IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY NINETH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 23764 of 2004 Between: 1 Alla Appalarju, S/o. Sambayya, Vissakoderu Village, Palakoderu Mandal, W.G.District. 2 Alla Simhadri S/o. Sambayya, Vissakoderu Village, Palakoderu Mandal, W.G.District. 3 Kothapalli Kasi Viswanatha Raju, Late Suryanaryana, Vissakoderu Village, Palakoderu Mandal, W.G.District. 4 Kottapalli Sri Venkata Satya Basia Tripura Sushma, D/o. Kothapalli Kasi Viswanatha Raju, Vissakoderu Village, Palakoderu Mandal, W.G.District. 5 Malam Satyanaryana, S/o. Darma Rao, Vissakoderu Village, Palakoderu Mandal, W.G.District. 6 Gadiraju Srinivasa Varma, S/o. Subba Raju, Vissakoderu Village, Palakoderu Mandal, W.G.District. ..... PETITIONERS AND 1 The Govt of A.P., rep. by its Secretary, Revenue Dept., Secretariat, Hyderabad. 2 The District Collector, West Godavari District, Eluru, West Godavari District. 3 The Land Acquisition Officer,Revenue Divisional Officer, Narsapur, West Godavari Dsitrict. 4 The Commissioner, Bhimavaram Municipality Bhimavaram, West Godavari Dsitrict. ...RESPONDENTS Counsel for the Petitioners:SMT.D.GEETHA Counsel for respondents 1 to 3: AGP FOR LAND ACQUISITION Counsel for respondent No.4: SRI S.NAGESWARA REDDY The Court made the following : O R D E R: This writ petition is ﬁled for a writ of Mandamus to declare the inaction of respondent No.2 in considering the petitioners’ representation as illegal and arbitrary and set aside declaration dated 28-08-2004 issued under Section 6 of the Land Acquisition Act, 1894 (for short “the Act”). Heard Smt D.Geetha, learned counsel for the petitioners, learned Assistant Government Pleader for Land Acquisition, Sri S.Nageswara Reddy, learned Standing Counsel for respondent No.4, and perused the record. In their aﬃdavit, the petitioners averred that when respondent No.4 proposed to expand the existing supply and storage of drinking water tank situated at Vissakoderu Village, Palakoderu Mandal, West Godavari District for the purpose of augmentation of drinking water supply to the residents of Bhimavaram municipal area, some of the land owners, in anticipation of acquisition of land, ﬁled W.P.No.13467 of 2004, which was dismissed by this Court on 02-08-2004 on the ground that the same was premature; that when notiﬁcation under Section 4(1) of the Act was issued for acquiring the lands, some of the land owners filed W.P. No.16000 of 2004, which was disposed of by this Court while upholding the proposed acquisition. It is further averred that when the land owners approached thereafter with a representation not to acquire their lands, respondent No.2 did not take any action and that respondent No.3 served notices to the owners of the land situated on the western side directing them to deliver possession of the land on or before 18-12-2004; that when the petitioners came to know about the same, they ﬁled the present writ petition with the plea that no notices were served on them and that there is no necessity to acquire the land. Respondents 2, 3 and 4 ﬁled separate counter- aﬃdavits. In the counter-aﬃdavit ﬁled by respondents 2 and 3, it is, inter alia, stated that the Commissioner of Bhimavaram Municipality applied to the Collector, West Godavari for acquisition of Acs.129.37 cents covered by Rs.Nos.9, 10 and 12/2 of Vissakoderu Village, Palakoderu Mandal, West Godavari District for modiﬁcation of Bhimavaram Town water supply scheme and communicated the land plans and schedules furnished by the Superintending Engineer, Public Health, Rajahmundry; that after veriﬁcation of alignment and examining the proposals, the Mandal Revenue Oﬃcer, Palakoderu reported that the land to be acquired, after excluding the Government land, was of an extent of Acs.127.99 cents; that in view of the urgency involved in the acquisition, notiﬁcation under Section 4(1) of the Act was issued by invoking urgency clause under Section 17(4) of the Act on 19-08-2004 and declaration under Section 6 of the Act was approved by the Collector on 28-08-2004. The answering respondent also gave the respective dates of publication of notiﬁcation and declaration under Sections 4(1) and 6 of the Act respectively in the Andhra Pradesh gazette, daily newspapers and in the locality. He also mentioned that notice in Form-10 of the Act was issued on 02-12-2004 to the land owners requiring them to deliver possession of the land before the evening of 18-12-2004 and that as the land owners did not deliver possession, the Mandal Revenue Oﬃcer, Palakoderu has taken possession of the land notiﬁed for acquisition on 19-12-2004 and handed over the same to the Commissioner, Bhimavaram Municipality on the same day under proper acknowledgment which fact was published in the Village by beating of tom-tom on the same day. Respondent No.3 also justiﬁed the need for acquisition of the land for expansion of the summer storage tank. In the counter-aﬃdavit ﬁled on behalf of respondent No.4, the Commissioner explained the need for acquisition of the land for the purpose of catering to the present and future needs of the projected population of 2,20,000/- by the year 2026. He also pleaded that petitioners have no right to question the wisdom of the Municipality to acquire the land for the purpose of expansion of the existing summer storage tank. At the hearing, the learned counsel for the petitioners strenuously contended that the petitioners have not received any notices and there was no opportunity to put forth the objections of the petitioners. Learned Assistant Government for Land Acquisition submitted that after the ﬁling of the writ petition, a consent award under Section 12(2) of the Act was passed and that the petitioners received compensation amount. The learned counsel for the petitioners stated that, according to her instructions, no consent was given by the petitioners for passing the award and that they have received the compensation amount under protest. Since the issue involved in the writ petition is conﬁned to the validity or otherwise of the acquisition made by the respondents for the purpose of expansion of the existing summer storage tank, this Court need not dilate on the issue whether the award passed was in the nature of a consent award or not. With regard to the question involved in the writ petition, namely; the validity of the acquisition proceedings, it is signiﬁcant to notice that the petitioners have neither ﬁled a copy of the notiﬁcation issued under Section 4(1) of the Act nor sought for invalidation of such a notiﬁcation. The sine qua non for exercising the power of eminent domain by the State is to issue a notiﬁcation under Section 4(1) of the Act. The declaration under Section 6 of the Act and other proceedings would only follow such notiﬁcation. Unless the petitioners question the very initiation of the notiﬁcation under Section 4(1) of the Act, they cannot successfully question the acquisition proceedings. On the petitioners’ own showing, attempts made by the other land owners to question the acquisition proceedings did not bear fruit. At the hearing, Sri S.Nageswara Reddy, learned Standing Counsel for respondent No.4, placed before me a copy of the order in W.P.No.16000 of 2004, which was ﬁled by one of the land owners whose lands were also proposed to be acquired for the same purpose under the same notiﬁcation, wherein he questioned the notiﬁcation issued under Section 4(1) of the Act on the principal ground that dispensing with enquiry under Section 5-A of the Act was arbitrary. This Court, repelled the said contention and held that the purpose of acquisition, namely; construction of summer storage tank for supply of drinking water to the residents of Bhimavaram municipal area undoubtedly is a public purpose; that the proposed acquisition of the land cannot be said to be mala ﬁde and that on the facts of the case invocation of urgency clause by dispensing with enquiry under Section 5-A of the Act could not be questioned by the petitioner therein. The petitioners failed to approach this Court at the appropriate time to question initiation of acquisition proceedings. They also failed to point out any illegality in the procedure followed by the respondents in acquiring the land nor are able to persuade this Court to invalidate the acquisition proceedings by assigning convincing reasons. As held by this Court in W.P.No.16000 of 2004, the purpose of acquisition being one of an important public purpose, namely; to augment supply of drinking water to the residents of Bhimavaram municipal area, and the further fact that an award has already been passed, I ﬁnd no reason to interfere with the said acquisition proceedings which reached finality. The writ petition is, therefore, dismissed. Liberty is, however, given to the petitioners to make an appropriate application before respondent No.3 for reference under Section 18 of the Act , if the award is not in the nature of a consent award. If such applications are made by the petitioners, respondent No.3 shall examine the same and take action in accordance with law. C.V.NAGARJUNA REDDY, J Dated 29th August, 2008 vrn