IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY TUESDAY, THE 19TH DAY OF FEBRUARY, TWO THOUSAND EIGHT ONLY WRIT PETITION No.22403 of 2006 Between: Datharu Pochaih and fifteen others. … Petitioner AND The Government of Andhra Pradesh, Reptd., by its Principal Secretary, Revenue Department, Secretariat, Hyderabad and four others. … Respondents Counsel for the petitioners: Sri B.Tarakam, Senior Counsel for Sri V.Raja Manohar. Counsel for the respondents: Advocate General for R.1 to R.4. Sri S.S.Bhat for R.5. THE HON’BLE MR.JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.22403 OF 2006 ORDER:- In this Writ Petition, the petitioners question the land acquisition proceedings initiated by the respondents, vide: notification dated 25-10- 2005 issued under Section 4(1) of the Land Acquisition Act, 1894 (for short “the Act”) to the extent of the lands in their respective occupation in Survey Nos.76,77,78,79/2,80/2 and 85/2 of Rangapur village, Bibinagar Mandal, Nalgonda District, by seeking issuance of a Writ of Mandamus. An extent of Ac.730.06 guntas comprised in various survey numbers, including the above survey numbers, of Rangapur village was donated by Sri Chaturgiri Jee of Rangapur village, Bibinagar Mandal to Bhoodana Yagna Samithi on 8-2-1952. The said land got vested in the Government as Kharij Khata under Rule 8 of the Sri Acharya Vinobha Bhave Sarvodaya Bhoodana Yagna, Hyderabad Land Revenue Special Rules of 1951(for short “the 1951 Rules”). The Bhoodana Yagna Samithi distributed Ac.495.12 guntas of land to the landless poor farmers. The pre-existing rights and the Shinkmidari certificates issued to the occupants of the said lands got extinguished by application of the provisions of the 1951 Rules. The families of some of the petitioners, who were evidently in occupation of some of the lands, appeared to have been granted pattas by the Bhoodana Yagna Samithi. One Sri Narne Rangarao and others, representing Gunrock Enclave Co-operative Housing Society Limited entered into an agreement with Bhoodana Yagna Board (for short “the Board”) in respect of 200 acres of the above mentioned land on exchange basis and the Board allotted only Ac.42.32 guntas to the said Society on the ground that the latter provided the same extent of land to the Board in exchange. Having got the said extent of land conveyed, Sri Narne Rangarao and the Society filed O.S.No.238 of 1989 on the file of the II Additional Judge, City Civil Court, Hyderabad, for specific performance of agreement of sale and while the said suit was pending, Sri Narne Rangarao and the Society negotiated directly with some of the allottees of the Bhoodana land and purchased the same, which the Bhoodana Yagna Board alleged that the same was contrary to the provisions of Bhoodan and Gramdan Act, 1965 (for short “the 1965 Act”). The said purchase from the allotees sparked off a legal battle with the issue of notice by Mandal Revenue Officer, Bibinagar under the provisions of the 1965 Act, which was the subject matter of Writ Petition No.9211 of 1990 filed before this Court, wherein this Court directed the Board to issue notices to the affected parties and decide the issue raised in the show-cause notice issued by the Mandal Revenue Officer. After conducting enquiry, the Board terminated the pattas granted to the assignees and intimated the same to the Mandal Revenue Officer, vide: letter dated 14-12-1993 with a request to him to take action to restore the land to the Board and made proposals for fresh assignment of lands to Scheduled Caste and Scheduled Tribes. Accordingly, the Mandal Revenue Officer served a show-cause notice on the assignees and cancelled the allotments of the Bhoodana lands, vide: proceedings dated 25-6-1994. The said order was challenged by one Sri Miralam Kistaiah and 28 others in Writ Petition No.22745 of 1994 and this Court granted stay of the said order, pending the said Writ Petition. By another proceedings dated 8-3- 1997, the Mandal Revenue Officer declared that he was taking possession of the Bhoodana lands situated in Survey Nos.22 to 27, 29 to 41, 43, 45 to 60, 63 to 68, 70 to 74, 79,80 and 85 admeasuring Ac.507.34 ½ guntas and excluding Ac.42.32 guntas covered by Survey Nos.32,33,54,69,71 and 72. The said order was subject matter of Writ Petition No.6468 of 1997 and batch, which was disposed of on 29-7-1997. The learned single Judge while relegating the parties to civil Court for adjudication of their disputes of title, appointed the Board as a Receiver. Writ Appeal filed against the said order by the East City Defence Personnel Welfare Association was dismissed and the said order was questioned in Civil Appel No.4012 of 1999 before the Supreme Court. The said appeal was allowed to the extent that the Supreme Court set aside the order of the learned single Judge in so far as the appointment of the Board as Receiver was concerned. But, however, the Board and the other parties were left free to take out appropriate proceedings in a civil Court regarding the title of the property and also to obtain appropriate orders in O.S.No.238 of 1989, pending before the II Additional Judge, City Civil Court, Hyderabad, in respect of the land covered by the said suit. Accordingly, the Board filed O.S.No.1 of 2002 in District Court, Nalgonda, for declaration of title and the said suit is pending. Through his letter dated 25-4-2005 the Director of Nizam Institute of Medical Sciences (for short “NIMS”), respondent No.5, gave a requisition to the Government of Andhra Pradesh, for acquiring an extent of Ac.161.00 guntas of land in Survey Nos.7, 8, 68, 72 and 85 of Rangapur village, Bibinagar Mandal, of which the lands in occupation of the petitioners, admittedly, form part, for establishment of NIMS University. In pursuance of the said requisition, notification under Section 4(1) of the Act was approved in G.O.Ms.No.560, HM & FW (E2) Department, dated 25-10-2005 and a draft notification was published in the District Gazette on 27-10-2005. The parties are at issue on the publication of the notification and its substance in the newspapers and the locality as envisaged under Section 4(1) of the Act and I will advert to the same at an appropriate stage. On 27-5-2006 award was passed in respect of Ac.145.72 ½ guntas of land, which included the lands in occupation of the petitioners. On 27- 10-2006 the petitioners filed the present Writ Petition, wherein they questioned notices dated 8-11-2005 issued under Sections 9(1), 9(3) and 10 of the Act besides seeking consequential direction to respondents 2 and 3 to exclude the lands in Survey Nos.76,77,78,79/2, 80/2 and 85/2 of Rangapur village, Bibinagar Mandal, Nalgonda District (for short “the subject lands”) for acquisition. On 8-11-2006 a learned single Judge of this Court dismissed the Writ Petition at the admission stage on the premise that the Writ Petition filed questioning the land acquisition proceedings after passing of the Award is not maintainable. The petitioners questioned the said order in Writ Appeal No.142 of 2007, which was allowed by order dated 8-2-2007 passed by a Division Bench, of which I am a party. The Bench while disagreeing with the reasoning of the learned single Judge in dismissing the Writ Petition, set aside the said order and directed the respondents to file a counter-affidavit and gave liberty to the petitioners to file necessary amendment petition to challenge the very initiation of the acquisition proceedings including the notification issued under Section 4(1) and declaration under Section 6 of the Act. Thereafter, the petitioners filed WPMP No.29251 of 2007 for amendment of prayer in the Writ Petition and the said application was allowed by this Court on 29-10-2007. By the said amendment, the petitioners sought for issuance of a Writ of Mandamus to invalidate notification dated 25-10-2005 issued, vide G.O.Ms.No.560, under Section 4(1) of the Act and for a direction to respondents 1 to 3 to exclude the subject land from acquisition. A counter-affidavit was filed on behalf of respondents 1 to 4 through the Revenue Divisional Officer & Land Acquisition Officer, Bhongir Division, Nalgonda district and a separate counter-affidavit was filed on behalf of respondent No.5 through its Executive Registrar. An Additional counter- affidavit was also filed on behalf of respondents 1 to 4 by Smt.M.Janaki, Assistant Collector & Land Acquisition Officer, Bhongir Division, Nalgonda District. The petitioners filed a reply-affidavit to the said additional counter- affidavit. At the hearing, Sri B.Tarakam, learned Senior Counsel appearing for the petitioners, contended that the acquisition proceedings are vitiated on account of non-compliance of the mandatory procedure prescribed under Section 4(1) of the Act by respondents 1 to 4, inasmuch as there was no publication of notification in the newspapers and also in the locality. Similarly, contends the learned counsel, proper procedure in publication of declaration under Section 6 was also not followed and that Sections 9(1), 9(3) and 10 notices were not served on the petitioners. The learned counsel further contended that some of the subject lands are under wet cultivation with crops being raised and in view of the availability of alternative lands contiguous to the lands proposed to be acquired, which were offered by the Board, vide: its letter dated 29-12-2005 addressed to the District Collector, Nalgonda, the action of the respondents in seeking to acquire the subject lands is illegal and is liable to be declared as illegal. Opposing the contentions of the learned counsel for the petitioners, the learned Advocate General, appearing for the respondents, submitted that respondents 1 to 4 scrupulously followed the provisions of the Act in publication of notification under Section 4(1), declaration under Section 6, issue of notices under Sections 9(1), 9(3) and 10 and in passing the Award. He submitted the entire record in original to substantiate this contention. The learned Advocate General also filed a combined sketch of village map to show that it is not feasible to acquire alternative land as suggested by the petitioners. Having regard to the respective submissions of the learned counsel for the parties, the point that arises for consideration is whether the land acquisition proceedings, whereby the subject lands are proposed to be acquired, suffer from illegalities. In KHUB CHAND V. STATE OF RAJASTHAN[1] the Supreme Court held that the provisions of a Statute conferring powers on the Government to compulsorily acquire the lands shall be strictly construed. In that case, the Supreme Court invalidated notification issued under Section 4 on the ground that there was no proper publication of public notice. Therefore, if there is any defect in publication of notification under Section 4(1), declaration under Section 6 or in publication and service of notices as required under the Act, the entire land acquisition proceedings become void. In paragraphs 7 to 9 of the counter-affidavit filed by Sri K.N.Kistappa, RDO & LAO, Bhongir Division, he pleaded that publication of notification and declaration was made and notices under Sections 9(1), 9(3) and 10 of the Act were published and issued in accordance with the provisions of the Act. In paragraph 16 he also averred that notice of award under Section 12(2) of the Act was issued to all the interested persons, including the petitioners. In the additional counter-affidavit filed by Smt.M.Janaki, Assistant Collector & Land Acquisition Officer, Bhongir Division, further details of publication of notification, declaration and publication and service of notices were given. It is stated therein that after approval of draft notification and declaration, vide G.O.Ms.No.560, dated 25-10-2005, they were published in the A.P. Gazette, two daily newspapers and the locality as under:- Sl.No. Mode of publication Date of publication of Draft Notification Date of publication of Draft Declaration 1. A.P.Gazette in English 27-10-2005 29-10-2005 2. A.P.Gazette in Telugu 27-10-2005 29-10-2005 3 Vaartha Daily newspaper 4-11-2005 6-11-2005 4 Eenadu Daily newspaper 4-1-2005 (sic.4-11-05) 7-11-2005 5 Substance in the locality 8-11-2005 9-11-2005 She further stated that in view of the urgency involved, enquiry under Section 5A was dispensed with, that respondent No.3 issued award enquiry notices under Sections 9(1) and 10 of the Act in Form-6 on 8-11-2005 and got published at conspicuous places of the village, viz., Police Station, Mandal Parishad Office, Mandal Revenue Office, Gram Panchayat Office, Bibinagar; and Primary School, Rangapuram and also at the lands under acquisition on 9-11-2005; that respondent No.3 also issued award enquiry notices under Sections 9(3) and 10 of the Act in Form No.7 on 8-11-2005 to all the interested persons and the petitioners, except petitioners 8 and 9, asking them to attend the award enquiry on 28-11-2005. It is further averred that the said notices were served on petitioners 1 to 7 on 10-11-2005; that as petitioners 8 and 9 are not the pattadars, notices were not issued to them; that petitioners 10 to 13 are sons of petitioner No.3, who already received notice; and that since petitioners 14 to 16 refused to receive the notices, they were affixed on the respective doors of their houses as a token of service of notice. It is also averred that some of the interested persons, other than the petitioners, attended the award enquiry claiming to fix the market value at Rs.1,200/- per square yard and all the lands in question, which were assigned by the Board, were sold by the assignees violating the conditions of assignment to M/s. Narne Estates or to their sister concern. She further pleaded that respondent No.3 took advance possession of the land on 15-12- 2005 under panchanama and handed over to the Director of NIMS, respondent No.5, on 15-12-2005 itself; that after completion of award enquiry a draft award was submitted by respondent No.3 to respondent No.2, who approved the same in respect of Ac.145.29 guntas on 27-5-2006; and that thereupon respondent No.3 passed award on 2-6-2006 awarding a sum of Rs.1,84,95,365/- as compensation. She also averred that after passing the award, respondent No.3 issued notice under Section 12(2) of the Act to all the land owners, including petitioners 1 to 7 and 14 to 16 on 18-10-2006 and out of them petitioner No.2 alone received the said notice on 4-11-2006 and the remaining petitioners refused to receive the notices and that since there is a dispute regarding the title pending in O.S.No.1 of 2002, the matter was referred to the Court of Senior Civil Judge at Bhongir under Section 30 of the Act. Keeping in view the contention strenuously put forth by the learned counsel for the petitioners that the respondents failed to follow the mandatory procedure prescribed under the provisions of the Act in publication/service of notices and declaration, I have carefully perused the original record produced by the respondents. It is revealed from the record that draft notification was published in two daily newspapers, both of which are of regional language - viz., Eenadu and Vartha, dated 4-11-2005 (in the table given in the additional counter-affidavit, which was reproduced supra, at serial No.4 the date was wrongly mentioned as 4-1-2005 which is evidently a typographical error). The draft notification was also published in the A.P. State Gazette of Nalgonda District Edition on 27-10-2005. In respect of the lands in Survey Nos.76, 77 and 78, the names of the petitioners 1 to 7 are shown in the said notification. The record further reveals that the substance of the draft notification was placed on notice board in English and Telugu languages on 8-11-2005 in the office of the Mandal Revenue Officer, Bibinagar; MPDO’s office, Bibinagar; Bibinagar Police Station; Bibinagar Gram Panchayat and Mandal Praja Parishad School, Rangapur. The signatures of the Mandal Revenue Officer and Mandal Parishad Development Officer, Bibinagar, Station House Officer of Bibinagar Police Station, Panchayat Secretary of Bibinagar Gram Panchayat and the Head Master of Rangapur MPP School, along with their staff members, evincing such publication, are contained in the said file. The draft notification was published in the A.P. State Gazette of Nalgonda District Edition on 29-10-2005 and the declaration was also published in Vartha daily on 6-11-2005 and Eenadu daily on 7-11-2005. The substance of the draft notification was published at all the above mentioned offices and the school at Rangapur on 9-11-2005 and all the functionaries concerned with the offices and the school signed and affixed their official stamps on the original copy of the draft notification showing such publication in the locality. Notice under Sections 9(1) & 10 was published on 9-11-2005 at the above mentioned places and a copy of the notice contains the signatures and the official stamps of all the officers concerned, as mentioned above. Copies of the said notice were also served on Datharu Maisamma (petitioner No.4), Datharu Lakshmaiah (petitioner No.2), Datharu Pochaiah (petitioner No.1), Datharu Narasaiah s/o.Lakshmaiah (petitioner No.3 – whose name was shown as Datharu Narasimha in the Writ Petition), Datharu Yadagiri (petitioner No.5), Datharu Maisaiah (petitioner No.6) and Datharu Pandu (petitioner No.7). Copy of the notice contains the thumb impressions or the purported signatures of the above mentioned petitioners. The record also reveals publication of notice under Sections 9(3) & 10 at the above mentioned places in the locality and personal service on petitioners 1 to 7. In the additional counter-affidavit, respondent No.3 gave details of the publications and service of notices. The respondents filed photostat copies of the record containing proof of service of publication of notices after serving a copy on the learned counsel for the petitioners. In the reply affidavit, the petitioners have not specifically denied the authenticity of the signatures of petitioners 1 to 7 on Sections 9(1) & 10 and 9(3) & 10 notices, except pointing out that there were corrections of dates on the notice under Section 9(1) & 10. After careful examination of the entire record, I am satisfied that the respondents have meticulously followed the procedure prescribed under the provisions of the Act for publication/service of notices, before passing the award. Having regard to the findings given above, I find the averment contained in paragraph 10 of the affidavit of the petitioners, that notification issued under Section 4(1) or its substance is not published and declaration under Section 6 was not made, as totally false. As found above, the notification and the declaration were published in two newspapers of the regional language having very high circulation and the names of the petitioners 1 to 7 very much appeared in the said publications. I have, therefore, no hesitation to conclude that the proposed acquisition, as notified as far back as 4-11-2005, was very much in the knowledge of the petitioners and despite the same they approached this Court almost one year after publication of the notice and the declaration in the newspapers. Having received the notices under Sections 9(1) & 10 and 9(3) & 10, they have not participated in the award enquiry and allowed the award to be passed. They have, thus, not only acquiesced in questioning the acquisition proceedings, but filed the present Writ Petition by suppressing the material facts relating to publication and receipt of notices. Learned Senior Counsel for the petitioners made strenuous efforts to convince this Court that there was no justification to acquire wet lands when other dry lands are available and that the petitioners’ livelihood is going to be affected by the proposed acquisition. At the hearing, this Court called upon the learned Advocate General to explore the possibility of acquiring the land adjoining the lands which are in the occupation of the petitioners by excluding the subject lands. The learned Advocate General explained to the Court, with reference to the sketch filed by him, that in view of the existence of a huge tank over the alternative land and a road dividing the lands suggested by the petitioners, it is not possible to accept the proposal put forth on behalf of the petitioners. Having given my earnest consideration, I have not felt persuaded to accept the contention of the learned Senior Counsel for the petitioners that the respondents may be directed to acquire the alternative land. While examining the legality or otherwise of the acquisition proceedings and exercising the jurisdiction under Article 226 of the Constitution of India, this Court will not function as a Court of appeal and it would only examine whether the acquisition proceedings are vitiated by legal or procedural illegalities or arbitrariness or mala fides. While the record reveals that no procedural illegalities or irregularities were committed in acquiring the subject lands, the petitioners have not pleaded any mala- fides and failed to make out any case on the arbitrary exercise of power. Indeed, the very title of the lands itself is in dispute and the petitioners face the accusation that they have already sold the subject lands to Sri Narne Ranga Rao and the Society headed by him and that for violation of the provisions of the 1965 Act their assignments were cancelled. The suit filed by the Board for declaration of its title over the entire extent, including the subject land, is also pending. In the face of these facts, the petitioners cannot even claim with any certainty that as on today they are the lawful owners of the subject property, though at the best they may claim to be the persons interested. This Court cannot be oblivious of the fact that the land is acquired for a Medical University, which, undoubtedly, is pre-eminently a public purpose and any interference with the acquisition proceedings at this stage on misplaced considerations of equity would seriously jeopardize the interest of the public at large. At the end, Sri B.Tarakam, learned Senior Counsel for the petitioners, alternatively contended that the respondents may consider allotment of alternative lands to the petitioners. The learned Advocate General fairly stated that if the petitioners come out with such a request in writing, the respondents will examine its feasibility and take a decision. In the facts and circumstances, the statement of the learned Advocate General is placed on record. For the reasons mentioned hereinabove, the Writ Petition is dismissed. As a sequel to dismissal of the Writ Petition, WPMP No.28455 of 2006 filed for interim suspension of notice dated 8-11-2005 is dismissed as infructuous. --------------------------------------- C.V.NAGARJUNA REDDY,J 19-2-2008 MNR [1]) AIR 1967 SC 1074