IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GOPALAKRISHNA TAMADA Writ Petition Nos.26245 of 2007 & 1347of 2008 W.P.No.26245 of 2007 Between: 1. Pyla Koteswara Rao S/o.Kanna Rao R/o.Survey No.305/2H, Anaparthy Village and Mandal, East Godavari District. 2. T.Ramakrishna Reddy S/o.Satyam R/o.Survey No.391/3L, Anaparthy Village and Mandal, East Godavari District. 3. Pulagam Lakshmi W/o.Veer REddy R/o.3-315, Babanagar, Anaparthy Village and Mandal, East Godavari District. 4. Karri Sathi Raju S/o.Soma Raju R/o.Survey No.305/2, Anaparthy Village and Mandal, East Godavari District. 5. Makadi Bhagyavathi W/o.late Venu Gopala Nayar, R/o.Survey No.265/3/A3, Anaparthy Village and Mandal, East Godavari District. 6. Tetali Prasad Reddy S/o.Janiki Reddy R/o.Survey No.291/3C & 3D, Anaparthy Village and Mandal, East Godavari District. ... PETITIONERS AND 1. The State of A.P., rep. by its Secretary, Revenue Department, Secretariat Buildings, Hyderabad. 2. The Land Acquisition Officer-cum-Sub-Collector, Rajahmundry, East Godavari District. 3. The District Collector, East Godavari District, Kakinada. 4. The Superintending Engineer (R&B) Kakinada, East Godavari District. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondents in rejecting the objections in enquiry under Section 5-A of the Land Acquisition Act vide proceedings in Ref. No.G5/1381/2007, dt. 3.11.2007 and the subsequent declaration in Form-5A Under Sec.6 of the Land Acquisition Act published in the Hindu, News Paper dt. 26.11.2007 issued by the 2nd respondent as illegal, arbitrary, unconstitutional, contrary to the principles of natural justice, law and Article 21 of the Constitution of India and consequently set aside the same and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.CHAVALI RAMANAND Counsel for the Respondents.: GP FOR LAND ACQUISITION W.P.No.1347 of 2008 Between: 1. . Rama Reddy, S/o. Golla Reddy, R/o. 7-39, Ananparthy Village and Mandal,East Godavari District. 2. M. Brundhavathi, W/o. Venkata Reddy, Door No. 1-5, Railway Station Old Road, Ananparthy Village and Mandal, East Godavari District. 3. Ch. Venkatrami Reddy, S/o. Chadra Reddy, Door No. 1-2, Railway Station Old Road, Ananparthy Village and Mandal, East Godavari District. 4. Ch. Satyanarayana Reddy, S/o. Chandra Reddy, Door No. 1-9, Railway Station Road, Ananparthy Village and Mandal, East Godavari District. 5. A. Veera Raghava Rao, S/o. A.V. Sankara Rao, Door No. 3-552, Baba Nagar, Ananparthy Village and Mandal, East Godavari District. 6. S. Sathyanarayana Reddy, S/o. Rami Reddy, Door No. 3-54, Ananparthy Village and Mandal, East Godavari District. 7. D. Vijaya Bhaskara Reddy, S/o. Krishna Reddy, Door No. 2-273, Gandhinagar, Ananparthy Village and Mandal, East Godavari District. 8. T. Venkata Krishna Reddy, S/o. Rami Reddy, R/o. 7-39, Ananparthy Village and Mandal, East Godavari District. 9. K. Venkata Reddy, S/o. Adi Reddy, R/o. 7-21, Old Town, Ananparthy Village and Mandal, East Godavari District. 10. D. Sathi Reddy, S/o. Bullaiah, Door No. 2-256 Ananparthy Village and Mandal, East Godavari District. 11. D. Sai Baba Reddy, S/o. Bullaiah, Door No. 2-263, Ananparthy Village and Mandal, East Godavari District. 12. K.V.R. Reddy, S/o. Rami Reddy, Door No. 6-19 Ananparthy Village and Mandal, East Godavari District. 13. T. Sura Reddy, S/o. Sathi Reddy, Door No. 7-82, Golla Reddy Veedhi, Ananparthy Village and Mandal, East Godavari District. 14. K. Samudra Reddy, S/o. Sura Reddy, Near ILTD Gate, Door No. 3-376, Ananparthy Village and Mandal, East Godavari District. 15. T. Trinadh Reddy, S/o. Sura Reddy, Near Padma Sreet Theatre, Door No. 2-109, Ananparthy Village and Mandal, East Godavari District. 16. T. Pushpavathi, W/o. late Devadana Reddy, Near Padma Sree Theatre, Ananparthy Village and Mandal, East Godavari District. 17. K. Sesha Reddy, S/o. late Appa Rao, Door No. 10-242, Kacheri Street, Ananparthy Village and Mandal, East Godavari District. 18. T. Sura Reddy, S/o. Jani Reddy, Nuni Venkayamma Gari Street, Ananparthy Village and Mandal, East Godavari District. 19. T. Atchi Reddy, S/o. Janaki Reddy, NUni Venkayamma Gari Street, Ananparthy Village and Mandal, East Godavari District. 20. M. Samuel Raju, S/o. M.F. Thomas, D.No. 3-158, Sunandana Street. Ananparthy Village and Mandal, East Godavari District. 21. S. Simhachalam, W/o. Gangu Naidu, Sunandana Street. Ananparthy Village and Mandal, East Godavari District. 22. T. Rama Reddy, S/o. Sura REddy, D.No. 8-9, Narawell Street, Ananparthy Village and Mandal, East Godavari District. 23. M.L. Reddy, W/o. Lakshmana Reddy, Baba nagar, Ananparthy Village and Mandal, East Godavari District. 24. T. Chandra Reddy, S/o. subba Reddy, Baba Nagar, Ananparthy Village and Mandal, East Godavari District. 25. N. Satyanarayana Reddy, W/o. Rama Reddy, Ananparthy Village and Mandal, East Godavari District. 26. T. Chella Reddy, S/o. Rama Swamy, Munsub Street, D.No. 9-74, Ananparthy Village and Mandal, East Godavari District. 27. S. Ganga Raju, S/o. Venkat Reddy, C/o. Venkateswara Rice Mill, Ananparthy Village and Mandal, East Godavari District. ..... PETITIONERS AND 1 The State opf Andhra Pradesh, Rep. By its Secretary, Revenue Department, Secretariat Buildigns, Hyderabad. 2 The Land Acquisition Officer-cum-Sub-Collector, Rajahmundry, East Godavari District. 3 The District Collector, East Godavari District, Kakinada. 4 The Superintending Engineer (R&B) Kakinada, East Godavari District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in rejecting the objections in enquiry Under Sec. 5-A of the Land Acquisition Act vide proceedings in Ref. G5/1381/2007, dt. 3-11-2007 and the subsequent declaration in Form 5-A Under Sec. 6 of the Land Acquisition Act published in the Hindu, News Paper dt. 26-11-2007 issued by the 2nd respondent as illegal, arbitrary, unconstitutional, contrary to the principles of natural justice, law and Article 21 of the Constitution of India and consequently set aside the same and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.CHAVALI RAMANAND Counsel for the Respondents.: GP FOR LAND ACQUISITION The Court made the following : THE HON'BLE MR JUSTICE GOPALA KRISHNA TAMADA WRIT PETITION No.26245 of 2007 AND WRIT PETITION No.1347 of 2008 COMMON ORDER: Both these writ petitions are being disposed of by this common order as the issue raised is the same. These writ petitions are filed seeking a Writ of Mandamus declaring the action of the respondents in rejecting the objections in enquiry under Section 5-A of the Land Acquisition Act vide proceedings in Ref.No.G5/1381/2007 dated 03.11.2007 and the subsequent declaration in Form 5-A under Section 6 of the Land Acquisition Act, published in the Hindu Newspaper dated 26.11.2007, issued by the 2nd respondent, as illegal and arbitrary and consequently set aside the same. The brief facts of the case are that the respondents have initiated proceedings under Land Acquisition Act, 1894 (for short ‘the Act’) for the purpose of constructing a Railway Over Bridge (ROB) on Viyawada-Visakhapatnam railway line at L.C.No.412 of railway K.M.801/78 at Anaparthy village. Accordingly, the respondents issued a notification under Section 4 (1) of the Act for acquisition of land in an extent of Ac.3-08 cents in RS No. 240 etc. of Anaparthi village and Mandal which include the land of the present petitioners for construction of Railway over Bridge in Anaparthi village duly invoking the provisions under sub-section (4) of Section 17 of the Act in view of the urgency of the case. When it was challenged, the High Court, by its judgment dated 12.4.2007 in WP No. 7372 of 2007, directed to conduct enquiry under Section 5-A of the Act. Accordingly notices under Section 5A of the Act was issued and 5-A enquiry was conducted and the objections to the acquisition were rejected on 12.7.2007. Then the Land Acquisition Officer-Revenue Divisional Officer, Rajahmundry issued a draft declaration under Section 6 of the Act and published. After due publication of the draft declartion, notices under Section 9 (1) and 10 and 9 (3) and 10 were issued on 31.7.2007 by fixing the award enquiry on 18.8.2007. Thereafter several writ petitions being WP No. 16899 of 2007 and batch were filed and the High Court, by its judgment dated 10.9.2007, directed the Land Acquisition Officer to hear the objectors and pass appropriate orders. Accordingly the Land Acquisition Officer passed the order dated 3.11.2007 which is impugned in the present writ petitions. The draft declaration under Section 6 of the Act was also published on 26.11.2007, which is also challenged in the present writ petitions. According to the petitioners, originally the respondents proposed to construct the railway over bridge at Railway gate No. 413 on the same railway line in Anaparthy village, which is around ½ KM towards the eastern side of the presently proposed bridge at railway gate No. 412 and later changed it to railway gate No.412. The traffic density as in December, 1993 at railway gate No.413 was 1,55,738, whereas it was 16,240 at railway gate No. 412. The railway authorities intimated that railway over bridge at railway gate No.412 can be considered on 100% deposit terms, if sponsored by the State Government, whereas the railway over bridge at railway gate No.413 can be considered on cost sharing terms. In spite of the same, the respondents have opted to construct the railway over bridge at railway gate No.412. The respondents conducted the 5A enquiry as an empty formality and passed an order rejecting the objections even without properly appreciating the objections and other material on record and without applying mind. The petitioners also suggested the railway over bridge to be laid at another railway crossing gate No.411 where the Government poramboke land and fields were available. The State Government proposed to construct another bridge with an estimated cost of around Rs.30 crores at Dwarapudi village on the same railway line, which is just 2 KM away from the proposed bridge at level crossing gate No. 412. The level crossing gate No. 411 would cater the needs and only one bridge would be sufficient instead of two bridges within the radius of 2 KMs. The respondents have reduced the width of the bridge fro 25 m to 19 m on the ground that the same would minimize the damage to houses and the reduced width would not cater the future needs of increased traffic and would effectually frustrate the purpose of constructing the bridge. Construction of proposed bridge at L.C. Gate No. 412 would require acquisition of the area occupied by several school buildings, religious buildings like Church etc causing a lot of hardship to public instead of serving public purpose. It is further stated that ILTD company is running its factory adjacent to the road at L.C. gate No.412 and if the bridge is constructed at this place, the same would have no scope for the huge construction and vehicles that frequently travel into the said factory. Therefore, in order to facilitate its smooth running additional road was required to be built up which would force acquisition of several persons properties for one more time. The respondents instead of considering the objections in a proper perspective and giving cogent reasons rejected the objections. The respondents failed to consider the availability of better alternative property for construction of bridge in a proper perspective. A detailed counter-affidavit has been filed on behalf of respondents 1 to 3, wherein it is stated that the Requisitioning authority i.e., Executive Engineer, R & B, Kakinada has informed that as there was no fly over bridge on the level crossing, heavy traffic jam was being experienced daily. Therefore there was every necessity of having a railway over bridge. After careful examination of the suitability in technical and other aspects explained by the Roads & Buildings and railway department, the Government has accorded administrative sanction on cost sharing basis by the A.P. State Government and railway department for construction of railway over bridge at L.C. Gate No.412 only. The volume of heavy traffic jam was more at gate No. 412 than at gate No.413. It is further stated that appropriate compensation would be paid for the land as well as structures fell in acquisition as per the Government norms. It is stated that most of the alignment runs in an open Government lands and due to provision of service roads meager private lands were required for acquisition. The present acquisition would not be affected on the writ petitioners since appropriate compensation would be paid to the landowners as per the Act. It is also stated that during the construction of railway over bridge, if the road was closed, there is an alternative road existing with a width of 15 to 16 metres metal road from second gate of ILTD company. The construction of railway over bridge is meant for bonafide public purpose to avoid inconvenience to the passengers as well as vehicles to cross the railway line without accidents and traffic jam. The technical authorities of R & B and Railway departments have inspected the site and other alternatives and finally approved the alignment, which is technically more feasible and land schedule plans were submitted for acquisition. While approving the alignment the aspects like maintenance of technical standards, economy, minimum land and structure acquisition were considered. The two departmental persons were well acquainted with the mode of constructions etc. Due to this acquisition, no structures will be damaged or demolished as only meager extent were involved in the acquisition. The Grampanchayat, Anaparthi in their resolution dated 5.12.2000 the construction of ROB was proposed at LC No. 412 only. It is also stated that the Land Acquisition Officer personally heard the objections of the objectors/writ petitioners and enquired into the contents of the objections and submitted remarks to the Collector, East Godavari, Kakinada on 22.10.2007. The Collector, East Godavari, Kakinada issued proceedings on 3.11.2007 rejecting the objections since were no tenable grounds. Therefore, the writ petitions are devoid of any merits and the same are liable to be dismissed. Additional counter affidavit has been filed by respondents 1 to 3 in which it is stated that a joint inspection was conducted at the instance of the Roads and Buildings department and the Railway Department with regard to the feasibility of constructing a Railway Over Bridge ad the said report reveals that the level crossing no. 413 was not feasible as it involves number of kinks (a Sharp Twist in something long and narrow) for which extra land and building have to be acquired to set right the alignment. As per the traffic senses obtained by the Senior Section Engineer, South Central Railway, Samalkot, more traffic was passing through Railway Gate No. 412 than the other railway gate Nos 411 and 413. The Grampanchayat, Anaparthi has passed a resolution NO. 28 on 3.10.2002 for construction of the railway over bridge at railway gate No. 412 agreeing to close the level crossing for the said purpose. It is also stated that on earlier occasion some of the petitioners herein have also filed WP No. 3710 of 2006 raising the issue that the construction of Railway Over Bridge at 413 is feasible than at level crossing No. 412 and the same was negatived by the High Court on 13.6.2006. A reply affidavit has been filed by the writ petitioners denying the averments of the counter-affidavit and additional affidavit filed by the respondents 1 to 3. It is stated that the respondents originally proposed to construct the railway over bridge at L.C. Gate No.413, however, for the reasons best known to them, they have altered their decision stating that quantum of acquisition of land and structures along the alignment at L.C.412/T (i.e., on ILTD road) is less cost when compared with the alignment at L.C.413. The petitioners herein have filed their objections specifically furnishing the statistics and technical details and requested the respondents to alter their proposal to construct railway over bridge to LC No.411 or any other gate. The objections of the petitioners were rejected casually and very vaguely without discussing the objections in a proper perspective and without mentioning any statistics or any technical details. Thus, the entire order of rejection of the petitioners objections is nothing but non-application of mind. Admittedly, the letter of South Central Railway vide No.19/LC’s-ROB dated 27.12.2007 did not form basis for rejection of the objections of the petitioners as it was only addressed with reference to the letter of the Deputy Executive Engineer (R & B) dated 22.12.2007. If that letter was considered, it would find a place in the order dated 03.11.2007 of the 3rd respondent rejecting the objections of the petitioners. It is settled principle of law that while passing quasi judicial orders, it should be reasoned order and it cannot be supplied by the respondents in the counter-affidavit filed before this Court. This case has a long history and the matter came before this Court earlier also. Several writ petitions were filed and decided. These writ petitions are also sequel to those writ petitions, which were filed earlier. The learned Counsel for the petitioners contends that the respondents have reconsidered their decision to construct the railway over bridge at railway level crossing gate No. 412 from that of railway gate No. 413 on the ground that it needed to acquire the lands in built up area and the quantum of compensation of the land and structures along the alignment would be on higher side and in view of the same the respondents have altered the proposal to construct the railway over bridge at railway gate No. 412. The railway over bridge can be laid at another railway crossing gate No.411 where the Government poramboke land and fields were available. The State Government proposed to construct another bridge with an estimated cost of around Rs.30 crores at Dwarapudi village on the same railway line, which is just 2 KM away from the proposed bridge at level crossing gate No. 412. The level crossing gate No. 411 would cater to the needs and only one bridge would be sufficient instead of two bridges within the radius of 2 KMs. Construction of proposed bridge at L.C. Gate No. 412 would require acquisition of the area occupied by several school buildings, religious buildings like Church etc causing a lot of hardship to public instead of serving public purpose. On the other hand, the learned Government Pleader for Land Acquisition appearing for the respondents submitted that in fact a joint inspection was conducted at the instance of Roads and Buildings department and the railway department with regard to feasibility of constructing a railway over bridge and the said report revealed that the level crossing No. 413 was not feasible as it involved number of kinks i.e., a sharp twist in something long and narrow, for which extra land and buildings had to be acquired to set right the alignment and therefore administrative sanction was obtained for constructing the railway over bridge at level crossing No. 412 instead of level crossing No.413. Construction of ROB at LC No. 412 was advantageous to the general public and the less number of structures had to be damaged. Both R & B Department and the Railways after taking all relevant factors into consideration came to the conclusion that the construction of ROB at LC 412 is more viable and payment of compensation would also be very less if the ROB was constructed at LC No. 412 than the construction of ROB at 413. The Grampanchayat also passed a resolution on 3.10.2002 to construct the ROB at LC 412. The Managing Director, APRDC in his letter dated 27.1.2003 has recommended for the construction of ROB at LC 412 giving valid reasons. I find force in the argument of the learned Government Pleader for Land Acquisition. The next contention of the learned counsel for the petitioners is that the traffic density as in December, 1993 at railway gate No.413 was 1,55,738, whereas it was 16,240 at railway gate No. 412 and the railway authorities intimated that railway over bridge at railway gate No.412 can be considered on 100% deposit terms, if sponsored by the State Government, whereas the railway over bridge at railway gate No.413 can be considered on cost sharing terms and in spite of the same, the respondents have opted to construct the railway over bridge at railway gate No.412. For this, the learned Government Pleader for Land Acquisition appearing for the respondents submitted that as per the traffic senses obtained by the Senior Section Engineer, South Central Railway, Samalkot, more traffic was passing through railway gate No.412 than the other railway gate Nos.411 and 413 and that the construction at railway gate No. 412 was on cost sharing basis. The learned Government Pleader has produced a letter of South Central Railway dated 27.12.2007 to show that the traffic density at level crossing No. 412 was 1,38,504, which was higher than the traffic density at level crossing Nos. 411 and 413 which had 11,070 and 1,37,982 respectively as on August, 2006. Another letter dated 27.1.2003 was also produced showing that the construction of railway over bridge at level crossing No. 412 was on cost sharing basis. Therefore, the contention of the learned counsel for the petitioners in this regard cannot be accepted. Lastly the contention of the learned counsel for the petitioners is that the respondents conducted the 5A enquiry as an empty formality and passed an order rejecting the objections even without properly appreciating the objections and other material on record and without applying mind. I have gone through the order impugned in these writ petitions and found that the objections taken by the petitioners were suitably replied and rejected by the respondents and I do not find anything, which would call for interference from this Court. The issue raised in these writ petitions was already decided by this Court in its order dated 13.6.2006 in WP No. 3710 of 2006. In that writ petition GO Ms. No. 40, Transport, Roads & Buildings (R-II) Department, dated 17.2.2005 to the extent of constructing a flyover at Level crossing No. 412, ILTD road, Anaparthy, East Godavari District was challenged on the ground that the alignment decided for the proposed flyover was not suitable and that the respondents have granted administrative sanction without application of mind to the relevant factors. The Court found favour with the contention of the respondents that the decision to construct flyover at level crossing No.412 was taken by the technical experts of the R & B Department as well as the Railway Department who have taken into consideration all the relevant factors of cost viability and other advantages and disadvantages. It is always for the experts to decide such suitability. Construction of a Railway Over Bridge is a public policy and the experts have taken the decision in the interest of larger public. The experts have taken care of the relevant factors of cost viability and other advantages and disadvantages, and decided to have the ROB at LC No. 412. This Court, in its exercise of its jurisdiction under Article 226 of the Constitution of India, cannot change or substitute the opinion given by the experts committee and I am afraid, this Court could interfere with such an opinion. For the reasons given hereinabove, the writ petitions are dismissed. No order as to costs. ____________________________ (GOPALA KRISHNA TAMADA, J) 10 -06-2008 Gsn.