THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT APPEAL No.256 of 2004 Date: 20.09.2010 Between: Smt. R. Kanakamma … Petitioner and The District Collector, Nellore District, Nellore and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT APPEAL No.256 of 2004 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri C.Kodandaram, learned Senior Counsel, representing D.S. Lakshmi, learned counsel appearing for the appellant as well as the learned Special Government Pleader, representing the learned Advocate General, appearing for respondent Nos.1 to 5. 2. This Writ Appeal is directed against the order, dated 26.12.2003, passed by a learned single Judge of this Court in W.P.No.30924 of 1997, holding that the proceedings initiated by the respondents under the Land Acquisition Act, 1894 (for brevity “the L.A. Act”) insofar as the land in Sy.No.319/2 of Bit-II of Nellore, do not suffer from any infirmity or illegality. 3. The appellant is writ petitioner and the respondents are respondents in the writ petition. For the sake of convenience, in this judgment, the parties are referred to as they are arrayed in the writ petition. 4. Though the learned single Judge had elaborately recorded the facts that led to filing of the writ petition, however, we deem it appropriate to summarize the facts of the case once again for proper disposal of the present writ appeal. 5. The husband of the petitioner was granted lease in respect of the land in Sy.N.319/2 of Bit-II of Nellore, admeasuring Acs.5.75 cents, belonging to Sri Venugopala Swamy Temple, Nellore (for brevity “the Temple”) on 24.3.1934 for a period of 50 years. During the subsistence of the said lease, A.P. (Andhra Area) Tenancy Area Act (for brevity “the Tenancy Act”) came to be enacted in the year 1956. Subsequently the Temple filed A.T.C.No.37 of 1981 seeking eviction of the tenant and the same was dismissed. The appeal in A.T.A.No.10 of 1991 filed before the appellate authority was also dismissed on 28.1.1991 and the said order became final. 6. On 6.4.1994, when the Revenue Divisional Officer and the Mandal Revenue Officer, Nellore, entered into the disputed land and tried to demarcate the boundaries, apprehensive of the dispossession, the petitioner filed W.P.No.7434 of 1994. A contention was raised by the respondents in the said writ petition that the road margin of one of the public roads in Nellore town was encroached by several persons and to rehabilitate them, the land belonging to the Temple was identified for acquisition. It was further contended by the respondents that even by the time the interim orders were passed by this Court, the displaced persons occupied the land in dispute. Eventually, the said writ petition was allowed by this Court, by order dated 18.1.1996, holding that on account of the unauthorized State action, the right of the petitioner under Article 231 of the Constitution of India was violated and that the petitioner be restored the possession of the land within a month thereafter and also awarded a compensation of Rs.6,000/- per acre from the date of dispossession till the date of restoration. The appeal in W.A.No.1127 of 1996 filed by the respondents therein was dismissed on 18.11.1996 and the petitioner also appears to have filed a contempt case. There were other subsequent developments that gave a new turn to the litigation, which are not worth mentioning at this stage nor they are necessary to resolve the present controversy. 7. In S.L.P.No.3926 of 1996 filed by the respondents against the orders in W.A.No.1127 of 1996, dated 18.11.1996, the apex Court passed orders on 10.11.1997 observing that no fault can be found with the decision rendered by the Division Bench in W.A.No.1127 of 1996, confirming the order of the learned single Judge in W.P.No.7473 of 1994 for the reason that the procedure as contemplated under the law was not followed. However, the apex Court left it open to the petitioner to challenge the validity of the notification issued under Section 4 (1) of the L.A. Act. 8. In other words, to the extent of illegal dispossession without taking the recourse of law was deprecated by the apex Court. However, since the land acquisition proceedings were being initiated, liberty was kept open for the petitioner to challenge the said proceedings. That is how the notification issued by the respondents under Section 4 (1) of the L.A. Act proposing to acquire the land in Sy.No.319/2 of Nellore was made as a subject matter in the writ petition, and the learned single Judge dismissed the writ petition. Hence the present writ appeal. 9. Sri C.Kodandaram, learned Senior Counsel appearing for the petitioner, submits that the proceedings under the L.A. Act were issued to overcome the judgments in W.P.No.7473 of 1994 and W.A.No.1127 of 1996; that instead of first restoring the possession, despite the orders of the learned single Judge passed in W.P.No.7473 of 1994, as confirmed in W.A.No.1127 of 1996, and again confirmed by the apex Court in the above S.L.P., possession was not restored to the petitioner and, on the other hand, the respondents have come up with acquisition proceedings, which amounts to colourable exercise of power. He also points out that the Mandal Revenue Officer in his counter, dated 7.12.1997, filed in the contempt case stated that because of the agitation undertaken by the 6th respondent, they could not comply with the directions of the Court and that the 6th respondent, who was the then Managing Trustee of the Temple, tried unsuccessfully to evict the petitioner by initiating proceedings under the Tenancy Act. Having been failed in doing so, he saw to it that his followers encroached the said land. It is obvious that the Mandal Revenue Officer himself in his counter affidavit stated that because of the interference of the men of 6th respondent, he could not implement the orders of the Court. He made several submissions, which revolved around the involvement of the 6th respondent and the colourable exercise of power at the hands of the respondents. He further submits that there were no reasons apparently available for the respondents to dispense with the enquiry under Section 5A of the L.A. Act, which is a substantial right; that even assuming that the land was required for house sites for public purpose, having regard to the factual back ground of the controversy, dispensing with the enquiry under Section 5A of the L.A. Act by invoking the urgency clause was not justified at all; and that when various Government lands, which are situate very close to the land under acquisition, are available, the lands of the Temple ought not have been acquired and being a tenant, the petitioner should be given first preference to purchase the said land. Therefore, learned Senior Counsel for the petitioner submits that if the enquiry under Section 5A of the L.A. Act is conducted, all these facts would have been surfaced and would have fallen for consideration for the respondents before arriving at any conclusion detriment to the interest of the petitioner. 10. On the other hand, the learned Special Government Pleader appearing for the official respondents submits that in order to evict and accommodate the encroachers of the road margin, some land was required and in that view of the matter the present land was sought to be acquired; that already possession was taken on 11.4.1994 with the consent of the Temple and after preparing the layout, plots were allotted; that in view of the observations made by the apex Court, the notification under Section 4(1) of the L.A. Act was issued on 12.2.1997 and the declaration under Section 6 of the L.A. Act was also issued on 13.2.1997; that the apex Court, while disposing of the S.L.P., stayed the restoration part of the order pending the writ petition to be filed by the petitioner challenging the acquisition proceedings, which was on the anvil; that the owner of the Temple and the petitioner have no right over the land since they even ceased to be the tenants as envisaged under Section 82(1) of the Andhra Pradesh Charitable and Hindu Religious Institutions & Endowments Act, 1987 (for brevity “the Endowments Act”); and that no suitable alternative land was available nor the land particulars were furnished by the petitioner or that the lands are not suitable and also far away from the present land under acquisition. 11. At the outset, we cannot find fault with the reasoning assigned by the learned single Judge while dismissing the writ petition. But, we only indicate that there are certain gray areas, which require a little deeper investigation on facts, to a larger extent, and on law, to some extent. We do not propose to go into all those questions of fact or law, nor we propose to address all those questions. However, we only feel that what is required to be examined is whether as on the date of notification, the procedure contemplated under Section 80 of the Endowments Act or the L.A. Act was required to be followed and, if so, whether the procedure adopted was regular and in accordance with law, while issuing notification under Section 4(1) of the L.A. Act and taking possession of the land by invoking the urgency clause. 12. That apart, except the averment and the counter averment with regard to the availability of alternative land to meet the public cause, no other material is available to this Court. Further more, the apex Court in S.L.P.No.3926 of 1996 had given liberty to the petitioner to challenge the notification under Section 4(1) and other consequential proceedings under the L.A. Act as and when they were initiated, which implies that the notification under Section 4(1) and other consequential proceedings under the L.A. Act can be subjected to challenge on all plausible grounds, including the colourable exercise of power, as has been contended by the learned Senior Counsel. 13. Even to examine the aspect as to whether the petitioner, being a tenant as on the date of issuance of notification under Section 4(1) of the L.A. Act, since Section 82(1) of the Endowments Act was not in operation as on that date, has any right to receive any compensation, we are not equipped with complete material from either side. In other words, the tenant was a statutory tenant in 1997, which was subsequently taken away by way of validation of Section 82(1) of the Endowments Act. 14. There are several allegations levelled by the petitioner and this Court is not capable of going into all those factual aspects, that too at this length of time. Therefore, these questions, which are raised by either side, can as well be addressed in an enquiry under Section 5A of the L.A. Act, in which proceedings all the parties i.e., the petitioner, the Temple and the Government will present their case in a detailed and effective manner so as to arrive at a just conclusion. 15. In view of the above, the writ appeal is disposed of modifying the impugned order, dated 26.12.2003, passed by the learned single Judge in W.P.No.30924 of 1997, directing the respondents to conduct an enquiry under Section 5A of the Land Acquisition Act, 1894 or under any other law (under Section 80 of the Endowments Act), after giving notice and opportunity to all the interested parties, including the appellant herein, and arrive at a just and final conclusion. This exercise shall be completed with utmost expedition, preferably within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs. ________________________ JUSTICE D.S.R. VARMA _______________________________ JUSTICE B. CHANDRA KUMAR 20.09.2010. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT APPEAL No.256 of 2004 20.09.2010 (Msr)