IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SEVENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 15346 of 2009 Between: M. Venugopal Rao, S/o. Sriramulu, R/o. Selapadu Village, Chebrolu Mandal, Guntur District. ..... PETITIONER AND 1 The State of Andhra Pradesh, Rep. by the Principal Secretary, Revenue (Land Acquisition) Department, Secretariat Buildings, Hyderabad. 2 The District Collector (Land Acquisition), Guntur District at Guntur. 3 The Land Acquisition Officer, Revenue Divisional Officer, Tenali Division, Tenali, Guntur 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 issue a Writ, order or direction more particularly one in the nature of Mandamus declaring the inaction of the respondents 2 and 3 in providing an opportunity of personal hearing to the petitioner relating tohis objections and in sending a report tot eh 1st respondent under Section 5-A of the Land Acquisition Act, 1894, in relation to the Section 4(1) notification in Rc.No. 4641/08/G2 dated 7-12-2008 issued by the 2nd respondent pertaining to the land situated in sy.No. 840/1 of Selapadu Village, Chebrolu Mandal, Guntur District as illegal, arbitrary violative of the provisions of the Land Acquistion Act, 1894 and Article 300-A of the Constitution of India and conequetnly direct the respondents 2 and 3to accord personal hearing to the petitioner, consider his objections U/s 5-A of the Land Acquisition Act, 1894 and forward a report of the 1st respondent for an appropriate decision thereon, Counsel for the Petitioner:MR.P.ROY REDDY Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following : HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.15346 of 2009 ORDER:- This Court issued rule nisi on 30-7-2009. 2. Counter affidavit had been filed on behalf of R.3. 3. Though the matter is coming under the caption of Interlocutory, at the request of the Counsel on record, the writ petition itself is being disposed of finally. 4. Sri Roy Reddy, the learned Counsel representing writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and also the counter affidavit and would maintain that the Land Acquisition Officer-Revenue Divisional Officer, Tenali Division, is the competent authority by virtue of the delegation of powers to give personal hearing while conducting Section 5-A enquiry under the provisions of the Land Acquisition Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience). The learned Counsel also had drawn the attention of this Court to HINDUSTAN PETROLEUM CORPN.LTD. v. DARIUS SHAPUR CHENNAI AND OTHERS[1] and would maintain that in the light of the said decision, since the procedure to be followed while conducting Section 5-A enquiry had not been followed, the writ petition to be allowed. 5. Per contra, the learned A.G.P. for Land Acquisition would maintain that it is no doubt true that as per Section 5-A of the Act, the hearing of the objections to be done by the Collector, but by virtue of delegation of powers, the Revenue Divisional Officer-Land Acquisition Officer would be the competent authority to give such personal hearing while conducting enquiry under Section 5-A of the Act. The learned A.G.P. for Land Acquisition also had pointed out to the relevant portions of the counter affidavit and would maintain that only for the purpose of collecting further opinion, a report had been called for from the Tahsildar and nothing beyond thereto, that cannot be taken as though the Tahsildar was further directed to conduct an enquiry and this would not amount to any further delegation of power. The learned A.G.P. for Land Acquisition also would make it clear that the Land Acquisition Officer – Revenue Divisional Officer, Tenali Division, the 3rd respondent herein alone would conduct enquiry as contemplated under Section 5-A of the Act aforesaid. 6. Heard the Counsel and perused the averments made in the affidavit filed in support of the writ petition and also the averments made in the counter affidavit as well. 7. The writ petition is filed for a Writ of Mandamus declaring the inaction of the respondents 2 and 3 in providing an opportunity of personal hearing to the petitioner relating to his objections and in sending a report to the 1st respondent under Section 5-A of the Act in relation to the Section 4(1) notification in Rc.No.4641/08/G2 dated 7- 12-2008 issued by the 2nd respondent pertaining to the land situated in Sy.No.840/1 of Selapadu village, Chebrolu Mandal, Guntur District as illegal, arbitrary, violative of the provisions of the Land Acquisition Act, 1894 and Article 300-A of the Constitution of India and consequently direct the respondents 2 and 3 to accord personal hearing to the petitioner, consider his objections under Section 5-A of the Act and forward a report to the 1st respondent for an appropriate decision thereon, and pass such other suitable orders. 8. It is the case of the writ petitioner –M.Venugopala Rao that he is the absolute owner and possessor of agricultural land to an extent of Ac.1.10 cents situated in Sy.No.840/1 of Selapadu village, Chebrolu Mandal, Guntur District and the same is his ancestral property. A notification under Section 4(1) of the Act in Rc.No.4641/08/G2, dated 7- 12-2008 was issued by the District Collector – R.2 notifying that the aforementioned land belonging to the petitioner is required for the purpose of providing house sites to weaker Sections under the 'Indiramma Programme'. Though the petitioner owns only Ac.1.10 cents, his name is shown as the owner of Ac.3.10 cents, which is incorrect. In the said notification, it has been stated that the powers of the Collector under the Act had been delegated to the Revenue Divisional Officer, Tenali – R.3 under Section 3(c) of the Act. It is also averred in para 5 of the affidavit filed in support of the writ petition that he is a small farmer and he does not own any other agricultural land except the said Ac.1.01 cents. A notice dated 16-1-2009 in Rc.No.1751/08/A was issued by the Land Acquisition Officer – R.3 under Section 5-A of the Act calling upon him to file objections on 2-2- 2009. The petitioner had filed his objections on the said date, informing that he owns only the said extent of land, out of which he had already given, to the share of his eldest daughter, an extent of Ac.0.50 cents, at the time of her marriage and that he is intending to give the remaining extent of Ac.0.6 cents to his 2nd daughter, when she get married. The petitioner was not given an opportunity of personal hearing, despite his request before the Land Acquisition Officer – R.3. The issue is said to be still pending and upon his enquiry, he was informed by the officials of the 3rd respondent’s office that the orders would be passed shortly on Section 5-A objections submitted by the petitioner. Further it is stated that respondents 2 and 3 had made a mockery of the salutary statutory provisions as contained in Section 5- A of the Act. Further the petitioner stated that he had not been given effective opportunity to put-forth his case as regards the non-suitability of the land in question for provision of house sites, inasmuch as the land belongs to small farmer, who does not own any other land. The State cannot deprive one person, to benefit another, in the given situation, inasmuch as the petitioner himself would become a landless poor person, by virtue of the proposed acquisition. The respondents 2 and 3 are bound to adhere to the mandatory requirements of under Section 5-A of the Act and that they have to accord personal hearing, conduct enquiry and submit a report to the Government – R.1 on the issue and await appropriate orders thereon. The decision making process has to be fair and has to take into account the objections raised under Section 5-A of the Act, more particularly, when a very pertinent objection has been raised by a small farmer, who would be rendered landless as a result of acquisition. The inaction of the respondents in according a personal hearing and in forwarding a report to the Government as contemplated by virtue of Section 5-A of the Act is illegal, arbitrary, violative of the provisions of the Act and Article 300- A of the Constitution of India. 9. In the counter affidavit filed by the 3rd respondent, it is stated that the Tahsildar, Chebrole had proposed an extt of Ac.4.17 cents in S.No.840-1 (Part) of Salapadu, H/o.Sekuru village of Chebrole Mandal for provision of house sites to the weaker Section people under Phase- III of 'Indiramma Programme'. After making personal inspection of the proposed land, the Revenue Divisional Officer, Tenali has submitted D.N.Proposals to the Collector, Guntur in this Office Rc.No.1751/08/A, dt.9-11-2008 for approval. The Collector, Guntur after perusal of the same, has approved the D.N., under Section 4(1) of the Act vide proceedings Rc.No.4641/2008/G2 dt.7-12-2008 and got published in the Guntur District Gazette, Extraordinary Local No.152, dt.10-12-2008 at page Nos.1 and 2. The said notification was also published in two local news papers namely Eenadu Daily dt.13-12-2008 and Pledge Daily dt.13-12-2008. The extract of the D.N. was also got published in the locality as well as in local offices on 16-12-2008 in the prescribed manner. Hence, the date of D.N. in this L.A.Case is 16.12.2008 as it is the last date of all modes of publications. Further it is averred in para 4 of the counter affidavit that the Revenue Divisional Officer, Tenali issued the Notices under Section 5-A of the Act on 16-1-2009 calling objections if any from the interested persons within 15 days from the date of service of the notices. They were also asked to appear before the Land Acquisition Officer on 2-2-2009 at 11.00 a.m., to adduce any oral or documentary evidence in support of their objections. The said notices were got published in the locality and also served on the persons interested/petitioner in the prescribed manner. Further it is also averred that in response to the said notices, the petitioner had attended before the Revenue Divisional Officer, Tenali on 2-2-2009 i.e., the date of 5-A enquiry and filed his objection petition stating that an et6t of Ac.3.10 cents in S.No.840-1 (Part) was shown in his name along with other fields in the notice under Section 5-A of the Act dt.16- 1-2009 even though he is having only Ac.1.10 cents which is an ancestral property. His family is depending upon the income derived from the proposed land, out of that an extent of Ac.0.50 cents was gifted to his elder daughter at the time of her marriage and also decided to give the remaining Ac.0.60 cents to his second daughter at the time of her marriage. He finally requested to exempt his land from the proposed acquisition, as he is very poor. Further it is stated that the contents of the objection petition were got enquired and during the enquiry, the petitioner attended before the Tahsildar, Chebrole on 6-7- 2009 and stated that his father expired 3 years back and he is having Ac.3.93 cents of dry land in S.No.840-1, 845-A and 758 of Sekuru village, his mother is having Ac.2.00 cents and she is residing with him and there is no other landed property to his family members and all are depending upon agricultural, having Pink Ration Card bearing No.PAP073-402000377, and his annual income was mentioned as Rs.40,000/- in the card. It is also further averred that the petitioner is the only son to his parents and his sisters got married and living separately and his mother is also living with him after the death of his father. As per the Revenue enquiry, the petitioner is having the following landed property in Cheborle Mandal: Sl.No. Name of the village S.No. Extent Ac.Cents Remarks 01. Sekuru Total 845-A 840-1 758 0.50 1.10 2.33 3.93 Proposed through his grand mother (late) Katuru Bhagyamma 02. Sekuru Total 772-3A 760-C 840-1 1.25 0.33 2.00 3.58 Possessed the lands after death of his father 03. M.Ananthavaram Total 8-1B 7-2 20-3 19-1 1.50 0.62 2.20 1.02 5.34 Possessed the lands after death of his father In addition to the above, his mother Smt.M.Samrajyam, is having an extent of Ac.2.00 cents and she is also living with his son i.e., the petitioner. Further specific stand had been taken that the writ petition had been filed even before the completion of enquiry under Section 5- A of the Act and hence the writ petition is pre-matured. It is also stated that the petitioner submitted objections on 2-2-2009 and the objections are under consideration before the District Collector and final orders are yet to be passed. Further it is stated that in para 10 of the counter affidavit that the following landed properties are under the possession and enjoyment of the petitioner as per the revenue records:- Sl.No. Name of the village S.No. Extent Ac.Cents Remarks 01. Sekuru Total 845-A 840-1 758 0.50 1.10 2.33 3.93 Proposed through his grand mother (late) Katuru Bhagyamma 02. Sekuru Total 772-3A 760-C 840-1 1.25 0.33 2.00 3.58 Possessed the lands after death of his father 03. M.Ananthavaram Total 8-1B 7-2 20-3 19-1 1.50 0.62 2.20 1.02 5.34 Possessed the lands after death of his father Grand Total 12.85 In addition to the above landed property, the petitioner is maintaining non-trading Rice Mill at Salapadu village. The petitioner is a rich landlord and he filed the writ petition by suppressing the true facts. Further it is averred that the petitioner has possessed the landed property in Sekuru and M.Ananthavaram villages as shown above. The objections filed by the petitioner have got enquired into. During the enquiry, a personal hearing was given to the petitioner, recorded his statement on 6-7-2009 in the matter of acquisition. Hence, it is not correct to say that the petitioner was not given an opportunity of personal hearing. The record of enquiry has to be submitted to the Collector, Guntur for taking a decision under Section 5-A of the Act. The Land Acquisition Officer has observed all the formalities at every stage of acquisition. Pending decision of the competent authority under Section 5-A of the Act, the petitioner has filed this writ petition without any reason. Ultimately, the dismissal of the writ petition had been prayed for. 10. Section 5-A of the Act as applicable to the State of A.P. reads as hereunder:- “Section 5-A. Hearing of objections:- (1) Any person interested in any land which has been notified under Section 4, sub-Section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days of causing public notice under the said sub- Section, object to the acquisition of the land or of any land in the locality as the case may be. (2) 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 that Government. The decision of appropriate Government on the objections shall be final. (3) For the purpose of this Section, a personal shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.” 11. In Hindustan Petroleum Corpn.Ltd case (referred 1 supra) it was held that Section 5-A of the Act confers a valuable and important right in favour of a person whose lands are sought to be acquired and having regard to the provisions contained in Article 300-A of the Constitution of India it has been held to be akin to a fundamental right. The State in exercise of its power of “eminent domain” may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid. It was further observed at para 15 as hereunder:- “Section 5-A 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 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. On receipt of such a report together with the records of the case, the Government is to render a decision thereupon. It is now well settled in view of a catena of decisions that the declaration made under Section 6 of the Act need not contain any reason.” I n UNION OF INDIA v. MUKESH HANS[2] it was observed as hereunder:- “At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5-A of the Act to object to the acquisition proceedings is not an empty formality and is a substantice right, which can be taken away for good and valid reason and within the limitations prescribed under Section 17(4) of the Act. The object and importance of Section 5-A inquiry was noticed by this Court in the case of Munshi Singh v. Union of India ((1973) 2 SCC 337) wherein this Court held thus: “Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made.. … The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A.” 12. It is no doubt true that in the counter affidavit specific stand had been taken that the writ petition is pre-matured since the enquiry under Section 5-A of the Act is not yet completed. However, in the counter affidavit it is also averred that the Tahsildar had been instructed to give hearing. No doubt, specific stand had been taken by the learned A.G.P. for Land Acquisition that this is only for collecting some information or getting a report and nothing further thereto. When a particular Act is ordained to be done by a particular Officer by the statute, it is needless to say that the said authority alone to perform such act. In the light of the clear language of Section 5-A of the Act, referred to above, may be by virtue of the delegation of powers, the concerned Revenue Divisional Officer-Land Acquisition Officer is competent to conduct the enquiry under Section 5-A of the Act and the same cannot be further delegated to the Tahsildar. In the light of the same and also in view of the specific stand taken in the counter affidavit that the enquiry under Section 5-A of the Act is not yet completed, let the 3rd respondent conduct the enquiry under Section 5- A of the Act in accordance with law in the light of the language of Section 5-A of the Act. 13. To the said extent, the writ petition is hereby allowed. No order as to costs. It is needless to say that the further enquiry to be proceeded with and to be finalized in accordance with Section 5-A (2) of the Act. ____________________ Justice P.S.Narayana 27th August, 2009 smr [1] (2005) 7 SCC 627 [2] 2004 (8) SCC 14