THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.18008 of 2009 November, 2009 Between :- Etali Rama Reddy and others .. Petitioners And The District Collector, East Godavari District, Kakinada and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.18008 of 2009 ORDER:- This Court ordered notice before admission on 27-8- 2009 and granted status quo for a limited period, which is being extended, which was further extended for a further limited period. 2. Heard Sri Gani Reddy, the learned Counsel representing the writ petitioners and the learned A.G.P. for Land Acquisition and the learned A.G.P. for Irrigation representing respondents. 3. Sri Gani Reddy had taken this Court through the contents of the affidavit filed in support of the writ petition, the stand taken in the counter affidavit and the further stand taken in the reply affidavit as well and would maintain that in the facts and circumstances of the case, the Writ Petition to be allowed. 4. On the contrary, the learned A.G.P. for Land Acquisition in all thoroughness had taken this Court through the contents of the respective pleadings of the parties and would maintain that in the light of the clear stand taken in the counter affidavit, this is a fit matter not to be interfered with under Article 226 of the Constitution of India. 5. Heard the Counsel. Perused the records. 6. The Writ Petition is filed for a Writ of Mandamus declaring the action of respondent No.1 in issuing acquisition proceedings in respect of the lands of the petitioners as illegal, arbitrary and violative of constitutional provisions and contrary to the principles of natural justice and fair play and equity and consequently set aside the said acquisition proceedings under Form No.5A, as published in The Hindu, English Daily Newspaper, dt.26-11-2007, so far as the lands of the petitioners and pass such other suitable orders. 7. It is stated that that the petitioners are all agriculturists and eking their livelihood by cultivation. The petitioner No.1 is having land in Sy.No.240/1 to the extent of Ac.00-20 ½ cents, as seen in Pattedar Pass Book D.429618 and he is cultivating fishery in the tanks on the said land. He is cultivating the fishery under the guidance of Fresh Water Fish Farm, Balabhadrapuam, Government of Andhra Pradesh, under the supervision of Central Institution of Fisheries Education, Bombay, Government of India, since last 25 years and at present there is large quantity of Fish in the tank. Out of the above land, the respondents have acquired an extent of Ac.0-22 cents, as seen from the Paper notification in form No. 5-A, issued by the respondents. The petitioner No.2 is having land in Sy.No.266/3 to an extent of Ac.0-30 cents vide registered document bearing Document dt.13-2-95 and in the said land, he developed Agro Farms under the name and style of M/s.Kanaka Durga Agro Farm, Anaparthy, registered No.138/2005. Out of the sid land, the respondents have acquired Ac.0-12 cents, which entirely damaging the Agro Farm activities of the petitioner No.2. The petitioner No.3 is having land in Sy.No.266/3 to an extent of Ac.0-01 cents, vide registered document bearing Document No.1541/2006 dt.19-8-2006 wherein he is cultivating Agro Farms, and the said land was acquired by the respondents, leaving no source of income. 8. Further it is stated that the proposed Railway Over Bridge (Approach Road) from ILTD 0/6 KM Vijayawada to Visakhapatnam Section 601/708 KM the above lands were acquired, as seen from the notification of the respondent No.1. Further it is stated that actually the railway track for which the Over Bridge is proposed is at a distance of below 1 KM, towards the lands of the petitioners, which is entirely against the actual requirement of the acquisition. It is also averred that there is a damber road, which is being used since last 50-60 years and the heavy vehicles with a load of nearly 60 tons are carrying on the said road to ILTD. Besides the said damber road, the Government Land is available to the respondents for laying Over Bridge, but intentionally merely under the influence of certain the then political interests have made necessary conversions to the proposed Over Bridge plan and made the acquisition of the lands of petitioners. The manner of proposals and the procedure adopted by the respondents including the preparation of plan for construction entirely makes it crystal clear that the Bridge was proposed through the lands of the petitioners intentionally to cause loss and hardship to them and to satisfy the political grudge. 9. It is also further stated that earlier a plan was prepared for construction of Over Bridge in other place and in the process politically influenced persons for their personal ends and to safeguard their own lands and properties have changed the said proposed Over Bridge about 7 years back. Now the same political leaders have shifted the proposed Over Bridge into the lands of the petitioners and some other poor agriculturists, who are not having political support nor the officials. Thus the politically influenced persons high-handedly meddling with the actual plan of the Over Bridge and making the innocent general public scapegoats for their personal ends, which is illegal, arbitrary and against fundamental principles of natural justice. 10. Further it is stated that the respondents are visiting the lands of the petitioners and trying to change the nature of land by filling the fish tanks. It is an admitted fact that the ponds, tanks are exempted from acquisition for the purpose heavy bridges etc., in consideration of the durability of the projects and security of the general public. In the instant case, merely with a specific motive under the influence of certain political leaders, the plan had been changed from time to time and now acquiring the fish tanks and Agro Farm projects developed by the petitioners, which is entirely against the norms of acquisition and also against the actual requirement of land for the proposed bridge. 11. It is also averred that there is so much land of the Government is readily available for the proposed Bridge, but for the reasons best known, respondents had chosen to acquire the lands of the petitioners, who are having no other source of income except the income out of the subject lands. The acts of the respondents are high- handed and detrimental to the rights of the petitioners. It is also stated that the petitioners spent huge amounts for the purpose of their agricultural activities in their lands, by raising loans. Further the petitioners have no other source of income to depend upon and under those circumstances if their lands are acquired the petitioner will be driven to the roads. 12. Further it is averred that actually till the time of paper publication in Form 5-A, the petitioners have no intimation or notice regarding the alleged acquisition. Thereafter, on their enquiry with the respondents, the petitioners were surprised to know that the respondents in utter abuse of process of law and their official status have managed to show they have followed the procedure. The respondents have done official favour to the then politically influenced persons, for their personal ends, and without issuing any notice or following any procedure as prescribed for the Acquisition proceedings, have acquired the land of the petitioners. They have also issued Award proceedings dt.1-7-2008, wherein the petitioners were subjected to great injustice. 13. It is also further stated that the respondents have bent upon to act in such a manner of purely detrimental to the fundamental rights of the petitioners to satisfy the personal ends of certain vested political interests. Unfortunately, the respondents are inclined to lend their official powers to the vested interests to shield their illegal acts and wrongful gains, which is illegal, arbitrary and capricious, which deserves to be curtailed to protect the common interests of the petitioners and innocent general public. 14. It is also averred that the Collector is having all authority to give exemption of lands from acquisition, if he finds it fit. In the instant case, there are several deviations and malpractice adopted by the respondents to acquire the lands of the petitioners. The petitioners approached the respondent No.1 and made personal requests to look into the matter and do justice to them, but the 1st respondent did not choose to take any steps in the matter. 15. Certain further averments also had been made in the affidavit filed in support of the writ petition. 16. W.V.M.P.NO.3605/2009 is filed by respondent No.2. Specific stand had been taken that the Writ Petition is not maintainable. The petitioners are none other than the petitioners in W.P.No.1347/2008, wherein the action of the respondents herein in rejecting the objections in enquiry under section 5-A of the Land Acquisition Act in proceedings Ref.No.G5/1381/2007 dt.03.11.2007 and the subsequent declaration in Form 5A under section 6 of the Land Acquisition Act published in The Hindu news paper dated 26.11.2007 and the same was dismissed along with other writ petition No.26245 of 2007 by a common order by this Court on 20.06.2008 holding that construction of a railway over bridge is a public policy and the experts had taken a decision in the interest of larger public and this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot change or substitute the opinion given by the experts committee. Aggrieved by the said order in W.P.No.1347/2008 dt.20.6.2008, Writ Appeal No.738 of 2008 was filed, which was dismissed along with Writ Appeal No.721 of 2008 by a common order dated 21.07.2008. Subsequent thereto writ petitioners 1 and 2 also filed writ petition No.16245 of 2008 along with 12 others questioning the acts of the respondents in dismantling the houses of the petitioners in the acquired land which was also dismissed by this Court on 25.07.2008 with the following Order:- “ ------- It is further stated by the learned Government Pleader for Land Acquisition that pursuant thereto, possession was taken on 15.07.2008 and the same was handed over to the Roads and Buildings Department on the same day for the purpose of construction of the flyover. In the circumstances I am unable to hold that the impugned action of the respondents is arbitrary or illegal. At any rate, since the contentions raised by the petitioners assailing the acquisition were already negatived by this Court in WP No.26245 and 1347 of 2008, and the said order was upheld by the Division Bench, I am not inclined to entertain the writ petition and grant the relief as prayed for. Accordingly, the Writ petition is dismissed. NO costs.” 17. In the light of the same, it is stated by that the present Writ Petition is barred by principles of Res-judicata and is liable to be dismissed as not maintainable. The guilty of suppression of facts also had been taken as a ground in the counter affidavit. 18. Further it is stated that the brief facts of the case are that the Executive Engineer, R & B, Kakinada had sent requisition in Form-I along with L.P. Schedules, sketches measuring Ac.3.45 cts of Patta land and Ac.3.23 cts of Government land total Ac.6.68 cts covered by Sy. Nos. 240, 256 etc., of Anaparthi village of Anaparthi Mandal for construction of new Railway Over Bridge at Anaparthi in lieu of L.C.No.412 of Railway KM 601/78 of Vijayawada – Visakhapatnam section of ILTD Road vide their letter.No. 1506/JTO2/99-05 dt.3.11.06. The Requisitioning authority i.e., The Executive Engineer, R & B, Kakinada had informed that as there is no Fly Over Bridge on the level crossing, heavy traffic jam is being experienced daily. To avoid traffic jam, there is every necessity to construct a Railway Over Bridge. Further informed that for construction of Railway over Bridge at Anaparthi had been sanctioned on cost sharing basis by A.P. State Government and Railway Department. Taking into consideration of the volume of traffic and keeping in view of the urgency explained by the Requisition Department, the Draft Notification and Draft Declaration proposals had been prepared u/s 17 (4) of Land Acquisition Act invoking urgency clause by dispensing Section 5-A enquiry and submitted to the Collector, East Godavari, Kakinada to an extent of Ac. 3.08 cts vide this office Ref/A/2279/06 dt. 14.3.07. The Collector, East Godavari District, Kakinada had approved Draft Notification u/s 4(1) and Draft Declaration under Section 6 of the Land Acquisition Act and the same were published in the Gazette and in the locality as required under law. 19. It is also stated that the notices under Sections 9(1) & 10 and 9(3) & 10 of the Land Acquisition Act were issued by inviting to prove their title and inviting objections if any by fixing date for Award enquiry on 5.5.07 vide this office Ref/A/2279/06 dt.19.4.07. Without availing this opportunity, some of the landowners had filed W.P.Nos.7332/07, 7372/07, 8195/07, 8912/07 and 9433/07 before this Court against the acquisition. While disposing the Writ petitions, this Court was pleased to issue orders for conducting enquiry under section 5-A of the Land Acquisition Act. In pursuance of the Orders of this Court, notices Under Section 5-A of the Land Acquisition Act, inviting objections if any to the proposed acquisition were served on all the landowners as prescribed under the Act. 5-A enquiry was conducted on 25.5.07, 28.5.2007 and 11.6.2007. In response to 5-A notices, some landowners had filled their objections before the LAO. After receipt of the objections, the LAO along with requisitioning authority had inspected the lands under acquisition and remarks had been submitted to the Collector, Kakinada vide this office Ref A/2279/06, dated 2.7.2007. The District Collector considered the objections in the light of the remarks submitted and rejected the objections vide their Ref/ G5/1381/2007 dt.12.7.07 as they were devoid of merits and directed the LAO to submit Draft Declaration. Accordingly, Draft Declaration U/s 6 of LA Act was submitted in Ref/A/2279/06 dated, 20.7.07. The Collector had approved the same vide Ref/G/1381/07, dated 27.7.2007. After due publication of the Draft Declaration, the Notices under Sections 9(1) & 10 and 9(3) & 10 were issued on 31.7.2007 by fixing Award enquiry on 18.8.2007. At this stage, some landowners had again filed writ petitions - W.P.No:16899/07, W.P.No:17228/07, W.P.No:17793/07, W.P.No:17823/2007 before this Court. The Writ petitions had been disposed of by this Court on 10.9.2007 with a direction to the petitioners to appear before the LAO-cum- RDO in order to avail the opportunity of personal hearing on 17.9.2007 and if the hearing is not completed on 17.9.2007, it shall be continued on the next day also and set aside the order of the LAO cum Revenue Divisional Officer passed u/s 5-A, in order to give an opportunity of hearing the petitioners, the consequential proceedings of notification under Section 6 as well as the notices u/s 9(3) are set aside. As per the direction of this Court, out of 34 writ petitioners, 32 petitioners had attended on 17.9.2007 before the LAO and filed their objections. The LAO personally heard the objections of the objectors/writ petitioners and enquired in to the contents of the objections and submitted remarks to the Collector, E.G. Kakinada vide Ref/A/2279/06 dt.22.10.07. The Collector, East Godavari, Kakinada had considered objections and passed orders vide G5/1381/2007 dt.3.11.2007 rejecting the objections since there are no tenable grounds and directed to prepare and submit Draft Declaration u/s 6 of Land Acquisition Act in this regard. As per the direction of the Collector, Kakinada, the Draft Declaration u/s 6 of Land Acquisition Act was submitted and the collector approved on 22.11.07 and was published in the East Godavari Gazette vide No.53/07 dt. 22.11.07 . Substance of the Declaration was also published in The Hindu daily on 26.11.2007 and Andhra Prabha Daily on 26.11.2007. The same was also published in the locality as per the procedure laid down in the Land Acquisition Act on 5.12.2007. Form-6 u/s 9(1) &10 and Form-7 u/s 9(3) &10 were also issued by fixing Award enquiry on 20.12.2007 and the same were also published in the locality and was also served on the interested person. But the landowners requested to postpone the same in view of the pendency of cases in the High Court and they were given another opportunity to attend Award enquiry on 11.01.2008. But none of the landowners had attended Award enquiry, except ILTD, Anaparthy. 20. Further it is stated that subsequently negotiations were conducted with the landowners to pass consent Award under section 11(2) of the Land Acquisition Act and the landowners covered by 4797.10 Sq. yards consented to the rate offered by the District Level Negotiations Committee. Hence, General Award in respect of the remaining landowners covering an extent of 10,110.10 sq.yards was passed vide Award No.1/2008 dt.01.07.2008 and notices under section 12(2) of the Land Acquisition Act were also issued to the landowners. Some of the landowners including the petitioners refused to acknowledge the receipt of the 12(2) notices and also to take the compensation awarded. After tendering the compensation, the land was taken possession on 15.07.2008 and handed over to the requisitioning department. As the matter stood thus, the petitioners filed this Writ Petition suppressing the earlier proceedings. 21. Further it is stated that the respondents herein had followed the procedure prescribed under the Land Acquisition Act scrupulously and also implemented the orders of this Court issued from time to time in various writ petitions filed by the affected landowners including the present petitioners without any deviation. The Writ Petitions and connected Appeals filed by the present petitioners were also dismissed by this Court as they were devoid of merits. 22. It is further stated that the contentions of the petitioners are nothing new but only reiteration for the purpose of filing this writ petition which were already placed before the Collector during the time of 5-A enquiry who considered and rejected them vide proceedings No.G5/1381/2007, 03.11.2007 of the Collector, East Godavari, Kakinada. 23. Further it is stated also that there is no political interest or influence in selecting the location of the railway over bridge and the allegations are totally false and deserve no consideration. It was also finally settled by this Court in writ petition No.26245 of 2007 in a common order by this Court on 20.06.2008 while observing that construction of a railway over bridge is a public policy and the experts had taken the decision in the interest of larger public and this Court, in its exercise of jurisdiction under Article 226 of the Constitution of India, cannot change or substitute the opinion given by the Experts Committee and confirmed in Writ Appeal 738 of 2008 in a common order on 21.07.2008 filed by the petitioners herein along with others. 24. It is also further stated that the petitioners’ allegations made in Para 6, 7,8 and 9 of the affidavit filed in support of the writ petition are false. The land was already taken possession on 15.07.2008 and hence the allegation that the respondents are visiting their lands to change the nature of land etc., are not correct and clear subversion of material facts of the case. The petitioners herein are found to be financially sound during the 5A enquiry and the 2nd petitioner herein is also working as Chief Engineer in Government Service. Hence, their contention that they have no other source of income to depend upon and under those circumstances, if their lands are acquired, they will be driven to the roads is false and fabricated for the purpose of filing this writ petition. 25. It is also stated that the averments made in para 10 do not deserve any consideration for exemption of their lands from acquisition as the Railway Over Bridge is being constructed for the larger public interest and certain further averments also had been made in paras 13, 14 and 15 of the counter affidavit as well. 26. In the reply affidavit, the averments made in affidavit filed in support of the writ petition again had been reiterated. 27. The representation made to the M.L.A., the representation made to the Station House Officer, the Recommendlation Letter of the M.L.A., the Standered Every Day Reference Book for All Engineers and other material also had been placed before this Court along with reply affidavit. 28. In the reply affidavit it is stated that the previous Writ Petition and Writ Appeal are on different reliefs. Further the averments made in the affidavit filed in support of the writ petition again had been reiterated with certain further averments at paras 5,6, 7, 8, 9, 10 and 11 of the reply affidavit. 29. The order made in W.P.No.1347/2008 and Writ Appeal Nos.721 and 738 of 2008 and order made in W.P.No.16245/2008 also are placed before this Court. 30. This Court had thoroughly gone through the respective stands taken by the parties in the affidavit filed in support of the writ petition, in the counter affidavit and the reply affidavit as well and had further verified the material placed before this Court and the records. This Court is thoroughly satisfied that in the light of the prior Orders placed before this Court, this Writ Petition is not a bona fide one at all and deserves no consideration at the hands of this Court. The orders made in the prior Writ Petitions need not be elaborately dealt with since the said orders also had been placed before this Court. In the light of the prior orders, this Writ Petition being totally devoid of merit, the same shall stand dismissed with costs. _________________ Justice P.S.Narayana November, 2009 smr