IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 11746 of 2001 Between: Gurrapu Penchalaiah, S/o. Mastanaiah, R/o. Velamavaridenne, Nellore Bit--2, Chintareddypalem Post, Nellore Mandal, Nellore District. ..... PETITIONER AND 1 The Government of A.P. Rep. by its Prl Secretary Revenue Dept., Secretariat Buildings, Hyderabad. 2 The District Collector, Nellore District, Nellore. 3 The Revenue Divisioanl Officer, Nellore District, Nellore. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to issue a writ or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the 2nd and 3rd respondents to acquire the land of the petitioner in an extent A.C. 0-.27 cents across the land in Sy.No.751/22 of Elamavaridinne Village, Nellore Bit - -2, Nellore Mandal, Nellore District, as illegal, arbtirary and unconstitutional. Counsel for the Petitioner:MR.V.NARAYANA REDDY Counsel for the Respondents: GP FOR LAND ACQUISITION The Court made the following : THE HON’BLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION No.11746 of 2001 ORDER: The petitioner challenges the acquisition of his land admeasuring Ac.0.27 cents in Sy.No.751/22, Elamavaridinne village, Nellore bit-2, Nellore Mandal, Nellore District, on the ground that the same is being done without following the due process of law. 2. The petitioner claims to be the pattadar and possessor of the land admeasuring Ac.1.92 cents in Elamavaridinne village, Nellore District. A notiﬁcation is said to have been issued under Section 4(1) of the Land Acquisition Act, 1894, (the Act of 1894) on 12.03.2001 in Eenadu Telugu newspaper proposing to acquire an extent of Ac.0.27 cents of the petitioner’s land. The said acquisition was said to be for the purpose of providing access to a burial ground. Section 17 (4) of the Act of 1894 was invoked dispensing with the Section 5-A enquiry provided under the Act of 1894. The petitioner claims to have made a representation to the District Collector, Nellore District, the 2nd respondent herein, immediately thereafter requesting that the acquisition proceedings be dropped, citing various grounds. It is his case that there is an existing 15 feet road abutting his land on the Northern side duly providing access to the burial ground. Further, the proposed acquisition cut across his land rendering the left over land useless. The petitioner is also said to have stated that he had no objection if a portion of his land on the Northern side is acquired for widening of the existing road. The proposal to lay a road cutting across the entire extent of his land would cause great injustice to him. It is stated that upon the said representation, the District Collector, Nellore, the 2nd respondent herein, directed the Revenue Divisional Oﬃcer, Nellore, the 3rd respondent herein, to examine the matter to ascertain whether there was any merit in the petitioner’s contention. The petitioner’s grievance is that the 3rd respondent, without conducting any enquiry, is proceeding with the acquisition. The petitioner pointed out in his aﬃdavit that, in spite of the lapse of three months, the respondent authorities had not taken the possession of his land as required under Section 17 (5) (a) of the Act of 1894. The petitioner therefore categorizes the acquisition proceedings without holding Section 5-A enquiry under the Act of 1894 as illegal and arbitrary. 3. By an interim order dated 15.06.2001, this Court granted interim stay of all further proceedings pending the writ petition. 4. No counter affidavit is filed by the respondents. 5. Heard the learned counsel for the petitioner and the learned Assistant Government Pleader for Land Acquisition appearing for the respondents. 6. The averment made by the petitioner that his land was not taken possession of within three months as required under Section 17 (5)(a) of the Act of 1894 remains unrebutted. Further, there is also an order of stay of all further proceedings since 15.06.2001. The urgency, if any, perceived by the authorities warranting invocation of Section 17 (4) of the Act of 1894 at the time the Section 4(1) notiﬁcation was issued cannot be said to be there after this long lapse of time. Further, Section 17 (5) (b) of the Act of 1894 speciﬁcally states that if the possession of the land, which has been subjected to Section 17 (4) of the Act of 1894, is not taken within three months, it shall be construed that the provisions of Section 5-A of the Act of 1894 would apply to such a case. 7. The learned counsel appearing for the petitioner also placed reliance upon a judgment of a learned Single Judge of this Court in Chatapalli Nadipi Subbarayudu v. District Collector, Kurnool and another[1]. The learned Judge therein had held that Section 5-A enquiry should not be dispensed with as a matter of routine and further if the possession of the land was not taken within three months as stipulated in Section 17 (5) (a) of the Act of 1894, the dispensation of Section 5-A enquiry would not survive. Accordingly the learned Judge directed the authorities in that case to aﬀord an opportunity of hearing to the owner by holding an enquiry under Section 5-A of the Act of 1894. 8. In view of the statutory provision, it is clear that after a lapse of three months of inaction on the part of the Land Acquisition authorities with respect to taking over possession, the dispensation of Section 5-A enquiry as per Section 17 (4) of the Act of 1894 would not enure to their beneﬁt. In the present case, there has been no movement in the matter since June, 2001 after this Court granted interim stay. By no stretch of imagination, can it be said that the urgency, if any, which warranted the exercise of power under Section 17 (4) of the Act of 1894 at that time continuous to exist till date. 9. In that view of the matter and keeping in mind the statutory provision aforesaid stated and also the judgment of this Court in Chintapalli Nadipi Subbarayudu’s case, the writ petition is disposed of directing the respondents to follow the procedure prescribed under Section 5-A of the Act of 1894 by duly aﬀording reasonable opportunity of hearing to the petitioner and considering his objections. There shall be no order as to costs. ___________________ P.V.SANJAY KUMAR,J 10.11.2008 v v [1] 2005 (6) ALT 718