THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.23432 of 2006 Date : 3-12-2009 Between : Chunduru Bhaskara Rao .. Petitioner And The Collector, East Godavari District, Kakinada and another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.23432 of 2006 ORDER: 1. This Court issued rule nisi on 10-11-2006 and granted interim stay in W.P.M.P.No.29581/2006 . 2. The Writ Petition is filed for a writ of mandamus declaring the notice dated 30-8-2006 in Ref.A/IND/1284/2006 issued by the 2nd respondent under Section 5-A of the Land Acquisition Act (1 of 19894) as amended by the Land Acquisition (Amendment) Act, XXXVIII of 1923 and the consequential Form 5-A issued under Section 6 dated 4-11- 2006 in Ref.No.G3/4254/2006 by the 1st respondent which was published in Eenadu Telugu Daily, Rajahmundry Edition dated 7-11-2006 pursuant to Section 4(1) published in A.P. Gazette Extraordinary dated 26-8-2006 as illegal, arbitrary, colourable exercise of power, non-application of mind, violative of the procedure contemplated under Land Acquisition Act and violative of the fundamental rights guaranteed under Articles 14, 19 and 300-A of the Constitution of India and consequently to direct the respondents and their subordinates not to interfere with the peaceful possession and enjoyment of the petitioner’s land in Sy.No.470, admeasuring Ac.2-00 of Lalacheruvu Village, Rajanagaram Mandal, East Godavari District and to pass such other suitable orders. 3. It is the case of the writ petitioner that the writ petitioner is an agriculturist and owns agricultural lands in Sy.No.470 of Lalacheruvu village, Rajanagaram Mandal, East Godavari District and had been eking out his livelihood and looking after the family on the income derived from the said land. It is stated that the Revenue Divisional Officer, Rajahmundry-competent authority issued pattedar passbook bearing No.495 and title deed bearing patta No.488 in the name of the petitioner for the land owned and possessed by him which was also countersigned by the Mandal Revenue Officer, Rajanagaram and the Village Administrative Officer, Palacherla under whose jurisdiction the subject land is situated. Further it is stated that while things stood thus all of a sudden the petitioner received notice under Section 5-A of the Land Acquisition Act (hereinafter in short referred to as “Act” for the purpose of convenience) on 14-10-2006 stating that the schedule land is needed for public purpose to wit for provision of house sites to the weaker sections under Indiramma programme. Further, the notification under Section 4(1) of the Act was published in the A.P. Gazette Extraordinary dated 26- 8-2006 and therefore the interested persons in the land were required to lodge before the 2nd respondent within 30 days of the notice a statement in writing of the objections if any to the acquisition of the land. It is also further stated that any objection statement received after due date 25-9-2006 is liable to be summarily rejected. Further, the objections received within the time will be enquired into on 30-9-2006 at 11 A.M. in the office of the 2nd respondent and the objectors were given liberty to appear in person or by pleader to produce any oral or documentary evidence. Further it is stated that though the petitioner tried his best to obtain a copy of the notification under Section 4(1) of the Act, the same was not made available to him. 4. It is also further stated that the petitioner was shocked to receive the said notice and know the contents of the same in view of the fact that the notification under Section 4(1) of the Act itself was not made available to him or known to him and for the first time the 2nd respondent brought to the knowledge of the petitioner about the proposed acquisition by way of notice under Section 5-A of the Act. Though the notice was served on 14-10-2006 curiously the date for submitting the objections is fixed as 25-9-2006 in the present case in order to deprive the petitioner from raising any objections. The valuable statutory right given under Section 5-A of the Act to an effected person is sought to be taken away by way of practicing dubious methods. Even the right of enquiry allegedly scheduled on 30-9-2006 to enable the petitioner to participate in the enquiry proceedings was also taken away. When the petitioner approached the office of the 2nd respondent on 17-10-2006 questioning their illegal action, the petitioner was informed that the said notice is an empty formality in view of the fact that already the entire procedure was set in motion. In fact, the petitioner pointed out that previously there was no occasion for the authorities to divide the survey number from 470 and making it into 470/2 but I was denied any to raise all the tenable objections. 5. Further it is stated that while the petitioner was expecting that the respondents should drop the aforesaid proceedings and give me y to hear the petitioner, the 1st respondent issued Form 5-A notice dated 4-11-2006 in Ref.No.G3/4254/2006 which was published in Eenadu Telugu Daily, Rajahmundry Edition on 7-11-2006 at page No.5 declaration under Section 6 of the Act. Further, the 2nd respondent was authorized to acquire the same and follow the procedure contemplated under Sections 3 and 7 of the Act. The possession of the land was stated to be taken after issuing notice under Section 9(1) of the Act. It is further stated that the action of the respondents in issuing the notice under Section 5-A of the Act after expiry of the period prescribed for raising objections and for enquiry and serving the same on 14- 10-2006 must be declared as arbitrary, illegal and colourable exercise of power and based on non-application of mind. Similarly, the 1st respondent in a laconic manner issued declaration under Section 6 of the Act dated 4-11-2006 and the said fact would clearly establish that there was no coordination between the respondents 1 and 2 resulting in not only deprivation of the petitioner’s livelihood but also affecting the livelihood of several families who are surviving solely based on agriculture. Further it is stated that it is the duty of the respondents to strictly adhere to be procedure contemplated under the Act and if they fail to do so the proceedings initiated by them will have to be set-aside in toto. The Hon’ble Supreme Court repeatedly held that when the valuable right of an individual is sought to be taken away by acquiring his land, it is the bounden duty of the authorities to strictly comply with the principles of natural justice as ordained under Section 5-A of the Act. Unless the said procedure is followed, the consequential declaration under Section 6 of the Act is to be negated. In fact, the respondents without even physically verifying the land sought to be acquired had created record as if the same is useful for acquisition though the said land is an agricultural land and the same is not useful for construction of houses. 6. It is also further stated that the notice under Section 5-A of the Act was issued as if the land is sub-divided as Survey Nos.470/2 and the declaration under Section 6 of the Act is issued as the land in Sy.No.470 itself would clearly establish the non-application of mind on the part of the respondents. When the petitioner personally approached the respondents on knowing about the declaration under Section 6 of the Act published on 7-11-2006, the subordinates in the office of the 2nd respondent stated that not only in the case of the petitioner but in respect of several other lands in the Districts, irregular procedure is being followed in view of the political pressure and the targets given to them. Further the petitioner was also informed that due to lack of sufficient staff the respondents are resorting to such an illegal procedure and if at all the petitioner is aggrieved the petitioner can challenge the said action before appropriate forum. It is stated that though the petitioner had repeatedly visited the office of the 2nd respondent to follow the due procedure after withdrawing the impugned notice under Section 5-A of the Act and the declaration issued under Section 6 of the Act on 7-11-2006 the subordinates of the Mandal Revenue Officer visited the subject land in order to demarcate the same and handover to the alleged beneficiaries. The petitioner could restrain them showing that the whole procedure being followed is arbitrary and illegal and that he may be given an opportunity to challenge their illegal action. They returned stating that after four days they will once again visit the subject land and taken possession of the land without any notice. It is stated that the petitioner is in possession and enjoyment of the subject land and apprehends that the respondents and their subordinates are likely to dispossess him. Unless the petitioner is given an opportunity to raise objections and participate in the enquiry proceedings under Section 5-A of the Act, the petitioner will be put to grave and irreparable loss. In such circumstances the writ petitioner approached this Court by filing the present Writ Petition and obtained interim stay as aforesaid. 7. In the counter affidavit filed by the respondents, the brief facts had been averred in para-3 of the counter affidavit as hereunder:- It is stated 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 to the weaker sections under BPL category by following focused area approach. Housing is one of the programme identified under “INDIRAMMA” to meet the total demand and to achieve the object of providing permanent houses to all under INDIRAMMA programme. Lalacheruvu village of Rajanagaram Mandal is identified as Adarsa Village under INDIRAMMA programme. On door-to-door verification it was found that 60 families do not even own houses or house sites for construction of residential houses and the beneficiaries had been selected duly conducting Grama Sabha in the village. In this regard, the Land Acquisition Officer and the then Sub-Collector, Rajahmundry along with the Mandal Revenue Officer, Rajanagaram Mandal, Mandal Surveyor and Panchayat Secretary, Lalacheruvu had inspected the village and found that the land to an extent of Ac.2-00 cents in S.No.470 is suitable for provision of house sites to weaker sections of Lala Cheruvu village. Accordingly, the land acquisition proposals had been submitted to the Circular, East Godavari District, Kakinada. The District Collector approved the draft notification under Section 4(1) of the Act and the same was published in the District Gazette and in two prominent newspapers in the locality as follows: Mode of Publication Date of publication of draft notification East Godavari District Gazette 26-8-2006 Prajashakti Telugu daily newspaper 31-8-2006 The Indian Express English daily newspaper 31-8-2006 Locality 30-8-2006 Further it is stated that notice under Section 5-A of the Act dated 30-8-2006 was issued asking the land owner to appear before the Land Acquisition Officer on 30-9-2006 and raise objections, if any on acquisition. The petitioner is residing at Kakinada and the notice was served on 14-10- 2006 but he neither chose to file objections on acquisition nor appeared before the Land Acquisition Officer upto 30-10-2006 and hence it was construed that the petitioner had no objections to file before the Land Acquisition Officer and award under Section 5-A of the Act was passed by the Joint Circular, East Godavari District, Kakinada vide Ref G3/4254/2006 dated 2-11-2006. Thereafter, the District Collector had approved the draft declaration under Section 6 of the Act and the said declaration was published in the District Gazette and in two prominent newspapers and in the locality as follows: Mode of publication Date of publication of draft declaration East Godavari District Gazette No.519/2006 dated 4-11- 2006 Eenadu Telugu daily newspaper 7-11-2006 Pledge English daily newspaper 8-11-2006 Locality 13-11-2006 As the matter stood thus, the petitioner rushed this Court and filed W.P.No.23432/2006 and this Court granted interim stay. 8. In para-4 of the counter affidavit while replying to the averments made in the affidavit filed in support of the Writ Petition it is stated that the subject land was proposed under acquisition for provision of house sites to the weaker sections of Lalacheruvu H/o. Palacherla village under INDIRAMMA programme Phase-I. There were 14 villages selected as ideal villages in Rajanagaram Mandal in the first phase to provide basic infrastructure facilities and welfare measures to the weaker sections under BPL category by following focused area approach. Housing is one of the programme identified under INDIRAMMA to meet the total demand and to achieve the object of providing permanent houses to all under the said programme. Out of 14 villages distribution of house sites and construction of houses in 5 villages were delayed due to legal hurdles created by the land owners and Lalacheruvu is one among the five villages. In the remaining 9 ideal villages of Rajanagaram Mandal house site pattas were distributed to the poor and weaker sections and construction of permanent houses by housing Department is in progress. On the other side the number of beneficiaries in the village had increased to 207. There was need to acquire more land. At this juncture an extent of Ac.12-60 cents of Government poramboke land in R.S.No.522, 523 and 524 of Palacherla village which was earlier handed over to Municipal Corporation, Rajahmundry for rearing pigs, but being used as compost yard was resumed and the total 207 beneficiaries had been given house site pattas in the part of the Government land resumed. The beneficiaries had come forward to occupy the sites allotted to them. Housing under G+1 scheme is under progress. As such the beneficiaries to be sheltered in the land under the present acquisition were accommodated in the Government land available in Palacherla village which is adjacent to Lalacheruvu, a hamlet village. Hence it is stated that the demand of the beneficiaries for house sites in Lalacheruvu village had been fulfilled under INDIRAMMA programme. 9. Thus it is clear that in the light of the number of beneficiaries in the village being increased to 207 and inasmuch as there was no need to acquire more land, certain subsequent events had taken place and the same had been averred in para-4 of the counter affidavit as already specified supra. 10. In the light of the specific stand taken in the counter affidavit it is needless to say that the purpose for which the acquisition had been proposed no longer is in existence for the present. In the light of the same, recording the stand taken in the counter affidavit by the respondents in para-4 as specified supra, the Writ Petition is hereby allowed. No costs. _________________ Justice P.S. Narayana Date : 3-12-2009 AM