HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.16032 of 2009 ORDER: The order of the 2nd respondent dated 22.7.2009, rejecting the petitioner’s objections filed under Section 5-A of the Land Acquisition Act (hereinafter called the “Act”), is under challenge in this Writ Petition as arbitrary and illegal. The 2nd respondent issued notification no.118/2008 dated 8.12.2008, under Section 4(1) of the Act, for acquisition of the petitioner’s land of an extent of Ac.1-60 cents in R.S.No.127/6 of Kuduru Village of Pedana Mandal. The said notification was also published in the newspapers on 13.12.2008. A notice in Form No.III, under Section 5-A of the Act, was issued calling upon the petitioner to submit his objections on 26.1.2009 in the office of the 3rd respondent. By the schedule in Form III, the petitioner was informed that an enquiry would be conducted in relation to Ac.1-60 cents of wet land in Sy.No.127/6 of Kuduru Village. The petitioner claims to have purchased an extent of Ac.3- 42 cents of land from Smt.Ankem Kusuma Kumari, under registered sale deed dated 28.3.2007, spread over in different survey numbers. He would submit that, apart from this extent of Ac.3-42 cents, he owns Ac.0-50 cents in Sy.No.147/1. He claims to have sold an extent of Ac.0-15 cents from out of Ac.0-50 cents, and to be in possession of Ac.3-42 cents of wet land and Ac.0-35 cents of dry land. He would further submit that, from out of Ac.3- 42 cents, he agreed to give Ac.1-42 cents as pasupu kumkuma to his daughter on the occasion of her marriage; and he had executed a gift deed in her favour on 3.12.2008. The petitioner would further submit that, since he is a small farmer holding less than Ac.2-50 cents of wet land, his land cannot be acquired in view of the government orders issued in this regard. It is his case that, though he had raised objections to the notice under Section 5-A of the Act, the 2nd respondent had failed to consider the said objections; and the impugned order suffers from non-application of mind. A detailed counter affidavit is filed denying the petitioner’s contentions and justifying the order passed by the 2nd respondent, including on the ground that the so called gift deed is an unregistered document and cannot be relied upon. During the course of arguments, curiously while Sri C. Raghu, the Learned Counsel for the petitioner, would refer to the counter affidavit of the respondent in support of his contention that the respondents had treated the land owned by the petitioner as dry land, the Learned Government Pleader for Land Acquisition would refer to the affidavit, filed by the petitioner in support of the Writ Petition, to contend that the petitioner’s admission that it is wet land would justify his not being treated as a small farmer. Under Section 5-A (1) of the Act, any person interested in any land, which has been notified under Section 4(1) as being needed for a public purpose, may object to the acquisition of the land. Under Section 5-A(2) every objection, under sub-section (1), shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him or by a pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, make a report in respect of the land to the appropriate Government containing his recommendations on the objections together with the record of proceedings held by him for the decision of the appropriate Government and the decision of the Government, on the objections, shall be final. The order of the Collector dated 22.07.2009 is made in exercise of the statutory power conferred on him under Section 5- A of the Act. An order made in exercise of statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Such orders must be construed objectively with reference to the language used in the order itself. (Commissioner of Police v. Gordhandas[1]). When a statutory functionary makes an order, based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit. Otherwise, an order bad in the beginning may, by the time it come to Court on account of a challenge, get validated by additional grounds later brought out. Orders are not like old wine becoming better as they grow older. (Mohinder Singh Gill v. The chief Election Commissioner, New Delhi[2]). This Court must, therefore, examine the validity of the order of the Collector under Section 5-A(2) of the Act only in the light of what has been stated therein and in the objections submitted by the petitioner to the notice issued under Section 5-A; and not on the basis of what has been stated either in the affidavit filed in support of the Writ Petition or in the counter–affidavit filed by the respondents before this Court. Before doing so it must, however, be noted that the government, vide memo No.1650/C1/83-1 dated 30.5.1983, issued instructions to the effect that acquisition of land belonging to small farmers, holding not more than 2½ acres of wet or 5 acres of dry land , should not, ordinarily, take place for provision of house sites to weaker sections. But in unavoidable cases the express prior permission of the government should be obtained. The acquisition, in the present case, is for providing house sites to weaker sections and, since it is evident that prior permission of the government has not been obtained, in case the petitioner is a small farmer, his land could not have been acquired. In his written objections, to the notice issued under Section 5-A of the Act, the petitioner stated that he had purchased the scheduled land on 26.3.2007 from Ankem Kusuma Kumari for valuable consideration; he belonged to the backward classes and was a small farmer; except the schedule land he had no moveable or immovable properties in Kuduru village or in any other place; the proposed schedule land was not fit for house sites and was a fertile land for agriculture; surplus land belonging to the government, situated in Kuduru village, was available for providing house sites; he has two daughters and one son; his eldest daughter’s marriage was held on 11.2.2009; from out of the scheduled land, Ac.1-42 cents was given as pasupu kumkuma; a document was also executed in her favour; there was other land, situated opposite to the proposed scheduled land belonging to big landlords of more than 10-00 Acres; as per the memo dated 30.5.1983 the land acquisition officer should, ordinarily, not acquire land belonging to small farmers; the lands which were meant for cultivation and were fertile should not be acquired under the Land Acquisition Act; and the V.R.O. Kuduru had suppressed facts and had not placed the true facts before the land acquisition officer. Along with his objections, the petitioner enclosed copies of the memo dated 31.5.1983 and the gift deed dated 3.12.2008. In his order, under Section 5-A(2) of the Act, the Collector held that the petitioner had Ac.3.92 cents of land in Kuduru village including the land under acquisition; the proposed land was suitable for house sites; there was no Government land, fit for house sites, available in Kuduru village. The petitioner’s objection, that he had given Ac.1.42 cents as pasupu kumkuma to his daughter, was brushed aside by the Collector holding that a notice would be issued under Section 9(3) and 10(1) of the Act and he could claim compensation by filing valid documentary support and that the title of the land would be finalized at the time of award enquiry. With regards the land situated opposite to the petitioner’s land, and belonging to four big landlords of Ac.10.00 each, the Collector held that these lands were low lying and unfit for house sites. The Collector held that the government memo dated 31.5.1983 was inapplicable as the petitioner owned Ac.3-92 cents and would not come under the category of a small farmer. The impugned order does not record the basis on which the Collector came to the conclusion that the petitioner owned Ac.3-92 cents of land in Kuduru village, including the land under acquisition. The Collector has, evidently, used information obtained behind the petitioner’s back in coming to such a conclusion. The petitioner was not afforded an opportunity of explaining as to whether he continued to hold Ac.3-92 cents as on the date of the Section 4(1) notification. In determining whether or not he was a small farmer entitled for protection under the government memo dated 31.3.1983, the Collector neither disbelieved the petitioner’s submission that he had given Ac.1-42 cents of land as pasupu kumkuma to his daughter, nor did he examine whether such a gift necessitated the said extent being excluded from the petitioner’s holding. Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. The hearing which is required to be given to a person under Section 5-A must be an effective one and not a mere formality. Formation of opinion, as regards the public purpose and suitability thereof, must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State, in its decision-making process, must not commit any misdirection in law. Section 5-A of the Act confers a valuable right and, having regard to the provisions contained in Article 300-A of the Constitution of India, has to be held to be akin to a fundamental right. (Hindustan Petroleum Corporation Ltd v. Darius Shapur Chenai[3]) The impugned order of the District Collector is not only in violation of the principles of natural justice, (in as much as information gathered behind the petitioner’s back was made the basis for rejection of his objection), but also suffers from non- application of mind to relevant factors such as the petitioner’s contention that he had given Ac.1-42 cents of land to his daughter as pasupu kumkuma. As the petitioner is sought to be deprived of his land, he has a valuable right of an effective hearing under Section 5-A of the Act. Failure on the part of the Collector to consider his objections objectively, based on relevant material and eschewing irrelevant ones, would necessitate the impugned order being quashed. I see no reason to examine the merits of the impugned order on the basis of the pleadings urged, and the documents now placed before this Court along with the Writ affidavit or the Counter affidavit as that would amount to exercise of an appellate jurisdiction. This Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, would neither sit in appeal over the order passed by the 2nd respondent nor would it substitute its conclusions for that of his. If the order suffers from a patent illegality this Court would merely quash or set it aside. The order of the 2nd respondent dated 22.7.2009 is quashed. It is, however, open to the 2nd respondent to pass orders afresh, after putting the petitioner on notice, giving him an opportunity of submitting additional objections and an opportunity of being heard. The Writ Petition is, accordingly, allowed. However, in the circumstances, without costs. ____________ -06-2010 asp [1] AIR 1952 SC 16 [2] AIR 1978 SC 851 [3] 2005) 7 SCC 627