HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.13008 of 2006 Date: October 21, 2009 Between: 1. Totakura Gaja Lakshmi and another. … Petitioner And 1. The District Collector, East Godavari District at Kakinada and another. … Respondents * * * ORDER: This Court issued Rule Nisi on 29.6.2006 and made the following order in W.P.M.P.No.16162 of 2006. “From a perusal of the notification Ref.No.G2/223/2006, dated 23.5.2006, issued by the District Collector, East Godavari District, Kakinada, it is evident that to provide house sites to weaker sections under Indiramma Programme, the notification under Section 4 (1) of the Land Acquisition Act, proposing to acquire the lands of the petitioner was issued on 23.5.2006 and the enquiry under Section 5A of the Act was dispensed with. The leaned counsel for the petitioner placed reliance upon the judgment of this Court in Kyatham Yadagiri and others v. Secretary to Government, Energy (Power-I) Department and others (2006 (3) ALD 403). Hence, there shall be interim stay as prayed for.” 2. The writ petition is filed for a writ of Mandamus declaring the action of the respondents herein in proposing to acquire the land to an extent of Ac.0-57 cents in survey No.80/2B situate at Kumarapriyam village, Pedapudi Mandal, East Godavari District by notifications issued under Sections 4 (1) and 6 of the Land Acquisition Act, as illegal, arbitrary, unjust and violative of Articles 14 and 300 A of Constitution of India besides being violative of principles of natural justice and consequently direct the respondents herein to drop the said land acquisition proceeding and pass such other suitable orders. 3. Counter-affidavit had been filed. 4. Sri S.A. Razack, leaned counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and would maintain that in the facts and circumstances of the case, especially, in view of the fact that alternative lands of the Government are available, the writ petition to be allowed. 5. On the contrary, the learned Assistant Government Pleader for Land Acquisition had taken this Court through the contents of the counter-affidavit and would maintain that in the facts and circumstances of the case, the interim order granted by this Court to be vacated and dismiss the writ petition with costs. 6. Heard the counsel. 7. The writ petitioner filed the present writ petition praying for the reliefs specified supra. The first petitioner had sworn to the affidavit filed in support of the writ petition and it is stated that the second petitioner is her daughter and the land in question was purchased by them in the year 2001. It is further stated that the first petitioner is the mother of the second petitioner. The second petitioner and the first petitioner are the owners of a piece of wet land admeasuring Ac.0-40 cents and Ac.0-42 cents respectively in survey No.80/2B situate at Kumarapriyam village, Pedapudi Mandal, East Godavari District. The respondents had issued notifications under Sections 4 (1) and 6 of the Land Acquisition Act (hereinafter in short referred to as “Act” for the purpose of convenience) simultaneously on 23.5.2005 by invoking power under Section 17 (4) of the Act and dispensed with the inquiry under Section 5-A of the Act. Through the said notification, the respondents had proposed to acquire an extent of Ac.0-57 cents of the wet land out of the afore said total land of Ac.0-82 cents in survey No.80/2B situate at Kumarapriyam village, Pedapudi Mandal, East Godavari District, for the purpose of house plots to weaker sections. Questioning the said notifications dated 23.5.2006 issued under Sections 4 (1) and 6 of the Act, the present writ petition is filed. 8. It is stated that the impugned notification issued under Section 4 (1) of the Act and other proceeding pursuant thereto are illegal, arbitrary, unjust and violative of the rights of the petitioner under Articles 14 and 300 A of the Constitution of India besides violative of principles of natural justice. 9. Further it is stated that the respondents ought to have seen that where Section 5A inquiry was dispensed with, declaration made under Section 6 of the Act can be made only after causing public notice of Section 4 (1) notification. In the present case the notification under Section 4 (1) and the declaration under Section 6 were prepared and issued simultaneously and as such vitiate the entire process of the land acquisition proceedings. Therefore, the said notifications are liable to be set aside. 10. It is also stated that the respondents had proposed to acquire the land in question for the benefit of weaker sections to allot house sites by invoking extraordinary powers under Section 17 (4) of the Act dispensing with the inquiry under Section 5A of the Act though there is no urgency. The power under Section 17 (4) of the Act to dispense with the inquiry under Section 5-A is to be invoked where the acquisition is so urgent. The purpose of allotment of house sites to weaker sections in the present case is neither extraordinary nor unexpected nor arisen suddenly or overnight and it can be waited till inquiry under Section 5A is held. 11. It is also stated that the respondent ought to have seen that the land in question is wet and fertile land and situate in low level and far away to the road and as such it is not useful and convenient for house sites. Apart from that, the lands are costly in nature and waste of public exchequer. 12. Further it is stated that the respondent ought to have seen that there are other government lands available in and around Kumarapriyam village and the same can be utilized for the purpose of weaker sections’ house sites. 13. It is also stated that the local political leaders had hatched up a plan to deprive the valuable land of the petitioner and prevailed over the respondents and got issued the land acquisition proceedings. Thus, the acquisition proceedings are not bona fide and as such the same is liable to be set aside. 14. Further it is stated that the beneficiaries of house sites are all bogus persons and not even eligible for such house sites. Most of them are not residents of the said village and are rich persons. The persons, who are having political influence, are included in the beneficiaries list and as such there is no need of any acquisition. In such circumstances, being left with no other remedy, it is stated that the writ petitioners approached this Court under Article 226 of the Constitution of India. 15. In the counter-affidavit filed on behalf of the respondent the brief history had been narrated as hereunder. It is stated that Kumarapriyam village of Pedapudi Mandal is selected under Indiramma Programme for provision of house sites to the persons belonging to weaker sections. The Mandal Revenue Officer, Pedapudi, proposed the land admeasuring Ac.1-60 cents in S.No.80/2A & 2B of the said village. The following are the details of the lands proposed for acquisition. Sl.No. Name of the owner or registered holder or other person interested in the land Wet or dry Sy.No. Extent Ac– Cts. Assess- ment Remarks 1 Nallamilli Lakshmana Reddy, s/o Veera Raghava Reddy Wet 80/2A 0-50 - 2 Sabella China Venkata Reddy, s/o Subba Rddy Wet 80/2A 0-53 - 3 Thotakura Sridevi Thotakura Gajalaxmi Wet 80/2B 0-57 Land of writ petition- ers Total 1-60 The Revenue Divisional Officer, Kakinada, submitted proposals to the District Collector on 09.5.2006 and the Collector, East Godavari approved the same and issued Gazette Publication of D.N. under Section 4 (1) of the Act in E.G. Collector’s Ref.No.G2/2273/06 on 27.5.2006. D.D. under Section 6 of the Land Acquisition was also approved in E.G. Collector’s Ref.No.G2/2273/06 on 29.5.2006. 5A inquiry was dispensed with as urgency clause invoked. 16. Further it is stated that the petitioners questioned the D.N. and D.D. and attempting to acquire land dispensing with 5A inquiry under Section 17 (4) of the Act. Acquisition of lands for provision of house sites is an accepted principle, since housing is one of the basis needs of people. The rights of the petitioners are not infringed. The D.N. and D.D. were issued simultaneously one after another, since, 5A inquiry was dispensed with in the notification under Section 4 (1) of the Act Gazette No. & Date of publication Newspaper & date of publication Date of locality publication D.N. U/s.4(1) dated 23.5.2006 211/2006, dt.27.5.2006 1)Prajashakti on 28.5.06 2)Hindu on 30.5.06 02.6.2006 D.D. U/s.6, dated 23.5.2006 310/2006 Dt.29.5.2006 1)Andhra Bhoomi on 02.6.2006 2)Pledge on 02.6.2006 06.6.2006 There was no reason to wait till publication of the same. Hence, D.D. was also issued simultaneously. 17. Further stand had been taken that it is not correct to say that the petitioner had no other remedy except to approach this Court. It is stated that the petitioner is having a remedy to make representation to the District Collector and the Government. It is further stated that the petitioner prayed for staying all further proceedings including dispossession of the petitioners from the land in S.No.82/2B of Kumarapriyam village, Pedapudi Mandal pursuant to D.N. and D.D. issued on 23.5.2006 by the District Collector, East Godavari District, Kakinada. The award inquiry notices under Sections 9 (1) and 10 and 9 (3) and 10 were issued on 07.6.2006 duly fixing the date of award inquiry on 26.6.2006. The notices under Section 9 (1) and 10 were published on 09.6.2006 in locality. The land owners rejected to receive the notices under Sections 9 (3) and 10. Hence, the same were published in the land under acquisition. The award inquiry was conducted on 26.6.2006, but no one attended the inquiry. Hence, 80% was tendered vide this office Ref.B1/928/06, dated 27.6.2006 and directed to serve the same to the landowners and the same were served by the MRO, Pedapudi and the land was taken possession on 30.6.2006. 18. This Court granted interim stay on 29.6.2006 as prayed for. The learned Government Pleader for Land Acquisition had sent a letter dated 01.7.2006 informing the interim stay granted on 29.6.2006 and it was received in this office on 10.7.2006. The advocate for petitioners issued telegram, which was received on 01.7.2006 in Kakinada P.O. Therefore, the respondents are not in a position to implement the interim order of this Court, as the land was taken possession on 30.6.2006 and handed over to the Panchayat Secretary for safe custody. In such circumstances, the dismissal of the writ petition had been prayed for. 19. It is not in serious controversy that the inquiry under Section 5A of the Act had not been conducted. Several objections had been raised in the affidavit filed in support of the writ petition and no doubt several of such averments made in the affidavit filed in support of the writ petition had been specifically denied in the counter-affidavit. Specific stand had been taken that dispensing with 5A inquiry and invoking urgency clause, in the facts and circumstances, cannot be sustained. 20. In the light of the facts and circumstances, this Court is of the considered opinion that since several objections relating to even factual controversies had been raised, it is just and proper to give opportunity to the petitioners to explain their stand in this regard and to give such opportunity it is needless to say that inquiry under Section 5A of the Act to be conducted. Let the respondents conduct inquiry under Section 5A of the Act in accordance with law by giving opportunity to the petitioners in this regard and take appropriate decision in accordance with law. Since 5A inquiry to be conducted, it is needless to say that the subsequent declaration under Section 6 of the Act may have to be set aside and accordingly the same is hereby set aside. 21. The writ petition is accordingly allowed to the extent indicated above. No order as to costs. ____________________ (P.S. NARAYANA, J) Date: October 21, 2009. BSB