IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.11045 and 11049 of 2010 W.P.No.11045 of 2010: BETWEEN Marella Srinivasulu. ... PETITIONER AND The District Collector, Prakasam District, Ongole and others. ...RESPONDENTS Counsel for the Petitioner: MR. M. SUDHIR KUMAR Counsel for Respondents 1 to 4: GP FOR LAND ACQUISITION Counsel for the Respondents 5 to 12: MR. K. ANANDA RAO W.P.No.11049 of 2010: BETWEEN Bandaru Lakshminarasamma and eight others. ... PETITIONERS AND The District Collector, Prakasam District, Ongole and others. ...RESPONDENTS Counsel for the Petitioners: MR. M. SUDHIR KUMAR Counsel for Respondents 1 to 4: GP FOR LAND ACQUISITION Counsel for the Respondents 5 to 11: MR. K. ANANDA RAO The Court made the following order: COMMON ORDER: WP.No.11045 of 2010: The present writ petition is third in succession filed by the writ petitioner. The petitioner in this writ petition questions the action of the respondents in dispensing with the enquiry under Section 5-A of the Land Acquisition Act, 1894 (for short ‘the Act’) by invoking the provisions under Section 17(4) of the Act with regard to the impugned notification under Section 4(1) of the Act dated 23.04.2010. The petitioner claims to be owner and possessor of land in an extent of Ac.1.45 cents in Sy.Nos.595/10 and 618/1 of Naguluppalapadu Village and Mandal, Prakasam District. 2. The facts, in brief, as set out in the counter of the third respondent – Special Deputy Collector (Land Acquisition), are as follows: (a) The Executive Engineer, Gundlakamma Reservoir Project Division, Ongole, submitted a requisition to the Special Deputy Collector (LA) for acquiring the land to an extent of 80.995 acres in N.G. Padu, Pothavaram and Chadalavada villages for the purpose of excavation of 12R Major/Minor canals. On approval of the said proposal by the requisitioning authority, the notification under Section 4(1) of the Act was initially published in the Gazette on 25.07.2006 apart from its publication in the newspapers and locality. Since urgency clause was invoked under Section 17(4) of the Act dispensing with enquiry under Section 5-A of the Act, draft declarations under Section 6 of the Act were also published in the Gazette on 08.08.2006 as well as in the newspapers and the locality. Some of the landowners filed WP.No.19131 of 2006 before this Court challenging the acquisition proceedings and the said challenge succeeded to the extent of directing the respondents to conduct enquiry under Section 5-A of the Act. A detailed enquiry was accordingly conducted and a fresh declaration under Section 6 of the Act was issued on 21.02.2007. (b) At that stage, some other landowners, who are not petitioners in WP.No.19131 of 2006, filed WP.No.5367 of 2007 questioning the draft declaration under Section 6 of the Act and by order of this Court dated 17.12.2007, the respondents were directed to conduct Section 5-A enquiry. Accordingly, the enquiry under Section 5-A of the Act was again conducted by the District Collector by giving opportunity to all the petitioners in WP.No.5367 of 2007. The objections filed by the petitioners were duly considered and rejected and fresh declaration dated 09.03.2008 was published in the Gazette, newspapers and the locality. The draft notification was again questioned by the petitioner herein by filing WP.No.6763 of 2008, which was allowed by order of this Court dated 05.03.2010 on the ground that the Special Collector, who issued the notification, was on the date of the notification not authorized and delegated with the powers of the Collector. Consequently, while setting aside the notification issued under Section 4(1) of the Act and consequential declaration, liberty was granted to the respondents to issue notification afresh and initiate acquisition proceedings in accordance with law. (c) Accordingly, the respondents issued the present impugned notification under Section 4(1) of the Act with regard to the petitioners’ land admeasuring Ac.1.45 cents by publishing notification in the Gazette on 27.04.2010 as well as in the newspapers and the locality thereafter. Since, the enquiry under Section 5-A of the Act was dispensed with, notification under Section 6 of the Act was also published in the Gazette dated 01.05.2010 as well as in the newspapers and locality. 3. Questioning dispensing with the enquiry under Section 5-A of the Act, the present writ petition is filed and this Court while admitting the writ petition, granted interim stay on 06.05.2010. 4. The primary contention raised by the learned counsel for the petitioner in support of the writ petition is that the acquisition being for excavation of canal, the urgency is not so eminent that the respondents cannot wait for 30 days to conduct enquiry under Section 5-A of the Act. Learned counsel states that the objections to the enquiry under Section 5-A of the Act being the valuable right available to the petitioner, the respondents could not have invoked the urgency clause to deny the only valuable right available to the petitioner to object to the acquisition. Learned counsel for the petitioner has relied upon a decision of the Supreme Court in RADHY SHYAM (DEAD) THROUGH LRS. AND OTHERS v. STAE OF UTTAR PRADESH[1] and placed strong reliance upon the proposition culled out in the said decision in para 77 viz. The provisions of Section 17(4) of the Act can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months and while invoking this provision there must be shown an application of mind on the part of the respondents. Thus, the valuable right of the owner of a property to object to the public purpose profaced cannot be frustrated by resorting to urgency provisions. 5. Learned counsel for the petitioner placed strong reliance upon para 87 of the decision in RADHY SHYAM’s case (1 supra) to point out that merely because the acquisition is not challenged by other landowners is not a ground to refuse the statutory right under Section 5-A of the Act available to the petitioners. 6. Learned Government Pleader for land acquisition as well as the learned counsel for impleaded respondents 5 to 12 have both filed separate applications seeking vacation of the stay together with counter affidavit. The impleaded respondents 5 to 12 stated that their lands as also that of the petitioner are situated along the proposed canal and would be benefited by irrigation plan of the Government. The impleaded respondents, therefore, support the acquisition proceedings and state that though the excavation work of the entire canal having been substantially completed, on account of the repeated writ petitions and stay obtained by the petitioner with regard to his land, which is in the middle of the acquired lands, the respondent authorities are unable to complete the excavation and consequently, the release of the water from the canal is held up. 7. The Land Acquisition Officer also filed a detailed counter wherein it is stated that the enquiry under Section 5-A of the Act was twice conducted under the two notifications of 2006 and 2007, referred to above and the objections of the petitioner as well as the other landowners were duly considered and rejected. It is also stated that the original acquisition proposal initiated in 2006 remained unexecuted to the extent of the petitioners’ land and keeping in view the location of the petitioner’s land being in the middle of the proposed canal, it is inevitable to acquire the petitioner’s land and the same cannot be excluded. It is stated that 20,000 acres of land would be benefited by excavation of the canal and release of the water and though the excavation and formation of canal is completed, except the petitioner’s land, water could not be released as the petitioner’ land is situated in the middle of the canal. The counter, further, states that a total extent of Ac.81.27½ cents was notified for acquisition to construct 12R Major canal and the entire land acquisition proceedings are completed except the land of the petitioner. It is specifically averred that the consent award dated 29.03.2010 is passed to the extent of Ac.38.56 cents and the awardees have received compensation. Another general award dated 07.04.2010 has also been passed to the extent of Ac.40.98½ cents, which is now the subject matter of a reference before the Senior Civil Judge’s Court, Ongole. It is stated that the total length of the canal is 22 KMs and the total ayacut under the left main canal is 52,060 acres. While the left main canal is having 16 major and two branch canals, 12 R is one of the branch canals and is having 20,000 acres of ayacut under it. The acquisition of left main canal for the entire length of 22 KMs was completed and handed over to the requisition department and the excavation of the canal is also completed by the executing agency. With regard to the 12 R branch canal, the total length is 13.875 KMs covering 5 to 6 different villages and except the land of the petitioner, the acquisition proceedings and excavation work of the remaining extent of the entire canal have already been completed and in these circumstances, the invocation of urgency clause is justified. The Special Deputy Collector has also filed a coloured plan showing the 12R branch canal almost complete except on the land of the petitioner and the same is placed hereunder. 8. In the light of these pleadings, the question that requires consideration is whether invocation of urgency clause is justified. As held by the Supreme Court in the decision in RADHY SHYAM’s case (1 supra) acquisition of this nature may not be so urgent as to warrant dispensing with the enquiry under Section 5-A of the Act but the contention of the learned counsel for the petitioner cannot be appreciated in isolation. The facts and circumstances of this case, as are set out from the contentions of the Special Deputy Collector in the counter, referred to above, show that out of the length of 22 KMs of the canal, except a fractional bit of Ac.1.45 cents of land belonging to the petitioner, the entire acquisition process is completed including awards having been passed to the extent of about 80 acres out of total notified extent of Ac.81.27½ cents. The process of notifying the acquisition commenced in the year 2006 followed by enquiry under Section 5-A of the Act as per the orders of this Court in the writ petition, referred to above and another enquiry under Section 5-A of the Act as per the orders of this Court in the second writ petition, referred to above and there is no denial that the petitioner participated in both the enquiries under Section 5-A of the Act and objections of all affected landowners were duly considered and rejected. 9. In my view, the aforesaid decision in RADHY SHYAM’s (1 supra) must be understood in the context of the purpose of the acquisition, as the Supreme Court itself has stated in paras 73 to 76 that the exercise of urgency clause must be judged with reference to the purpose of acquisition whether for residential, commercial or industrial purpose. The aforesaid decision itself noticed that justification may exist for invoking urgency clause for overcoming acute problem of housing perceived as national problem, so also when construction of Yamuna express way was urgently required to be completed as huge amounts were spent on the project. In the present case, a long length of canal from the acquired land has been excavated and to be put to use by releasing water but for the stay obtained by the petitioners to the extent of their bit of land, which is a fraction of total length of the canal. With respect, therefore, the ratio in para 87 of the aforesaid decision, as relied upon by the learned counsel for the petitioners, is not attracted to the facts of the present case. 10. It is, no doubt, true that the said acquisition notification issued in the year 2007 was ultimately set aside by this Court on the ground of want of authorization on the part of the Special Deputy Collector, who had issued the notification, but the benefit of the said writ petition was available only to the petitioner before this court and the acquisition proceedings to the extent of other landowners was completed and followed by awards as well. Thus, in view of the last of the orders of this court in WP.Nos.6763 and 14900 of 2008 dated 05.03.2010, the respondents issued impugned notification under Section 4(1) of the Act only to the extent of Ac.1.45 cents belonging to the petitioner. The stage at which the urgency clause was invoked under the impugned notification is where the entire acquisition proceedings including the excavation of the canal work was by then completed except the land of the petitioner, as stated in the counter affidavit and keeping in view that the proposed facility of irrigation to 20,000 acres of land was held up only on account of the litigation by the petitioner to the extent of Ac.1.45 cents, there was apparent urgency in acquiring the land of the petitioner coupled with the fact that on account of completion of excavation work of the canal on both sides of the petitioners’ land, the acquisition of the land of the petitioners became inevitable. 11. Even otherwise and excluding all these factors from consideration also and even assuming that enquiry under Section 5-A of the Act is ordered now by accepting the petitioners’ case, no useful purpose would be served, as the public purpose viz. laying of the canal for the purpose of irrigating 20,000 acres and thereby, the benefit to large number of cultivators, as proposed public purpose, cannot be denied. The petitioner, who is only the holder of a very small bit of land, is apparently resorting to technical and legal pleas to frustrate the entire acquisition and thereby, the public purpose sought to be achieved would, on the contrary, be frustrated further. A situation similar to the present was considered by the Supreme Court in OM PRAKASH v. STATE OF UTTAR PRADESH[2] wherein an extent of 494.26 acres of land was under acquisition and the appellants before the Supreme Court owning about 50 acres and accounting to 1/10th of the entire land had questioned the validity of the notification, particularly, invocation of urgency clause under Section 17(4) of the Act. In that case also it was argued that invocation of urgency clause was unjustified and the appellants were entitled to opportunity to enquiry under Section 5-A of the Act. The Supreme Court took note of the fact that even after six years of initiation of acquisition proceedings, they remained stagnant qua-the appellants land. The development activity in the entire complex, which includes the substantial construction work - laying the pipelines and infrastructure having been already been completed, the Supreme Court was of the view that ordering Section 5-A enquiry at that stage would bring the entire developmental activity to a grinding halt, which would not be in the interest of anyone. The Supreme Court also found that when large tracks of land are acquired and 9/10th of the occupants have thought not fit to challenge the acquisition, setting the clock back by permitting the enquiry under Section 5- A of the Act so far as petitioners are concerned would amount to upsetting the entire apple cart of acquisition of 500 acres at the behest of the 1/10th of the land owners and in those circumstances, though the invocation of the urgency clause per se was not approved; it declined the setting aside the notification under Section 6 of the Act and declined to order enquiry under Section 5-A of the Act so as to avoid opening of Pandora’s box. 12. In the present case, as well, the counter affidavit of the Special Deputy Collector, Land Acquisition, referred to above, shows that the entire length of 12R branch canal covering 13.875 KMs and the main canal of entire length of 22 KMs is completed except on the land of the petitioner and in the circumstances, invocation of urgency clause to enable the requisitioning authority to release water through the canal at the earliest is in the interest of ayacutdars and justifies the notification of urgency clause under the impugned notification. The writ petition, therefore, is devoid of substance and merit and is liable to be dismissed. WP.No.11049 of 2010: 13. The petitioners in this writ petition are identically situated as the petitioner in WP.No.11045 of 2010, as above. The notification questioned in the present case is also on the ground of invoking urgency clause as covering the petitioners’ aggregate extent of Ac.6.91 cents. The impugned notification came to be issued, being third in the series for the same purpose, as a consequence of the last of the orders of this Court in WP.Nos.6367 and 14900 of 2008 dated 05.03.2010. The petitioners herein are the petitioners in WP.No.14900 of 2008, referred to above. 14. It is asserted in the counter affidavit filed by the Special Deputy Collector that in two notifications preceding the impugned notification, a detailed enquiry under Section 5-A of the Act was already conducted and the objections of various owners including the petitioners were duly considered and rejected. It was also stated that these petitioners’ small bit of land in the right canal is left without digging because of the said orders granted by this Court and on account thereof, the requisitioning department is unable to get any water from the said canal and ultimately, 20,000 acres of land sought to be covered in the ayacut is frustrated. 15. The facts, circumstances and the material aspects concerning challenge to the impugned notification, being similar to WP.No.11045 of 2010 disposed of as above, for the same reasons, this writ petition is also liable to be dismissed. In the result, WP.Nos.11045 and 11049 of 2010 are dismissed. As a consequence, the vacate stay petitions stand disposed of. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J September 9, 2011 DSK [1] (2011) 5 SCC 553 [2] AIR 1998 SC 2504