IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 14918 of 2008 Between: 1 Kunjam Suranna Dora S/o.Veerapu Dora Cultivation R/o.Bodigudem H/o.Chinna Ramanayyapeta,Divispatnanm(M) E.G District 2 Kunjam Veerapu Dora S/o.Suranna Dora Cultivation R/o.Bodigudem H/o.Chinna Ramanayyapeta,Divispatnanm(M) E.G District 3 Kunjam Sreenivasu Dora S/o.Kondaiah Dora Cultivation R/o.Bodigudem H/o.Chinna Ramanayyapeta,Divispatnanm(M) E.G District 4 Kunjam Ganganna Dora S/o.Chellanna Dora Cultivation R/o.Bodigudem H/o.Chinna Ramanayyapeta,Divispatnanm(M) E.G District 5 Annika Bheemaiah S/o.Lakshmaiah Cultivation R/o.Bodigudem H/o.Chinna Ramanayyapeta,Divispatnanm(M) E.G District 6 Kunjam Posamma W/o.Subbanna Dora Cultivation R/o.Paragasanipadu Pudipalli Divispatnanm(M) E.G District 7 Kunjam Chellanna Dora S/o.Buchanna Dora Cultivation R/o.Paragasanipadu Pudipalli Divispatnanm(M) E.G District 8 Kunjam Buchanna Dora S/o.Suranna Dora Cultivation R/o.Paragasanipadu Pudipalli Divispatnanm(M) E.G District 9 Kunjam Naganna Dora S/o.Nandipi Dora Cultivation R/o.Paragasanipadu Pudipalli Divispatnanm(M) E.G District 10 Kangala Naganna Dora S/o.Ganganna Dora Cultivation R/o.Paragasanipadu Pudipalli Divispatnanm(M) E.G District ..... PETITIONER(S) AND 1 Special Collector (Land Acquision) Indirasagar(polavaram) Project Rajahmundry East Godavari District 2 Govt of A.P rep.by principal Irregation & Command Area Development Secretariat Hyderabad .....RESPONDENT(S) 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 order or direction or writ,more particularly one in the nature of writ of Mandamus declaring that the notification Ref B1/508/08 dt.6/6/2008 issued by the 1st respondent under Sec 4(1) of the Land Acquisition act and published in the local Newpapers on 19/6/2008 is unlawaful and arbitrary and further set aside the same and pass Counsel for the Petitioner:MR.K.BALAGOPAL Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following : THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.14918 of 2008 ORDER: This writ petition is filed seeking a Mandamus declaring the notification Ref.No.B1/508/08 dated 6.6.2008 issued by the first respondent under Section 4(1) of the Land Acquisition Act and published in local newspapers on 19.6.2008 as arbitrary and illegal. According to the petitioners, they are in occupation and enjoyment of various extents of lands mentioned in the schedule annexed to the 4(1) notification as their ancestral property. Pudipalli is a village located in Devipatnam mandal in the Scheduled area of East Godavari district. All the lands in the village are the ancestral property of Scheduled Tribes mainly belonging to Koya Dora community. Some non-tribals tried to encroach upon part of the land claiming that they possess pattas under A.P. Scheduled Areas Ryotwari Settlement Regulations, briefly known as Regulation 2 of 1970. According to the petitioners, the said pattas were given behind their back and they recently came to know about the same and are taking steps to challenge the same in appropriate forum. Petitioners came to know that on taking up of the Polavaram project (Indirasagar Project), Pudipalli village is one of the 42 villages of Devipatnam mandal that would submerge in the reservoir. The non- tribals claiming title over subject land, with an intention to knock away compensation, prevailed upon the revenue and police officials and pressurizing the petitioners and other tribals to vacate and hand it over to them. In the year 2005, such pressure was exerted in connection with land in Survey Nos.14/1, 14/2, 15/3, 17/1, 17/2, 17/3, 17/4, 18/2 and 19/2 of Pudipalli, the total extent of which is 18.34 hectares. At that juncture, petitioners filed W.P.No.25242 of 2005 before this Court complaining unlawful pressure being exerted on the tribals by the revenue and police officials. This Court, while admitting the said writ petition, granted interim order directing the respondents not to disturb the possession of petitioners and other tribals in possession of the land. In the 4(1) notification since the names of non-tribals were shown as owners and which would up a different cause of action, the said writ petition was withdrawn with a leave to challenge the 4(1) notification. Hence the present writ petition. A detailed counter affidavit has been filed by the Special Collector (Land Acquisition), Indira Sagar Project, Rajahmundry, East Godavari district denying the allegations made by the petitioners. It is stated that the Executive Engineer, ISHW Division No.5, Sitanagaram, East Godavari district has submitted a requisition to the Special Collector (Land Acquisition), Indira Sagar Project vide letter No.DB/JTO.1/LA(FRL) 773m dated 27.11.2006 for acquiring the land to an extent of Ac.722.12 cents in Sy.No.10/1 etc., situated at Pudipalli village of Devipatnam mandal for the purpose of submergence of lands in the scheduled area under Indira Sagar (Polavaram) project. On receipt of the said requisition, the Special Collector (L.A.), Indira Sagar Project while sending the land plan schedules has instructed the Special Deputy Collector (L.A.) Indira Sagar Project, Left Main Canal Unit-I, Rajahmundry vide Ref.B1/673/2006 dated 1.2.2007 to get the survey of the land and submit land acquisition proposals. Accordingly, the Special Deputy Collector has got the land surveyed and prepared the sub-division record for the land requisitioned by the Executive Engineer, ISHW Division No.5, Sitanagaram. The Special Deputy Collector has divided the requisitioned land into two blocks and initially submitted land acquisition proposals of draft notification and draft declaration to the Special Collector vide letter Nos.B/9/08 dated 12.5.2008 and 21.6.2008 respectively for an extent of Ac.212-42 cents in R.S.No.10/1 etc. for necessary approval. Thereupon the Special Collector has approved the draft notification and draft declaration on 6.6.2008 and 2.7.2008 respectively and the same were published in District Gazette and in two local daily newspapers as required under the Act. In the instant case, the Land Acquisition Officer i.e. the Special Deputy Collector (L.A.) Indira Sagar Project, Left Main Canal Unit-I, Rajahmundry is the primary authority initiating all processes as per law under Land Acquisition Act. On the other hand, the Pudipalli village is one of the villages likely to be submerged as per requisition by the Irrigation authority. All the cases of Tribals attracts Rehabilitation and Resettlement package vide G.O.Ms.No.68, Irrigation & CAD (Project Wing-LAIV-R&R) Department dated 8.4.2005 and Grama Sabhas were already held in all likely submerging villages. As there is an action plan for completion of Rehabilitation and Resettlement to the project affected families by July 2009 in view of the fact that water will be impounded in Pudipalli village upto 30 mts. level by July 2009. In view of the said urgency, enquiry under Section 5-A of the Act has been dispensed with duly invoking urgency clause under Section 17(4) of the Act. The Land Acquisition Officer issued notices under Section 9(1), 9(3) and 10 of the Act on 18.7.2008 to all the interested persons, including owners asking them to attend the award enquiry on 6.8.2008 and to show their nature of claim and interest over the land proposed for acquisition and establish their title over the land. The said notices were placed in all conspicuous places in the manner prescribed under the Act. The draft notification has been issued as per the proposal sent by the Land Acquisition Officer who relied on the relevant available record i.e. Settlement Register etc. The names of the petitioners were not notified since their names did not find place in the adangal. All these facts have been revealed during the award enquiry. Any claimants having interest, including petitioners, have to establish their right and title over the land proposed for acquisition. In fact, the draft notification and draft declaration were issued based on adangal/settlement record, names of those patta holders/successors etc., who got settlement pattas under the A.P. (Scheduled Areas Ryotwari Settlement) Regulation 1970 and as is initially proposed/submitted by the Land Acquisition Officer vide letters dated 12.5.2008 and 21.6.2008 for draft notification and draft declaration. It is true that 42 villages including Pudipalli village would be submerged under Indira Sagar Project. Further, petitioners have also filed W.P.No.25242 of 2005 before this Court, but the contention of petitioners that they are in occupation and enjoyment of various extents of lands is not correct and denied. The land proposed for acquisition is situated in the scheduled area and non-tribals are the registered holders of notified lands as per fair adangal of Pudipalli village, hence their names have been notified for acquisition. There is no evidence to show that the petitioners are in occupation and enjoyment of the said land. Even before issuing notification and initiating land acquisition proceedings, the Gram Panchayat, Pudipalli and Mandal Praja Parishad, Devipatnam were consulted and obtained their acceptance in the form of resolutions (vide Resolution No.9 dated 3.9.2007 from Gram Panchayat, Pudipalli and vide resolution No.63 dated 2.3.2008 from the Mandal Praja Parishad, Devipatnam) under the provisions of Section 242-F of Panchayat Extension to the Scheduled Areas Act 40 of 1996 and also conducted Grama Sabha at Pudipalli village on 17.4.2008. Prior to this, for getting permission from the Government of India, Ministry of Tribal Affairs for implementing Rehabilitation and Resettlement Plan for Scheduled Tribes Project Affected Families (STPAFs) under Indira Sagar Project in Andhra Pradesh, the Government of A.P. submitted information to the Ministry of Tribal Affairs as per the requirement under Panchayats Extension to the Scheduled Areas Act, 1996 and consultation has been completed by conduct of Grama Sabhas in all 76 likely to be affected villages covered by Panchayats falling in the territory of Andhra Pradesh (8 in East Godavari district, 8 in West Godavari district and 60 in Khammam district). As a part of it, Grama Sabha was conducted in Gram Panchayat, Pudipalli on 31.5.2006 and obtained consent to that effect. Further, as a part of implementation of Rehabilitation and Resettlement Plan for Scheduled Tribes project affected families, house site pattas and land to land were granted to certain Scheduled Tribes Project Affected Families of Paragasanipadu, H/o Pudipalli village at Peddabheempalli village including to some of the petitioners. As such, the contention of the petitioners that they have no opportunity to raise objections against the draft notification before the Land Acquisition Officer is not tenable. The action is being initiated under Rehabilitation and Resettlement Package and the land acquisition in the likely submerging scheduled areas are correlated and cannot be de-linked from another, as Grama Sabhas were conducted in the likely submerging areas by the Government machinery concerned. As and when lands are going to be submerged under Indira Sagar Project, the implementation of R & R package will precede simultaneously. The contention of the petitioners that the impugned notification issued in complete ignorance of Act 40 of 1996 and Part VI-A of A.P. Panchayat Raj Act is not correct. In fact, notification was issued in accordance with law by following due procedure under the Land Acquisition Act and also by consulting Mandal Parishad, Devipatnam and Gram Panchayat, Pudipalli and obtained consent for acquisition of lands at Pudipalli and its hamlet villages as required under Section 242-F of A.P. Panchayats (Extension to the Scheduled Areas) Act 40 of 1996. Further, opportunity will be given to the petitioners to attend the award enquiry and it is open for them to establish their title over the land proposed for acquisition. The writ petition is devoid of merits and liable to be dismissed. Though several grounds were raised in the writ petition, the learned counsel for petitioners has stressed on only one point that there was no consultation as contemplated under law and even if there is any such consultation, it is not in tune with the law. The learned counsel further contended that the right of consultation has been enacted in Section 242- F of the A.P. Panchayat Raj Act which identifies the middle tier of the Panchayat Raj system, namely the Mandal Praja Parishad, as the level of panchayat that must mandatorily be consulted before any land acquisition is undertaken for any development project in the scheduled areas. Section 242-F finds place in Part VI-A of the A.P. Panchayat Raj Act which has been introduced in the year 1998 in obedience to the mandate of Act 40 of 1996. In the matter of land acquisition for Indirasagar (Polavaram) project, there has been no consultation at all with the Devipatnam Mandal Parishad. Thus, the impugned notification is issued in violation of the mandate of law namely Section 4 (m) of Act 40 of 1996 of Parliament, which is Part IX of the Constitution for the Scheduled areas as incorporated in Section 242-F of A.P. Panchayat Raj Act. The entire material should be furnished to Gram Panchayat for its consultation. Section 242-F of the Act also contemplates about consultation. In this regard, the learned counsel for petitioner also relied upon the judgment in UNION OF INDIA v. SANKALCHAND HIMATLAL SHETH[1] and drawn attention of the Court to paras 38 and 39 of the said judgment, which reads as under: “38. In Words and Phrases (Permanent Edition, 1960, Volume 9, page 3) to ‘consult’ is defined as ‘to discuss something together, to deliberate’. Corpus Juris Secundum (Volume 16A, Ed. 1956, page 1242) also says that the word ‘consult’ is frequently defined as meaning ‘to discuss something together or to deliberate’. Quoting Rollo v. Minister of Town and Country Planning [(1943) 1 All ER 13 CA] and Fletcher v. Minister of Town and Country Planning [(1947) 2 All ER 946] Stroud’s Judicial Dictionary (Volume 1, Third Edition, 1952, page 596) says in the context of the expression “consultation with any local authorities” that “consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice and on the other hand, a sufficient opportunity must be given to the local authority to tender advice”. Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. 39. It may not be a happy analogy, but it is commonsense that he who wants to ‘consult’ a doctor cannot keep facts up his sleeve. He does so at his peril for he can receive no true advice unless he discloses facts necessary for the diagnosis of his malady. Homely analogies apart, which can be multiplied, a decision of the Madras High Court in R.Pushpam v. State of Madras (AIR 1953 Mad.392) furnishes a good parallel. Section 43(b), Madras District Municipalities Act, 1920, provided that for the purpose of election of Councillors to a Municipal Council, the Local Government ‘after consulting the Municipal Council’ may determine the wards in which reserved seats shall be set apart. While setting aside the reservation made in respect of one of the wards on the ground that the Local Government had failed to discharge its statutory obligation of consulting the Municipal Council, Justice K.Subba Rao, who then adorned the Bench of the Madras High Court observed: “The word ‘consult’ implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or atleast, a satisfactory solution’. In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision”. and submitted that in this case, since no consultation as required under law has been made before acquisition of land in Pudipalli village, the impugned notification to the extent of petitioners land is arbitrary and illegal and liable to be set aside. On the other hand, the learned Advocate General appearing for respondents contended that the consultation process was completed as per law. Even before issuing notification and initiating land acquisition proceedings, the Gram Panchayat, Pudipalli and Mandal Praja Parishad, Devipatnam were consulted and acceptance was obtained in the form of resolutions and Grama Sabhas were conducted, therefore it cannot be said that there was no consultation, as required under law. Further, he stated that consultation as contemplated under the Gram Panchayat Act or other law made by the Parliament cannot be equated to that of consultation as contemplated under constitutional scheme. Therefore, the judgment relied upon by the learned counsel for petitioner has no relevance to the facts of the present case. The learned Advocate General further contended that the consultation is preliminary in nature and in this regard, he relied upon the judgment in HIGH COURT OF JUDICATURE FOR RAJASTHAN v. P.P.SINGH[2] and drawn the attention of the court to para 37 of the said judgment, which reads as under: “Furthermore, the terminology ‘consultation’ used in Rule 15 having regard to the purport and object thereof must be given its ordinary meaning. In Words and Phrase (Permanent Edition, 1960, Vol.9, p.3) to ‘consult’ is defined as ‘to discuss something together to deliberate’. Corpus Juris Secundum (Vol.16-A, 1956 Edn., p.1242) also says that the word ‘consult’ is frequently defined as meaning ‘to discuss something together, or to deliberate’. By giving an opportunity to consultation or deliberation the purpose thereof is to enable the Judges to make their respective points of view known to the others and discuss and examine the relative merits of their view. It is neither in doubt nor in dispute that the Judges present in the meeting of the Full Court were supplied with all the requisite documents and had full opportunity to deliberate upon the agenda in question”. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned notification and other material made available on record. In this case, even before issuing notification and initiation of land acquisition proceedings, the Gram Panchayat, Pudipalli and Mandal Praja Parishad, Devipatnam were consulted and they have consented for acquisition of the land. In this regard, the Gram Panchayat passed resolution No.9 dated 3.9.2007 and the concerned Mandal Praja Parishad, Devipatnam passed resolution No.63 dated 2.3.2008. Thus, this satisfies the requirements of provisions of Section 242-F of the A.P. Panchayat Raj Act. Further, Act 40/96 was enacted, i.e. an Act to provide for the extension of the provisions of Part-IX of the Constitution relating to the panchayats to the Scheduled Areas. Thus, even the Gram Panchayats in the scheduled areas are empowered to act as that of the powers vested in it under Section 242-F of the A.P. Panchayat Raj Act. Thus, the rules were followed in its strict sense. Further, Grama Sabha was also conducted at Pudipalli village on 17.4.2008 in this regard. Therefore, it cannot be said that there was no consultation as required under the above provisions. The judgments relied upon by both the counsel are relating to cases where consultation was required to be made between two constitutional bodies or higher bodies in the constitutional scheme. The same cannot be applied in a case of this nature. In the case on hand, it is consultation with Gram Panchayat, a body under local governance. This was, of course, done perfectly as is noticed above, as required under law. Further, Grama Sabha was also conducted at Pudipalli village. Therefore, it cannot be said that there was no consultation as required under law in this case. Further, as a part of implementation of Rehabilitation and Resettlement Plan for Scheduled Tribes project affected families, house site pattas and alternative land were granted to certain Scheduled Tribes Project Affected Families of Paragasanipadu, H/o Pudipalli village at Peddabheempalli village including to some of the petitioners. These all would show that not only there was consultation as required under law, but the Government has also taken all the care for implementation of Rehabilitation and Resettlement Plan and it was further asserted that as and when lands going to be submerged under Indira Sagar Project, implementation of R & R plan will be taken up simultaneously. For all the above reasons, the writ petition is devoid of merits and liable to be dismissed and accordingly dismissed. No order as to costs. _____________ C.V.RAMULU, J Date: 30.3.2009 DA THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.14918 of 2008 30.3.2009 [1] (1977) 4 SCC 193 [2] (2003) 4 SCC 239