THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.18310 of 2009 November, 2009 Between :- Guntaka Radhakrishna Reddy and others .. Petitioners And The State of Andhra Pradesh, Department of Revenue (Land Acquisition), Rep.by the District Collector, Krishna District, Machilipatnam And others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.18310 of 2009 ORDER:- This Court ordered notice before admission on 7-9-2009. 2. In W.P.M.P.No.25832 of 2009, respondents 3 to 38 were brought on record. 3. Counter affidavits had been filed. 4. Heard Sri Sai Gangadhar Chamarthy, the learned Counsel representing writ petitioners and Sri N.Rajeshwar Rao and the learned A.G.P. for Land Acquisition representing respondents. 5. The Writ Petition is filed for a Writ of Mandamus declaring 1st respondent’s proceedings bearing R.C.G2/1980/2008, dt.12-8-2009 rejecting the objections of the petitioners for acquisition of land in R.S.Nos.665/petitioner, 700/1p, 716/petitioner, 733/1ap and 736/5p in Nunna village of Krishna District under Notification bearing Rc.No.G2/1980/08, dt.31-1- 2009 as arbitrary, illegal, capricious and malafide and consequently set aside the same and pass such other suitable orders. 6. The specific case of the writ petitioners is that they are small farmers and they are dependent on the agricultural. It is also stated that the 1st petitioner is having an extent of Ac.-.68 cents in R.S.No.752/3p & 7p, 2nd petitioner is having an extent of Ac.0.55 cents in R.S.No.733/1ap, 3rd petitioner is having an extent of Ac.0.29 cents in R.S.No.733/1ap, 4th petitioner is having an extent of Ac.0.18 cents in R.S.No.736/5p, 5th petitioner is having an extent of Ac.0.11 cents in R.S.No.700/1p and 6th petitioner is having an extent of Ac.0.38 cents in R.S.No.665/5p. 7. It is also stated that in view of the impugned actions of the respondents herein with regard to the laying of the by-pass road for Nunna village from 10/6 to 16 K.M. connecting Vijayawada – Nuzvidu Road with the alignment No.1 and issuing G.O.Rt.No.191, Transport, Roads and Buildings, Road (VI) Department, dt.22-3-2007 issued by the Government of Andhra Pradesh, R&B Department vide memo No.5936/R VI(2)/2007-4 dt.6-8-2007 in consequence of the G.O. referred supra, which is violative of fundamental rights guaranteed under Constitution. 8. Further it is stated that the Nunna village is 11 K.M. away from Vijayawada city and the people mainly depended on the cultivation of their small extents of agricultural lands. Due to the recent Government policies in developing the townships, Urban Development Authority (VGTM.UDA) has made survey in the greenery fields of Nunna village with an intention to acquire lands for developing the township besides that under Ambhapuram township, they were subjected to loose some more greenery lands from which they have strongly made agitation and due to their agitation for the time being, the proposals were kept abeyance. Apart from that, previously also the Power Grid Corporation of India (NTPC) has already acquired the huge extent of the greenery land, which is very nearer to the irrigation canlal. At this juncture, once again the R&B is planning to acquire an extent of Ac.39.61 cents, most of fertile land, besides that Urban Developing Authority already proposed another bypass road under Zonal development plan, which links to NH.9 and 5 and approved by the Government of Andhra Pradesh as per the Zonal Development Plan and at this juncture, the petitioners made an agitation by representing their grievance to the District Heads of the Government and as well as R&B Department for which a meeting was convened on 19- 5-2007 by reviewing the proposed bypass road and on considering representation submitted by villagers in the presence of Vice-Chairman V.G.T.M.U.D.A., Executive Engineer, R&B Division, Planning Officer V.G.T.M.U.D.A., Deputy R&B Engineer, which was presided over by the District Collector and Executive Magistrate and they decided the alignment proposed by the V.G.T.M.U.D.A. is the best one and to follow the bypass road as it was already approved by the Government as per the Zonal Development Plan and further it was observed that if the new alignment as per the R&B Department was adopted, further it will lead to additional influence of the local people and politicians, the Government approved a new alignment proposed by the R&B Department by neglecting the recommendations and the reviews held on 19-5-2007 and over looking the Zonal Development Plan approved by the by the Government of Andhra Pradesh in December, 2006. 9. It is also further averred that if R&B follow the alignment of bypass road through the V.G.T.M.U.D.A. under Zonal Development Plan, the estimate cost is come to very low than 10.50 crores and the acquisition 2.376 KMs., length instead of 2.376 KMs, that is as per the U.D.A. proposals KM.1.263 road was already formed and 1.113 KM, is donka for which acquisition proceedings to 2.376KM, is sufficient and further submitted that the laying of the bypass road not so much necessary as vehicular running is very low. 10. It is also averred that the intended bypass road by the R&B Department connecting NH 5 and 9 touching the Nunna village in between vjd – Nuzvidu road within the circumference of the V.G.T.M.U.D.A. limits under Zonal Development Plan. And it is further stated that within the ZDP the sole responsibility of any development and the laying of the roads etc., for the benefit of the public is purely administrative and vested the powers under Urban Developing Authority under the provisions of the A.P.URBAN AREA (DEVELOPMENT) ACT, 1975. 11. Further it is stated that the proposed Zonal Development Plan will prevail over the proposals of the R&B Department, if the bypass alignment as proposed and approved by the Government of Andhra Pradesh under Zonal Development Plan of the V.G.T.M.U.D.A., December, 2006, the acquisition of the land does not arise and as such the payment of the compensation also does not arise for the R&B Department that is respondent No.1 and the estimated project cost will be comes down, if the R&B Department accepts the alignment proposed by the V.G.T.M.U.D.A. in toto. It is further stated that aggrieved by the notification, the petitioners objected the land acquisition by filing second S.A.L.A. proceedings and to lay the road as per the Zonal Development Plan. 12. It is further stated that the 1st respondent herein on erroneous consideration of the petitioners’ objections, rejected the objections vide impugned proceedings bearing Rc.No.G2/1980/2008 dt.12-8-2009 and recommended the Government to lay the road as per the proposals made by the R&B Department contrary to the Zonal Development Plan, which is an arbitrary, illegal and capricious and mala fide and beyond the powers of the respondent No.1. 13. Several other further facts also had been narrated in paras 11, 12, 13, 14 and 15 of the affidavit filed in support of the writ petition as well. 14. In the counter affidavit filed by the 2nd respondent specific stand had been taken that the Writ Petition is not maintainable. The petitioners have already filed W.P.No.23985/2007 questioning the G.O.Rt.No.191, Transport, Road and Buildings (R-VI) Department, dt.23-2-2007 under the Government of Andhra Pradesh had granted administrative sanction for the formation of bypass road at Nunna village which is the subject matter in this Writ Petition also. The said Writ Petition was dismissed by this Court on 2-9-2008. The order in W.P.No.23985/2007 dt.2-9-2008 operates as ‘resjudicata’ and this Writ Petition is not maintainable and liable to be dismissed. Further, the petitioners suppressed the fact of dismissal of W.P.No.23985/2007 in this Writ Petition. Therefore, the Writ Petition is liable to be dismissed on the ground of suppression of material facts. 15. Further it is stated that the Executive Engineer, R&B Dvision, Vijayawada, is the Requisition Department for the said acquisition. The alignment of the road submitted by the R&B Department was approved by the Government of Andhra Pradesh, Hyderabad, vide memo No.5936/R.VI(2)/2007-4 dt.6- 8-2007. The administrative sanction for the formation of the said bypass road was given by the Transport, Road and Buildings (R-VI) Department, Government of Andhra Pradesh, vide G.O.Rt.No.191, dt.23-7-2007. An amount of Rs.2,56,00,000/- towards the cost of the said acquisition was deposited with the Land Acquisition Officer & Sub-Collector, Vijayawada. A total extent of Ac.36-57 cents in R.S.No.297, 751 etc., in the village of Nunna, Vijayawada Rural Mandal, was proposed for formation of bypass road from KM.10.600 to 16.000 Vijayawada to Nuzvid. 16. Out of the total extent, an extent of Ac.1-82 cents in R.S.No.751/1 etc., of Nunna village is surplus land resumed under the ULC Act, 1976 and kept under the control of Tahasildar, Vijayawada RuralMandal. The same will be alienated to R&B Department in due process. The remaining extent of Ac.34-75 cents is a private land and Draft Notification for the same is proposed by the Land Acquisition Officer & Sub- Collector, Vijayawada vide Rc.No.(B1)B2/76/08, dt.23-1-2009 and the same was approved by the Collector, Krishna, vide Rc.No.G2/1980/2008, dt.31-1-2009. The substance of Draft Notification under Section 4(1) of the Act was published in the Andhra Pradesh State Extraordinary Gazette issue No.05/2009, dt.3-2-2009, Andhra Jyothi & Pledge on 9-2-2009 and locality publication was done on 8-2-2009. 17. It is also stated that no objections were received within the stipulated period of 30 days from the last date of publication of the Draft Notification. Form-III notices under Section 5-A of the Act were issued requesting the land owners/interested persons to appear before the Land Acquisition Officer & Sub- Collector, Vijayawada, on 12-3-2009 and file objections, if any. Accordingly, the landholders/interested persons attended the said enquiry under Section 5-A of the Act and filed objections on 23-3-2009. The objections and the reports thereon were submitted by the Sub-Collector, Vijayawada, vide Rc.No. (B1)B2/76/08, dt.26-5-2009, to the Collector, Krishna, for his consideration and passing of orders. A report on the objections under Section 5-A enquiry had also been submitted to the Collector, Krishna. The orders under Section 5-A (2) of the Land Acquisition Act issued by the Collector, Krishna, vide Rc.No.G2/1980/2008, dt.12-8-2009, by overruling the objections raised by the landholders/interested persons. 18. The orders under Section 5-A (2) of the Act had been forwarded to the Tahasildar, Vijayawada, for service on the objections and accordingly they were served. The Draft Declaration proposals vide Rc.No.(B1)B2/76/08, dt.28-7-2009 had already been sent to the Collector, Krishna for approval. While matters stood thus, the petitioners filed this Writ Petition. 19. It is also further averred that the objections were filed by the landholders/interested persons only when called for, but not on their own. This Writ Petition is the 4th one in sequence. W.P.No.23985/2007 was dismissed by this Court on 2-9-2008, while the other two Writ Petitions – W.P.No.27229/2007 and 3255/2009 are pending before this Court for adjudication. The petitioner filed all the above Writ Petitions with almost same grounds/contentions raised in this Writ Petition. 20. It is also stated that the petitioners’ families possess more lands as shown against their names hereunder except Sl.No.6. Sl.No. Name of the Ryot R.S.No. Extent 1. Guntaka Radha Krishna 340/118 341/11 640/a\1A 642/1 642/3 752/3 1.00 0.25 1.06 0.15 0.50 0.80 3.76 2. Avuthu Babu Reddy 737/1A 85/1 840/3 840/4A 1.32 6.60 2.84 2.65 13.41 3. Bhimavarapu Srinivasa Reddy 769/1 716/1 772/2B 290/2 1.85 2.65 1.03 4.18 9.70 4. Yarkareddy Appireddy 825/3A 1.67 5. Yarkareddy Anjireddy 628/3 0.27 6. Bhimavarapu Lava Reddy 665/5P 0.38 As seen from the Draft Notification proposals notified, one Sri Bhimavarapu Lava Reddy was not notified as either pattadar or enjoyer as his name did not find place in Revenue Records. In R.S.No.665/5P, an extent of Ac.0.54 cents was notified for acquisition with the names of Kolaprolu Krishna Reddy, Kolaprolu Koti Reddy, Kolaprolu Sanjeeva Reddy as pattadars and enjoyers. However, the title, if any, has to be proved during Award enquiry. It is alsot to mention that only such extent which is required for formation of the said bypass road is being acquired and not the entire extent that is possessed and enjoyed by the landholders. Land belonging to a total number of 111 farmers is being acquired to cover the approximate 6 KM length bypass road from KM 10.600 to 16.000 from Vijayawada to Nuzvid. However, out of 111 only 6 landholders/petitioners are repeatedly objecting the acquisition and project. Many of the landholders/interested persons gave consent to the acquisition during Section 5-A enquiry conducted on 12-3- 2009. 20. It is further stated that the bypass road proposal had been pending with the R&B Department way back from the year 1998. In pursuance of the representations made by the Sarpanch of Nunna village, stating that the existing record passing through the village is being blocked due to heavy vehicular traffic because of the mango market yard situated at Nunna village which is one of the Asia’s biggest mango markets. The R&B Department had examined the issued for the formation of the bypass road to avoid the traffic passing through the village. Basing on the report submitted by the Executive Engineer, Superintending Engineer and Engineer-in- chief, R&B Department, the Government of Andhra Pradesh, had issued proceedings in the year 2000 vide Draft Notification No.16077/A3, dt.3-10-2000, granting administrative sanction for formation of bypass road to private agencies under Built Operate Transfer (BOT) Scheme. As per the proposals made by the R&B Department the alignment was fixed from KM 10- 600 to KM 16-000 of vjd-Nuzvid of Krishna District. In pursuance of said notification issued by the Government of Andhra Pradesh under the BOT Scheme the same could not be taken up as no bidders have come forward and the same had been renotified in the year 2003 under the BOT scheme again and only two tenders had come and the same were rejected as the terms offered by them were not in accordance with the scheme. Subsequently, several representations were received by the Department for construction of bypass road forthwith as there is slot of congestion in the village especially during the mango season i.e., in April to June as the number of vehicles flowing through the village road had to be stalled for days together for loading and unloading at Market-yard and in view of the said representations received from the villagers of Nunna and from other organizations, it had been proposed to form the bypass road and administrative sanction for the same was granted vide G.O.Rt.No.191 Transport, Road and Buildings (R- VI) Department, dt.23-2-2007 with Rs.10-50 Crores as estimated cost and sanctioned accordingly. The bypass road is being formed in the interest of general public i.e., for a public purpose. 21. Further it is averred that the Executive Engineer, R&B, Vijayawada, submitted that the requisition for an extent of Ac.36-57 cents in various survey numbers of Nunna village, Vijayawada Rural Mandal, for formation of bypass road. An extent of Ac.1-82 cents is identified to be surplus land resumed under the ULC Act, 1976, and the balance extent of Ac.34-75 cents patta lands have been notified in the 4(1) notification. The Draft Notification under Section 4(1) was published in the Andhra Pradesh State Extra-ordinate Gazette issue No.5/2009, dt.3-2-2009, Andhra Jyothi & Pledge on 9-2-2009 and locality publication was done on 8-2-2009. No objections were received in the stipulated period of 30 days from the last date of publication of the Draft Notification. Form-III notices under Section 5-A were issued requesting the land owners/interested persons to appear before the Land Acquisition Officer & Sub- Collector, Vijayawada, on 12-3-2009 and file objections, if any. Accordingly, the land holders/interested persons including petitioners have attended the 5-A enquiry and filed objections on 12-3-2009. The objections and findings on Form-III notices were submitted by the Sub-Collector, Vijayawada, vide Rc.No. (B1)B2/76/08, dt.26-5-2009, hence Collector, Krishna, for his consideration and passing of orders. A further report on the objections under Section 5-A enquiry along with Draft Declaration proposals under Section 6 of the Act, also had been submitted by the Sub-Collector, Vijayawada, vide Rc.No. (B1)B2/76/08, dt.28-7-2009, to the Collector, Krishna. The District Collector, Krishna considered the objections in the light of reports on objections and passed orders under Section 5-A (2) of the Act vide Rc.No.G2/1980/2008 dt.12-8-2009, overruling the objections raised by the landholders/interested persons. It is also stated that there is no deviation from the procedure contemplated under the Act in the land acquisition proceedings. It is further stated that the said acquisition is taken up for a public purpose i.e., to avoid traffic congestion being caused particularly, due to the mango market situated at Nunna village. There is no violation of any fundamental rights of petitioners. 22. It is also averred in para 8 that it is incorrect to state that the VGTM UDA is competent authority to decide the alignment of the road and the said decision will prevail over the decision of the Government. The R&B Department, Government of Andhra Pradesh is the competent authority to give approval for formation of bypass road. The contention of the petitioners isdevoid of merits as not sustainable. 23. Further specific stand had been taken that there are no merits in the objections raised by the petitioners. Further specific stand had been taken that the land belonging to petitioners 4 and 5 is not being acquired and they have no right to challenge the acquisition proceedings. It is also specifically mentioned in the counter affidavit at para 9 that the 6th petitioner is not the owner of the land in Sy.No.665/P. No doubt certain further submissions also had been made. Specific stand had been taken that the petitioners had already been taken these contentions in W.P.No.23985/2007 and the said Writ Petition was dismissed by an order dt.2-9-2008 and hence this Writ Petition also being devoid of merit, the same to be dismissed. 24. The other proposed parties who came on record as respondents 3 to 38 also filed counter affidavit almost taking similar stand and hence the said counter affidavit need not be dealt with in elaboration. 25. The order made in W.P.No.23985/2007 by the Division Bench dt.2-9-2008 had been placed before this Court and the same reads as hereunder:- “Learned Advocate appearing for the petitioners, is absent. Upon perusal of the order sheet, it appears that on earlier occasion, the learned Advocate appearing for the petitioners had prayed for time, and thereafter, he has not shown any interest in attending the Court. It appears that he is not serious enough to proceed further with this public interest litigation. In the circumstances, the petition is dismissed for default.” 26. In the light of the stand taken in the counter affidavit, the contentions and the grounds urged in the affidavit filed in support of the writ petition cannot be said to be tenable. However, in the light of the specific stand taken in para 9 of the counter affidavit that the land belonging to petitioners 4 and 5 is not being acquired at all and hence they have no right to challenge the acquisition proceedings, no further orders need be passed and accordingly, the Writ Petition is hereby closed so far as the Writ Petition relates to writ petitioners 4 and 5 is concerned. 27. In the light of the specific stand taken in para 9 of the counter affidavit that the 6th petitioner is not the owner of the land in Sy.No.665/Petitioner, 5 6th petitioner is at liberty to agitate for his rights relating to the said property. 28. Subject to the above observations, inasmuch as the Writ Petition raising similar objections already had been dismissed, may be for default, and further inasmuch as the alignment and the change of alignment and the other aspects, these questions normally cannot be gone into effectively under Article 226 of the Constitution of India, this Court is thoroughly satisfied that the Writ Petition is devoid of merit and accordingly the same shall stand dismissed subject to the observations specified supra. No order as to costs. _________________ Justice P.S.Narayana November, 2009 smr