IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 24250 of 2008 Between: 1 M.V.Subramanyeswara Reddy, S/o. Chinna Venkata Reddy, R/o. Moosasagar, Nandyal Town, Kurnool district. 2 M.Venganala Reddy, S/o. Chinna Venkata Reddy, R/o. Moosasagar, Nandyal Town, Kurnool district. 3 D.Jayarami Reddy, S/o. Chenchu Reddy, R/o. Moosasagar, Nandyal Town, Kurnool district. 4 D.Thimma Reddy, S/o. Chenchu Reddy, R/o. Moosasagar, Nandyal Town, Kurnool district. ..... PETITIONER(S) AND 1 The Revenue Divisional Officer Cum Land Acquisition Officer, Nandyal, Kurnool District. 2 The District Collector, Kurnool. .....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 issue an appropriate Writ, Order or Direction mostly one which is in the nature of a Writ of MANDAMUS declaring the declaration under section 6 of the Act in LR.Rc.No.L.203/06, Dated 30.10.2008 and published in Andhra Jyothi Telugu Daily News Paper dated 31.10.2008, Proposing to acquire the petitioners land in S.No.432, 415 and 430/A of uduamalpuram (V), Nandyal (M), Kurnool District as illegal, irregular, arbitrary unjustifies, unsustainable and set aside the same and pass such other suitable orders. Counsel for the Petitioner:MR.P.VEERA 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.24250 of 2008 ORDER:- On 6-11-2008 this Court made an order that there shall be interim stay of further proceedings for a period of two weeks. On 14-11-2008 at the request of the learned Government Pleader, post on 27-11-2008 in Motion List. Interim stay is extended by two weeks. On 27-11-2008 this Court ordered notice before admission and interim stay granted on 6-11- 2008 was extended by a further period of three weeks. On 20-1-2009 this Court while issuing rule nisi, in W.P.M.P.No.31610/2008 extended the interim order earlier granted until further orders. 2. W.V.M.P.No.2184/2009 is filed to vacate the interim order granted in W.P.M.P.No.31610/2008 dt.6-11-2008 and pass such other suitable orders. 3. When the vacate application came up for hearing, the Counsel on record made a request for the final disposal of the writ petition and hence the writ petition is being disposed of finally. 4. The learned A.G.P. for Land Acquisition produced the records. 5. The writ petition is filed for a Writ of Mandamus declaring the declaration under Section 6 of the Act in Lr.Rc.No.203/2006 dt.30-10- 2008 and published in Andhra Jyothi Telugu Daily Newspaper dt.31-10- 2008 proposing to acquire the petitioners’ land in S.No.432, 415 and 430/A of Udumalpuram (v), Nandyal (M), Kurnool District as illegal, irregular, arbitrary, unjustified, unsustainable and set aside the same and pass such other suitable orders. 6. Sri P.Veera Reddy, the learned Counsel representing the writ petitioner had taken this Court through the contents of affidavit filed in support of the writ petition and the stand taken in the counter affidavit and would maintain that the stand taken by the respondents in the counter affidavit that personal hearing in fact had been given cannot be a sustainable contention especially in the light of the records produced before this Court. The learned Counsel also would point out that the dates of service of notice on the petitioners calling upon the petitioners to attend for the personal hearing at the stage of 5-A enquiry and the other subsequent events since are not reflected from the records, the stand taken in the counter affidavit that abruptly the writ petitioners had left the place at the 5-A enquiry definitely cannot be believed. The learned Counsel also would maintain that in the prior writ petition – W.P.No.2355/2007 since a direction was made directing 1st respondent to hold enquiry under Section 5-A of the Act by giving an opportunity of personal hearing to the petitioners before proceeding further with the proposed acquisition, the same to be complied with. The learned Counsel also pointed out to the proceeding of the Tahsildar and would maintain that in the light of the same it would be a futile exercise to further proceed with the acquisition since these lands are totally unfit for providing house sites and hence the very 4(1) notification also may be quashed in the interest of justice. The learned Counsel had taken this Court through the contents and the observations made by the Tahsildar in this regard. 7. Per contra, the learned A.G.P. for Land Acquisition who had produced the records had pointed out to the series of events and how the writ petitioners are not interested in cooperating with the 5-A enquiry. The learned A.G.P. also pointed out that in fact due personal hearing had been given but the petitioners were not inclined and by abruptly with all reluctance, they left and when that being so, the petitioners cannot contend before this Court that no personal hearing had been given though directions had been given by this Court and thus the stand taken by the writ petitioners cannot hold water. The learned Counsel also would maintain that the purpose for which the proposed acquisition had been thought of being for public purpose and inasmuch as while dismissing the writ petition W.P.No.2355/2007 just an observation was made to the effect that the respondent No.1 to hold enquiry under Section 5-A of the Act by giving an opportunity to the petitioners before proceeding further with the proposed acquisition, the same had been given and hence in the light of the facts and circumstances and also in the light of the records produce before this Court, the writ petition to be dismissed. 8. Heard the Counsel. Perused the records and also the respective stands taken by the parties in the affidavit filed in support of the writ petition and also the counter affidavit as well filed along with the vacate application aforesaid. 9. The relief prayed for in the writ petition already had been specified supra. The case of the petitioners is that they are the absolute owners of the property in question. The details of which had been specified in para 2 of the affidavit filed in support of the writ petition. This fact is not in serious controversy and hence the details need not be further elaborated. It is averred that the 2nd respondent by notification Rc.No.L/203/2006 dt.11-12-2006 which is published in the Kurnool District Gazette dt.27-12- 2006 published a notification under Section 4(1) of the Land Acquisition Act, propsing to acquire the lands in the schedule mentioned therein and situated in Udumulpuram village for providing house sites to the people belonging to the weaker Sections of 13th ward of Nandyal town under Indiramma scheme. The second respondent has also delegated his powers conferred by Section 4(2) of the Act in favour of the first respondent and authorized him to discharge the said functions. As per the schedule, petitioners 1 and 2 lands were proposed for acquisition. Though their names are not mentioned in the schedule, their ancestors name Angali Chinna Venkata Reddy who died in the year 1998 and through whom 1st and 2nd petitioners had inherited the property and the mention of survey numbers mentioned therein would clearly show that their land is proposed for acquisition. Similarly the land of the 3rd petitioner situated in Sy.No.415 to its entire extent is proposed for acquisition. The land of the 4th petitioner situated in Sy.No.415 and432 also proposed for acquisition. Even though the extent to be taken up in the acquisition is mentioned as Arable (fit for ploughing) since all their lands are totally fit for cultivation without boulders or ditches, the proposals are to take their entire land. It is further stated that in para 4 of the affidavit filed in support of the writ petition that questioning the said notification, the petitioners filed W.P.No.2355/2007 before this Court and that this Court initially granted stay by an order dt.28-1-2008 and disposed of the writ petition directing respondent No.1 to conduct enquiry under Section 5-A of the Land Acquisition Act by giving an opportunity of personal hearing to the petitioners. Consequent to the said order, in addition to the objections already filed, the petitioners submitted objections again on 24-3-2008. As the personal opportunity of hearing was not given to them, the petitioners submitted another representation on 1-11-2008 specifically requesting to give them an opportunity of hearing. But without providing any such opportunity and without considering the objections submitted by the petitioners, the 1st respondent published the declaration under Section 6 of the Land Acquisition Act through notification in Lr.Rc.No.L.203/2006, dt.30-1-2008 and published in Andhra Jyothi, Telugu Daily News Paper. The said action is being challenged in the present writ petition. It is also stated that the petitioners came to know that the Tahsildar,Nandyal through Lr.RCB.878/06, dt.10-1-2008 informed the 1st respondent that the lands proposed for acquisition or adjacent to Kundu river and that in the recent floods came in June, 2007 and August, 2007 the proposed lands were totally inundated with water to a height 5 to 6 feet over the lands. Therefore, the Tahsildar suggested that those lands are not suitable for construction of houses and therefore the notification issued may be withdrawn. A copy of the said letter was also marked to the 2nd respondent. Petitioners 1 and 2 got issued a legal notice dt.25-9- 2008 to both the respondents requesting the withdrawal of the notification. The respondents had received the said notice on 7-10-2008 as per the acknowledgments received by the petitioners. Without considering the letter of the Tahsildar and also the legal notice, now the declaration under Section 6 of the Act had been published. Therefore it is stated that the same being illegal, it is liable to be set aside. Further stand had been taken that the declaration was published by the respondents in violation of the order passed by this Court on 28-10-2008 in writ petition No.2355/2007 and the non-consideration of the objections and non- providing of the personal hearing being contrary to the direction issued in the aforesaid writ petition, the further proceedings also cannot be sustained. Further it is stated that the petitioners are small farmers and except the lands proposed for acquisition, the petitioners do not have any other lands and these lands are double crop wet lands. Further it is averred that the notification does not give full particulars of the land and the land owners in the schedule. The extent proposed to be taken is merely mentioned as Arable. Therefore the notification itself is defective and as such the notification is unsustainable. It is further stated that there are number of commercial establishments, factories, godowns, showrooms etc., are situated on either side of the road near petitioners’ lands. Therefore the lands became commercial potential. The Government can propose acquisition for house sites in residential localities instead of locating the colonies in busy commercial areas. It is further stated that there are several other alternative lands belonging to the Government, which can be utilized for house site purposes. In fact an extent of 200 acres is already acquired for providing house sites to houseless poor persons. The total land is in a single block. Most of the plots laid therein are still lying vacant without any allotment. The respondents can exhaust such vacant plots before proceeding to acquire fresh lands. When the lands that are already acquired are not fully utilized, there is absolutely no valid reason or justification for proposing to acquire the new lands. The Government would be unnecessarily wasting the money from the public exchequer. Therefore the proposed notification is totally irrational and unsustainable. Further that land wherein house sites plots are already laid in situated at a more suitable locality for residential purposes and lying in hygienic places at higher level. The proposed lands are low-lying and not suitable for residential purposes. Further it is averred in para 11 that the competent authority prescribed under the provisions of A.P.Agricultural lands (conversion into non- agricultural lands) Act 2006 is the same authority who is the Land Acquisition Officer under the provisions of the Land Acquisition Act. Therefore the same authority exercise two different powers and two different Acts, one is the Act of the Union of India and the other is of the A.P.State. But the fact remains is that being the very same authority he cannot take a decision contrary to the proposal for acquisition of the land. He will not be in a position to independently apply his mind dehorse the proposal for Land Acquisition. Therefore any decision for conversion of agricultural land into non-agricultural land would be clouded with non- application mind. In such circumstances, it is stated that left with no other option, the petitioners approached this Court by filing the present writ petition. 10. In the counter affidavit filed by the respondents sworn to by the Revenue Divisional Officer-Land Acquisition Officer, Nandyal Division, Kurnool District, several of the averments had been specifically denied. The specific stand taken in the counter affidavit is 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. The housing is one of the programmes identified under 'Indiramma Programme' to meet the total demand and to achieve the object of providing of permanent houses to all under 'Indiramma Programme'. The nearby areas of Udumalpuram cross roads and 13 wards of Nandyal town are selected as a model and Adarsha village/town areas under 'Indiramma Programme'. On verification, it is found that 1317 families of the above areas are not having even own houses or house sites for construction of residential houses to them and the beneficiaries have been selected duly conducting Gram Sabha in the wards of the Nandyal town. As there are no suitable Government lands or private patta lands available in the above areas, the Revenue Divisional Officer, Nandyal along with the Tahsildar, Mandal Surveyor, Nandyal Mandal and Village Revenue Officer of Udumalpuram village has inspected the lands in Udumalpuram village, which is adjacent village to the above areas. They found that the land to an extent of Ac.16-64 cents in the following lands of Udumalpuram village are adjacent to the above Indiramma wards and area of the Nandyal town and it is very much suitable for acquisition. Sy.No. Extent A.C. 415/1 1-25 415/3 2-06 419A/1 0-23 429A/1 1-42 429/B 0-95 430A/1 0-44 430A/3 1-15 430B/2 1-91 432/1 7-06 432/2 0-17 Total 16-64 There are no structures and trees in the said lands. Accordingly, the Tahsildar, Nandyal Mandal has submitted the Land Acquisition proposals of Draft Notification under Section 4(1) of the Land Acquisition Act to the Revenue Divisional Officer, Nandyal vide his letter dt.23-11-2006. After due scrutiny of the proposals, the Revenue Divisional Officer, Nandyal, has submitted the said proposals to the District Collector, Kurnool District for approval, vide his letter dt.5-12-2006. The District Collector has approved the Draft Notification under Section 4(1) of the Land Acquisition Act on 11-12-2006. The Draft Notification has been published in the District Gazette, two Daily News Papers and locality, as required under the Land Acquisition Act as follows:- Sl.No. Mode of Publication Date of publication of Draft Notification 1. Kurnool District Gazette 27-12-2006 2. Andhra Jyothi Daily News Paper 31-12-2006 3. Praja Sakthi Daily News Paper 3-1-2007 4. Substance in the locality 10-1-2007 Thereafter, notices under Section 5-A of the Land Acquisition Act in Form- 3 have been issued to the land owners and interested persons including the petitioners on 28-12-2006, asking them to attend the 5-A enquiry before the Land Acquisition Officer on 28-1-2007 and to file objections, if any, for acquisition. At this stage, the following individuals without waiting for the decision to be taken under Section 5-A of the Land Acquisition Act have approached this Court and filed the writ petition and also obtained interim order in W.P.M.P.No.3005/2007 in W.P.No.2355/2007 dt.12-2- 2007. In view of the interim order, granted by this Court, the respondents could not process further. 1. Deereddy Thimma Reddy, S/o.Chenchi Reddy 2. Deereddy Jayarami Reddy, S/o.Narayana Reddy 3. Medam Subramanyeswara Reddy, S/o.Angati Chinna Venkata Reddy 4. Medam Vengala Reddy, S/o. Angati Chinna Venkata Reddy 5. Deereddy Venkgamma, W/o. Angati Chinna Venkata Reddy On 28-1-2008, this Court dismissed the writ petition and directed the Revenue Divisional Officer, Nandyal to hold enquiry under Section 5-A of the Land Acquisition Act. Pursuant to the orders of this Court, notice under Section 5-A of the Act has been issued to the petitioners and on receipt of the same, four petitioners have filed objection petitions separately before the Land Acquisition Officer & Revenue Divisional Officer, Nandyal. All the petitions are similar in letter, objecting the land acquisition proceedings. In the petitions, they have stated that the lands, proposed for acquisition were submerged during the floods in the nearby River Kundu, occurred due to heavy rains, received during the month of June, 2006 and as such the lands are not suitable for providing house sites to the beneficiaries. They have further stated that neared to these lands, Nandi Milk Dairy and also Nandi Agro Products Factories are located and this area is not hygienic. On 3-5-2005, the above petitioners have appeared before the Land Acquisition Officer. During the personal hearing, the Land Acquisition Officer and Revenue Divisional Officer has informed the petitioners that the Government in their G.O.Ms.No.44 dated 12-3-2008 has accorded administrative approval for Nandyal Flood Protecting Works on Chamakalva, Maddileri, River Kundu etc., for Rs.97.51 Crores and the Chief Engineer (Projects), Kurnool has also accorded technical sanction for six package works and agencies for execution are also fixed. It is also further informed that the Government is taking steps to construct protecting walls along both sides of River Kundu and to deepen the river by excavation of the river-bottom (in Nandyal town) so that all the low-lying areas in Nandyal town do not become submergible and moreover, the inundation of the lands is not at all the concern of the landowners, as it is the concern of the Government and as well the beneficiaries. It is also further informed that the proposed lands are nearly 1 K.M. far away from the Factories and no unhygienic conditions are prevailing in and around the proposed lands and the Government will also certainly take such necessary safeguard steps, which shall be warranting to improve the hygienic conditions to protect the dwellers in the proposed lands. Moreover, the beneficiaries are also requesting to have Indiramma Housing Scheme in the proposed lands of petitioners. But, the petitioners have insisted on the Land Acquisition Officer not to acquire their lands, as the prevailing market value of the lands, within the vicinity of the lands, under acquisition is ranging from Rs.50,00,000/- to Rs.60,00,000/- per acre and thus the Government cannot pay land compensation amount accordingly. But, the petitioners failed either produce or adduce any documentary evidence in support of their claim for fixing up the market value, as they claimed. It is also informed to them that they have remedy under Section 18 of the Land Acquisition Act, under which they can receive the land compensation amount under protest and file a petition, requesting the Land Acquisition Officer to refer their case to the Civil Court for adjudication of the market value of the lands under acquisition. But, the petitioners have chosen the stand, requesting the Land Acquisition Officer not to proceed with the acquisition of the lands and abruptly went away from the enquiry with resentment. Thus the proceedings, in which the personal hearing of the petitioners in this case as per this Court order took place on 3-5-2008. In view of the above facts and circumstances, the Collector, Kurnool in the Collector’s proceedings No.Rc.L.203/2008, dt. 28-10-2008, has rejected the objections of the petitioners. Consequently, the Draft Declaration under Section 6 of the Act has been approved in Kurnool Collector’s proceedings Rc.L.203/2008, dt.28-10-2008. The Draft Declaration has been published in the District Gazette, two daily News Papers and locality, as required under the Land Acquisition Act as follows:- Sl.No. Mode of Publication Date of Publication of Draft Notification 1. Kurnool District Gazette 29-10-2008 2. Andhra Jyothi, Telugu Daily News Paper 31-10-2008 3. Prajasakthi, Daily News Paper 04-11-2008 4. Substance in the locality 14-11-2008 At this stage, the present writ petition has been filed and on 14-11-2008, this Court has granted interim stay. It is further averred that after issuing notice under Sections 9(1) and 10 and 9(3) and 10 of the Land Acquisition Act, Award enquiry has to be conducted during which actual owners of the acquired lands would be determined. The claim of the holdings of the acquired lands by the petitioners at this stage may not arise. In para 5 of the counter affidavit specifically it is stated that pursuant to the order made by the High Court, notice under Section 5-A of the Act had been issued to the petitioners and on receipt of the same, four petitioners have filed objection petitions separately before the Land Acquisition Officer & Revenue Divisional Officer, Nandyal. All these petitions are similar in nature objecting to the Land Acquisition proceedings. They had stated that the lands proposed for acquisition were submerged during the floods in the nearby River Kundu, occurred due to heavy rains, received during the month of June, 2006 and as such the lands are not suitable for providing house sites to the beneficiaries. It is further stated that nearer to these lands, Nandi Milk Dairy and also Nandi Agro Products are located and this area is not hygienic. Further it was averred in para 5 of the counter affidavit that on 3-5-2008, the petitioners appeared before the Land Acquisition Officer. During the personal hearing, the Land Acquisition Officer and Revenue Divisional Officer informed the petitioners that the Government in their G.O.Ms.No.44, dt.12-3-2008 has accorded administrative approval for Nandyal Flood Protecting Works on Chamakalva, Maddileri, River Kundu etc., for Rs.97.51 crores and the Chief Engineer (Projects), Kurnool has also accorded technical sanction for six package works and agencies for execution and the same had been fixed. It is also further informed that the Government is taking steps to construct protective walls along both sides of River Kundu and to deepen the river by excavation of the river-bottom (in Nandyal town) so that all the low-lying areas in Nandyal town do not become submergible and more over, the inundation of the lands is not at all the concern of the landowners, as it is concerned with the Government as well as the beneficiaries. It was also further informed that the proposed lands are nearby 1 K.M. far away from the Factories and no unhygienic conditions are prevailing in and around the proposed lands and the Government will also certainly take such necessary safeguard steps, which shall be warranting to improve the hygienic conditions to protect the dwellers in the proposed lands. Moreover, the beneficiaries are also requesting to have Indiramma Housing Scheme in the proposed lands of petitioners. But, the petitioner have insisted on the Land Acquisition Officer not to acquire their lands, as the prevailing market value of the lands, within the vicinity of the lands, under acquisition is ranging from Rs.50 lakhs to Rs.60 lakhs per acre and thus the Government cannot pay the land compensation amount accordingly. But, however, the petitioners failed either produce or adduce any documentary evidence in support of their claim for fixing up the market value, as they claimed. It is also further informed to them that they have remedy under Section 18 of the Land Acquisition Act, under which they can receive the land compensation amount under protest and file a petition, requesting the Land Acquisition Officer to refer their case to the Civil Court for adjudication of the market value of the lands, under acquisition. But, the petitioner had chosen the stand, requesting the Land Acquisition Officer not to proceed with the acquisition of the lands and abruptly went away from the enquiry