THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition Nos.15331 and 23563 of 2007 Date: 5th February, 2008 Between :- W.P.No.15331/2007 Vatti Reddamma and another .. Petitioners And The Revenue Divisional Officer/ Land Acquisition Officer, Eluru, West Godavari District And 3 others .. Respondents W.P.No.23563 of 2007 Vatti Reddamma and another .. Petitioners And The South Central Railway Rep.by its General Manager, Rail Nilayam, Secunderabad And 5 others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition Nos.15331 and 23563 of 2007 COMMON ORDER:- 1. In W.P.No.15331/2007 this Court issued Rule Nisi on 9-7-2007 and on 9-8-2007 in W.P.M.P.No.19357/2007 interim direction as prayed had been granted. Respondents 1, 2 and 4 filed W.V.M.P. No.160/2008 to vacate the interim order. 2. In W.P.No.23563/2007 this Court ordered notice before admission on 7-11-2007 and issued Rule Nisi on 19-11-2007. Further, on 29-11-2007 in W.P.M.P.No.30695/2007 this Court granted status quo for a limited period which is being extended from time to time. 3. Since both these Writ Petitions are connected, these Writ Petitions are being disposed of finally by a common order. 4. W.P.No.15331/2007 is filed for a Writ of Certiorari calling for records relating to and in connection with proceedings No.ROC.G2/269/2007, dated 1-7-2007 of the 2nd respondent, insofar as it relates to the rejection of the petitioners’ objection in respect of the lands in Sy.No.190/5 and building in Door No.1-18-9/2 in R.S.No.190/6 of Kadakatla, Tadepalligudem Town, West Godavari District and quash the same as being in violation of Section 5(2) of the Land Acquisition Act, 1894, vitiated by errors apparent on the face of the record and pass such other suitable orders. 5. W.P.No.23563/2007 is filed by the same writ petitioners praying for a Writ of Mandamus declaring the action of the 2nd respondent in issuing tender notification No.56/CAO/C/SC/2007, dated 25-9-2007, itemized at Sl.No.6, published in Hindu on 7-10-2007, as arbitrary, illegal and contrary to G.O.Ms.No.10, dated 18-1-2005 and consequently direct the respondents not to proceed with construction of 2nd Rail Over Bridge as specified in Several.No.6 of tender notification No.56/CAO/C/SC/2007, dated 25-9-2007, published in hindu on 7-10-2007, and pass such other suitable orders. 6. Mr.S.Sri Ram, 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 stand taken in the counter affidavit and would maintain that the respondents had not properly understood or appreciated the scope and ambit of Section 5A of the Land Acquisition Act, 1894 (hereinafter, in short, would be referred to as ‘the Act’ for the purpose of convenience). The learned Counsel had drawn the attention of this Court to the objections which had been raised by the 1st writ petitioner in detail and would maintain that except making a lengthy order, the objections, in fact, which had been raised, had not been dealt with at all. In that view of the matter, there is total non-application of mind, even the specific grounds relating to the change of the alignment also should have been considered in proper perspective and inasmuch as the enquiry under Section 5A of the Act, had not been conducted in accordance with law, the same requires reconsideration. The learned Counsel representing the Writ Petitioners also would submit that if the ratio laid down by the Apex Court in HINDUSTAN PETROLEUM CORPORATION LIMITED., v. DARIUS SHAPUR CHENNAI[1] is carefully examined, the consideration of objections raised by the writ petitioners cannot be said to be in accordance with law. While further elaborating his submissions, Mr. Sri Ram had pointed out to the respective pleadings of the parties and also would maintain that, in fact, the relief prayed for in W.P.No.23563/2007 would depend upon the result of the first Writ Petition i.e., W.P.No15331/2007. 7. The learned A.G.P. for Land Acquisition had taken this Court through the contents of the counter affidavit and would maintain that in the light of the facts and circumstances since objections had been taken into consideration and enquiry under Section 5A of the Act had been conducted in accordance with law, there is no illegality in the impugned action. 8 . Sri Ganga Rami Reddy, the learned standing Counsel representing respondents in W.P.No.23563/2007 would maintain that this change of alignment is on the strength of the decision of an Expert Committee and such a decision normally not to be interfered with by a Writ Court. The learned Standing Counsel also placed strong reliance on the decision in AKHIL BHARAT GOSEVA SANGH (3) v. STATE OF A.P.[2] 9. Heard the Counsel and perused the material placed before this Court. 10. The writ petitioners in W.P.No.15331/2007 filed the said Writ Petition questioning the rejection of their objections. The 1st petitioner had sworn to the affidavit filed in support of the Writ Petition. It is averred that the first petitioner is the absolute owner and possessor of the land an extent of Ac.0.98 cents in R.S.No.190/5 of Kadakatla, which is part of Tadepalligudem Town, West Godavari District. The second petitioner is the absolute owner and possessor of the land an extent of 127 square yards with R.C.C. roofed building bearing door No.1-18- 9/2 in R.S.No.190/6 of Kadakatla, Tadepalligudem Town, West Godavari, which is to the immediate East of first petitioner’s land. Further it is stated that the third respondent vide its Resolution C.R.No.311, dated 27.02.1997 proposed a 2nd Rail Over Bridge connecting National Highway No.5 (NH-5) with Narasapuram- Aswararaopeta Road as the existing old Rail Over Bridge is not sufficient to clear the traffic. Ultimately the 4th respondent-the Government of Andhra Pradesh, after careful examination of the matter having regard to the circumstances reported by the Chief Engineer (R & B) in his letter No.18902/EE/TEC/TA14/AE-II/2004, dated 15.01.2005, gave administrative sanction to the construction of the 2nd Rail Over Bridge at the cost of Rs.16.00 crores in Tadepalligudem Municipal limits vide G.O.Ms.No.10, Transport Road and Building (R-II) Department dated 18.01.2005. The said G.O. categorically specified that the Rail Over Bridge takes off at K.M.112/80 of NH-5 and ends at K.M.60/10 of Narsapuram-Aswararaopeta road through a municipal road with the length of 1058 mts. including approaches and crosses the existing railway line at Level Crossing No.371 at Railway K.M. 534/29-31 of Chennai-Howrah Railway line, which was termed as Alignment No.1 by the Department of Roads and Buildings. The Chief Engineer, R & B, in conformity with the above G.O.Ms.No.10, dated 18.01.2005, published “e” procurement notice (Tenders) dated 25.8.2005 in Eenadu daily newspaper (main edition) on 30.8.2005 calling for tenders for construction of the proposed 2nd Rail Over Bridge as specified in G.O.Ms.No.10, dated 18.01.2005 at Level Crossing No.371 between Railway K.M.534/29-31. It is also stated that while matter stood thus, the Chief Engineer, R & B Department issued another “e” procurement Notice in the year 2006 calling for tenders for formation of approaches only towards East (towards Tadepalligudem Railway Station) at the distance of 160 mts. from the existing Level Crossing No.371 SCR thereby shifting the proposed 2nd Rail Over Bridge and its approaches towards East from the existing Level Crossing No.371 contrary to and in violation of the categorical specification stated in G.O.Ms.No.10, dated 18.01.2005 termed as Alignment No.II by the R & B Department. The Alignment No.1, as approved/sanctioned by the first respondent in the above G.O., dated 18.01.2005 does not involve or require any acquisition as it passes through existing municipal road. Hence, there is no necessity for formation of new approach roads also. The same existing municipal road can be widened if necessary as it passes through Puntha Poramboke land by evicting 3 or 4 encroachers on the road margin and it does not involve any filling up of any ponds. If the approach roads are to be laid as per the 2nd alignment, the cost of the formation of the new approach roads will be very high. Moreover, if the proposed Rail Over Bridge passes through the existing railway level crossing No.371, the expenditure incurred by the Railways for manning the L.C. can be saved by closing the Level Crossing No.371. There are no reasons or basis for shifting of the Alignment No.1 to a distance of 160 mts. from the existing Level Crossing No.371 and it does not serve any public purpose. There was no approval of the Government of Andhra Pradesh for deviating from alignment No.1 to Alignment No.II for construction of approach roads or 2nd Rail over bridge. On the other hand, if Alignment No.II is adopted, 86 houses have to be demolished and about 2000 people will be rendered homeless. The petitioners along with many affected persons made several representations to all the concerned authorities bringing to their notice of the above facts, but they did not consider their objections. Moreover, some public of Tadepalligudem observed Dharna and presented a memorandum to Sri Redya Naik, the Hon’ble Minister for Social Welfare of A.P. and in turn the Hon’ble Minister referred the matter to the South Central Railway Authorities, Hyderabad. The Sough Central Railway, in their reply to the Hon’ble Minister, opined that the construction of 2nd Rail Over Bridge at level Crossing No.371 is more appropriate. The proposed approach road along Alignment No.II is also contrary to law and violative of the Scheme of the Tadepalligudem Town under the Town Planning Act, 1920. Further it is stated that the result of the present acquisition would be a formation of approach road, in addition to the existing road, which alone is part of the approved town planning scheme of Tadepalligudem Municipality. To that extent it constitutes a modification of the town planning and therefore the necessary clearances under A.P. (Andhra Area) Town Planning Act, 1920 would have to be obtained. The impugned notification and the consequential process are not preceded by such clearances. There is no necessity for any 2nd Rail Over Bridge proposed in Tadepalligudem Town as there was a by-pass road to NH-5 proceeding through outskirts of Tadepalligudem towards Vijayawada, Eluru and Tanuku, Visakhapatnam. By the time the 2nd Rail Over Bridge was proposed by the Municipality in its resolution C.R.No.311, dated 27.02.1997, the formation of by-pass road at Tadepalligudem as to NH-5 was not in contemplation. Subsequently, formation of the by-pass road was completed by 2006 and since then it is in full operation. Further it is stated that the crop of Sugarcane is grown only in the villages to the North of the by-pass road to NH- 5 and the Tadepalligudem town is to the South of the said by-pass road. All the vehicles transporting the Sugarcane to the sugar factories at Bhimadole and Tanuku are passing through the said by-pass road only and they need not enter any part of Tadepalligudem Town and there is no traffic jam now in any part of Tadepalligudem Town or over existing Rail Over Bridge. The 4th respondent is required to grant approaches to the by-pass road as it is higher in level than Narsapur-Aswararaopet Road. If they are formed and properly maintained, there is no necessity for any 2nd Rail Over Bridge as the existing Rail Over Bridge and by-pass road to NH-5 serve the purpose of the traffic. The width of the existing municipal road from level crossing No.371 is 60’, whereas the width of the road under the deviated alignment No.II appears to be only 40’. The width of the proposed rail over bridge is only 40’. Alignment No.1 is therefore more appropriate for construction of 2nd Rail Over Bridge. The width of existing rail over bridge is only 30’ feet including the footpath on it. It is also stated by the petitioners that the 1st respondent served a notice on 31-1-2007 under Section 5-A of the Land Acquisition Act to them and others that they can file their objections for the proposed acquisition of properties within 16 days from the date of notice. But, in the same notice, the 1st respondent fixed 13-2-2007 for their presence before him at Eluru and file their objections. However, the petitioners and other persons interested attended the Revenue Divisional Officer’s office at Eluru by 10.30 a.m., on 13-2-2007, but the 1st respondent left his office at 10.30 a.m., and returned at only 5.00 p.m. Further it is stated by the petitioners that the 1st respondent merely took their objections stating that the scope of his enquiry is only for ascertaining the ownership of the properties proposed to be acquired and for fixing the compensation only and that he cannot go into other objections filed by them. Again, the petitioners were asked to appear before the Mandal Revenue Officer, Tadepalligudem on 3-3-2007 and accordingly, they attended, but the Mandal Revenue Officer was absent in the Office on that day and that the Superintendent of the Mandal Revenue Office scribed something in his record without examining them and asked them to go away. So, there is no enquiry practically under Section 5-A of the Land Acquisition Act. Further it is stated that the petitioner sent a letter on 14-2-2007 to the 1st respondent making a copy to the 2nd respondent to furnish him a copy of the report submitted by the 1st respondent to the 4th respondent under Section 6 of the Land Acquisition Act. So far, it is not furnished to him. It is also stated that thus, the alleged enquiry by the Revenue Divisional Officer, Eluru under Section 5-A of the Land Acquisition Act is merely a formality and in fact, there was no enquiry as such. The objections filed by the petitioners before the 1st respondent under Section 5-A of the Land Acquisition Act may be read as part and parcel of this affidavit. It is further stated that the petitioner also suggested two other alignments (1) through the municipal road on the west of Tadepalligudem Railway Station and Food Corporation of India godowns and (2) the other through exiting municipal road by the side of Railway Electrical Sub-Station, both of which join Narsapur – Aswaraopet Road and they do not require any Acquisition or formation of new roads and that the length of the alignment through the municipal road by the side of Food Corporation of India godowns is only less than ½ km. It is also averred that the Roads and Buildings Department in violation of the provisions of the Land Acquisition Act and even without conclusion of 5-a enquiry, without a declaration by the Government, under Section 6 of the Land Acquisition Act that the properties proposed to be acquired are required for the public purpose or a direction to the Collector to take order for acquisition, started digging pits and putting up pillars in the properties proposed to be acquired in haste. Further it is also averred that the tenders cannot be called for unless the acquisition proceedings are finalized under Section 16 of the Land Acquisition Act and that the property is vested in the Government. Till then the properties will continue to vest in the owners only and the respondents cannot carry on any work in them. Further it is stated that after the process of the acquisition of the land and other structures is completed, the tender process has to be initiated. It is also stated that an application submitted by one Sri A.S.Rao to the respondent No.1 under Right to Information act, in turn the respondent No.4 replied him in Lr.No.11376/R2/06-1, dated 17-11-2006 stated in paragraph 16 that on receipt of the administrative sanction of the proposed Rail Over Bridge, the Department has taken up the detailed estimates taking up the bores and accorded technical sanction and process of land acquisition started before initiating tender process only by the Department. Further it is stated that the tender process was started in this case even before acquisition proceedings. Further it is stated that when the respondents even without complying with the mandatory provisions of the Act, have proposed to dispossess the petitioners from the land, they filed a Writ Petition No.5513/2007 before this Court by reiterating the facts stated above and that this Court was pleased to disposed of the above Writ Petition along with another similar Writ Petition No.5518/2007 on 23-3-2007 inter-alia directing the respondents not to interfere with the petitioners ownership and the possession of the properties without communicating the decisions taken by the competent authority on the objection lodged by the petitioners for acquisition process under Section 5-A (2) of the Land Acquisition Act by registered post with acknowledgement due. Even thereafter, the respondents are entitled to take possession only after first issuing notice to participate in the Award enquiry and after due passing of an Award and nothing in this order shall be construed as depriving the petitioners pursuing the appropriate remedies, if aggrieved by any order passed under Section 5-a (2) of the Act. Subsequently, the impugned proceedings are issued by the 2nd respondent, which is occupied by an incharge arrangement rejecting the objections submitted by the petitioners. The impugned action of the 2nd respondent is clearly vitiated by non-application of mind to each and every objection filed by the petitioners and is influenced by the recommendation of the 1st respondent. It is also stated that the 1st respondent is appointed by the Government as Collector to perform such functions as indicated in Section 4(1) Notification dated 19-1-2007 and that the 2nd respondent had issued the impugned proceedings apparently in pursuance of the delegated power under Section 3-A of the Act to perform the functions assigned to appropriate Government. Further it is stated that on the legal advise, it is submitted that the process of consideration and objections under Section 5A of the Act mandatorily involves, a two-tier consideration of the objections and that initially by the Collector so appointed for the present purpose to seek objections and make a report containing its recommendations to the appropriate Government. The appropriate Government is to take a decision in the matter and that the appropriate Government for the purpose of Section 5A (2) of the Act is the District Collector in pursuance of the delegation under Section 3-A. Therefore, the very nature of the exercise of power there ought to be an independent examination of the subject matter by the appropriate Government and affording of reasons in support of such decision, since any such decision is also amenable to judicial review under Article 226 of the Constitution of India. Several other grounds also had been raised in the affidavit filed in support of the Writ Petition. 11. The relevant portion of the objections raised had been specifically pointed out and these objections read as hereunder:- “The proposed Bypass Road has to cross the Chennai-Howrah Railway line for which a II Rail Over Bridge is to be constructed. The Government of Andhra Pradesh by its G.O.Ms.No.10 M.S.U.D. and M.A. Department dated 18-1-2005 accorded Administrative Sanction that the II Rail Over Bridge which is part of the proposed Bypass Road should cross the Chennai- Howrah Railway line over the existing Railway level crossing No.371 between poles /29-31 of South Central Railway line and pass through existing municipal road of 1059 Meters from L.C.No.371 to joint Aswaraopet-Narasapuram Road which may be termed as alignment No.1. The road sanctioned to start from National Highway 5. Based on the above G.O. tenders were also called for. But I understand the said tenders were cancelled and II R.O.B. is now proposed to be constructed at a distance of 160 meters to the east of L.C.No.371 towards Tadepalligudem Railway Staltion and new Approach Road are proposed to be laid through Private Properties. It may be called as Alignment No.2. The alignment No.1 as sanctioned by the Government of Andhra Pradesh in the above G.O., does not involve any Acquisition as it is through existing Municipal Road an a poramboke Tank which is not in use. There is no necessity for formation of New Approach Roads. The existing Municipal Road can also be widened as it passes through a poramboke puntha and evicting 3 or 4 encroachers on the Road Margin. The cost of the project will be swelled up if the Approach Roads are formed as per the new Alignment No.II. The deviation from the G.O.Ms.No.10, dated 18-1-2005 is solely intended to swell up the cost of the project. The deviation is not authorised by the Government. The location of II R.O.B. and its approaches can not be shifted at the sweet pleasure of the Roads and Buildings Department and the local politicians without the sanction of the Government. There is no reason or basis why the new II R.O.B. and its approaches should be shifted towards East to a distance of 160 Meters from L.C.No.371 except to swell up the cost of the project. It is motivated it is a waste of public funds. It does not serve any public purpose. There is no reason why I should forego my site for a purpose which is contrary to and in the Government sanction an is not public purpose. The Government of Andhra Pradesh approved Alignment No.1 after carefully considering the report of the then Chief Engineers, R&B Roads in his letter No.18902 BETECT 114 E/2/20, dated 15-1-2005. There is no additional advantage if the Roads are formed along Alignment No.2. On the other hand 3 coloines and about 20 pucca buildings have to be acquired and demolished and compensation has to be paid. The deviation is without the Approval of the Government of Andhra Pradesh and is not authorised by it. About 1000 people (300 families) will be rendered homeless. The public also protested by holding Dharnas. Several representations were made to the Chief Minister, P.W.D. (RB) Minister, Chief Engineer (R&B) Government of Andhra Pradesh concerned Railway Officers and other Authorities. Protesting about the proposed Bypass Road as per Alignment No.2. The deviation to Alignment No.2 intended to save the followers of local politicians from being evicted from their encroachments in the road margins along Alignment No.1. The proposed Bypass Road is contrary to & violative of Master Plan prepared for the area. In this connection, I also bring to your notice the earlier tender by the Chief Engineer and Superintending Engineer, Eluru was for construction of II R.O.B. at and over the L.C.No.371 (Alignment No.1) and through existing Municipal Road is in conformity with the above G.O.Ms.No.10, U.D. and M.A. Department dated 18-1- 2005. But those tenders were cancelled and subsequently another tenders were calleld for approaches only to II R.O.B. at a distance of 160 meters towards East i.e., Tadepalligudem Railway Station without the sanction and Approval of the Government of Andhra Pradesh. I under the Government of Andhra Pradesh did not approve the diversion for the place of II R.O.B. to 160 meters east of L.C.No.371 so far. So, the calling for tenders and the Proposed Acquisition are all unauthorized and unlawful. So, the proposal for proposed Acquisition must be dropped and it cannot proceed with. When the aggrieved persons presented a petition to the Social Welfare Minister of Government of Andhra Pradesh Sri Redya Naik, he forwarded it to the South Central Railway for its opinion. The Railway replied that the crossing of II R.O.B. over L.C.371 is suitable and preferable and that reply is with the State Government. As per Railway Rules there can not be a Rail Over Bridges at a distance of less than 2 km., from existing R.O.B. The proposed II R.O.B. at 160 meters towards East from L.C. 371 (Alignment No.2) is at a distance less than 2 km., and so the proposed New Alignment No.2 is opposed to the Railway Rules. NO NECESSITY FOR II R.O.B.:- I also submit there is no necessity for any II R.O.B. as there is a Bypass Road to National Highway 5 proceeding through northern, eastern and western outskirts of Tadepalligudem. By the time the II R.O.B. was proposed the said Bypass Road was not formed. Notwithstanding the said Bypass Road NH5 is in full operative and much of vehicular Traffic is passing through the above Bypass Road to N.H.5. The said Bypass Road to N.H.5 is sufficient to east the traffic on Tadepalligudem existing