* The Hon'ble Mr Justice C.V.Nagarjuna Reddy + Writ Petition No.11481 of 2007 % DT.15.07.2011 Between: # Manivisetty Parvathi …Petitioner Vs. $ 1.The Collector, East Godavari District, Kakinada, and another. … Respondents ^ Counsel for the Petitioner: Sri C.V.R.Rudra Prasad ! Counsel for respondents: GP for Land Acquisition. < Gist: > Head note: ? Cases referred: 1. 2008 (2) ALT 136 2. 2011 (5) SCC 553 The Hon'ble Sri Justice C.V.Nagarjuna Reddy Writ Petition No.11481 of 2007 Date: 15.07.2011 Between: Manivisetty Parvathi ..... Petitioner AND 1.The Collector, East Godavari District, Kakinada and another. .....Respondents Counsel for the Petitioner: Sri C.V.R.Rudra Prasad Counsel for the Respondents: GP for Land Acquisition The Court made the following: Order: This Writ Petition is filed for a Mandamus to declare the acquisition proceedings initiated in respect of the land admeasuring Ac.0-66 cents in Survey No.86/1 of Srungarayanipalem, Kirlampudi Mandal, East Godavari District, as illegal, arbitrary, unconstitutional and contrary to the provisions of the Andhra Pradesh Agricultural Land (Conversion for Non-Agricultural Purposes) Act, 2006 (Act 3 of 2006) (for short ‘the 2006 Act’). The petitioner is the owner of the above-noted extent of land, which, along with other lands totalling Ac.4-04 cents, was notified for acquisition under the State Sponsored Housing Scheme. Notification, dated 04-10- 2006, issued under Section 4 (1) of the Land Acquisition Act, 1894 (for short ‘the Act’), was published in the District Gazette and daily newspapers on 06-10-2006 and in the locality on 11-10-2006. The petitioner, who appears to be an absentee landlady, staying away from the village, on coming to know that her land was proposed to be acquired, filed the present Writ Petition. From the averments contained in the counter-affidavit, filed by the respondents, it is evident that by the time, the present Writ Petition was filed, Section 5-A enquiry was held, declaration, dated 23-01-2007, was published, the publication was completed by 07-02-2007 and notices under Sections 9(1), 9(3) and 10 of the Act were issued. The main grounds, on which the impugned Acquisition Proceedings have been assailed, are that (1) Without conversion of the agricultural land for non-agricultural use, as envisaged under the 2006 Act, the respondents cannot acquire the petitioner’s land for house sites and; (2) that the respondents have kept the petitioner in dark by initiating the acquisition proceedings behind her back without publishing her name in the notification issued under Section 4 (1) of the Act and without issuing any notice in the enquiry, purportedly, held under Section 5-A of the Act. It is also the pleaded case of the petitioner that even the notices issued under Sections 9 and 10 of the Act do not contain her name. At the outset, it may be noted that the first of the grounds noted above needs to be referred only to be rejected because this Court in R.Veera Raghava Prasad and others v. District Collector, Krishna District at Machilipatnam and another[1], negatived such a contention and held that conversion of the nature of land for non-agricultural purpose is not a sine qua non for acquisition of the land. There remains the main ground raised by the petitioner viz., that the respondents have not given proper and sufficient opportunity to raise her objections to the proposed acquisition. In the counter-affidavit filed by respondent No.2, it is inter alia stated that after publication of notification under Section 4 (1) of the Act, Form–3 Notice was issued under Section 5-A of the Act on 30-10-2006 and the same was served on all the land owners except the petitioner, who refused to receive the same on 01-11-2006 and a copy of Form-3 notice was affixed to the house of the petitioner besides publishing it in the village by beat of tom- tom; that all the landowners, except the petitioner, filed objections on 12-12-2006, but they have not attended Section 5-A enquiry on 16-12-2006. It is further averred that the declaration under Section 6 of the Act was published in the District Gazette on 23-01-2007 and the publication in all aspects was completed by 07-02-2007; that subsequently Form 6 and 7 notices were issued under Sections 9(1) & 10 and 9(3) & 10 of the Act respectively and award enquiry was conducted on 26-02-2007, at which stage, the present Writ Petition is filed. The respondents have not disputed the fact that while the petitioner is the true owner of the subject land admeasuring Ac.0-66 cents, which was notified for acquisition along with other lands, the name of one Manivisetti Papa Rao was shown as its owner in the notification published under Section 4(1) of the Act. The learned Government Pleader pointed out that as this was a mistake, the same was rectified in the declaration issued under Section 6 of the Act, by showing the name of the petitioner. However, as rightly pointed out by the learned Counsel for the petitioner, in the notice issued in Form- 6 under Sections 9 (1) and 10 of the Act, again the name of Manivisetti Papa Rao was shown as the owner. No doubt, as rightly submitted by the learned Government Pleader, mere mistake in the name published in the notification issued under Section 4 (1) of the Act would not vitiate the entire acquisition proceedings, provided, the owner of the land had knowledge of the proposed acquisition and was given sufficient opportunity to oppose such proposal. The respondents attempted to impute this knowledge to the petitioner by pleading in the counter-affidavit that Form- 3 notice, for filing objections in the enquiry to be held under Section 5-A of the Act, was sought to be served on the petitioner and that she has refused to receive the same on 01-11-2006. When this was vehemently denied by the learned Counsel for the petitioner, this Court directed production of the record. Accordingly, today, the record is produced by the learned Government Pleader for Land Acquisition. From a perusal of the record, it is found that a purported endorsement in telugu was made on 07-11-2006 by a subordinate employee wherein it is written that as the petitioner is not residing in the village, the same was sought be served on the petitioner’s father, but he refused to receive the same. Interestingly, even the Form- 3 notice mentioned the name of Manivisetti Papa Rao instead of the petitioner. Even though the State has the power of eminent domain, by which it can forcibly acquire the land contrary to the will of its owner, the Supreme Court has time and again held that such power has to be exercised in a fair, transparent and proper manner. In a recent Judgment in Radhe Shyam vs. State of U.P.[2], the Supreme Court after a thorough consideration of the entire case law on the nature of opportunity, which is required to be given to the land owner, held 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.” On a careful consideration of the facts noted above, I am of the opinion that the petitioner was denied proper and sufficient opportunity to put forth her objections to the proposed acquisition of land and therefore, the respondents are liable to afford such an opportunity to her before seeking to proceed therewith. In order to facilitate this opportunity, the declaration issued under Section 6 of the Act is quashed. The petitioner is permitted to file her objections within a period of one month from today. On the expiry of such period, respondent No.2 shall give the petitioner an opportunity of personal hearing and pass appropriate order under Section 5-A of the Act in accordance with law. The Writ Petition is, accordingly, allowed to the extent indicated above. As a sequel, WVMP.No.184 of 2008 and WPMP.No.14293 of 2007 are disposed of. ______________________ (C.V.Nagarjuna Reddy, J) 15th July, 2011 Note: LR copy to be marked. (B/o) LUR [1] 2008(2) ALT 136 [2] 2011 (5) SCC 553