HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.2038 OF 2006 Dt.26.8.2009 Between: 1. Gona Jayarao and two others … Petitioners and 1. The Special Collector, Land Acquisition, Poola Subbaiah Velugonda Project, Markapur Division, Prakasam Dist. and three others … Respondents HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.2038 OF 2006 O R D E R: This Court issued Rule Nisi on 03.02.2006. Counter-affidavit is filed. 2. Heard the counsel. 3. The writ petition is filed for a writ of Mandamus declaring the action of 1st and 2nd respondents in not considering the objections submitted by the petitioners dated 17.10.2005 without referring the dispute to the Civil Court under Section 30 of the Land Acquisition Act as illegal, arbitrary, malafide, intentional and contrary to the Land Acquisition Act, and consequently direct the respondents 1 and 2 to refer the dispute to Civil Court and pass such suitable orders. 4. The 1st petitioner had filed the affidavit in support of the writ petition and it is stated that the 1st writ petitioner is authorized to sworn to the affidavit, on behalf of other writ petitioners also. It is stated that originally Gona Dibbaiah, son of Pentaiah was the owner and pattadar of total extent of Ac.42.00 cents of land in Sy.Nos.841/2, 698/1, 729, 809,1688, 479, 1045/3, 841/4 of Kakarla village. He has four sons, out of which one by name Nagaiah died as a bachelor. The other three sons have sons and daughters. The 4th respondent is the 2nd wife of 2nd son B.Samson of late Dibbaiah. The 2nd son Samson is also no more. The sons and daughters of Samson and his 2nd wife Mariyamma ie., 4th respondent herein are claiming that they are the sole legal heirs of late Dibbaiah. The petitioners are the sons of 3rd son G.Saimon of late D.Dibbaiah. Their father is also no more. The grand children of the 1st son of late Dibbaiah are also entitled to the property of late Dibbaiah. So far as, the grand sons of the 1st son of late Dibbaiah and the petitioners are concerned, they have no dispute among themselves. Now, only the sons and daughters of the 2nd son Samson are claiming rights over the property. Further it is stated that Poola Subbaiah Velugonda Project is started recently to store the Krishna water to solve the drinking and irrigation problems of Prakasam, Kadapa, Nellore people. For the said project, 7 villages will be effected. For the purpose of acquiring land and paying compensation, four units have been set up by the Government. The office of the Special Collector (Land Acquisition) for Velugonda Project is situated at Ongole, whereas, the Deputy Special Collector for other units are situated at different places. Their village comes under unit-IV and the 2nd respondent is the incharge of their village. 5. Further it is stated that a notification was issued on 10.9.2005 and published on 18.9.2005 in the local news papers for acquisition of the land for the project. They are told that the Government is issuing notifications in a phased manner for the purpose of the project and they will be loosing most of their land under the project. Initially, the above said notification was given for acquiring land in Sy.No.809 for an extent of 95 cts. For this extent, they came to know that nearly a sum of Rs.1.00 lakh will be paid as compensation. But surprisingly, the 4th respondent managed to see her name alone is shown in revenue records and there is any amount of collusion between the 3rd and 4th respondents and therefore, the 3rd respondent is shown as euo-nominee party in person. In fact, the pattadar pass book granted in his favour in Sy.No.809 was cancelled and the 4th respondent alone is shown as the owner of the property in Sy.No.809. The petitioner herewith filed his pass book to show that initially he was given pass book for an extent of 0.32 cents in Sy.No.809. Similarly, the petitioner has share in all the survey numbers. The petitioner made a protest before the 3rd respondent for illegally canceling the pass books issued in his favour. The 3rd respondent has made arrangement with the 4th respondent and as a result, he cancelled his pass book and not only that, he is depriving of his rights over the land in Sy.No.809 and other lands. Since, their persuasion with the 3rd respondent failed, they gave their objections to the District Collector by marking copies to the 1st respondent and 3rd respondent on 17.10.2005. He also bring it to the notice of this Court that they have made a representation dated 25.7.2005 to the Hon’ble Chief Minister by marking copies to all the concerned including the first respondent. It is stated that all the steps under the Land Acquisition Act are completed and the 1st and 2nd respondents are about to pay the compensation to the 4th respondent ignoring their objections filed on 17.10.2005. It is also stated that the 1st and 2nd respondents cannot make the payment to the 4th respondent directly without considering the objections. They are bound to refer the matter under Section 30 of the Land Acquisition Act to Civil Court, when an objection is filed regarding the payment of compensation. Hence, the present writ petition had been filed. 6. In the counter-affidavit filed by the respondents 1 and 2, it is stated that it is true that Poola Subbaiah Velugonda Project was started in the month of May, 2005 in Cumbum, Prakasham District, for providing drinking water and water to irrigate the lands in Prakasham, Kadapa and Nellore districts. It is also true that there are four units established under this Project and this respondent belongs to Unit-IV and Kakarla village comes under Unit-IV wherein certain lands have been proposed for acquisition for the above said Project. 7. In reply to the averments made in paras 4 and 5 of the petitioners’ affidavit, it is submitted that the Notification under Section 4(1) of the Land Acquisition Act was issued by the Special Collector, P.S.V.G.P., Ongole acquiring the lands to an extent of Ac.1.75 cents for the purpose of filling up of Kakarla gap for formation of Poola Subbaiah Velugonda Project Reservoir. In view of urgency, Enquiry under Section 5-A of the Land Acquisition Act was dispensed with duly invoking urgency clause under Section 17(4) of the Act. Thereafter Draft Declaration under Section 6 of the Land Acquisition Act was also issued. The said Notification and Declaration were published in Prakasham District Gazette on 18.9.2005 and 27.9.2005 respectively. The same were also published in two daily News papers and also in the locality as required under Land Acquisition Act. Out of Ac.1.75 cents, an extent of Ac.0.95 cents in Sy.No.809 situated at Kakarla village belongs to Gona Mariamma, was proposed for acquisition. As per Revenue Records, ie., Record of Rights, Adangal and Pattadar Pass Books, Gona Mariamma is the owner of the above said land of Ac.0.95 cents and her name has been notified as the ‘owner of the land’ in the Notification published under Section 4(1) of the Land Acquisition Act. The petitioners herein had represented before the District Collector, Prakasham District at Ongole on 17.10.2005 claiming that they have a share in the extent of Ac.0.95 cents which was proposed for acquisition. The District Collector has forwarded the said representation to the Special Collector, P.S.V.G.P. Ongole, and in turn, the Special Collector directed this respondent to verify the factual position and submit a report. Accordingly, this respondent has conducted local enquiry on 2.11.2005 and found that Gona Mariamma is the owner of the land in question. During enquiry, the villagers stated that the petitioners are not residing in Kakarla village and they are not cultivating the said land and they do not know their whereabouts. They further stated that Gona Mariamma is the owner of the said land and she and her children are cultivating the land for the past 50 years. The villagers also gave a written statement to the Land Acquisition Officer as such. After conducting local enquiry, this respondent had submitted a report to the Special Collector stating that the local enquiry reveals that the petitioners are not the residents of Kakarla village and not cultivating the said land and as per the reords and local enquiry, Gona Mariamma is only the owner of the land in question and she and her children are cultivating the said land, since more than 50 years. Thereafter notices under Section 9(1) and 10 and 9(3) and 10 were issued to the land owner viz., Smt.Gona Mariamma on 7.11.2005. She appeared before the Land Acquisition Officer. During the course of Award enquiry on 24.11.2005, she submitted her statement that she is the rightful owner of the said land. She also stated that no other person have any right over the said land. As the local enquiry also reveals that Gona Mariamma is the owner of the land in question, the Land Acquisition Officer has passed an Award on 10.1.2006 in favour of Gona Mariamma in respect of an extent of Ac.0.95 cents in Sy.No.809. After passing award, compensation in respect of Ac.0.95 cents has been paid to the land owner viz., Smt.Gona Mariamma on 19.1.2006. Notification under Section 4(1) and declaration under Section 6 of the Land Acquisition Act were published in the Gazettee news papers and in the locality with regard to the proposed acquisition. Notices under Section 9(1) and 10 were also affixed at conspicuous places of the village. No other person including the petitioners have attended the award enquiry and claimed their right over the land. The petitioners have not submitted any representation before this respondent seeking the matter to be referred to the Civil Court under Section 30 of the Land Acquisition Act. As the petitioners have not submitted any petition before this respondent seeking reference under Section 30 of the Land Acquisition Act, the matter could not be referred to the Civil Court. Even assuming without admitting that the petitioners have any right over the land, it is open to them to approach the appropriate Court of Law. In the said circumstances, without submitting any representation or petition before this respondent seeking reference under Section 30 of the Land Acquisition Act, the petitioners cannot maintain this writ petition before this Court. 8. In the light of the specific stand taken in the counter-affidavit to the effect that after passing the award, the compensation in respect of Ac.0.95 cents already had been paid to Gona Mariamma on 19.1.2006 and the procedure as contemplated by the provisions of the Land Acquisition Act had been followed and no other person including the petitioners had attended the award any right whatsoever and the petitioners had not submitted any representation before the respondents praying for reference to Civil Court under Section 30 of the Land Acquisition Act. Even assuming that the petitioners has right over the land, it is open to them to approach the appropriate Court of law and hence, the relief prayed for in the writ petition cannot be granted. 9. In the light of the said stand and in the light of the language of Section 30 of the Land Acquisition Act, this Court is of the considered opinion that the writ petition be disposed of giving liberty to the writ petitioners to invoke appropriate remedy before the Civil Court under the general law, if the writ petitioners are so advised. No order as to costs. _________________ P.S.NARAYANA,J 26th August, 2009. PNV