THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.11642 of 2009 Date : 27-11-2009 Between: Janyavula Venkata Subba Rao .. Petitioner And The District Collector, Krishna District at Machilipatnam and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.11642 of 2009 ORDER: 1. The writ petitioner filed the present Writ Petition praying for issuance of a writ of mandamus declaring that the action of the respondents in acquiring the land of the petitioner admeasuring Ac.1-82 cents in Sy.No.78/2A and 2B of Yenamalakuduru village, Penamaluru Mandal, Krishna District and the process concerning the same including irejection of the objections of the petitioner as per the proceedings of the 1st respondent in Rc.G4/2379/2007 dated 12-2-2009 as arbitrary and illegal and vitiated by non-application of mind and consequently to direct the respondent to forbear from acquiring the said land of the petitioner and to pass such other suitable orders. 2. This Court ordered notice before admission on 16-6-2009 and granted status quo initially for a limited period which is being extended from time to time. 3. Respondents 1 to 4 in the Writ Petition filed W.V.M.P.No.3383/2009 and at the request of the Counsel, the Writ Petition itself is being disposed of finally. 4. Sri Vedula Venkata Ramana, the learned Senior Counsel representing the writ petitioner had taken this Court through the averments made in the affidavit filed in support of the Writ Petition and the averments made in the counter affidavit and further had drawn the attention of this Court to the proceedings of the Collector dated 12-2- 2009 and the representation of the petitioner dated 14-10-2008 and Form-3 notice under Section 5-A of the Land Acquisition Act (hereinafter in short referred to as "Act" for the purpose of convenience) and also the notice for acquisition published in the newspaper. The learned Senior Counsel also had pointed out to the objections and the findings recorded and the learned Senior Counsel in particular had pointed out to the findings recorded in relation to objections 4 and 5 and would maintain that this would show the total non-application of mind and at any rate since the enquiry under Section 5-A of the Act not being an empty formality, may be that this order under challenge being unsustainable is liable to be quashed. The learned Senior Counsel also relied on certain decisions to substantiate his submissions. 5. The learned Assistant Government Pleader for Land Acquisition on the contrary had taken this Court through the contents of the counter affidavit and would maintain that since the objections had been considered and the findings had been recorded nothing more need be done and none of the grounds raised in the affidavit filed in support of the Writ Petition can be said to be sustainable grounds. The Counsel also relied on certain decisions to substantiate his submissions. 6. Heard the Counsel and perused the records and also the respective pleadings of the parties. 7. It is the case of the writ petitioner that the 1st respondent had issued a notification under Section 4(1) of the Act which was published in Andhra Bhoomi Daily Telugu Newspaper dated 24-5-2007 purporting to acquire an extent of Ac.1-70 cents of the petitioner’s wet land in Sy.No.78/2 of Yenamalakuduru village, Penamaluru Mandal, Krishna District by erroneously describing it as dry land for the purpose of providing house sites to Scheduled Caste and Backward Caste persons under Indiramma Padhakam. It is also the case of the petitioner that the said land acquisition notification was in respect of a total extent of Ac.2-16 cents in Sy.No.78/2 and thus in addition to the land of the petitioner admeasuring Ac.1-70 cents, an extent of Ac.0- 46 cents of land of one Velagapudi Sankara Babu was included and since the enquiry under Section 5-A of the Act was not dispensed with, a notice under Section 5-A of the Act was issued to the petitioner scheduling the date of enquiry and hearing with regard to the objections as 11-6- 2007. It is also further averred that in the notice of hearing issued under Section 5-A of the Act, the extent of the land was mentioned as Ac.1-70 cents only and again the 1st respondent had issued another notice under Section 5-A of the Act scheduling the date of hearing on 14-10-2008 wherein it is stated that an extent of Ac.1-82 cents of the petitioner’s land is under acquisition. 8. It is further stated that challenging the notification under Section 4(1) of the Act, the petitioner had unsuccessfully filed W.P.No.11337/2007 and the contention in the said Writ Petition was that the acquisition proceedings are per se illegal when agricultural user of the land had not suffered a change as required under A.P. Agricultural Conversion for Non-Agricultural Lands Act 2006 and since it was also contended about non-conduct of enquiry under Section 5-A of the Act in the said Writ Petition, the 1st respondent had issued a notice of hearing under Section 5-A of the Act dated 24-9-2008 purporting to hold the hearing on 14-10-2008 and called upon the petitioner to submit objections. In response to the said notice the petitioner had submitted the objections contending that the acquisition of the petitioner’s land is wholly unjustified since a wet land where paddy is grown should not be acquired for the purpose of providing house sites to weaker sections under Indiramma Padhakam and there is alternative land available in Sy.No.59 of the village belonging to the Government admeasuring Ac.2-34 cents and hence the acquisition ought not to have been initiated since the Government can serve the purpose of the present acquisition. It was also contended that the subject land was acquired by the petitioner’s father and the same devolved on the petitioner and his two sisters and acquisition of the same causes serious injustice as they would be deprived of fertile land which cannot be compensated in terms of money. 9. It is further stated that the 1st respondent by the present impugned order dated 12-2-2009 had rejected the objections on the ground that since the petitioner’s family has got an extent of Ac.8-20 cents in the same village, the petitioner can part with the land under acquisition and that though the land is a fertile land, it would suit the purpose of providing house sites and that the alternative Government land suggested is also under acquisition process. It further the case of the petitioner that the impugned order is vitiated by arbitrariness and total non-application of mind. It is futile to acquire fertile lands for the purpose of providing house sites to Scheduled Castes and Scheduled Tribe communities. The housing needs can be met by any type of land whereas paddy yielding of land is not capable of being created or changed by the human beings. It is further stated that the State which holds a public trust for the people shall not act in arbitrary and unjustified manner and deprive the farmers of their fertile lands promoting the political slogan of land acquisitions for Indiramma Padhakam. It is also further stated that the fertile land which is yielding paddy is a concern of livelihood for generations to generations and payment of compensation amount as one time measure would not alleviate the loss caused due to acquisition of such fertile lands. At any rate a perusal of the impugned order would clearly suggest that the 1st respondent is acting with a closed mind since it is a conversive on his part to reject all the objections. 10. It is also further stated that as per the laid down by the Supreme Court in Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and others [1] an enquiry under Section 5-A of the Act is a minimal protection to the land holder and hence exercising the jurisdiction under Section 5-A of the Act requires extreme care and caution and since such a jurisdiction is in the nature of adjudication of a dispute, it becomes more onerous and the State should proceed with impartial mind while considering the objections under Section 5-A of the Act and in any view of the matter the impugned order of the 1st respondent rejecting the objections of the petitioner without verification of the factual data is arbitrary and illegal. It is further stated that the petitioner is in possession and enjoyment of the subject land and transplantation of paddy is to be commenced depending upon the setting of the monsoon. In such circumstances, the writ petitioner approached this Court by filing the present Writ Petition. 11. The objections filed by the writ petitioner and the findings recorded in relation thereto in Rc.No.G4/2379/2007 dated 12-2-2009 are as hereunder : Objections of Sri Janyavula Venkata Subba Rao Findings 1. The land notified is in the name of Sri Janyavula Venkateswara Rao, deceased father of the objector. The father and mother of the objector died and the said property is the only property in the name of his deceased father that devolved to the objector and his two sisters. 1. The land proposed is found suitable for house site purpose, and hence proposed for acquisition. The name of the enjoyers as per the record has been notified. However, notices will be issued under Section 9(3) of Land Acquisition Act and all the interested persons can also attend the Award Enquiry to give their deposition claiming the compensation producing the Documentary evidence and the same will be considered. 2. There are many other lands covered under the same Mandal which are suitable for acquisition rather than their property referred above which is a small extent of land and does not have a good approach road and which is also not suitable for acquisition. There are lands in the above- mentioned vicinity to larger extents, which are suitable for acquisition for the purpose of public utility and public purpose. The above-referred land is in the name of Late Janyavula Venkateswara Rao is only property of the objector and his two sisters a n d they have no other immovable property except the property referred above. 2. There are no other lands found suitable for house site purpose. The land notified is having good approach road and found very suitable for house site purpose. Hence, notified f o r acquisition for house site purpose. The objector is having Ac.8-20 cents of land in Yanamalakuduru village. 3 . The livelihood of the objectors is only on the returns derived from the above referred land and the said land is also the part of PASUPU KUMKUMA given to his sisters at the time of their marriages. Though the said land is held in the name of his deceased father, it is under enjoyment of the objector and his two sisters of their respective shares. In the above referred land the objector, though not executed any deed of partition among the objector and his sisters, is having only 1/3rd share and the returns of the said land is only livelihood as he is left without enjoyment and having no other source of income. 3. Enquiry reveals that the objector is having house and house site measuring an extent of Ac.0-30 cents and that the said house site is given to the sister of the objector towards PASUPU KUMKUMA. The objector is having an extent of Ac.8-20 cents of land in R.S.No.44/1, 2, 55/5, 78/2 and 136/2 of Yanamalakuduru village and he is not solely depended on his land notified in this case. 4. The land under acquisition is under cultivation of fruit plantations like Mango, Sapota, Guava and to some extent Banana which are seasonal in cultivation. 4. The land referred above for acquisition is under cultivation by paddy only. The objector is not cultivating fruit plantations like Mango, Sapota, Guava and Banana in the land under acquisition. 5. There are other Government lands covered under Sy.No.59 at larger extents which can be acquired by the Government for public purpose. Added to this there are larger extents of lands covered under different survey numbers in d i f f e r e n t villages in Penamaluru Mandal which can be acquired for public purpose. There are also occasions that the Government had already acquired lands previously in Yanamalakuduru village itself for public purpose and it is being penalized under every occasion that the small and weaker land holders are the sufferers of acquisition of small extent of lands which are held for their livelihood. 5. There are no suitable Government lands a v a i l a b l e in Yanamalakuduru village for house site purpose. An extent of Ac.2-34 cents in R.S.No.59 is also under acquisition, which is under process for house site purpose. The land of the objector and others notified is adjacent to the Donka and suitable for house site purpose. The acquisition of land in these cases does not affect the small farmers in any way. As already aforesaid Sri Vedula Venkataramana, the learned Senior Counsel laid emphasis on objections 4 and 5 and the findings recorded in relation thereto. 12. In the counter affidavit filed by the 2nd respondent the brief history of the case is narrated as hereunder : 13. An extent of Ac.2-16 cents in R.S.No.78/2 (part) of Yanamalakuduru village, Penamaluru Mandal is proposed for acquisition for providing house sites to the weaker sections of the village under Indiramma Padhakam Phase II. The draft notification was approved by the Collector, Krishna and the same was published in Krishna Gazette No.107/07 dated 21-5-2007 in two daily news papers i.e., Andhra Prabha and Pledge on 23-5- 2007 and in the locality dated 24-5-2007. At the said stage, the petitioner filed W.P.No.11337/2007 and this Court issued interim stay. Velagapudi Sankara Babu, the other land holder notified for an extent of Ac.0-46 cents had also filed W.P.No.12540/2007 and this Court issued orders of interim stay of dispossession. subsequently this Court by order dated 27-6-2008 dismissed both the Writ Petitions. It is further stated that the enquiry under Section 5-A of the Act was held on 14-10-2008 and objections were filed by all the land holders. The said objections were enquired and reported to the Collector, Krishna. The Collector, Krishna passed orders under Section 5-A(2) of the Act overruling the objections filed by the land holders and the draft declaration proposals under Section 6 of the Act had been submitted to the Collector, Krishna for approval. 14. In reply to para-2 of the affidavit filed in support of the Writ Petition it is stated that the Government had taken a policy decision to develop model villages and towns on the concept of saturation of identified basic infrastructure facilities and welfare measures by following focused area approach and housing is one of the programmes identified under Indiramma Padhakam to meet the total demand and to achieve the object of providing permanent houses to all under Indiramma Programme. Yanamalakuduru village, Penamaluru Mandal is declared as a model village in Phase II Indiramma Programme. On verification it was found that 253 poor SC/ST/BC families do not have own houses or house sites. The beneficiaries were selected duly considering Grama Sabha in the village. In this regard, the then Revenue Divisional Officer, Vijayawada, the Tahsildar, Penamaluru and the Mandal Surveyor had inspected the lands in the village and land measuring an extent of Ac.2-28 cents in R.S.No.78/2 etc., is adjacent to the village and suitable for construction of houses. There are no structures in the proposed lands. There is no other alternative suitable Government land available in the village for the said purpose. Accordingly the draft notification was approved by the Collector, Krishna and the same was published in Krishna Gazette No.107/07 dated 21-5-2007. The draft notification was also published in the news papers i.e., Andhra Prabha and Pledge on 23-5-2007 and at the locality on 24-5- 2007. The enquiry under Section 5-A of the Act was held on 14-10-2008 and the objections were filed by all the land holders. The said objections were enquired and reported to the Collector, Krishna. The Collector, Krishna had passed orders under Section 5-A(2) of the Act dated 12-2-2009 in G4/2379/2007 overruling the objections filed by the land holders. The draft declaration proposals under Section 6 of the Act had been submitted to the Collector for approval. Therefore there is no violation of the provisions of the Act in the process. The acquisition is not against the principles of natural justice. The land is classified Dry as per the village records and the same had been mentioned in the notification. The total extent of the land belonging to the petitioner was notified as Ac.1-70 cents in R.S.No.78/2. However, the petitioner is possessing and enjoying an extent of Ac.1-82 cents on ground and hence Form-3 notice under Section 5-A of the Act and the subsequent draft declaration proposals were corrected to Ac.1-8 2cents against the name of the petitioner. 15. In reply to para-3 of the affidavit it is stated that the draft notification was approved by the Collector, Krishna and the same was published in the Krishna Gazette No.107/07 dated 21-5-2007. The draft notification was also published person the news papers Andhra Prabha and Pledge on 23-5-2007 and at the locality on 24-5-2007. Though From-3 notices under Section 5-A of the Act were issued to the land holders/interested persons calling them to appear before the Land Acquisition Officer and then the Revenue Divisional Officer, Vijayawada on 11-6-2007 and file objections the petitioner and other land holders appeared before the Land Acquisition Officer and then Revenue Divisional Officer and handed over the copies of the Writ Petition filed and the interim orders granted by this Court. The then Revenue Divisional Officer, Vijayawada submitted the interim orders of this Court to the Collector, Krishna. The Collector, Krishna directed the then Sub- Collector, Vijayawada to conduct enquiry under Section 5- A of the Act as the land holders were not heard or had not filed any objections on 11-6-2007. Again From-3 notices under Section 5-A of the Act were served on the land holders calling them to appear before the Land Acquisition Officer and Sub-Collector, Vijayawada on 14-10-2008 and file the objections, if any. The enquiry under Section 5-A of the Act was held on 14-10-2008 and the objections were filed by all the land holders. The said objections were enquired and reported to the Collector, Krishna. The Collector, Krishna had passed orders under Section 5- A(2) of the Act in G4/2379/2007 dated 12-2-2009 overruling the objections filed by the land holders in this case. 16. In reply to para-4 of the affidavit it is stated that while issuing the notices under Section 5-A of the Act for calling objections and enquiry the Mandal Surveyor, Penamaluru had conducted ground survey on the notified land in which it was found that the actual extent of land is Ac.1-82 cents but Ac.1-70 cents was notified. The revised extent of Ac.1-82 cents in R.S.No.78/2 had been taken and the same is being conducted in the land acquisition proceedings. Further, in reply to para-5 of the affidavit it is stated that the petitioner earlier filed W.P.No.11337/2007 before this Court and the same was dismissed with costs on 27-6-2008 on the ground that a Division Bench of this Court in W.P.No.22809/2006 and batch dated 1-10-2007 had not accepted the contention raised under the NALA Act 2006 as it does not prohibit the acquisition of agricultural land for future use for non-agricultural purposes. Once the State acquires the land under the provisions of the Act it becomes the owner and is exempted from the application of the provisions of the NALA Act 2006 by virtue of Section 7(a) of the said Act and therefore the land acquisition proceedings continued and the enquiry under Section 5-A of the Act was conducted on 14-10-2008. Again the petitioner filed W.P.No.11642/2009 before this Court seeking stay of all further proceedings and this Court granted status quo for a period of four weeks on 16-6-2009 and the draft declaration proposals were submitted to the Collector, Krishna for approval. 17. In reply to para-6 of the affidavit it is stated that it is true that Form-3 notices under Section 5-A of the Act were issued to the land holders/interested persons calling them to appear before the Land Acquisition Officer and then Revenue Divisional Officer, Vijayawada on 11-6- 2007 and file objections. The petitioner and the other land holder appeared before the Land Acquisition Officer and handed over copies of the Writ Petition filed and the interim orders granted by this Court. The Revenue Divisional Officer, Vijayawada submitted the interim orders of this Court to the Collector, Krishna and returned the draft declaration proposals directing the then Sub- Collector, Vijayawada to conduct enquiry under Section 5- A of the Act as the land holders were not heard or had not filed any objections on 11-6-2007. Again Form-3 notices under Section 5-A of the Act were served on the land holders calling them to appear before the Land Acquisition Officer and Sub-Collector, Vijayawada on 14- 10-2008 and objections were filed by all the land holders. The said objections were enquired and reported to the Collector who passed orders under Section 5-A of the Act dated 12-2-2009 in G4/2379/2007 overruling the objections filed by the land holders. 18. In reply to para-7 of the affidavit it is stated that the land measuring Ac.2-34 cents in R.S.No.59 of Yanamalakuduru village, Penamaluru Mandal which is Government land is also being allotted to the beneficiaries under Indiramma Programme. The land acquisition proposals were initiated only after determining that the extent of Ac.2-34 cents in Sy.No.59 is not sufficient for the said purpose. Further, in reply to para-8 of the affidavit it is stated that the notification under Section 4(1) of the Act was issued for acquisition of land for a public purpose and hence the land is identified suitable for construction of houses. The notified land is adjacent to the village site and suitable for construction of houses. The petitioner is having an extent of Ac.2-48 cents, Ac.1.00 cents, Ac.1.02 cents, Ac.1.82 cents, Ac.2.00 cents and Ac.8.20 cents in R.S.No.44/1, 44/2, 55/5 and 136/2 respectively totaling to Ac.13.70 cents in Yanamalakuduru village excluding the land under acquisition and hence the petitioner is not a small farmer and had been cultivating paddy in the said lands. 19. In reply to para-9 of the affidavit it is stated that the petitioner’s land is quite suitable for construction of houses and the total extent possessed and enjoyed by the petitioner is Ac.16-52 cents including the land measuring Ac.1.82 cents under acquisition and hence it is not correct to say that the Collector, Krishna/1st respondent had overruled the objections without proper consideration. Further, it is stated in reply to para-10 of the affidavit that the land measuring Ac.1-82 cents in R.S.No.78/2(p) of Yanamalakuduru village, Penamaluru Mandal is quite suitable for construction of houses and it is near to the village sites. Further it is stated that and all agricultural lands around the village site which have more or less the same fertility were examined thoroughly before selecting the proposed land for acquisition. The houses have to be constructed close to the village site so that the basic amenities available in the village may be extended to the new houses easily. The Government from time to time has to frame policies which fit the contemporary conditions and larger interests of the general public. In the process, such policies are framed in which the benefits and development taken is extended to all the people but not to a particular section. The policies taken up may not fit some specific individuals as they feel they are targeted but the actual process is not so. The land acquired will be allotted to the poor and needy eligible beneficiaries who shall construct houses and the petitioner will be compensated duly under the Act. 20. In reply to para-11 of the affidavit it is stated that the petitioner has got a own house and another housing plot with an extent of Ac.0-30 cents. The parents of