THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + Writ Petition Nos.21036 and 21070 of 2008 COMMON JUDGMENT % 15-10-2008 Between: Gandepalli Nuka Raju and others …Petitioners And The State of Andhra Pradesh, Rep. By its Secretary, Revenue (L.A.) Secretariat, Hyderabad, and others …Respondents ! Counsel for Petitioners : Sri S. Subba Reddy ^ Counsel for Respondents : G.P for Land Acquisition < Gist: > Head Note: ? CITATIONS: [1] AIR 1975 SC 2190 THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition Nos.21036 & 21070 of 2008 COMMON JUDGMENT: The petitioners challenge the order dated 30-08- 2008, passed by the District Collector, East-Godavari, at Kakinada, the 3rd respondent, under Section 5-A of the Land Acquisition Act (for short ‘the Act’), in both the writ petitions. They also pray for quashing the notiﬁcations dated 04-06-2008 and 09-09-2008, issued under Sections 4(1) and 6 of the Act, by the 3rd respondent, in relation to the lands in question. The petitioners are owners of Ac.16.14 cents of land, in diﬀerent survey numbers of Uppada Village of U. Kothapalli Mandal, East-Godavari District. The 3rd respondent issued notiﬁcation dated 04-06-2008, under Section 4(1) of the Act, proposing to acquire the lands of the petitioners for the purpose of providing house sites to the weaker sections under a Government sponsored scheme. The 4th respondent was appointed as the Land Acquisition Officer. The inquiry under Section 5-A of the Act was held. In response to the notices issued to them, the petitioners submitted objections stating various grounds. The 3rd respondent called for the remarks of the Tahsildar, and the 4th respondent. Taking the same into account, he passed an order dated 30-08-2008, rejecting the objections. Consequently, he published the declaration under Section 6 of the Act, on 09-09-2008. The petitioners submit that the 3rd respondent did not examine the objections raised by them, independently, and had just accepted the remarks submitted by the 3rd respondent. They contend that vast extent of land acquired from some of the petitioners and others, in the recent past, for providing house sites to the weaker sections is still lying vacant, and instead of utilizing the same for providing house sites, respondents 3 and 4 have chosen their lands by yielding to political pressure. They submit that the land proposed to be acquired is very fertile and three crops are grown every year. It is stated that the lands are low-lying, and are totally unﬁt for house sites, and despite the same, they are sought to be acquired. Sri S. Subba Reddy, learned counsel for the petitioners, submits that the acquisition under challenge is contrary to settled norms, and the provisions of the Act and the Rules made thereunder. He contends that though it was admitted by the respondents that vast extent of land, acquired on earlier occasion, is still vacant, lame excuses were pleaded, to justify the acquisition of the lands of the petitioners. He submits that the procedure prescribed under Rule 3 of the Land Acquisition Rules, was not followed, and the inquiry under Section 5-A of the Act was reduced to an empty formality. Learned Government Pleader for Land Acquisition, had obtained the entire record, in relation to the acquisition in question, and made extensive submissions. The 3rd respondent also explained the matter, in person. It is stated that the lands of the petitioners were chosen, since they were found suitable for providing house sites, and that no other suitable lands are available in the village. The learned Government Pleader contends that each and every objection raised by the petitioners was dealt with objectively, and cogent reasons were furnished, for not accepting the same. He further submits that this Court cannot act as an Appellate Authority over the result of an inquiry under Section 5-A of the Act, as long as the prescribed procedure was followed. It is also submitted that the norms stipulated by the Government were strictly followed. With a view to acquire Ac.16.14 cents of land in the Uppada Village, for providing house sites to the weaker sections, the 3rd respondent published a notiﬁcation under Section 4(1) of the Act, on 04-06-2008. The owners of the land and other interested persons were put on notice, in the inquiry under Section 5-A of the Act. The petitioners submitted detailed representations; some of them individually, and others collectively. The objections, which are common in all the representations, are on the following lines: a) The lands proposed to be acquired are triple crop fertile lands; b) the lands are low-lying and are unﬁt for house sites; c) the lands are abutting the sea, and houses cannot be constructed, in view of the Coastal Regulatory Zone; d) vast extent of land was acquired in the year 1984 for providing house sites, and not a single house was constructed so far, on the said land; e) the entire village of Uppada, was notiﬁed under G.O.Ms.No.373, as part of petro-chemical corridor, and that an authority under Section 3 of the A.P. Urban Areas (Development) Act was constituted for the area; and f) the procedure prescribed under G.O.Ms.No.19, dated 17-01-2007, for identiﬁcation of the beneﬁciaries was not followed. In addition to the common grounds mentioned above, the petitioners 1 and 2 in W.P.No.21036 of 2008, and petitioner No.3 in W.P.No.21070 of 2008 pleaded that on earlier occasion, an extent of Ac.3.00, cents, each, was acquired from them, and that their remaining lands cannot be subjected to acquisition. The remarks of the Tahsildar are said to have been called for, on the objections submitted by the petitioners. The 4th respondent in turn, submitted his own remarks on 23-08-2008 to the 3rd respondent. On the basis of the same, the latter passed the impugned order dated 30-08-2008. As per the scheme under Section 5-A of the Act, the objections raised by the eﬀected parties are required to be inquired into by the Collector, and a report is to be submitted to the appropriate Government, which issued the notiﬁcation under Section 4(1) of the Act. The latter is required to take the report of the Collector into account and pass an independent order, dealing with the objections. In the instant case, the notiﬁcation, under Section 4(1) was issued by the 3rd respondent, namely, the District Collector, and the inquiry, under Section 5-A was conducted by the 4th respondent, i.e. the Revenue Divisional Officer. A perusal of the impugned order discloses that the objections raised by the land owners, on the one hand, and the remarks oﬀered by the 4th respondent, to the objections, on the other hand, were summed up in a tabular form. After extracting the objections of the petitioners, and remarks of the 4th respondent, the 3rd respondent indicated his conclusion in the following manner: “After considering the objections ﬁled by the land owners and remarks oﬀered by the Land Acquisition Oﬃcer/Revenue Divisional Oﬃcer, Kakinada, on the objections of the land owner, it is construed that there are no valid grounds in the objections. The objections are devoid of merit and hence rejected”. It is not out of place to mention here that this standard paragraph is found place in dozens of similar matters, pertaining to diﬀerent places in the East-Godavari District, and this Court expressed the view that it does not reﬂect the proper exercise of power under Section 5-A of the Act. The 3rd respondent acts as quasi judicial authority, independently, in the context of acquisition of lands. He is under obligation to examine each and every objection independently. Remarks oﬀered by the 4th respondent can, at the most, provide the information vis-à-vis the objection raised by the land owner. Neither the District Collector, nor the R.D.O., can act as adversaries to the land owners. It is true that they have to shoulder the responsibility, to implement the Government policies and schemes. At the same time, they cannot feel as though they are pitted against land owners, as adversaries. A line of distinction needs to be maintained between the two functions. Whatever may have been the justification for the 4th respondent in oﬀering the remarks, the 3rd respondent ought to have acted in an objective, independent and dispassionate manner. The paragraph extracted above, does not reﬂect the proper application of mind, or proper discharge of statutory obligations, on the part of the 3rd respondent. Except that he has summarized the objections, on the one hand, and the remarks on the other, hardly did he apply his mind, or felt the responsibility of ensuring that the rights of the petitioners are protected. It is to be noted that the steps stipulated under Section 5-A of the Act, or the Rules made thereunder, were held to be mandatory by the Supreme Court, in State of Mysore v. V.K. Kangan[1]. Section 5-A of the Act, as it applies to the State of Andhra Pradesh, attaches ﬁnality to the order passed thereunder, before the appropriate Government, and the District Collector, in the instant cases. Therefore, the only alternative for the eﬀected parties is, to agitate their grievance by ﬁling a writ petition. The scope of interference with the proceedings passed under Section 5-A is some-what limited. This Court cannot sit as an Appellate Authority, over the ﬁndings recorded therein. Where, however, it is manifest that the ﬁndings are such that, no reasonable person in the given circumstances can arrive at, Article 14 of the Constitution of India frowns at arbitrariness of any kind. The line separating arbitrary exercise of power, on the one hand, and unreasonable exercise thereof, is very thin. Both of them are antithetical to Rule of Law. It is the duty of this Court to correct such deviations, whenever noticed. It has already been pointed out that hardly there was any application of mind on the part of the 4th respondent. Instances are not lacking, where an order passed by an authority, in exercise of statutory power, was set aside, solely on the ground of non-application of mind. In their representations, the petitioners raised as many as 17 objections. Large number of such objections were not even mentioned in the impugned order dated 30-08-2008. If the Government allots house sites in the land acquired previously, loss can be avoided to the Government exchequer. Leaving the lands belonging to the Government, and proposal to acquire lands from small farmers is not justiﬁable. Some of the objections and the corresponding remarks extracted in the impugned order read as under: OBJECTION REMARK It is a wet land with 3 crops not fit for housing I t is proposed to level the land upto 3 feet on par with road under NREP or other scheme after completion of Land Acquisition process. Hence, it is fit for housing. There is an extent of land Ac.7.50 cts., in previously acquired land in Sy.Nos.38/1, 39/1 and 40/2 of Uppada (V) for house sites. But it is kept vacant and not occupied by beneﬁciaries without construction even single house. Again proposed to acquire their land for house sites is illegal. If the pat t as are given to the rightful beneﬁciaries present acquisition is not needed and less the cost. It is not true that there is a vacant land, but already 221 house site pattas were issued to the ﬁsherman at that time. Notices were issued to the all beneﬁciaries to cancellation of pattas. But 161 beneﬁciaries have accepted and given their consent to construct houses in their allotted land in Phase-III Indiramma programme. Remaining 60 pattas cancel and it will be allotted to other eligible beneﬁciaries in Indiramma Programme. T h e y claim that as per G.O.Ms.No.373 the village is covered under petro corridor. Hence the notice issued by the LAO is not valid. A s per issue of petro chemical corridor concerned due procedure will be followed as per rules in force. The objections raised by the petitioners were not routine in nature. Some of them are based upon the judgment of the Supreme Court, and others are referable to statutory provisions. When the petitioners speciﬁcally pleaded that the lands are within the Coastal Regulatory Zone, the 3rd respondent ought to have examined the matter in a greater detail. Any lapse in this regard, on his part, would result in violation of the directions issued by the Hon’ble Supreme Court, prohibiting constructions within the coastal regulatory zone. Before becoming party to such probable violation, the 3rd respondent ought to have examined the matter objectively. The contention of the petitioners that their lands are fertile and low-lying, was, in fact, admitted by the respondents 3 and 4. In overcoming the said objection, both of them felt as though they are the agencies to construct the houses. The opinion of the concerned agency or the beneﬁciaries, as to the feasibility to construct the houses by ﬁlling the land upto 3 feet, ought to have been taken into account. It is not diﬃcult to imagine, the quantity of material needed to ﬁll vast extent of Ac.16.14 cents of land, by 3 feet, and the cost involved therein. It is not a case where, a fallow waste land is sought to be reclaimed. Before making a fertile three-crop wet land, to an extent of Ac.16.14 cents, to disappear once for all, the 3rd respondent ought to have applied his mind objectively, instead of being carried away by the unscientiﬁc, non-cost effective, and half-baked remarks, offered by the 4th respondent. It is not out of place to mention that East and West Godavari Districts are considered as the rise bowls of the State. Permanent eradication of agriculture on a fairly large extent of land would not only aﬀect the livelihood of the owners, but also the food security to the State, in its own way. One after the other acquisitions of this nature, coupled with those, relating to other purposes, would certainly pose a threat to the food scarcity in the near future. As a matter of fact, the scarcity of the food is already being felt, and the price of rice are not in the reach of a common man. There could have been some justiﬁcation in resorting to acquisition of such fertile land, even by incurring huge expenditure towards the cost of the land, as well as the levelling thereof, if there existed genuine necessity. The complaint of the petitioners that the number of genuine beneﬁciaries in the village is not considerable, virtually remained unanswered. The respondents admitted that vast extents of land acquired in the recent past, for providing house sites, and allotted to beneﬁciaries, is remaining idle, without even a single structure thereon. The fact that the so-called beneﬁciaries did not construct house on the allotted land, even after two decades, would only reﬂect upon the objectivity, indeed, the lack of it; with which, either the beneﬁciaries were selected, or the land was chosen for acquisition. In the recent past, it has become a matter of pride, for various agencies, to proclaim that large number of house sites have been acquired and provided to the beneﬁciaries, without realizing the waste of public money in allotting to the undeserving beneﬁciaries. The lands assigned for agricultural purposes are being resumed to the Government, across the State, on the allegation that agriculture thereon was discontinued. The forms of assignment do contain a clause to the eﬀect that in case the assigned land is not put to the identiﬁed purpose, within the stipulated time, it would be resumed to the Government. It is rather astonishing that the respondents 3 and 4 did not wake up till the petitioners informed that the lands, acquired more than two decades ago, and assigned to beneﬁciaries, were not put to use. What they did, after waking from deep slumber, is some-what peculiar. They have chosen to implore upon the beneﬁciaries to construct houses by promising ﬁnancial aid. They did not choose to verify where the so-called beneﬁciary was living, for the past two decades, and whether he still needs the plot. Resumption of assigned land to the Government is treated as a convenient weapon to be used, only when it subserves the purpose of the concerned authorities. The facts of these writ petitions clearly make out a case for insistence that whenever land is acquired for house sites, the list of beneﬁciaries must be made available to the land owners, along with the notice under Section 5-A of the Act, so that objections, if any can be made. In fact, such steps were directed by this Court, on earlier occasions. The whole episode reﬂects the very sad state of aﬀairs, telling upon the lack of objectivity and fairness, on the part of the respondents 3 and 4. They were not mindful of the burden the exchequer, in the form of the market value for the land proposed to be acquired and ﬁlling up the same to the level of three feet. They did not hesitate to violate the judgment of the Supreme Court, in relation to coastal regulatory zone, instead of utilizing the available vacant Government land. Another serious violation on the part of the respondents is that they have ignored the orders issued by the Government in G.O.Ms.No.373. The remarks oﬀered by the 4th respondent to the objections raised by the petitioners, in this regard, is not only callous, but also reveals the typical bureaucratic approach. The 3rd respondent ought to have bestowed its attention to examine the purport of the G.O., and the merit of the objection raised by the petitioners. Of course, it is too diﬃcult to expect anything more from him, having regard to the manner in which he passed the order. Hence, the writ petitions are allowed, and it is directed that, a) the order dated 30-08-2008, passed by the 3rd respondent, in exercise of the power under Section 5-A of the Act, as well as the consequential declaration, under Section 6 of the Act, published on 09-09-2008, are set aside. b) It shall be the obligation of the District Collector, to furnish the list of beneﬁciaries, along with notice under Section 5-A of the Act, whenever the land of a private individual is acquired, under the Act, for the purpose of house sites. c) The 3rd respondent shall pass fresh orders under Section 5-A of the Act, dealing with every objection raised by the petitioners, including the one, relating to the availability of the land, which has already been acquired, as well as the genuinity of the beneficiaries. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt. 15-10-2008. Note: L.R. copy to be Marked. (B/O) KO* [1] AIR 1975 SC 2190