THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.19682 of 2008 AND WRIT PETITION No.22321 of 2008 COMMON ORDER : These two writ petitions are filed seeking a declaration that the Award No.4 of 2008, dated 14.2.2008 passed by the 1st respondent - The Special Deputy Collector (Land Acquisition), Kakinada Special Economic Zone - is arbitrary and illegal, and consequently to set aside the same. The petitioners claim to be the absolute owners of the different extents of agricultural lands situated in Ponnada and Moolapet Villages of U. Kothapalli Mandal, E.G. District. The said lands were sought to be acquired for the purpose of Kakinada Special Economic Zone vide Notification dated 1.1.2006 published under Section 4 (1) of the Land Acquisition Act, 1894 (for short, ‘the Act’). Under the said Notification the Revenue Divisional Officer, Kakinada was appointed to perform the functions under Section 5-A of the Act. It is stated that as the lands of the petitioners are double cropped wet lands, a representation was made by the petitioners requesting the authorities of Kakinada SEZ to exclude the said lands from the acquisition and accordingly by letter dated 6.3.2007 the Revenue Divisional Officer, Kakinada, directed the Deputy Executive Engineer to take the necessary steps to issue a re-notification. Since no further steps were taken, the petitioners got issued a legal notice dated 16.8.2008 and 19.9.2008 requesting the respondents to re- notify after exempting their lands. However there was no response. While so, in the month of September – October, 2008 the respondents tried to dispossess the petitioners from the lands in question on the basis of the Award No.4 of 2008, dated 14.2.2008. At that stage, the present writ petitions have been filed contending that the impugned award which was passed without issuing any notice to the petitioners either under Section 5-A of the Act or under Sections 9 and 10 of the Act is arbitrary and illegal. It is also alleged that the petitioners were not even communicated a copy of the Award under Section 12 (2) of the Act. Thus it is contended that the award is vitiated and is liable to be set aside. I have heard the learned counsel for both parties. The learned counsel for the petitioners while relying upon Section 45 of the Land Acquisition Act under which the procedure for service of any notice under the Act has been prescribed, vehemently contended that as the notices were not served on the petitioners in the procedure prescribed thereunder the award is liable to be set aside. In the counter-affidavits filed by the Special Deputy Collector, it is stated that the Revenue Divisional Officer, Kakinada issued notices under Section 5-A of the Act on 16.1.2006 to all the land owners including the petitioners calling upon them to file objections and attend the enquiry on 20.02.2006. Though they refused to receive the notices and did not attend the enquiry, a common objection petition was filed by the petitioners along with other land owners. Having enquired into the said objections, the Land Acquisition Officer submitted a report dated 28.2.2006 to the District Collector. By order dated 27.4.2006 the District Collector rejected the objections raised by the petitioners and thereafter the draft declaration was published in the Gazette on 1.11.2006. It was also published in the daily newspapers dated 3.11.2006 and the substance was published in the locality on 7.11.2006. Thereafter the Land Acquisition Officer issued notices under Sections 9 (1) and 10 of the Act on 14.12.2006 at all conspicuous places asking the land owners to attend the award enquiry on 17.1.2007. The petitioners refused to receive the said notices and therefore the same were affixed to a pole erected on the land proposed for acquisition as a token of service. That apart the notices were also published in the offices of the Mandal Revenue Officer; Mandal Development Officer; Police Station, U. Kothapalli; Office of Gram Panchayat, Ponnada and Office of the Sub-Registrar, Pithapuram. In spite of the same, the petitioners did not attend the award enquiry on 17.1.2007. In the circumstances, the Land Acquisition Officer proceeded with the enquiry and passed Award No.4 of 2008 on 14.2.2008. Though the notice under Section 12 (2) of the Act was also issued on 14.2.2008, the petitioners refused to receive the same. Therefore, the award amount was kept in Revenue Deposit and the possession of the land was taken on 18.2.2008 by the Tahsildar, U. Kothapalli and the same was handed over to the Co- ordinator (Revenue), Kakinada Special Economic Zone on the same day. It is also explained that though the petitioners made a representation to exempt their lands, the same was not accepted as the land is situated in the midst of the total extent of land of Ac.246-26 cents proposed for acquisition for formation of SEZ. A Reply-affidavit has been filed by the petitioners disputing the stand taken in the counter-affidavit and pleading that the petitioners are still continuing in possession of the land in question. An additional plea has been taken in the Reply affidavits that the Kakinada SEZ is nothing but a private body and therefore the impugned proceedings initiated for acquisition of the lands in question without following the procedure provided under Part-VII of the Act are illegal. The contention that the formation of SEZ is not a public purpose has been considered in detail in W.P.Nos.19941 and 28012 of 2008 and by a common order delivered today, the contention was rejected and the Writ Petitions were dismissed. Hence, the impugned proceedings cannot be held to be vitiated on the said ground. So far as the allegation that no opportunity was given to the petitioners either in the enquiry under Section 5-A of the Act or in the award enquiry under Section 11 of the Act is concerned, as noticed above, the allegations have been categorically denied by the respondents in the counter-affidavit and it is pleaded that the petitioners had deliberately refused to receive the notices. Such a disputed question of fact cannot be decided by this Court in writ jurisdiction on the basis of mere affidavits. At any rate, this is a case where Section 4 (1) notification was published on 1.1.2006 and the draft declaration was made on 1.11.2006 and even the award was passed on 14.2.2008. It is also relevant to note that the petitioners were very well aware of the initiation of the acquisition proceedings and they had even made a representation soon after the publication of the notification under Section 4 (1) of the Act requesting the authorities of Kakinada SEZ to exclude their lands from the acquisition proceedings. Their only grievance in these writ petitions is that they were not served with the notices as required under law in the award enquiry. Since a large chunk of land is situated in the same locality has been acquired for the purpose of formation of Kakinada SEZ and many others, who are similarly situated, had participated in the award proceedings, the plea of the petitioners that they were not aware of the award enquiry and did not participate in the proceedings for want of notice does not appear to be genuine. That being so, these writ petitions filed after the award was passed cannot be maintained. Accordingly, both the Writ Petitions are dismissed. No costs. _____________ G. ROHINI, J. Dt. 16.09.2010 gbs