IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NO : 1811 of 2003 Between: 1 Gandham Krishna Bhagavan s/o Late Surya Prakash Rao Anangeshwara Temple., Bheemanpally., Uppalguptham Mandal, East Godavari District. 2 P.Satyanarayana Murthy s/o Sriram Murthy R/o Bheemanpally, Uppalguptam Mandal East Godavari District. 3 P.D.Satyanaryana Murthy s/o Ramdas r/o Bheemanpally, Uppalguptham Mandal, East Godavari. 4 Yalla Srinivasa Rao s/o Y.Satyanarayana R/o Bheemanpally, Uppalguptham Mandal, East Godavari District. ..... PETITIONER(S) AND 1 The Govt of AP., rep by its Secretary,Endowments Department., Hyderabad. 2 The Secretary to Govt., Social Welfare Department,(LA), Hyderabad. 3 The Commissioner of Social Welfare, T.S.Bhavan.,Masab Tank, Hyderabad. 4 The Joint Collector., East Godavari District., Kakinada. 5 Mandal Revenue Officer., Uppalguptham Mandal., East Godavari District. .....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 to issue a Writ of Mandamus or any other appropriate Writ, order or direction directing the respondents to withdraw the land to an extent of AC.4.30cents in Sy.No.121/4, belonging to Anangeshwara Temple, Bheemanapally village, Uppalaguptham Mandal, East Godavari District by declaring the action of the respondents in acquiring and contemplating to distribute the land belonging to the daity ( Endowment) as illegal, arbitrary and without jurisdiction. Counsel for the Petitioners: MR.C.NAGESWARA RAO Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P.No. 1811 of 2003 03-02-2009 Oral Order: The petitioners are singularly aggrieved that the 1st respondent has not positively responded to the representation of the District Collector, East Godavari recommending withdrawal of acquisition of land ad-measuring Ac.04-03 cents in survey No. 121/4 of Bheemanapally village, Uppalaguptham Mandal, East Godavari District. The land belongs to Anangeshwara Swamy Devasthanam of the village. It appears that the State engendered a crash programme in 1998-99 to provide house sites to the poor. The programme also encompassed Bheemanapally village and towards the said objective to provide house sites to the weaker sections, process for acquisition of Ac.04-03 cents of land of the Devasthanam was initiated. Draft notification under Section 4 (1) of the Land Acquisition Act, 1894 (for short ‘the Act’) was published in the Gazette of February, 1999 and in the local news papers in March, 1999. Urgency clause under Section 17(4) of the Act was invoked and the enquiry under Section 5-A of the Act dispensed with. Draft declaration under Section 6 of the Act was also Gazetted on 28-02-1999 and local publication was made in March, 1999. It would appear that a Junior Assistant cadre employee was discharging the duties of the Executive Officer (as in charge) and after notice to the in charge Executive Officer and as the said officer did not object to the process of acquisition, advance possession of the notified land was taken and advance compensation was tendered on 19-07-1999. In the counter affidavit to this writ petition, the 5th respondent however states that the Executive Officer of the Devasthanam did not turn up to receive the compensation. It would however appear that the Executive Officer subsequently on 14-10-1999 received Rs.90,373-00 towards advance compensation. No award has yet been passed because of the status-quo order passed in this writ petition on 31-01-2003. Sri Raghu, learned advocate representing Sri C. Nageshwara Rao, learned counsel for the petitioners would strenuously urge that the since the District Collector had categorically recommended for withdrawal of the acquisition, the State Government ought to have acted thereupon and pass orders under Section 48 of the Act withdrawing the lands from acquisition. This is a contention that does not commend acceptance by this Court. The discretion to be exercised for withdrawal of land from acquisition under Section 48 of the Act is that of the State Government. The State Government has not exercised the discretion and any amount of persuasive correspondence by the District Collector is but a recommendation, which may or may not be accepted by the State. Since advance possession of the property was also taken, as asserted in paragraph No.5 of the counter affidavit, in July, 1999, the State cannot in exercise of any powers under Section 48 of the Act withdraw the land from the acquisition, as the power to withdraw the lands from the acquisition is not available in a situation where possession of the land is taken -- whether such possession be after passing of an award or in circumstances where urgency is invoked and advance possession is taken before the passing of an award. Though Sri Raghu, learned counsel would urge that the action of the State in invoking urgency clause under Section 17 (4) of the Act and dispensing with the enquiry under Section 5-A of the Act is arbitrary and perverse, no such plea is urged in the writ petition and therefore this Court is not inclined to entertain the oral plea on this account. Another contention urged on behalf of the petitioners is that the Commissioner of Social Welfare, an authority wholly extraneous to the process of acquisition, had addressed the District Collector intimating that the possession of the notified land having been taken, Government cannot withdraw the lands from the acquisition and therefore the Collector should take further action treating the action as completed and irrevocable. This is the contention that has no impact on the merits of the case. Whether the Commissioner of Social Welfare had addressed the Collector with or without authority, does not in any manner contribute to the determination of the validity of the acquisition? The process of acquisition has validly been exercised by the competent authorities and the advance possession amount also passed on to the Endowment department through its Executive Officer. The advance possession has also been taken after invoking urgency clause and dispensing with the enquiry under Section 5-A of the Act. Even the petitioners do not specifically plead and challenge the dispensing with the enquiry under Section 5- A of the Act. In the totality of the circumstances the action of the respondents in pursuing the process of acquisition of the land in an extent of Ac.04-03 cents of Bheemanapally village, Uppalaguptham mandal, East Godavari district belonging to Anangeshwara Swamy Devasthanam suffers from no infirmity warranting judicial review. There are no merits. The writ petition is accordingly dismissed. There shall however be no order as to costs. ____________________ GODA RAGHURAM, J Dated: 03-02-2009 Pvks