IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) Writ Petition No.8845 of 1999 Between: 1. Khadir Vali, S/o Chinna Hattu Sab, aged 55 years 2. H.Allabaksh, S/o Pedda Khader Vali, aged 35 years Both are residents of Kutagulla Village, Karidi Mandal, Ananthapur District …Petitioners AND 1. The District Collector, Ananthapur 2. The Revenue Divisional Officer, Penukonda, Ananthapur Dist., 3. The Mandal Revenue Officer, Kadiri Madal, Anantapur Dist. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO Writ Petition No.8845 of 1999 ORDER: A short, but significant question of considerable importance in relation to land acquisition would arise for consideration in this writ petition filed by two marginal farmers of a remote village in Anantapur District of Andhra Pradesh. Two petitioners (during long pendency of writ petition, providence has taken away the second petitioner and his Legal Representatives are on record) are allegedly owners of land admeasuring Acs.6.13 cents in Survey No.407-2 of Kutagulla village of Kadiri Mandal in Anantapur District. Land is proposed for acquisition by first respondent for public purpose for providing house sites to persons belonging to weaker sections. Having came to know about same whose publication was published in Eenadu daily dated 25.01.1999, petitioners approached this Court seeking invalidation of land acquisition proceedings, especially, notification issued under Section 4(1) of the Land Acquisition Act, 1894 (‘the Act’ for brevity) as well as declaration made by first respondent under Section 6 of the Act. They primarily challenged acquisition proceedings on the ground that invocation of urgency clause under Section 17(4) of the Act is arbitrary and illegal and that District Collector is not competent to invoke urgency clause, dispensing with enquiry contemplated under Section 5-A of the Act. Respondent filed counter affidavit inter alia stating that enquiry under Section 5-A of the Act was not dispensed with, and as such, enquiry was conducted and that thereafter considering report, District Collector made declaration under Section 6 of the Act. There are other contentions also raised but a reference to them is not necessary in view of short question involved in matter. Submission of learned counsel for petitioner is that even though enquiry is conducted under Section 5-A of the Act, District Collector could not have approved declaration under Section 6 of the Act, before expiry of 30 days, which is the minimum time for causing public notice under Section 5-A of the Act proposing to conduct enquiry. Reliance is also placed on certain observations made by Supreme Court in Union of India v Kishan Lal Arneja[1] and Hindustan Petroleum Corporation Limited v Darius Shapur Chenai[2]. In view of controversy raised, this Court directed learned Government Pleader for Land Acquisition to place the file before this Court. Accordingly, file from the office of the Mandal Revenue Officer, Kadiri has been placed before this Court. A perusal of file would reveal the following. Third respondent initiated proposals by sending a letter dated 06.01.1998 to second respondent. In his letter, he informed that land in Survey No.407-2 admeasuring Acs.6.87 cents is proposed for acquisition, as there is no Government land available in Kutagulla village. Along with letter, third respondent enclosed a proposal as well as inspection report and draft notification under Section 4(1) of the Act. Same was approved by District Collector on 18.01.1999 and said notification under Section 4(1) of the Act was published in District Gazette, Anantapur dated 22.01.1999. Notification was published in the locality on 27.01.1999. It was published in two newspapers on 30.01.1999. Enquiry under Section 5-A of the Act was not dispensed with and second respondent was appointed as authority to conduct enquiry thereunder. A copy of notice issued by Revenue Divisional Officer, proposing to conduct enquiry, is however not available in file. The orders of the District Collector, who approved declaration under Section 6 of the Act, was communicated to second respondent vide proceedings No. R.C.G.3/9324/98 dated 15.02.1999. The Gazette notification, in relation to declaration under Section 6 of the Act dated 23.02.1999 was published in news papers on 23.02.1999. The file, however, does not contain report of Revenue Divisional Officer after conducting enquiry under Section 5-A of the Act. From the narration in preceding paragraph, two things would emerge. It is doubtful whether Revenue Divisional Officer issued notice in Form No.3 for conducting enquiry as contemplated under Section 5-A of the Act and it is also doubtful whether Revenue Divisional Officer sent a report to enable competent authority to arrive at a satisfaction as to whether land proposed is needed for the purpose of construction of dwelling houses before making declaration. However, it is certain that District Collector approved declaration under Section 6 of the Act on 15.02.1999, even though notification under Section 4(1) of the Act was published on 30.01.1999. Thus, District Collector approved declaration even before the expiry of 30 days, which is the time granted under Section 5-A of the Act. The said provision reads as under. Section 5. A Hearing of objections: (1) Any person interested in any land which has been notified under Section 4, Sub-Section (1), as being needed or likely to be needed for a public purpose or for a company may, [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard [in person or by any person authorized by him in his behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under Section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the [appropriate Government] on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation, if the land were acquired under this Act]. (emphasis supplied) Section 5-A of the Act gives a valuable right to every person interested in land to object acquisition and such objections are to be raised within 30 days. Wherever an enquiry under Section 5-A is not dispensed with, competent authority (in the State of Andhra Pradesh) is required to serve notices on persons interested in Form No.3, which reads as under. FORM – 3 Notice under Section 5-A of the Land Acquisition Act 1 of 1894, as amended by the Land Acquisition Amendment Act XXXVIII of 1923. Notice is hereby given that the land specified in the appended schedule and situated in the village of ………….. in the taluk of …………. in the district of ……………….. is needed or is likelyto be needed for a public purpose, to wit, for ……………….. in accordance with the notification under Section 4(1) of the Land Acquisition Act 1 of 1894 as amended by the Land Acquisition (Amendment) Act XXXVIII of 1923, published by Government at page ….. of Part I of the Andhra Pradesh Gazette, dated …………… All persons interested in the land/you are accordingly required to lodge before the ………………. Within 30/15 days from the date of publication of the above notification / service of this notice a statement in writing of their/your objections, if any, to the acquisition of the said land. Any objection statement which is received after due date ……… which does not clearly explain the nature of sender’s/your interest in the land is liable to be summarily rejected. Objections received within the due date, if any, will be enquired into on…….. at……… When the objector/you will be at liberty to appear in person or by pleader and to adduce any oral or documentary evidence in support of their/your objections. Even as per notice in Form No.3, every person interested is given 30 days time from the date of publication of notification under Section 4(1) of the Act to file statement of objections in writing raising his objection. Therefore, before expiry of 30 days time from the date of publication of notification under Section 4(1) of the Act, District Collector could not have approved declaration. That under Section 5-A of the Act confers a valuable right to raise objections is well settled. I n Kishan Lal Arneja (supra), Supreme Court considered scope of power of competent authority under Section 17(1) and 4 of the Act to invoke emergency provisions to dispense with enquiry under Section 5-A of the Act and proceed with acquisition. Explaining the importance of enquiry under Section 5-A of the Act, Supreme Court observed as follows. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5A of the Act in exceptional case of urgency. Such powers cannot be lightly restored to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen’s property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority, while applying the urgency clause, the State should indeed act with due care and responsibility. In Hindustan Petroleum Corporation Limited (supra), the Supreme Court reiterated the importance of Section 5-A of the Act. It was observed that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300 A of the Constitution of India, it was held as follows. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the Court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statue, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non- compliance of the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-Section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision meaning process itself is in question, the power of judicial review can be exercised by the Court in the event the order impugned suffers from well-known principles, viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner…..It is true that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regard the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300 A of the Constitution of India has been held to be akin to a fundamental right. From the two authorities referred to above, it may be taken as well settled that Section 5-A of the Act confers a valuable right on owner of land to raise objections and an opportunity given to such person must be effective one and not a mere formality. Owner of land must not be deprived of a fair and just opportunity to put-forth his objection for due consideration of acquiring authority. Therefore, whenever enquiry under Section 5-A of the Act is not dispensed with and such power is delegated to officer like Revenue Divisional Officer, such officer must give effective and reasonable opportunity to owner of land by filing objection within 30 days and hear such person on objections raised by him. It is only after completing such enquiry that Revenue Divisional Officer must send a report to District Collector to enable latter to arrive at a satisfaction before approving declaration. If declaration is approved even before expiry of 30 days time contemplated under Section 5-A of the Act as well as in notice in Form No.3, it would amount to depriving the owner of land, a valuable right to raise objections. This would render a declaration made under Section 6 of the Act, invalid. In this case, there is no dispute – nor it can be disputed – that District Collector approved declaration on 15.02.1999, even before expiry of 30 days time as contemplated under Section 5-A of the Act and therefore, said declaration must suffer invalidation. Accordingly, declaration made under Section 6 of the Act and published in District Gazette, Anantapur on 23.02.1999 is declared as invalid and ineffective. It shall, however, be open to first respondent to see that enquiry contemplated under Section 5-A of the Act is completed and issue a declaration under Section 6 of the Act, if so advised, as per law. The writ petition, for the above reasons, is accordingly dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) August 19, 2009. Bvv Note: LR Copy be marked. (B/o) Bvv [1] AIR 2004 SC 3582 [2] AIR 2005 SC 3520(1)