IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SECOND DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.1944 of 2000 Between: 1 Kayala Ramachandra Rao, S/o. Tata Rao, R/o. Posupalli, Ambajipet Mandal, East Godavari District, 2 Kayala Sripadama @ Pallalamma W/o. Ramachandra Rao R/o. Posupalli, Ambajipet Mandal, East Godavari District, ..... PETITIONERS AND 1 The Land Aquisition Officer Cum Revenue Divisional Officer, Amalapuram. 2 The Government of A.P. Rep by its Secretary, Panchayat Raj & Rural Development (Pts.III) Dept, Secretariat, Hyderabad. .....RESPONDENTS Counsel for the Petitioners:MR.RAMA RAO PHILKHANA Counsel for the Respondents:AGP FOR LAND ACQUISITION The Court made the following : ORDER: This writ petition is filed for a writ of certiorari to quash notification, dated 01.10.1999 issued under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’). Heard Sri Philkana Rama Rao, learned counsel for the petitioners and the learned Assistant Government Pleader for Land Acquisition for the respondents. Two separate parcels of land admeasuring Ac.0.02 cents each, standing in the name of petitioner No.2 were notified for acquisition by the impugned notification issued under Section 4(1) of the Act. In addition to the said extent of land, four different parcels of land making the total extent as Ac.0.12 cents were acquired for the purpose of laying a road to reach the agricultural lands of certain ryots and also the burial ground. Writ Petition No.27075 of 1999 was filed by the petitioners questioning the proposed acquisition. This Court by order, dated 31.12.1999 granted interim direction to the respondents not to lay the road over an extent of Ac.0.35 cents of land in R.S.No.31/11B and Ac.0.12 cents of land in R.S.No.31/8C of Pasupalli Village, Ambajipeta Mandal, East Godavari District without following due process of law. The said order was passed for a period of four (4) weeks, which was later extended by this Court by order, dated 02.02.2000. Eventually, as the said writ petition was filed by the petitioners without being aware of the notification issued under Section 4(1) of the Act, they filed the present writ petition assailing the said notification. By order, dated 09.02.2000, this Court granted interim stay of dispossession. The respondents filed a counter affidavit wherein it is inter alia averred that the land was proposed to be acquired for the purpose of formation of a road to provide access to the lands of some of the agriculturists and also the burial ground. It is further averred that possession was taken on 24.12.1999 after depositing 80% of the estimated compensation and that laying of a road was completed by 30.12.1999 i.e. before granting of interim direction by this Court on 31.12.1999 in Writ Petition No.27075 of 1999. It is also averred that though the award enquiry was commenced, in view of the stay granted by this Court on 02.02.2000 in this writ petition, no award could be passed. The learned Assistant Government Pleader for Land Acquisition produced two photographs, the authenticity of which is not disputed by the learned counsel for the petitioners showing existence of road over the land belonging to the petitioners and others notified for acquisition under the impugned notification. At the hearing, Sri Philkana Rama Rao, learned counsel for the petitioners advanced three contentions, namely, 1) the petitioners are small farmers and acquisition of their land cannot be sustained in law, 2) the purpose for which the acquisition is proposed is not such as to warrant dispensing with the enquiry under Section 5A of the Act, and 3) as the respondents failed to pass an award within a period of two years from the date of publication of declaration under Section 6 of the Act, the entire acquisition proceedings have got lapsed by virtue of Section 11A of the Act. Per contra, the learned Assistant Government Pleader for Land Acquisition submitted that as the respondents felt the immediate necessity of laying a road to provide access to the lands of some of the agriculturists and also the burial ground, they issued the impugned notification and dispensed with the enquiry. She further submitted that as the interim stay granted by this Court on 02.02.2000 has the effect of stalling of further proceedings, no award could be passed. She relied upon a judgment of the Supreme Court in Government of Tamilnadu and another v. Vasantha Bai[1] in support of her contention that an order of stay of dispossession should be construed as stay of all further proceedings including passing of award and consequently, the provisions of Section 11A of the Act will not apply to such cases where interim stay of dispossession has been granted. I have carefully considered the respective submissions of the learned counsel. As regards the first and second contentions of the learned counsel for the petitioners, ordinarily, laying of a road does not warrant dispensing with the enquiry under Section 5A of the Act. But on the facts of the present case, I am not inclined to order for holding of an enquiry for two reasons, namely, 1) road was already laid and it would be a futile exercise to hold an enquiry at this stage and 2) the extent of the land acquired from the petitioners is too meagre to conclude that the petitioners have suffered hardship on account of acquisition even assuming that the petitioners are small farmers. Indeed, the petitioners have not given the total extent of land, which is owned by them anywhere in the pleadings. This Court is conscious of the fact that while the provisions of the Act do not prohibit acquisition of lands belonging to small farmers, by judicial pronouncements, the law is settled that unless acquisition of land of small farmers is inevitable, the State shall ordinarily avoid acquisition of their lands. Even if an enquiry is held and the petitioners are found to be small farmers, that fact by itself would not render the acquisition proceedings invalid in the absence of statutory bar on acquisition of small farmers’ lands. Moreover, as the road was already laid, direction to restore possession of the land to the petitioners would only result in waste of public funds apart from causing inconvenience to the users of the road. Hence, the first and second contentions of the learned counsel for the petitioners are rejected as meritless. As regards the third contention of the learned counsel for the petitioners, Section 11A of the Act postulates that if an award is not passed within two years from the date of publication of declaration under Section 6 of the Act, the entire award proceedings shall lapse. However, explanation to the said provision excluded the period during which the action or proceeding to be taken in pursuance of the declaration is stayed by an order of a Court. In Government of Tamilnadu and another (1 supra), the Supreme Court considered its earlier judgment in Sangappa Gurulingappa Sajjan v. State of Karnataka[2] and held that stay of dispossession by the Court itself is enough to attract the explanation and in such cases where even in the absence of stay of passing of award, explanation to Section 11A of the Act is attracted. Admittedly, stay was granted by this Court in the present writ petition on 02.02.2000 and is being continued till date. Therefore, the proceedings have not lapsed in view of explanation to Section 11A of the Act as interpreted by the Supreme Court in the judgments referred to above. For the above-mentioned reasons, the writ petition fails and is accordingly, dismissed. C.V.NAGARJUNA REDDY, J 2nd MARCH, 2009. kvni [1] 1995 Supp (2) SCC 423 [2] (1994) 4 SCC 145