IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF JANUARY TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No: 26103 of 2008 Between: Peddu Srinivasa Rao S/o. Venkata Ramaiah R/o. Kasanenivaripalem Kankipadu Mandal of Krishna District. ..... PETITIONER AND 1 The District Collector, Krishna District, Chilakalapudi, Machilipatnam, Krishna District. 2 The Land Acquisition Officer/ Sub Collector, O/o. the Sub Collector, M.G. Road, Goverpet, Vijayawada, Krishna District. 3 The Tahsildar, O/o. the Tahasildar, Kankipadu Mandal, Krishna District. 4 Peddu Lakshmi, W/o. P. Srinivasa Rao, C/o. Kakani Ranga Rao, Vamukuru Village, Penamaluru Mandal, Krishna District. .....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 any writ order or direction more particularly a writ in the nature of mandamus by declaring the action of the 1st respondent incorporating the petitioner's land in an extent of Ac. 0.25 cents in RS No. 74/10 situated at Kasaranenivaripalem, H/o Madduru Revenue Village, Kankipadu Mandal, Krishna District in the impugned notification under Sec. 4(1) of the Land Acquisition Act published in the Andhra Jyothi Daily dt. 24-11-2008 further declare that the impugned notification issued under Sec. 4(1) of the Land Acquisition Act by the 1st respondent dt. 24-11-2008 published in Andhra Jyothi Daily dt. 24- 11-2008 is arbitrary, illegal and violative of Articles 14, 19, 21 and 300- A of the constitution and without following the principles of natural justice and the mandatory procedure laid down under the Land Acquisition Act and pass Counsel for the Petitioner:MR.GINNE MALLESWARARAO Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.26103 of 2008 ORDER: This writ petition is filed seeking a mandamus from this Court to declare the action of the first respondent in incorporating the petitioner’s land of an extent of Ac.0.25 cents in R.S.No.74/10 situated in Kasaranenivaripalem, H/o Madduru Revenue village, Kankipadu Mandal, Krishna District in the notification issued under Section 4(1) of the Land Acquisition Act, 1894 (for short – ‘the Act’), published on 24.11.2008, as arbitrary and illegal. Petitioner claims that on 26.11.2008 a notice was affixed on a tree in his land to the effect that his land, of an extent of Ac.0-25 cents, was being acquired for the purpose of house sites and that, on enquiry, he came to know that the first respondent had issued a notification under Section 4(1) of the Act which was published in Andhra Jyothi daily newspaper dated 24.11.2008. Petitioner claims to have purchased Ac.0-25 cents of land in R.S.No.74/10 situated in the Madduru Revenue village, Kankipadu Mandal, through registered sale deed dated 30.03.1996, that the fourth respondent i.e. his wife Smt Peddu Lakshmi, had also purchased an extent of Ac.0-62 cents in R.S.No.67/1 and Ac.0-13 cents in R.S.No.74/10 through registered sale deed dated 30.03.1996 and to have become the owner thereof, that, under the impugned notification, the first respondent proposed to acquire the fourth respondent’s land of an extent of Ac.1-16 cents in R.S.No.67/1 and 74/10 while, in fact, the fourth respondent was holding only Ac.0-75 cents in Sy.Nos.67/1 and 74/10, that while his land of Ac.0-25 cents in R.S.No.74/10, which he had purchased under the sale deed dated 30.03.1996, was also shown in the impugned notification, his wife was shown to be the owner thereof, that, while the Section 4(1) notification contained his holding, his name was not shown as the enjoyer thereof, that the land in question was not suitable for house sites as it was wet land and that the action of the respondents in seeking to acquire his land, without even mentioning his name, was arbitrary and illegal. This court, by order dated 28.11.2008, granted interim stay of dispossession for a period of two weeks which order was subsequently extended on 11.12.2008 for a period of one week and further extended on 19.12.2008 till 30.12.2008. A petition to vacate stay is filed by the Land Acquisition Officer who, in his counter affidavit, states that the land in question was sought to be acquired for the Indiramma housing programme, that the total extent of land of Ac.1-23 cents in R.S.No.67/1, 74/9 and 74/10 was adjacent to the S.C. Colony and was suitable for acquisition, that there were no structures in the said land, that there was no government land or poramboke land in Kasaranenivaripalem village for grant of house sites to weaker sections, that the Tehsildar, Kankipadu Mandal, had submitted proposals for acquisition on 29.10.2008, that, after scrutiny, the Sub- Collector, Vijayawada, had submitted the same to the District Collector for approval, that the District Collector had approved the draft notification, under Section 4(1) of the Act, on 12.11.2008, that the said draft notification was published in the District Gazette and also in daily newspapers in November, 2008, and that the substance was also published in the locality on 25.11.2008. Respondents would contend that the notice, under Section 5-A of the Act, in Form-III was issued to the petitioner’s wife on 28.11.2008 asking her to attend the Section 5-A enquiry on 15.12.2008 and to submit her objections, if any, that the petitioner’s wife had refused to receive the said notice and, therefore, the said notice was affixed to a stick and erected on the land as substituted service. According to the respondents, the petitioner was permanently residing in Siva Sai Enclave, Door No.8-231, Ashok Nagar, Kanuru village of Penamaluru Mandal, Krishna District, along with his family, that the petitioner’s wife i.e. Smt Peddu Lakshmi, the fourth respondent herein, was the actual owner of the property and, when the revenue authorities went to serve Form-III notice on the petitioner’s wife at Kanuru village, they came to know that the petitioner along with his family had left for Sabarimalai and would be back a few days thereafter, that the watchman of the apartment, in which the petitioner was residing along with his family, had given a written statement on 03.12.2008 to the effect that the petitioner with his family had been residing in that place since two years and he, being the watchman, had been serving them since two years. Respondents deny the petitioner’s contention that he is a resident of Kasaranenivaripalem village of Kankipadu Mandal, Krishna District, that he found a notice was affixed to a tree in his land of an extent of Ac.0-25 cents in R.S.No.74/10, that he was the owner of the land of an extent of Ac.0-25 cents in R.S.No.74/10 situated at Kasaranenivaripalem village, H/o Madduru village of Kankipadu Mandal, that the total extent of land in R.S.No.74/10 was Ac.0-54 cents, that the name of Smt Peddu Lakshmi was recorded as the pattadar and enjoyer of the said land as per the Adangal for the fasli year 1414, that as the petitioner was not the owner of the said land he had no right to file the present writ petition questioning the land acquisition proceedings and, if at all he was the owner of the land, it was always open for him to attend and establish his possession over the said land and receive compensation. Respondents would contend that, while it may be true that the petitioner had purchased the land of an extent of Ac.0-25 cents in R.S.No.74/10, as per the revenue records an extent of Ac.0-54 cents in R.S.No.74/10 of Kasaranenivaripalem was shown to be in continuous possession and enjoyment of Smt Peddu Lakshmi and, if indeed the petitioner had purchased the said land, he ought to have taken steps to have his name mutated in the revenue records. The respondents would reiterate that, since the petitioner’s name was not shown either as the pattedar, or as the enjoyer, in the revenue records, his name was not reflected in the Section 4(1) notification. It is further stated that the total extent of land held by the petitioner, in various survey numbers, was Ac.10-65 cents in Kasaranenivaripalem village, h/o Madduru Mandal, Kankipadu Mandal and that, in addition, the petitioner’s wife, i.e., the fourth respondent herein, owned an extent of Ac.3-64 cents in various survey numbers of the same village. Respondents would refute the petitioner’s contention that they were small farmers and state that the entire holding of the family was Ac.14-29 cents. Respondents would further state that ownership of the petitioner over the land of an extent of Ac.0-25 cents in R.S.No.74/10 could only be established in the award enquiry. They would deny that the land proposed for acquisition was not suitable for house sites and state that, since the said land was situated adjacent to the S.C. colony having road, electricity and water facilities, the same was suitable for construction of houses. Respondents would reiterate that, since the petitioner claimed to be the owner of the land of Ac.0-25 cents in R.S.No.74/10, it was always open for him to establish his title over the land in the award enquiry and receive compensation, that the notice under Section 5-A of the Act in Form-III had already been issued to the landholders and other interested persons requesting them to attend the enquiry on 15.12.2008 and that the impugned notification issued by the District Collector was legal and valid. While it is true that, under Article 300-A of the Constitution of India, no person can be deprived of his property save by authority under law, and that the procedural requirements under the Land Acquisition Act must be strictly adhered to, it must also be borne in mind that this Court, exercising jurisdiction under Article 226 of the Constitution of India, would not, ordinarily, examine disputed questions of fact. While the petitioner would contend that he is the owner of an extent of Ac.0-25 cents in R.S.No.74/10, having purchased it through registered sale deed No.610/1996 dated 30.03.1996, the respondents would contend to the contrary and state that, in the revenue records, it is only the petitioner’s wife who is shown to be the owner of the entire extent of Ac.0-54 cents in R.S.No.74/10 of Kasaranenivaripalem village. As noted herein above this Court, on 28.11.2008, granted interim stay of dispossession with regard to an extent of Ac.0-25 cents of land in Sy.No.74/10 belonging to the petitioner. Learned Government Pleader for Land Acquisition would state that neither the petitioner nor the fourth respondent had participated in the Section 5-A enquiry held on 15.12.2008. Admittedly, the petitioner has not been put on notice of the Section 5-A enquiry. Even according to the respondents, the said notice was issued in the name of the fourth respondent whose name was shown to be the pattedar and enjoyer of the land. Under Section 5-A of the Act any person interested in any land which has been notified under Section 4(1) as being needed, or likely to be needed, for a public purpose, may, within thirty days of causing public notice under the said sub-section, submit his objections thereto. Even according to the respondents, the substance of the Section 4(1) notification was published in the locality only on 25.11.2008 and, therefore, the thirty day period for submitting objections expired only on 24.12.2008 even before which the Section 5-A enquiry was held on 15.12.2008. Since the petitioner is entitled, as a person interested in the land, to file his objections to the Section 4(1) notification in respect of land of an extent of Ac.0-25 cents, he was denied the opportunity of participating in the Section 5-A enquiry which was held even before expiry of 30 days from the date on which the substance of Section 4(1) notification was published in the locality. The Section 5-A enquiry held on 15.12.2008 must, therefore, be held to be illegal and is, accordingly, set aside. It is open to the petitioner to submit his objections to the Section 4(1) notification, within two weeks from the date of receipt of a copy of this order, wherein he can raise all objections including those raised in the present writ petition. The respondents shall, thereafter, put the petitioner on notice of the Section 5-A enquiry, give him an opportunity of personal hearing. After completion of the Section 5-A enquiry, the competent authority shall pass a reasoned order and, thereafter, proceed in accordance with law. The writ petition stands disposed of accordingly. However, in the circumstances, without costs. _______________ 23-01-2009 cvrk