, issued notification under Section 4 of the Act, dated 02.11.2007, which included the petitioners’ land. In the said notification even though the survey number of the second petitioner was mentioned, the name was wrongly printed as B. Chowdappa so also the extent. Further the father of the first petitioner, who owns Ac.8-24 guntas in the said land, was also not mentioned and the survey number was also wrongly mentioned as Sy.No.312-2 instead of 313-2. 29. It is also averred that immediately after issuance of the said notification the petitioners along with their neighbours submitted a representation, dated 08.11.2007, to respondent No.4 with a copy marked to the third respondent and Joint Collector, Anantapur District, stating that they are all small farmers eaking out their livelihood by agriculture. It is also stated that acquiring the land of the petitioners is untenable and requested not to acquire the land. Without considering the petitioners’ objections/representations, dated 08.11.2007, respondent No.1 published Section 6 declaration on 01-01-2008 for acquiring the lands at Thaticherla village, Anantapur Mandal, Anantapur District, forming part of the petitioners’ land, for the purpose of setting up LPG bottling unit for HPCL 30. It is also averred that thereafter petitioners along with other owners, whose land was proposed to be acquired, submitted a representation on 11.3.2008 to the third respondent stating that all the persons are small farmers and lands proposed to be acquired are fertile lands and if the said acquisition is made, it would cause irreparable loss and injury to them. It was further stated that the proposed acquisition is for commercial purpose of a business entity and would not serve any public purpose and requested to drop all further proceedings of acquisition. 31. It is also stated that prior to the notification when the petitioners got to know that their land is going to be acquired for the said bottling unit, the petitioners submitted a representation dated 17.9.2007 to the Hon’ble Chief Minister of A.P. and other Revenue Authorities stating that already there is a bottling plant situate 15 Kms. from Anantapur District which was ceased to operate and if at all a new unit is to be opened it can be opened at the same place instead of acquiring a new land. The petitioners further stated that they are largely depending on the agriculture and requested to drop acquisition proceedings pertaining to their land. 32. Further specific stand had been taken that there is an open Government land of Ac.200-00 available within 2 kms. from the petitioners which can be used for setting up of the said unit. 33. Further specific stand had been taken that the proposed acquisition, as per the notification, cannot be termed as serving public interest as it is for commercial gains of a private business entity and further there is an alternate bottling unit available within 15 kms. from Anantapur town which was closed and if at all any bottling unit is to be set up, it can be done in the said land instead of acquiring land by infringing fundamental rights of the petitioners and other persons. 34. In view of the similarity of the respective stands taken by the contesting respondents, the counter-affidavits filed in W.P.No.8014 of 2008 are being dealt with and a common reply affidavit also had been filed. 35. In the counter-affidavit filed on behalf of respondent No.4 it is stated that the Zonal Manager, Andhra Pradesh Industrial Infrastructure Corporation Ltd., (APIICL), vide their letter No.HDP/LA/HPCL/ATP/2007/834, dated 28.6.2007, had placed requisition for acquisition of land to an extent of Ac.69-84 in Taticherla and Podaralla village of Anantapur and B.K. Samudram Mandals in Anantapur District for establishing LPG Bottling plant by M/s. Hindustan Petroleum Corporation Ltd. But, subsequently the APIIC, vide their letter No.4109/20/KDP/LA/TEV/PDL/LAND/2007/935, dated 31.8.2007, submitted revised proposals to an extent of Ac.59-90 for land acquisition in Sy.Nos.312/1B, 313-2, 291-1, 291-2 etc., and requested for publication of Draft Notification and Draft Declaration. After due scrutiny of the records, the Revenue Divisional Officer, Anantapur had submitted Draft Notification and Draft Declaration proposals to the District Collector, Anantapur, for Ac.31-69 of Taticherla village of Anantapur Mandal, Survey Nos.291, 292 etc., and Ac.26-56 of Podaralla village of Bukkarayasamudram Mandal, Anantapur District and accordingly the Collector, Anantapur, had approved the Draft Notification under Section 4 (1) of the Act for acquisition of Ac.58-25 cents. After publication of 4 (1) notification in the local newspapers i.e., Eenadu and Vaartha on 02.11.2007, 5-A inquiry was conducted on 24.11.2007. The pattadars had attended before the Land Acquisition Officer and Revenue Divisional Officer, Anantapur, on 24.11.2007 and represented that they were not willing to give their land for acquisition and requested for 4 days time to give their opinion. Since the petitioners filed no protest, Draft Declaration under Section 6 of the Act was sent to the Collector under compulsory land acquisition for approval. The District Collector had approved the Draft Declaration vide Collector proceedings Rc.G1 5350/2007, dated 27.12.2007, and contents also published in the local newspapers on 03.01.2008. Subsequently, PV proposals were submitted to the District Collector, Anantapur vide RDO Anantapur letter No.D1 LA 285/2007, dated 13.5.2008, and were approved by the District Collector vide letter RC G1 5350/2007, dated 06.6.2008 and Award inquiry on 6.6.2008. It is fact that the lands belongs to the petitioners was also included in 4 (1) notification. 36. Further it is stated that it is a fact that the petitioners had submitted a representation on 08.11.2007 with LAO requesting not to acquire their land since they are small and marginal farmers, but 5 (A) inquiry was conducted on 24.11.2007 and they had attended for 5-A inquiry. But the LAO and Revenue Divisional Officer informed the petitioners that in the interest of public at large the lands are being acquired for setting up public utility industry in the district. The petitioners also requested four days time to settle the issue among themselves. Though they were allowed the requested time, they did not turn up and sent their representation through post to RDO which was received on 27.11.2007. Hence, the land acquisition proposals under compulsory acquisition were initiated. 37. It is also averred that it is not a fact that DD under Section 6 (A) of the Act was published on 01.01.2008, but the DD under Section 6 was published on 03.01.2008 in the local newspapers i.e., Andhra Bhumi and Andhra Prabha. Further it is stated that the contents stated by the petitioners that the proposed acquisition is for commercial purpose and would not serve any public purpose is not correct. Hindustan Petroleum Corporation Limited is not a private entity, but a Government of India enterprise-public sector undertaking and the proposed acquisition is to set up LPG bottling plant for distribution of subsidized LPG, which is an essential commodity for about 7.00 lakhs domestic customers in the rural and about 3.00 lakhs of BPL customers in the interior markets of 5 districts i.e., Kurnool, Anantapur, Kadapa, Chittoor and Nellore. Accordingly, huge public interest is involved in setting up the plant. 38. It is also averred that there is no bottling plant belong to any of the national oil companies in Anantapur district. The size, mode and capacity planned are much higher and equipped with every sensitive equipment for high quality and safety of the plant. Private micro bottling plants, if any, in the vicinity is unsuitable for meeting the increasing demand and high safety standards the purpose for which they intend to acquire the said land. 39. Further it is averred that there