IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 13451 of 2009 Between: Sangavarapu Ramesh Babu, S/o. Vallabi Patel, R/o. U.S.A., Rep by his G.P.A. Sri K.V.Ranga Rao, S/o. Late Devender Rao, aged 70, R/o. C-4, 802, Singapore Township, Pocharam Vilalge, Ghatkesar mandal, R.R.District., ..... PETITIONER AND 1 Government of A.p., Rep by its Secretary, Land Acquisition, Secretariat, Hyderabad. 2 The District Collector, Krishna District at Machilipatnam, 3 The Sub-Collector/Land Acquisition Officer, Vijayawada, Krishna District, 4 The Tahsildar, G.Konduru Mandal, Krishna District. .....RESPONDENS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Certiorari, to callfor the records relating to the impugned Proceedings Rc.G4.5371/2008, dated 16-6- 2009 issued by the 2nd respondent and to quash the same as illegal, arbitrary and to pass such other suitable orders. Counsel for the Petitioner:MRS.S.NANDA Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following : ORDER:- This Court issued rule nisi on 13-8-2009. 2. The present Writ Petition is filed by Mr.Sangavarapu Ramesh Babu, presently residing at U.S.A. represented by G.P.A.Holder Mr.K.V.Ranga Rao praying for a Writ, Order or Direction, more particularly one in the nature of Writ of Certiorari, to call for the records relating to the impugned proceedings Rc.G4.5371/2008, dt.16-6-2009 issued by the 2nd respondent and to quash the same as illegal, arbitrary and to grant such other suitable reliefs. 3. Counter affidavit had been filed by R.1 to R.4 and a reply affidavit also had been filed. 4. Ms.S.Nanda, the learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also the contents of the written objections and further had drawn the attention of this Court to Section 5-A (2) of the Land Acquisition Act (hereinafter, in short, referred to as ‘the Act’ for the purposes of convenience) and also further placed strong reliance on several decisions to substantiate her submissions. The learned Counsel also had drawn a distinction between the District Collector and the appropriate Government and would contend that it is for the Government to take a decision in the light of the clear language of Section 5-A (2) of the Act and it is not for the District Collector to make an order. The Counsel also would maintain that since these are the essential functions which had been ordained by the specific provisions of the Act, the question of delegation of such powers would not arise. Even otherwise, in the light of the decisions of the Apex Court, inasmuch as, no personal hearing or no reasonable opportunity as such had been given, the impugned proceedings are liable to be quashed and a further order to be given in this regard in accordance with law. The learned Counsel also pointed out to relevant paras in the reply affidavit in answer to the stand taken in the counter affidavit in relation to certain important aspects. The Counsel also had drawn the attention of this Court to the relevant provisions of the Act and further explained the scheme and object of the Act and how the same had been defeated in the present case. 5. Per contra, the learned A.G.P. for Land Acquisition had drawn the attention of this Court to Section 3-A of the Act and would maintain that inasmuch as the powers to be exercised by the appropriate Government – State Government, had been delegated to the District Collectors in view of the fact that the said power had been exercised in accordance with such delegation, the same cannot be found fault. The learned A.G.P. for Land Acquisition also relied on certain decisions to substantiate his submissions. While further elaborating his submissions, the learned Assistant Government Pleader also pointed out to the relevant paras of the counter affidavit and would maintain that here is a case where the petitioner is the only person who is not giving consent when all other adjoining owners had given their consent and the petitioner intends to postpone the acquisition proceedings by hook or cook and the Writ Petition is not a bonafide one. 6. Heard the Counsel. Perused the averments made in the affidavit filed in support of the Writ Petition, the averments made in the counter affidavit and also the averments in the reply affidavit as well. 7. The relief prayed for in the Writ Petition already had been specified supra. It is the case of the petitioner that the petitioner is the absolute owner and possessor of land admeasuring Ac.11-63 cents situated in Sy.No.326/1A of G.Kondur village and Mandal, Krishna District, having purchased the same by virtue of two different registered sale deeds bearing Doc.No.2283/2001 and 2287/2001 dt.29-10-2001 registered in the Office of the Sub-Registrar, Mylavaram, Krishna District. Further it is stated that the petitioner had purchased the same out of his hard-earned money and that after purchased of the said land, after due enquiry, the Revenue authorities also issued Pattedar Pass Books and Title Deeds in favour of the petitioner and the petitioner has been in peaceful and uninterrupted possession of the said property. It is also further stated that to the petitioner’s surprise, on 24-12-2008, a notice dt.16-12-2008 was displayed on the notice board of the Gram Panchayat, G.Kondur, under Section 17 (2) of the Act proposing to acquire the petitioner’s land to an extent of Ac.7-50 cents out of the total extent of Ac.11-63 cents for the purpose of house-sites for weaker section. Further it is averred that there is 100 acres of vacant Government land available in the village and instead of acquiring the said land, the petitioner’s patta land is proposed to be acquired for house-sites, which is in fact not suitable for house-sites. It is also stated that a resolution had been passed by the Gram Panchayat, very clearly observing that the subject land is not suitable for habitation purpose since the same is located in a low-lying area. Further it is stated that the Government land which is vacant is very suitable for the house-sites and in addition to that there is a canal abutting the petitioner’s land and during rainy season the water flow will be very high and in the event the petitioner’s land is acquired, the same will be submerged. It is also averred that having been aggrieved with the proposed acquisition of the petitioner’s land, the petitioner was constrained to question the proceedings of the 2nd respondent dt.16- 12-2008, vide W.P.No.29185/2008, including taking over possession of the petitioner’s land admeasuring Ac.7-50 cents in Sy.No.326/1A, situated at G.Kondur vlg and mandal, Krishna District. Further it is also stated that this Court vide order dt.31-12-2008 made in W.P.M.P.No.38125/2008 in W.P.No.29185/2008 was granted interim stay of dispossession of the petitioner from the land admeasuring Ac.7- 50 cents in Sy.No.326/1A situated at G.Kondur village and mandal, Krishna District for a period of four weeks and thereafter vide order dt.23-1-2009 extended the interim orders dt.31-12-2008 until further orders. 8. It is also stated that in pursuance to the interim orders passed by this Court, the petitioner vide his detailed representation dt.3-1-2009 addressed to the 3rd respondent, gave his detailed objections to the notification dt.16-12-2008 issued under Section 17(2) of the Act, raising several objections and requested the authorities to exempt the petitioner’s land admeasuring Ac.7-50 cents situated in Sy.No.326/1A of G.Kondur village and mandal, Krishna District, from the proposed acquisition. The petitioner also purchased certain land vide registered sale deed dt.21-2-2009, in fact, vide his letter addressed to the official respondents that he was willing to offer the said land of Ac.2-43 cents under Sy.No.219/2 and 219/3 in the same village adjacent to the residential area and reiterated in his representation that he was ready and wiling to surrender the same for the purpose of acquisition and exempt the petitioner’s land notified earlier, since the petitioner had personal attachment to the same. 9. Further it is stated that strangely, without any notice of personal hearing, the 2nd respondent passed the impugned order vide proceedings Rc.G4.5371/2008, dt.16-6-2009 which is an order passed under Section 5-A (2) of the Act. Form-III was issued to the petitioner which is a notice under Section 5-A of the Act calling upon him to submit his written objections on 19-1-2009 at 11.00 a.m. Accordingly, the petitioner filed his written objections on 19-1-2009 before the 3rd respondent. In addition to the said objections, the petitioner again vide his detailed representation dt.4-2-2009 submitted few additional objections to the 2nd respondent. Thereafter, the petitioner did not receive any notice as mandated under Section 5-A of the Act calling upon him for a personal hearing as mandated under the Act and the order impugned has been passed curiously showing him as if he was present on the said date of the passing of order and very curiously the impugned order does not show any date as to when it has been passed. 10. It is also averred that the petitioner herein as observed in the impugned order is a resident of America and he did not attend any enquiry as alleged. The order impugned curiously does not reflect the date of the alleged enquiry of providing an opportunity of personal hearing and the G.P.A.Holder in the capacity of G.P.A. also had no notice of the said enquiry and the G.P.A.Holder also did not attend the same. 11. Further it is averred that Section 5-A (2) of the Act reads as hereunder:- “Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4 sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of the Government. The decisions of the appropriate Government on the objections shall be final.” Further it is averred that the procedure under Section 5-A (2) of the Act has not been followed and no notice has been given to the petitioner nor an opportunity of being heard in person or by any person authorized on behalf of the petitioner has been provided and hence the same is in violation of principles of natural justice. Further it is stated that in view of the fact that the petitioner had no notice of the alleged 5- A enquiry nor he was provided with the opportunity of being heard in person, the order impugned cannot stand in the eye of law. It is also specifically stated that Section 5-A (2) of the Act very clearly mandates the Collector to conduct an enquiry after giving notice an opportunity of personal hearing to the persons concerned and after hearing all such objections it mandates a submission of report by the Collector to the appropriate Government containing his recommendations on the objections together with a record of proceedings held by him for the decision of the Government. The 2nd respondent herein did not follow this exercise at all and he has not submitted any report to the appropriate Government on the objections. Section 5-A (2) of the Act further clearly mandates that the decision of the appropriate Government on the objections shall be final but here in the present case, the order impugned is passed by the 2nd respondent himself. Further it is stated that the job of the Collector in terms of Section 5-A would be over once he submits his report and it is for the State to apply its mind not only on the objections filed by the owner of the land but also on the report submitted by the Collector upon making other or further enquiries therefore as also the recommendations made by him in that behalf and it is for the State Government to further enquire into the matter for arriving at its own satisfaction that it is necessary to deprive a citizen of his right to property. It is also stated that strangely, the 2nd respondent exceeded his jurisdiction and stepped into the shoes of the State Government and passed the order impugned. Thus specific stand had been taken that the impugned order is clearly in violation of the principles laid down by the Apex Court in HINDUSTAN PETROLEUM CORPORATION LTD. V. DARIUS SHAPUR CHENNAI[1]. Further the impugned order was not assigned any reason and it is done in a mechanical manner simply negativing every objection made by the petitioner in his earlier representation and the same has been passed without application of mind in a routing mechanical manner. 12. It is also stated that hearing given to a person be an effective one and not a mere formality as per Section 5-A (2) of the Act and in the present case, the same has been overlooked. Section 5-A (2) of the Act is in two parts, upon receipt of objections the Collector is required to make such further enquiry as he may think necessary whereupon he must submit a report to the appropriate Government in respect of the land which is the subject matter of the notification under Section 4(1) of the Act, the said report would also contain recommendations on the objections filed by the owner of the land, he is required to forward the records of the proceedings held by him together with the report, to the Government on receipt of such a report together with the records of the case, the Government is to render a decision thereupon. It is stated that the above exercise has been totally ignored and given a go-bye by the 2nd respondent who acre arbitrarily, hastily and upon certain political pressure. It is also averred that Section 5-A of the Act being the heart of the Act gives the citizen to avail the only opportunity to make submissions both on the public purpose and the suitability of the acquisition in respect of his land and thus being a valuable right which is akin to a fundamental right, the procedure laid down therein must be strictly complied with. Section 5-A of the Act consists of two parts viz., hearing of objections by the Collector and decision of the Government on the objections on the basis of the Collector’s report and both the parts must be strictly complied with. Further it is stated that ideally reasons are required to be assigned while passing an order under Section 5-A of the Act or in the alternative the reasons for order must at least exist on the record. It is also stated that in the present case, the order impugned has no reasons at all and it is simply negativing every objections of the petitioner without assigning any reason. It is also stated that the Government is under a serious obligation to consider whether a determination has been properly made after due consideration is not only a subjective satisfaction that the Government has to be satisfied but also the Government has to decide on the basis of the submissions made to it, but in the present case, in view of the fact that the petitioner was neither heard in person nor through any person authorized through him, since no notice has been issued to him, the order impugned is a nullity in the eye of Law. In such circumstances, the writ petitioner approached this Court praying for appropriate reliefs as already aforesaid. 13. Section 5-A (2) of the Act already had been referred to supra. Section 3-A of the Act reads as hereunder:- “Delegation of functions:- The State Government may, by notification in the Andhra Pradesh Gazette, direct that any power conferred or any duty imposed on them by this Act, shall in such circumstances and under such conditions, if any, as may be specified in the notification, be exercised or discharged by the District Collector.” 14. G.O.Ms.No.1888, Revenue (K), dt.31-12-84 dealing with delegation of powers to the District Collectors under the Land Acquisition Act, 1894 to approve notifications for purpose of burial grounds, providing pathways to the Harijan Cheries, Housing Colonies and for burial grounds, it was specified as hereunder:- “In exercise of the powers conferred by Section 3-A of the Land Acquisition Act, 1894 (Central Act No.1 of 1894), the Governor of Andhra Pradesh hereby directs that all the District Collectors shall exercise all the powers conferred and discharge all the duties imposed on the State Government under Sections 4, 5-A, 6 and sub-section (4) of Section 17 of the Act for the purpose of acquisition land for provision of pathways to the Harijan Cheries and Water Sections, Housing Colonies for burial grounds for weaker section and pathways to the burial grounds.” 15. In the counter affidavit filed on behalf of R.1 to R.4 several of the averments had been denied. It is the case of the respondents 1 to 4 as reflected from the counter affidavit that the Draft Notification U/s. 4(1) of the Act, was submitted to the Collector, Krishna, for approval, for the extent of Ac. 9-94 cents in R.S. No. 326/1A1 and 285/4C1, 4C2 of G.Konduru village and Mandal. The same was approved by the Collector, Krishna, vide Proceedings Rc.No.G4/5371/2008 dated 13- 12-2008 and was published as follows: Notification Gazette No. & Date 1st Paper 2nd Paper Locality Draft Notification U/s. 4(1) 124/2008, 16-12-2008 Vaartha dt. 25- 12-2008 Deccan Chronicle dt.25-12-2008 26-12-2008 Aggrieved by the notification proposing the land acquisition for the said extent of Ac. 9-94 cents, the petitioner filed a Writ Petition vide W.P. No. 29185 of 2008 and this Court granted interim order stating that there shall be stay of dispossession of the petitioner from the land for a period of four weeks. Accordingly Form-3 Notices U/s. 5-A of the Act were issued to the landowners / interested persons on 29-12-2008 to appear before the Land Acquisition Officer and Sub Collector, Vijayawada on 19-01-2009 and file objections, if any. Sri Sangavarapu Ramesh Babu S/o. Vallabhai Patel, Ranga Reddy District, had attended the enquiry and filed objection petition. A report was submitted by the Land Acquisition Officer and Sub Collector, Vijayawada, to the Collector, Krishna. The Collector, Krishna passed Proceedings vide Rc. G4/5371/2008 dated 16-06-2009, over-ruling the objections filed by the petitioner. Subsequently the Sub Collector, Vijayawada, had submitted the Draft Declaration proposals U/s. 6 of the Act, to the Collector, Krishna for approval. The Draft Declaration was published in the District Gazette No.50/2009 dated 20-06-2009, Andhra Bhoomi and Sakshi on 30-06-2009 and locality publication was done on 02-07-2009. Form 6 and 7 notices dated 30-06-2009 U/s. 9(1) and 10 and 9 (3) and 10 of the Land Acquisition Act were issued for the locality publication and to the land holders / interested persons respectively calling them to appear before the Land Acquisition Officer and Sub Collector (FAC) on 23-07-2009 and to prove the title over the land. On 23-07-09, one Sri Rammurthy, reportedly brother-in-law of the petitioner herein, has attended the enquiry. However he did not produce any document to prove the title of the petitioner over the land and denied to sign the award enquiry statement and left the office without any further information. The remaining land holders attended the award enquiry and proved their title over the land. 16. It is further stated that the Draft Notification U/s. 4 (1) of the Act was submitted to the Collector, Krishna for approval for the extent of Ac. 9-94 cents in R.S. No. 326/1A1 and 285/4C1, 4C2 of G.Konduru village and Mandal. The same was approved by the Collector, Krishna vide Proceedings Rc.No.G4/5371/2008, dated 13-12-2008 and was published as follows: Notification Gazette No. & Date 1st Paper 2nd Paper Locality Draft Notification U/s. 4(1) 124/2008, 16-12-2008 Vaartha dt. 25- 12-2008 Deccan Chronicle dt.25-12-2008 26-12-2008 Aggrieved by the Notification proposing the land for acquisition for the said extent of Ac. 9-94 cents, the petitioner filed W.P. No. 29185 of 2008 and this Court granted interim order granting stay of dispossession of the petitioner from the land for a period of four weeks and the said Writ Petition is pending before this Court. Accordingly Form-3 Notices U/s. 5-A of the Act were issued on 29-12-2008 to the landowners / interested persons to appear before the Land Acquisition Officer and Sub Collector, Vijayawada on 19-01-2009. The petitioner received the 5-A Notice. After receiving the said notice the petitioner himself requested the Land Acquisition Officer & Sub Collector, Vijayawada, to advance the enquiry to 09-01-2009 from 19-01-2009 and the Petitioner submitted objections on 09-01-2009. An opportunity was availed by the GPA holder on behalf of the petitioner. The writ petitioner received 5-A notice sought for advancement of enquiry to 09- 01-2009 and submitted objections on 09-01-2009. Further, the GPA holder attended the enquiry and submitted the objections on 19-01- 2009 and also on 09-02-2009 and thus it is being denied that no personal hearing opportunity is afforded. 17. It is also stated that after considering all the objections, the District Collector, Krishna passed Proceedings Vide Rc. G4/5371/2008 dated 16-06-2009 overruling the objections filed by the petitioner. Subsequently, the Sub Collector has submitted Draft Declaration proposal U/s. 6 of the Act to the Collector. The Collector, Krishna had approved the Draft Declaration and was published a District Gazette No. 50/2009 dated 20-06-2009. 18. Form 6 and 7 notices dated 30-06-2009 U/s. 9(1) and 10 and 9(3) and 10 were issued to appear on 23-07-2009 to prove their title. On 23- 07-09, one Sri Rammurthy, reportedly brother-in-law of the petitioner herein, had attended the enquiry. However he did not produce any document to prove the title of the petitioner over the land and denied to sign the Award enquiry statement and left the office without any further information. The remaining land-holders attended the Award enquiry and proved their title over the land. 19. Thus specific stand had been taken that there is no violation of principles of natural justice in this case as the process is taken up following due procedure of law. The land holder lives in the United States of America and he is represented by the GPA Holder as mentioned in the Writ Petition No. 13451 of 2009. 20. Further it is stated that it is true that the petitioner holds a total extent of Ac. 10-63 cents in R.S. No. 326/1A of G.Konduru village and Mandal, excluding an extent of Ac. 7-50 cents proposed for land acquisition and Ac. 19-43 cents in Gaddamanugu village of G.Konduru Mandal. Thus he is not a small farmer. The petitioner lives in the United States of America and hence is not directly dependent on the agricultural income of the subject land. Also the GPA Holder is representing the matter to the High Court but not the petitioner himself. 21. It is also averred in para 7 that the Draft Notification dated 16-12- 2008 was published in the locality of G.Konduru village duly informing the general public that the subject land for an extent of Ac. 9-94 cents including the petitioner’s land to an extent of Ac. 7-50 cents is proposed for acquisition to provide house sites to the beneficiaries of Indiramma Programme so that the beneficiaries would construct houses in the proposed land. 22. It is further averred in para 8 that that there is a Government land to an extent of Ac. 1-67 cents in R.S. No. 272/2 and 238 of G.Konduru village which was identified and pattas for 58 beneficiaries were issued and handed