HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.12200 of 2009 Date: -9-2009 Between: 1. Nannapaneni Sivaramakrishnaiah and 26 others. … Petitioners And 1. The State of Andhra Pradesh, Rep. by the District Collector, Guntur District and 2 others. … Respondents * * * ORDER: This Court issued notice before admission on 23-6-2009. This Court also granted interim stay of all further proceedings as prayed for, for a particular period as specified therein. This Court issued Rule Nisi on 06.8.2009. 2. The respondents in the writ petition filed W.V.M.P.No.2369 of 2009 praying for vacation of the interim order granted in W.P.No.12200 of 2009, dated 23.6.2009. When the vacate application is coming up for hearing, the counsel on record made elaborate submissions and further made a request for disposal of the writ petition itself and, hence, the writ petition is being disposed of finally. The relevant records also had been produced before this Court by the learned Assistant Government Pleader for Land Acquisition. 3. Sri N. Sreerama Murthy, learned counsel representing the writ petitioners had taken this Court through the contents of the affidavit filed in support of the writ petition, the stand taken in the counter-affidavit filed in W.V.M.P.No.2369 of 2009 and also further had drawn the attention of this Court to the contents of the reply affidavit filed by 21st petitioner. The learned counsel would maintain that the notification issued under Section 4 (1) of the Land Acquisition Act (hereinafter in short referred to as “Act” for the purpose of convenience) relating to the extent of Ac.64-59 cents itself is bad in law for the reasons which had been specified in detail in the affidavit filed in support of the writ petition. The learned counsel also would maintain that though the affidavit filed in support of the writ petition is sworn to by 21st petitioner, several of the details which had been narrated in this writ petition cannot be sustained. The learned counsel representing the writ petitioners Sri Sreerama Murthy also placed relevant maps before this Court so as to demonstrate the topography of the lands and so as to further demonstrate certain mala fides in relation to certain of the deletions made and the pick and choose methods which had been adopted by the Land Acquisition Officer for extraneous reasons. The learned counsel also further pointed out to the elaborate objections and further would maintain that, in fact, the counsel representing objectors also had placed before the Land Acquisition Officer certain decisions and the Land Acquisition Officer, though elaborate objections had been made, had not considered the objections and even the order made under Section 5 A (2) of the Act cannot be said to be an order in accordance with law on due application of mind. The learned counsel also would maintain that almost all the writ petitioners, may be except writ petitioners 1 and 25, are also small farmers and many of the writ petitioners belonged to the backward community and many of the writ petitioners are depending solely on agriculture and they have no other livelihood. The learned counsel also specifically pointed out how for the extraneous considerations certain lands had been omitted and certain lands had been included. The learned counsel also further pointed out to the availability of the lands at Burripalem belonging to Sri Lakshmi Narasimha Swamy Temple and Sri Anjaneya Swamy Temple and further demonstrated in reference to the plan how these lands would be more convenient and also further made an attempt to demonstrate how these beneficiaries also are bogus beneficiaries. The learned counsel also pointed out to the endorsement dated 09.6.2009 wherein wrong statement had been made relating to certain of the writ petitioners as not being small farmers. This is clearly against the factual position and this would go to show that there was total non-application of mind and personal hearing as contemplated by Section 5-A of the Act being not an empty formality and effective personal hearing may be given and further in view of the fact that individual hearing as such had not been given. In that way also the petitioners are seriously prejudiced. The learned counsel also made certain submissions relating to the fact that the counter-affidavit was filed, no doubt, on behalf of the respondents, but the counter-affidavit was sworn to by the Revenue Divisional Officer and Land Acquisition Officer, Tenali Division and this cannot be treated as counter-affidavit on behalf of the other respondents and on this ground also the writ petitioners are bound to succeed. The learned counsel also placed strong reliance on several decisions to substantiate his submissions. 4. Per contra, the learned Assistant Government Pleader for Land Acquisition had pointed out to the detailed order made by the competent authority while considering the objections and the reasons recorded thereunder and would maintain that in the light of the same it cannot be contend that no effective personal hearing had been given to the writ petitioners. The learned counsel also would further maintain that it may be true that certain lands and certain small farmers had been deleted, but however in the light of the topography, since there is no possibility of deleting the lands of these small farmers, may be certain of the small farmers even among the writ petitioners, the competent authority thought it fit to reject the objections and further to proceed with the land acquisition proceedings. The learned Assistant Government Pleader for Land Acquisition also would emphasize that this is a welfare mission and acquisition for the purpose of providing house sites for the weaker sections being a public purpose, the same cannot be assailed on any ground, whatsoever. The learned Assistant Government Pleader for Land Acquisition also would maintain that it is within the purview of the respondents, the District Collector, Guntur, the Revenue Divisional Officer-cum-Land Acquisition Officer, Tenali and the Mandal Revenue Officer, Tenali Mandal, to take appropriate decision relating to the suitability or otherwise and it is not for the petitioners to point out that a particular land will be a better land suitable for the purpose of acquisition. Even otherwise in the light of the prohibitory orders, there is some difficulty in proceeding with the acquisition of the Endowment lands, even otherwise those lands being far away, the interest of the beneficiaries also to be kept in mind. The learned Assistant Government Pleader for Land Acquisition also produced the records and had pointed out to the relevant portions of the records and would maintain that inasmuch as the procedure had been followed by the respondents in a meticulous way verbatim as ordained by the provisions of the Act, this is not a fit matter to be interfered with and the writ petition to be dismissed. 5. Heard the counsel on record, perused the averments made in the affidavit filed in support of the writ petition, the averments made in the counter-affidavit and also the averments made in the reply affidavit and the contents of the records produced before this Court. 6. These writ petitioners, 27 in number, filed the present writ petition praying for a writ of Mandamus declaring the action of the respondents in issuing Rc.No.4379/07/G2, dated 10.6.2008 allegedly a notification under Section 4 (1) and also the consequential issuance of Namoona- 5A in R.C.No.4379/07-G2, dated 09.6.2009 under Sections 6, 9(1), 17(1)(2) of the Act, to acquire the land of 21st petitioner, an extent of Ac.2-49 cents in S.Nos.375/2, 3, 4; land of petitioners 1 to 7 , an extent of Ac.4-07 cents in S.No.368/1, Ac.1-82 cents in S.No.368/2A, Ac.2-18 cents in S.No.368/3A, Ac.1-78 cents in S.No.369/1, Ac.1-00 in S.No.369/1, Ac.1-69 cents in S.No.371 and Ac.1-69 cents in S.No.371 respectively and land of petitioners 8 to 14, an extent of Ac.3-00 i.e., Ac.1-83 cents in S.No.372/1 and Ac.1-17 cents in S.No.373 and land of petitioners 15 to 27, an extent of Ac.1-88 cents in S.No.373, Ac.1-00 in S.No.374, Ac.1-00 in S.No.374, Ac.1-56 cents in S.No.375/1, Ac.1-46 cents in S.No.375/1, Ac.1.53 cents in S.No.375/2, Ac.0-66 cents in S.No.375/2, Ac.1-00 in S.No.375/4, Ac.2-25 cents in S.No.375/4, Ac.2-75 cents in S.No.376, Ac.1-14 cents in S.No.376 and Ac.1-50 cents in S.No.376 respectively totalling an extent of Ac.37-45 cents of Nelapadu village, Tenali Mandal, Guntur District, as illegal, arbitrary, unconstitutional and opposed to the principles of natural justice and set aside the said acquisition proceedings and pass such other suitable orders. 7. The affidavit filed in support of the writ petition had been sworn to by 21st petitioner Battula Nageswara Rao. It is averred in the affidavit filed in support of the writ petition that the 21st petitioner owns and possesses an extent of Ac.0-51 cents in S.No.375/2; Ac.0-40 cents in S.No.375/3 and Ac.1-58 cents in S.No.375/4 totalling an extent of Ac.2- 49 cents of wet land in Nelapadu village, Tenali Mandal of Guntur District and the said entire land is proposed to be acquired under the impugned land acquisition proceedings. Petitioners 1 to 7 own and possess an extent of Ac.4-07 cents in S.No.368/1; Ac.1-82 cents in S.No.368/2A; Ac.2-18 cents in S.No.368/3A; Ac.1-78 cents in S.No.369/1; Ac.1-00 in S.No.369/1; Ac.1-69 cents in S.No.371 and Ac.1-69 cents in S.No.371 respectively. Petitioners 8 to 14 jointly own and possess Ac.1-83 cents in S.No.372/1 and Ac.1-17 cents in S.No.373 totalling an extent of Ac.3-00; petitioners 15 to 20 own and possess Ac.1-88 cents in S.No.373; Ac.1-00 in S.No.374; Ac.1-00 in S.No.374, Ac.1-56 cents in S.No.375; Ac.1-56 cents in S.No.375/1 and Ac.1-53 cents in S.No.375/2 respectively. So also petitioners 22 to 27 own and possess Ac.0-66 cents in S.No.375/3; Ac.1-00 in S.No.376; Ac.2-25 cents in S.No.376; Ac.2-75 cents in S.No.376; Ac.1-14 cents in S.No.376 and Ac.1-50 cents in S.No.376 respectively and all the said lands are fertile wet lands situate in Nelapadu village, Tenali Mandal of Guntur District. 8. Further it is the case of the writ petitioners that all the writ petitioners, except petitioners 1 and 25, are small farmers. Petitioners 8 to 14 are Yadavas belonging to backward class BC (D). Petitioner No.21 belongs to Vaddera community which falls under backward class BC (A). Petitioner No.21 had got two major sons and their family is a joint Hindu family. Thus, almost all the petitioners are small farmers and their lands cannot be acquired for providing house sites to the alleged backward class persons except any exceptional circumstances. There are no such exceptional circumstances to acquire these lands for providing house sites for the alleged backward class persons. It is also stated that the Government issued orders and memos from time to time discouraging or prohibiting acquisition of lands belonging to the small farmers for the purpose of providing house sites to the weaker sections. 9. Further it is averred that the aforesaid lands besides some other lands totalling an extent of Ac.64-59 cents situate in Nelapadu village, Tenali Mandal of Guntur District are sought to be acquired for providing house sites to the weaker sections under “Indirammapathakam”. A notification bearing R.C.No.4379/07/G2 dated 10.6.2008 was published in ‘Prajasakthi’ daily under Section 4 (1) of the Act stating that the said lands were sought to be acquired for the purpose of providing house sites under “Indirammapathakam. All of them made objections to the proposed acquisition. Thereafter Namoona 5-A notice bearing R.C.No.4379/07-G2, dated 09.6.2009, was published by the first respondent in “Andhra Jyothi” daily, dated 12.6.2009, stating that an extent of Ac.41-09 cents is only sought to be acquired. An extent of Ac.23-50 cents is deleted. Peculiarly, in the endorsement bearing R.C.No.4379/08/G2, dated 9.6.2009, served on the petitioners the extent is shown as Ac.61-59 cents. 10. It is also averred that the petitioners made objections stating that they are all small farmers and that there is land in between their lands and Burripalem road and those lands are more suitable for house sites. Extraneous considerations prevailed for omitting lands in between their lands and Burripalem road. In fact, the local MLA and respondents 2 and 3 stated that these lands would be deleted and the lands abutting Burripalem road would be acquired and went back on their word with a mala fide intention. 11. Further it is stated that the lands notified are at a distance of about 4 kms. from Tenali town and without any facilities for human habitation. The said lands sought to be acquired are in a zigzag fashion and without continuity. A plan also had been submitted showing proposed acquisition of these lands besides some other lands. 12. It is also stated that throughout its length and breadth which are sought to be acquired, certain lands had been left out with mala fide intention. The lands in S.No.370 are left out from acquisition, as the land owners are related to the local MLA, even though the owners of the said lands are big ryots. 13. It is also the case of the writ petitioners that the red marked portion in the plan, which is an extent of Ac.1-58 cents, belongs to Bhattu Kishore Kowshik, son of Ramakotaiah and the same was left in the alleged DD without any rule or reason. The said Bhattu Kishore Kowshik owns and possesses an extent of Ac.3-00 in that locality and is not a small farmer. 14. Further it is stated that the writ petitioners brought it to the notice of the respondents and also to the local MLA and the MP that there is Endowment land, an extent of Ac.0-43 cents in S.No.180/7; Ac.13-73 cents in S.No.181; Ac.3-22 cents in S.No.182 and Ac.4-00 in S.No.275 totalling an extent of Ac.21-98 cents of Burripalem village, belonging to Lakshminarasimha Swamy temple and Anjaneyaswamy temple as shown in the plan. The said land is higher in level than the lands proposed to be acquired. It is abutting to Tenali-Burripalem black topped road. There is electricity at a distance of 2 furlongs from the said temple lands. Near the said temple lands one Chandu Sankara Rao, son of Guravaiah, resident of Burripalem, is having Ac.15-00 cents of wet land and one Kothamasu Tulasidas, son of Sambasiva Rao, is having Ac.8-00 of wet land. So also an extent of Ac.2-88 cents in S.No.284; Ac.5-19 cents in S.No.285; Ac.6-95 cents in S.No.286; Ac.3- 18 cents in S.No.294 and Ac.7-96 cents in S.No.295 totalling an extent of Ac.26-06 cents of wet land belonging to Venugopalaswamy temple is available near Tenali town. The land belonging to Venugopalaswamy temple is situate at a distance of about 500 metres from V.S.R & N.V.R. College, Tenali. Underground water is sweet in the temple lands, whereas in the petitioners’ lands the water is saltish. The said lands are higher in level and need not be levelled at all and nearby there is water facility, electricity and other facilities for human habitation. 15. Further it is specifically averred that petitioners 3 to 19, 21, 24, 26 and 27 are small farmers and their livelihood is mainly cultivation. The second petitioner has one major son and daughter. The third petitioner is not doing tobacco business. Petitioner No.5 owns and possesses only Ac.2-00 cents and not Ac.2-68 cents as stated in the endorsement, dated 9-6-2009, in Rc.No.4379/208-G2 and not doing any business. Petitioner No.8 has got 3 major sons. Petitioner No.9 has got one major son and one major daughter. Petitioner No.10 has got one daughter and petitioner No.11 has got two major daughters and one son. Petitioners 12, 13 and 14 are major children. Petitioners 8 to 14 constitute Hindu joint family. All the children and grandchildren of Koteswara Rao are entitled for shares in the joint family property. Even if there is land of Ac.26-00 cents in the name of deceased Koteswara Rao, petitioners 8 to 14 are small farmers. 16. In the aforesaid endorsement dated 09.6.2009 it is wrongly stated that they are not small farmers. Petitioners 16 and 17 are not doing money lending business. Ac.1-97 cents of land is the only livelihood to his family. Petitioner No.18 got two major sons and he is a small farmer. Petitioner No.19 owns and possesses only Ac.1-56 cents. It is stated that the land of 19th petitioner situate in Takkellapadu village of Guntur District was acquired by the Government and with the compensation amount she purchased the present land proposed for acquisition. The respondents failed to consider the objections of the petitioner No.20. She is BC (A) Vaddera. She owns and possesses Ac.3-95 cents and she got three major daughters and grandchildren through them and she has to look after them. Petitioner No.22 has four daughters and one son and all are majors and all are married except one daughter and one son and begot children and they belong to BC (A) Vaddera community. They constitute Hindu joint family and got Ac.4-57 cents of wet land as such he is a small farmer. The mother of petitioner No.23 is dependant on the land shown in the name of 23rd petitioner. Petitioners 26 and 27 have nothing to do with the properties of their father, since they divided long back and thus they are small farmers. 17. Further it is averred that the petitioners filed objections to the notice issued under Section 4 (1) of the Act and the first respondent gave an endorsement dated 09-6-2009 which had been received by some of the petitioners on 16.6.2009 and even before service of the said endorsement, the publication dated 09-6-2009 was made in ‘Andhra Jyothi’ daily on 12.6.2009. In fact, there was no proper notification and local publication under Section 4 (1) of the Act. It is also further averred that Namoona 5-A, dated 09-6-2009 bearing Rc.No.4379/07/G2 was published on 12.6.2009 in ‘Andhra Jyothi’ daily stating that the same was given under Section 6 of the Act and the lands of the petitioners would be taken after expiry of 15 days from the date of publication of notice under Section 9(1) of the Act. Prior to passing of the award, the respondents are not entitled to take possession of the land proposed to be acquired. Hence, the said notice is illegal and non-est. 18. Further specific stand had been taken that the lands under impugned notification are wet lands and not useful for house sites and the competent authority, the second respondent, had not issued any proceeding regarding land use conversion of the land shown in the proposed acquisition of lands as per the A.P. Agricultural Land (Conversion for non-agricultural purposes) Act, 2006. In such circumstances, the writ petitioners approached this Court by filing the present writ petition and had obtained an interim order as already aforesaid. 19. In the counter-affidavit filed on behalf of the respondents, the same was sworn to by the Revenue Divisional Officer and Land Acquisition Officer, Tenali Division, wherein several of the averments had been specifically denied. It is the case of the respondents 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 by following focussed area approach. Tenali municipality of Tenali Mandal was declared as a model and Adarsha Municipality under ‘Indiramma Programme’ and on verification it was found that 940 poor families are not having even own houses or house sites for construction of residential houses. The beneficiaries had been selected duly conducting Grama Sabha in Tenali Town. 20. It is also averred that as there is no land in Tenali Town for grant of house sites to the beneficiaries of Tenali Town, it had been proposed to select the land in Nelapadu village of Tenali Mandal, which is adjacent to Tenali Town, and the Revenue Divisional Officer, Tenali Division along with the Tahsildar, Mandal Revenue Inspector of Tenali Mandal and Village Revenue Officer of Nelapadu village of Tenali Mandal found an extent of Ac.64-59 cents in Sy.Nos.368/1 etc., and submitted proposals of Draft Notification to the District Collector, Guntur, on 31.10.2007 for approval. 21. It is also averred that the District Collector, Guntur District, had approved the Draft Notification under Section 4(1) of the Act on 10.6.2008 and published in the District Gazette, two daily newspapers and locality as follows. Sl.No. Mode of publication Date of publication of Draft Notification 1. Guntur District Gazette 13-6-2008 2. Prajasakthi daily newspaper 18-6-2008 3. Visalandhra daily newspaper 19-6-2008 4. Substance in the locality 19-6-2008 22. Further it is stated that thereupon the Land Acquisition Officer, had issued notices under Section 5-A of the Act in Form-3 to the petitioners and other ryots on 9-7-2008 requesting them to attend the 5- A inquiry before the Land Acquisition Officer on 31.7.2008 and to file objections, if any, for acquisition of their lands. The said notices were served on the petitioners on 14.7.2008 and accordingly the petitioners and other ryots had attended the 5-A inquiry before the Land Acquisition Officer on 31.7.2008 and filed objections for acquisition of their lands. The petitioners and other ryots were also given an opportunity of personal hearing on 31.7.2008 and their statements had also been recorded during 5-A inquiry. The Land Acquisition Officer had enquired into the said objections and found that the land, an extent of Ac.23-50 cents out of Ac.64-59 cents, belong to small farmers and, hence, the said land had been deleted from acquisition. Though some of the petitioners are also small farmers, their lands could not be deleted from acquisition, as their lands are situated amidst of the total land proposed for acquisition. 23. It is further stated that the Land Acquisition Officer had submitted a report to the District Collector on the 5-A inquiry and the District Collector, after considering the objections of the petitioners, had issued orders under Section 5-A (2) of the Act on 9.6.2009 duly rejecting the objections of the petitioners, as they are not tenable. The said orders had been communicated to all the petitioners on 20.6.2009. The Land Acquisition Officer had submitted proposals of Draft Declaration under Section 6 of the Act for an extent of Ac.41-09 cents to the District Collector for approval, after excluding the land to an extent of Ac.23-50 cents out of Ac.64-59 cents published in 4 (1) Notification. 24. Further it is averred that accordingly, the District Collector had approved the Draft Declaration under Section 6 of the Act on 09.6.2009 for an extent of Ac.41-09 cents and the same was published in the District Gazette, two daily newspapers and locality as follows. Sl.No. Mode of publication Date of publication of Draft Declaration 1. Guntur District Gazette 09-6-2009 2. Andhra Jyothi daily newspaper 12-6-2009 3. Andhra Prabha daily newspaper 12-6-2009 4. Substance in the locality 16-6-2009 25. Further specific stand had been taken that it is not true to contend that all the petitioners are small farmers, except petitioners 1 and 25. Only some of the petitioners are small farmers. It is further stated that after considering the objections of the petitioners, the District Collector had issued orders under Section 5-A (2) of the Act on 09-6- 2009 duly rejecting the objections of the petitioners, as they are not tenable. It is also stated that the said orders had been communicated to all the petitioners on 20-6-2009. 26. Further it is averred that it is true that in the endorsement dated 09-6-2009 issued by the District Collector it had been mentioned as Ac.61-59 cents. The said endorsement had been issued prior to the approval of Draft Declaration under Section 6 of the Act by the District Collector. Though some of the petitioners are small farmers, their lands could not be excluded from acquisition, as they are situated amidst of the total land and it is not possible to exclude those lands from acquisition. The lands suggested by the petitioners are not feasible for acquisition, as they are low lying lands and they are not suitable for construction of houses. 27. Further specific stand had been taken that respondents 2 and 3 had never stated that the lands of the petitioners would be deleted from acquisition and the distance and other particulars also had been specifically denied. Further specific stand had been taken that along with