THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.16318 of 2009 18th November, 2009 Between:- G.Chittaranjan Reddy and others .. Petitioners And Government of Andhra Pradesh, Rep.by its Principal Secretary – Revenue, Secretariat, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.16318 of 2009 ORDER:- This Court ordered notice before admission on 10-8-2009 and in wpmpno.21416/2009 directed the status quo to be maintained for a limited period which is being extended from time to time. On 13-10-2009 this Court issued rule nisi. 2. The Writ Petition is filed for a Writ of Mandamus declaring the proceedings No.D2/9380/2008, dt.20-7-2009 issued by the 2nd respondent as illegal, arbitrary, contrary to Section 5-A of the Land Acquisition Act (hereinafter in short referred to as ‘the Act’ for the purpose of convenience), non-application of mind, without jurisdiction and set aside the same and pass such other suitable orders. 3. The said Order dt.20-7-2009 reads as hereunder:- “Government of Andhra Pradesh Proceedings of Special Collector (LA), Nalgonda Dr.K.L.R.S. & A.M.R.Projects: Present: Sri M.C.Lal, M.Sc., (Agr) Proc.No.D2/9380/2008 Dated:20-7-2009 Sub:- Land Acquisition - Dr.K.L.R.S. & A.M.R.Projects – AMRP Unit-II – PA Pally (M) – Akkampally (v) – Acquisition of land in Sy.No.137, 146 & 149 to an extent of Ac.10-35 gts., for the purpose of House sites to PDFs in the village limits of Akkampally, H/o.PA Pally – 5-A enquiry conducted – Instructions received from Government – Orders issued. Read:- 1. District Collector, Nalgonda, Lr.No.G1/13864/07, dt.20-6-2009 2. Mem No.14780/Maj.Irr/A1/2008-3, dt.15-7-2009 of Irrigation & CAD (Major) Dept., dt.15-7-2009. -: o0o :- ORDER:- Draft Notification for acquisition of Ac.10.35 gts., in Sy.No.137, 146 and 149 of Akkampally, H/o.PA Pally has been approved by Special Collector, AMR Project, Nalgonda on 27-11-2008 and published in local News Papers dt.4-12-2008. 5-A notices in form-3 dt.5-12-2008 have been served to the land owners on 9-12-2008, keeping in view of the orders of Hon’ble High Court, A.P., Hyderabad in W.P.No.11768/2006 dt.7-6-2006. Objections from Sri Chittaranjan Reddy, Subhadra Reddy and Anasuya have been received by this Office on 9-1-2009. The remarks of the SDC(LA), MARP Unit-II, Nalgonda and Superintendent Engineer, AMRP Circle-I on the objections have been received on 4-2-2009 and 3-3-2009 respectively. The objections and remarks are examined in detail and 5-A enquiry report submitted to the District Collector, Nalgonda on 5-6-2009 for onward submission to Government after due examination. District Collector, Nalgonda submitted 5-A enquiry report to Government vide reference 1st cited. Irrigation & CAD Department vide Memo cited has informed that Government agree with the remarks of the District Collector and Land Acquisition Officer and opined that the objections of the petitioners to effect deletion of lands in Sy.No.137, 146 & 149 under R&R programme deserves no consideration in view of imperative need for speeding up process of LA for R&R purpose and directed the Special Collector (LA), AMRP, Nalgonda to issue orders on objections raied by the petitioners keeping in view of the remarks of the Land Acquisition Officer. The proposed land is required for providing house sites to project displaced families of Akkampally Balancing Reservoir under R&R programme and the LA process has already been delayed due to prolonged litigation since 2006. After detailed examination of the objections filed by the petitioners and remarks of the Land Acquisition Officer and technical opinion of SE, AMRP and keeping in view the imperative need for acquisition Ac.10.5 gts in Sy.No.137, 146 and 149 of Akkampally, H/o.PA Pally village for R&R purpose, all the objections filed by the petitioners are hereby over-ruled and rejected. Copy of 5-A enquiry report is enclosed. Sd/- Special Collector (LA), Nalgonda.” 4. Averments in detail had been made in the affidavit filed in support of the writ petition. Equally, a counter affidavit was filed by the 3rd respondent in detail denying several averments and further explaining certain of the averments made in the affidavit filed in support of the writ petition. 5. The Order under challenge in the Writ Petition already had been specified supra. 6. Sri C.Raghu, the learned Counsel representing the writ petitioners had taken this Court through the contents of the affidavit filed in support of the writ petition and also the order under challenge and would maintain that the Special Collector, Land Acquisition, Nalgonda, is not at all competent either to over-rule or to reject the objections and hence the order under challenge being without jurisdiction, the same is liable to be quashed. While further elaborating his submissions, the learned Counsel also explained the scope and ambit of Section 5-A of the Act and would maintain that in the light of the clear language of Section 5-A of the Act, it is the Government to make an order on the forwarding of the report and the Government had no occasion to apply its mind independently in the present case as can be reflected even from the records which had been produced before this Court and hence to contend that this order under challenge is only a communication and there is yet another order which was already made by the Government also cannot be a sustainable contention. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 7. Per contra, the learned A.G.P. for Land Acquisition had taken this Court through the contents of the counter affidavit of R.3 and also pointed out to the proceedings Memo No.14780/Maj.Irr.III/A1/2008-3, dt.15-7-2009 and also Memo.No. 14780/Maj.Irr.III/A1/2008-2, dt.4-11-2008 and would maintain that in the light of these records it is clear that the Government after due application of mind, had affirmed the reasons and findings recorded by the 2nd respondent – the Special Collector, Land Acquisition, and since the Government had chosen to affirm the same, there is no reason to record further elaborate reasons and to contend that the this is not a speaking order or appropriate reasons had not been recorded by the Government, cannot be a sustainable contention. The learned A.G.P. for Land Acquisition also would maintain that the order under challenge is only a communication of the decision taken by the Government and not beyond thereto and the mere fact that while communicating, the Special Collector, Land Acquisition, Nalgonda, referred to as though the objections had been over-ruled or rejected would not alter the nature of the order and since this being just an order of communication, the said order cannot be found fault. The learned A.G.P. for Land Acquisition also had pointed out to the relevant proceedings of the records produced before this Court and further explained that there had been already inordinate delay and if further delay to be caused, the beneficiaries would be put to serious loss. The learned A.G.P. for Land Acquisition also relied on certain decisions. 8. 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, the material placed before this Court and also the records produced before this Court. 9. The relief prayed for in the present Writ Petition by the writ petitioners and the order under challenge – Proceedings No.D2/9380/2008, dt.20-7- 2009 already had been specified supra. 10. It is the case of the writ petitioners that the 2nd and 3rd respondents had issued a notification under Section 4 (1) in Form-2(A) on 27-11-2008 proposing to acquire petitioners’ land to the extent of Ac.0.18 gts., in Sy.No.137, Ac.8-06 gs., in Sy.No.146 and Ac.2-01 gts., in Sy.No.149 of Angadipet Shivaru of P.A.Pally village & mandal, Nalgonda District. 11. It is also the case of the writ petitioners that they filed W.P.No.6767/209 before this Court questioning the said notification on various grounds and this Court while admitting the Writ Petition granted interim order directing not to take possession of the lands in question but the respondents were permitted to proceed with further steps. 12. It is also the further case of the writ petitioners that consequent thereupon, the 2nd respondent had issued a notice in Form-3 under Section 5-A dt.5-12-2008 which was served on the petitioners on 9-12-2008 asking them to submit objections on or before 12-1-2009. It is also stated that they submitted their objections and remarks on 9-1-2009 but however the respondent had not chosen to conduct any personal hearing. Further it is stated that the impugned order shows that the enquiry under Section 5-A of the Act is being conducted in view of the orders made in W.P.No.11768/2009 dt.7-6-2009 whereas the 4(1) Notification which was the subject matter in the said Writ Petition is stated to have lapse and Section 5-A enquiry proposed to be conducted pursuant to the 2nd Notification dt.27-11-2008. Thus, it is stated that this shows non-application of mind by the 2nd respondent. 13. Further it is stated that without conducting any personal hearing and without considering the objections submitted by the petitioners in a proper perspective, the 2nd respondent without jurisdiction had passed the impugned Order dt.20-7-2009 overruling and rejecting the objections. 14. It is also the case of the writ petitioners that a perusal of the impugned Order dt.207-2009 purportedly passed under Section 5-A of the Act after receiving their objections shows that after receiving their objections the remarks of Special Deputy Collector (LA), AMRP Unit-II, Nalgonda and Superintedent Engineer, AMRP Circle-I was taken on such objections and the objections along with the said remarks were submitted to the District Collector, Nalgonda on 5-6-2009 for onward submission to the Government. 15. It is also further stated that the District Collector, Nalgonda, submitted the enquiry report under Section 5-A of the Act to the Government vide letter dt.20-6-2009 and that the Irrigation & CAD Department vide Memo dt.15-7- 2009 informed the Government that the Government may agree with the remarks of the District Collector and Land Acquisition Officer and further opined that the objections to effect deletion of lands in Sy.No.137, 146 and 149 under Rehabilitation & Resettlement Programme deserves no consideration and directed the Special Collector (LA) i.e., the 2nd respondent herein to issue orders on objections raised by the petitioners keeping in view of the remarks of the Land Acquisition Officer and opinion of the Superintendent Engineer. 16. It is also the specific case of the writ petitioners that this shows that the Irrigation & CAD Department had taken a decision to reject objections and directed the 2nd respondent accordingly. The impugned Order does not disclose any order stated to have been passed by the Government. The impugned Order shows that the objections and remarks were forwarded to Government but does not disclose any decision taken by the Government on the said objections and remarks except stating that Irrigation & CAD Department also informed the Government to agree with the remarks. 17. Further specific stand had been taken that the Government had not passed any order, the 2nd respondent had passed the impugned Order finally rejecting objections holding that all the objections filed by the petitioners overruled and rejected. 18. It is also further stated that a perusal of the parawise remarks enclosed with the impugned Order at column No.2 shows that the Section 5-A enquiry is conducted by the 2nd respondent. This shows that the enquiry is onducted by the 2nd respondent and even the impugned Order is passed by the 2nd respondent himself, but the impugned Order discloses that the recommendation were made to the Government. There is no order made by the Government. 19. It is also the further case of the writ petitioners that Section 5-A notices were issued by the 2nd respondent and he had received the objections submitted by the petitioners. No personal hearing was conducted and proceedings recorded. The objections are stated to have been forwarded to the Superintendent engineer and Special Deputy Collector and their remarks were obtained no doubt they were submitted to the Government through the District Collector and meanwhile Irrigation & CAD Department directed the 2nd respondent to pass necessary orders and the 2nd respondent passed the impugned Order. The entire procedure adopted by the 2nd respondent is illegal and without jurisdiction. 20. It is also averred that a perusal of Section 5-A pertaining to A.P.State shows that the recommendations have to be forwarded to the Government and the Government had to pass final order. In this case, the respondents admit that the recommendation were forwarded to the Government through the District Collector but there is no reference with regard to any Order passed by the Government. Once the recommendations are made to the Government the function of the 2nd respondent is over and he does not have any power or authority again to peruse his own recommendations and pass an Order. Once enquiry is completed he comes functus officio and he is not vested with any further power to pass an order. 21. Further it is the case of the writ petitioners that the entire episode shows that the 2nd respondent had passed the impugned Order on an opinion given by the Irrigation & CAD Department who is beneficiary under the Land Acquisition proceedings. It is also stated that the land is being acquired for the purpose providing house sites for the displaced persons in relation to AMRP. The Irrigation Department is only concerned in respect of the said Project and the land acquired under the said Project but does not have any role to play while providing land to the displaced persons affected by the project at a distance place. It is only Revenue Department which is concerned. 22. Further it is stated that the findings arrived at by the 2nd respondent also are perverse and there was not proper appreciation of the objections and the relevant facts. 23. It is also stated that pursuant to the first 4(1) notification dt.3-3-2006, the 2nd respondent had conducted 5-A enquiry and submitted a report vide proceedings Lr.No.G1/13864/2007, dt.15-9-2008. Once a report had been submitted and the same had not been acted upon within a reasonable time and the notification is stated to have been lapsed, there is no necessity for issuing the 2nd notification and conducting another 5-A enquiry. Moreover, the said first 5-A enquiry report made by the Special Collector (LA), Nalgonda and the Nalgonda District Gazette No.262, dt.17-2-2007 publishing the List of Beneficiaries shows that the Akkampally village had been declared as a Project Affected Zone vide G.O.Ms.No.123, dt.29-6-2006. Under the said G.O. the village had not been declared as Project Affected Zone, but only appointed Joint collector, Nalgonda as the Project Administrator and permitted to do so. 24. It is further stated that the 2nd respondent changed his stand and now says that the G.O.Ms.No.164, dt.3-9-2005 reflects that they have treated Akkampally village as a Project Affected Zone. This statement is false since G.O.Ms.No.164, dt.3-9-2005 contains neither the word ‘treated’ nor said anything about declaration of the village as Project Affected Zone. The said G.O. is only a financial sanction permitting to incur expenditure. This G.O. does not declare Akkampally village as Project Affected Zone. G.O.Ms.No.164, dt.3-9-2005 precedes G.O.Ms.No.123, dt.29-6-2006 by 9 months 26 days. G.O.Ms.No.123, dt.29-6-2006 merely permits declaration of the village as Project Affected Zone. This shows the respondent’s contention that Akkampally is a Project Affected Zone as per G.O.Ms.No.164, dt.3-9- 2005 is not correct. The fact is that the neither G.O.Ms.No.164 nor G.O.Ms.No.123 has ever declared Akkampally as Project Affected Zone. This village had never been declared as a Project Affected Zone, even until now. 25. Several of the objections raised also had been further explained and elaborate details had been given in the affidavit filed in support of the writ petition. 26. It is stated that the report shows that “.. Sri/Smt.Veeramalla Kondayya, Veeramalla Sridhar, A.Krishnaveni, T.Vijayalakshmi, P.Anjayya, Md.Bashir, Tera Sudhakar Redy, Maheshwaram Ratnayya, Veeramalla Paramesham etc., were not covered in the notification …” In fact all these names appeared in the notification. In hastiness, the respondents had not issued any notices to the said persons during the conduct of 5-A enquiry. This itself is illegal. 27. It is also stated that the report discloses that a private contractor was entrusted to work on the petitioners’ lands vide Agreement dt.22-12-2005. This is before publication of the first 4(1) notification on 3-3-2006. The Acquiring Authority, apparently, had already made out his mind for execution of the work over the land and thereafter had an empty formality had conducted the Section 5-A enquiry. Had the intention of the respondents been fair, first they should have completed the 5-A enquiry and thereafter entrusted the work to any contractor. This is more for the reason that this Court in the earlier Writ Petition had observed that in such circumstances invocation of Section 17(4) of the Act is bad. 28. Further it is stated that the report discloses that Work Orders are communicated only after handing over of site by the Special Deputy Collector. This is not correct. It is stated that the provisions of some lands is taken on 20-7-2006. However, one contractor started work on 22-12-2005 as explained above and another contractor was given a Work Order on 21-6- 2006. This shows that even before the site was handed over by the Special Deputy Collector, Contractors were appointed. 29. It is also averred that the report shows that approval of layouts or making of house plots in the land is no way concerned to Land Acquisition process. When the preparation of the layout is not concerned with the acquisition proceedings, there was no need for the respondents to make out a layout even before the possession of the land was taken and Section 5-A enquiry was conducted. 30. It is further averred that the report shows that house sites should be provided even if these people are already provided with Government accommodation or Government lands. This is duplication of rehabilitation and also contrary to R&R policy as laid out in G.O.Ms.No.68, dt.8-4-2005 and its amendment vide G.O.Ms.No.76, dt.13-4-2006. As per paras 3.4, 3.13 and 3.16(a), (b) and 3.17 of G.O.Ms.No.68, only persons who have been residing in the village for a minimum period of three years preceding the date of declaration of the village as Project Affected Zone or displaced persons who were dwelling in the houses and whose houses have been acquired, should be provided with house sites. 31. Further it is averred that in this particular instance, several families were provided Government accommodation long back and several others left the village decades ago and settled at different places. This is reported by RDO, Miryalaguda also. If these names are pruned from the List of Beneficiaries, the petitioners’ lands may not be needed to be acquired at all. 32. It is also stated that the report shows that the displaced families preferred the identified land which shows that the respondents were acting as per the dictates of the beneficiaries. The relevant G.O.Ms.No.68 does not contemplate the same. 33. It is further stated that the report supports and justifies Executive Engineer directing the Sub-Registrar and MRO to block registration/transfer of lands vide his letter dt.27-1-2006. It means the 2nd respondent had proceeded with the conduct of 5-A enquiry with a predetermined mind. Even before conducting the 5-A enquiry they had already made out their minds with regard to the selection of the lands and intimated the same to the Registration Department. This conduct of the respondents itself shows that they have conducted the 5-A enquiry as an empty formality. The first 4(1) Notification on 3-3-2006 and the intimations were made prior to the initial notification i.e., on 27-1-2006 itself. 34. Further it is averred by the petitioners that their objection vide para 9(a)(ii) that Revenue Divisional Officer, Miryalaguda (RDO/MLG) had submitted that Government land to an extent of Ac.43.28 gts., is under unauthorized occupation was not commented upon. The reporting Officer had suppressed this fact apparently with an ulterior motive. Even the forwarding Officer and approving Officer had also not cared to see the objections and the report in correct perspective. 35. It is also averred that the report shows that the land under 5-A enquiry was identified only after thorough verification of Government lands available near by Akkampally village is not correct. Lands under 5-A enquiry were identified in the month of October, 2005. RDO/Miryalaguda reported availability of Government land, and also that Government land is under unauthorized occupation, on 6-6-2007. The Executive Engineer, AMRP who is also the Requisitionig Officer, reportedly availability of Government lands with surveyor’s and Geologist’s ‘technically suitable’ reports on 25-10-2007. Therefore, availability of Government lands was not considered at all before identifying the lands under 5-A enquiry. 36. Further it is stated that the Executive engineer had submitted that as per Geologist’s report the available Government Government land is covered by Red Sandy soil, Semi-weathered Granite and followed by Hard Granite with nil fractures, there is therefore no possibiiity of seepage water in the above mentioned sites, inspite of adjacent Akkampally reservoir, and so the same is suitable for house plots was not commented upon. Even the Superintendent Engineer, whose non-technical visual assessment is being accepted, was not asked for a clarification on this Geologist’s technical report. 37. Certain further averments also had been made narrating several details. 38. In the counter affidavit filed by the 3rd respondent specific stand had been taken that the Writ Petition is not maintainable. Further it is stated that the 1st petitioner vide his letter dt.21-2-2006 addressed to the Executive Engineer, AMRP Division No.4, Angadipeta X Roads, P.A.Pally Mandal is given consent for acquisition of their lands in Sy.No.146 and 149. Therefore, the petitioners cannot file this Writ Petition causing hurdle in the land acquisition proceedings. The petitioners having given consent for acquisition of the lands are estopped from challenging the L.A. proceedings. Therefore, the Writ Petition is liable to be dismissed as not maintainable. 39. As already aforesaid, several of the averments had been specifically denied and several further averments also had been clearly explaining the stand of the respondents. It is stated that the Executive Engineer, AMRP. Division.IV, Angadipet, Nalgonda District had submitted a requisition on 22- 10-2005 to the Special Deputy Collector (LA), AMRP. Unit-II, Nalgonda for acquisition of land to an extent of Ac.47.13 gts., situated at Akkampally village, H/o.P.A.Pally for rehabilitation of the villagers of Akkampally village under Rehabilitation and Resettlement Programme since Akkampally village is coming under submergence due to seepage water of Akkampally Reservoir which is very adjacent to the Akkampally village. The Government have also issued orders vide G.O.Ms.No.164, Irrigation & CAD (Major Irrigation.III) Department dt.3-9-2005 accorded sanction of Rs.11.50 crores to rehabilitate the villagers of Akkampally under Rehabilitation and Resettlement policy. Accordingly, after getting the lands surveyed and preparation of Sub-Division Record, Draft Notification and Draft Declaration proposals were submitted to an extent of Ac.46.22 gts., under Section 4 (1) and 6 of the Act to the Special Collector (LA), Dr.K.L.Rao Sagar & AMR Projects, Nalgonda duly invoking urgency clause under Section 17(4) of the Act since the acquisition is an urgent nature i.e., to provide house sites to the evacuated families of Akkampally, H/o. P.A.Pally (v) of P.A.Pally Mandal. The villagers of Akkampally have also represented so many times to the District Collector, Nalgonda as well as to the Irrigation authorities to rehabilitate them to a safety place as their houses are damaging due to seepage water of Akkampally Reservoir by staging Dharnas, Rastha Rokos etc. 40. Further it is averred that the Special Collector (LA), Dr.K.L.Rao Sagar & AMR Projects, Nalgonda had approved the Draft Notification and Draft Declaration. After observing the due procedure required under the provisions of the Act, Award was passed to an extent of Ac.46.22 gts., vide Special Deputy Collector (LA), AMRP., Unit-II, Nalgonda, Award No.74/06- 07, dt.29-6-2006. After passing the Award, the Land Acquisition Officer received order in W.P.No.11768/2006, dt.16-6-2006 filed by one G.Chittaranjan Reddy, the 1st petitioner herein and others seeking directions to the respondents to conduct 5-A enquiry and not to dispossess them from the lands till communication of the 5-A enquiry result. But the orders of this Court, dt.16-6-2006 were received in the Office of the Spl.Deputy Collector (LA), AMRP, Unit-II, Nalgonda (LAO) on 11-7-2006 after