* THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY + Writ Petition No.9800 of 2007 % DT.30.06.2011 # Uppalapati Brahmamam and others …Petitioners Vs. $ The State of Andhra Pradesh, rep.by its Principal Secretary to Revenue Department, Secretariat, Saifabad, Hyderabad and others … Respondents ^ Counsel for the Petitioners: Sri Mangena Sreerama Rao ! Counsel for respondents: GP for Land Acquisition < Gist: > Head note: ? Cases referred: (2011) 5 SCC 553 THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition No.9800 of 2007 Dated 30th June, 2011 Between: Uppalapati Brahmamam and others …Petitioners And The State of Andhra Pradesh, rep.by its Principal Secretary to Revenue Department, Secretariat, Saifabad, Hyderabad and others …Respondents Counsel for the petitioners: Sri Mangena Sreerama Rao Counsel for respondents: GP for Land Acquisition The Court made the following: ORDER: At the interlocutory stage, the writ petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. This writ petition is filed for a mandamus to set aside orders, dated 04.04.2007 and 05.11.2006, of respondent Nos.2 and 3 respectively, and to quash the proceedings proposed to be taken up for acquisition of land admeasuring Acs.8.00 in Survey No.794 of Vadisaleru Village, Rangampeta Mandal, East Godavari District. I have heard the learned counsel for the petitioners and the learned Government Pleader for Land Acquisition representing the respondents. The petitioners are the residents of Vadisaleru Village, Rangampeta Mandal, East Godavari District. It is not in dispute that they are small farmers having negligible extents of agricultural land for eking out their livelihood. By the impugned action, the respondents are seeking to acquire their lands to the extent of Acs.8.00, besides the lands belonging to others, which in all come to Acs.21.62 cents in Survey No.793/1 of Vadisaleru Village, Rangampeta Mandal, for providing house sites to the weaker sections. The petitioners have filed their objections to the proposed acquisition mainly on the ground that they are small farmers and that they will be deprived of their livelihood if their lands are acquired. During the pendency of the enquiry, a report was called for from the Mandal Revenue Officer, Rangampeta, by his superior officers. Accordingly, he submitted a report, dated 22.02.1996, wherein he has stated that on the direction given by the Revenue Divisional Officer, Peddapuram, to identify the lands of wealthy pattadars for providing house sites to avoid acquisition of lands of small farmers, he has identified such lands admeasuring Acs.13.61 cents in Survey No.793/1 & 2, 794, 809 and 810/1 and 2. The petitioners have obtained this information under the Right to Information Act, 2005 and placed before respondent No.4. On considering the report of respondent No.4, respondent No.2 has passed order, dated 04.04.2007, whereby he has rejected the objections raised by the petitioners along with the objections of other land owners. In paragraph-14 of the order, respondent No.2 has stated as under: “The contents of the para-14 of the petitioners is that, it is pertinent to submit the MRO Rangampeta under his Ref.A.127/2006 Dt.22.09.2006, came to a conclusion that the land situated in S.No.793/1, 793/2, 794, 809, 810/1, 810/2 Acs.13.61 is in the hands of rich people in the village in two items and the land in question is to be acquired from this objection is only Ac.0.12 cents but nor more than that. In fact, even the Ac.0.12 cents intended to be acquired is not required to be acquired. The said communication was made by Mandal Revenue Officer, Rangampeta to the Revenue Divisional Officer, Peddapuram before notification under Section 4 was issued. The copies of those proceedings, which were obtained as per Right to Information Act is enclosed to come to a just conclusion in the matter. The contention of the petitioners are not correct and true. The petitioners in W.P.No.11610 of 2006 have mentioned that some suitable lands in S.Nos.794, 809, 810/1, 810/2 etc., are available for acquisition. The Revenue Divisional Officer, Peddapuram reported that it is only an alternative proposals. In such proposal if any land of Big landlords is proposed, a pathway has to be formed through the lands of petitioners. But ultimately such proposal was dropped and entire land of petitioners proposed for land acquisition to have a compact block of land to built a colony though the petitioners are small farmers.” From the above re-produced order of respondent No.2, it is quite evident that there is no dispute about the fact that the petitioners are small farmers and the further fact that there are alternative lands belonging to wealthy pattadars and that it is also not in dispute that the Revenue Divisional Officer has sent alternative proposals on the report submitted by the Mandal Revenue Officer. Respondent No.2 has rejected the petitioners’ objections by stating that what was reported by the Revenue Divisional Officer was mere proposal which was dropped as pathway needs to be formed through the petitioners’ lands in the event of acceptance of the alternative proposals. In my opinion, the whole approach of respondent No.2 is totally unsatisfactory. The proposed acquisition of the petitioners’ land is to provide house sites for weaker sections. The fact that the petitioners are small farmers being admitted, I find no justification whatsoever to acquire the lands of small farmers for the purpose of providing house sites to the so-called weaker sections. By such acquisition, small farmers will be rendered weaker than those weaker sections for whom the lands are sought to be acquired in order to provide house sites to them. In a welfare State, such an approach cannot be appreciated. Even though the power of eminent domain is vested in the State, such power has to be used in a fair and just manner. In order to confer benefit on one section of people, another section of equally disadvantaged people cannot be deprived of their property and eventually their livelihood. Recognising the need to protect the small farmers, the State Government has issued instructions from time to time to avoid acquisition of the small farmers’ lands wherever it is possible. In the face of the report of the Revenue Divisional Officer, it is quite clear that there is a possibility of acquiring the alternative lands in order to avoid lands of small farmers. In a very recent Judgment, in Radhy Shyam (dead) through LRs and others v. State of Uttar Pradesh and others[1], the Apex Court in its pain-staking Judgement while exploring the relevant facets of the provisions of the Act and the nature and the powers inhered in the State for acquiring the lands of private persons and the valuable rights of the land owners who oppose the acquisitions, laid down comprehensive principles, some of which, relevant for the present purpose, are as under: (i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without the owner’s consent provided that such assertion is on account of public exigency and for public good – Dwarakadas Shrinivas v. Sholapur Spg. & Wvg. Co.Ltd. (AIR 1954 S.C. 119) and Jilubhai Nanbhai Khachar v. State of Gujarat (1995(Supp).(1) SCC 596). (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly – DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003(5) SCC 622), State of Maharashtra v. B.E.Billimoria (2003(7) SCC 336) and Dev Sharan v. State of U.P. (2011(4) SCC 769). (iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one’s property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the court is not only entitled but is duty-bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/or shelter. (iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons (emphasis added). On a careful consideration of the facts, I am of the opinion that respondent No.2 ought not to have rejected the alternative proposals submitted by the Revenue Divisional Officer even if such acceptance would have given rise to the necessity of providing pathway through the petitioners’ lands. For all the above-mentioned reasons, the writ petition is allowed and the impugned acquisition proceedings are quashed to the extent of the petitioners only, however, with liberty to the respondents to initiate fresh acquisition proceedings to acquire the alternative lands in terms of the report of the Revenue Divisional Officer. As a sequel to disposal of the writ petition, W.P.M.P.No.12425 of 2007 and W.V.M.P.No.1969 of 2007 are disposed of as infructuous. C.V.NAGARJUNA REDDY, J 30th June, 2011 Note: LR copies to be marked (b/o) VGB [1] (2011) 5 SCC 553