THE HON’BLE SRI JUSTICE P. S. NARAYANA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.P.No.6763 of 2008 %05.03.2010 # Marella Srinivasulu ...Petitioner VERSUS $ The District Collector, Prakasam district Ongole & 14 others ...Respondents W.P.No.14900 of 2008 #Bandaru Lakshminarasamma & 8 others … Petitioners Vs. $ The District Collector, Prakasam district Ongole & 13 others < GIST: > HEAD NOTE: !Counsel for Petitioners: Sri M.Sudheer Kumar ^Counsel for Respondents: G.P. for Land Acquisition G.P. for Irrigation & Comm.Area.Dev. Sri K. Ananda Rao (R.5 to R.15) ? Cases referred 1. AIR 1959 AP 437 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE FIFTH (5TH) MARCH, TWO THOUSAND AND TEN Present: THE HON’BLE SRI JUSTICE P.S.NARAYANA & THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.P.No.6763 of 2008 Between: Marella Srinivasulu … Petitioner And: The District Collector, Prakasam district Ongole & 14 others … Respondents W.P.No.14900 of 2008 Between: Bandaru Lakshminarasamma & 8 others …Petitioners And: The District Collector, Prakasam district Ongole & 13 others … Respondents THE HON’BLE SRI JUSTICE P.S.NARAYANA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.P.Nos.6763 & 14900 of 2008 COMMON ORDER:[Per GVS, J] i) WP No.6763 of 2008: This writ petition is filed by the petitioner, who is the owner of the land in an extent of Ac.1.30 cents, whose land was proposed to be acquired in connection with ‘Poola Subbaiah Velugonda Project, Ongole,’ seeking writ of Mandamus, declaring the action of the respondents 1 to 4 in issuing the Notification under Section 4(1) of the Land Acquisition Act, 1894 [for short ‘the Act’] dated 25.07.2006 and consequential notification under Section 6 of the Act dated 08.03.2008 as illegal, arbitrary and without power or authority. ii) W.P.No.14900 of 2008: This writ petition is filed by certain other land owners, questioning the proceedings dated 25.02.2008 issued by the respondents 1 to 4, rejecting the objections filed by them in enquiry under Section 5-A and consequential declaration issued under Section 6 of the Act, 1894 dated 10.03.2008 as illegal, arbitrary and without power or authority. 2. The admitted facts may be stated in brief as follows: The 2nd respondent i.e., Special Collector (Land acquisition) issued notification under Section 4(1) of the Act dated 25.07.2006 proposing to acquire the land of Ac.1.30 cents belonging to the petitioner in W.P.No.6763 of 2008 along with several other lands for the purpose of formation of 12R Major Branch Canal and its Minor Irrigation Channels under the Left Main Canal of Kandula Obula Reddy Project. The 2nd respondent invoked the provisions of Section 17(4) of the Act and dispensed with the enquiry under Section 5A of the Act. The notification under Section 4(1) was published in the newspapers on 26.07.2006. Some of the aggrieved persons filed W.P.No.19131 of 2006. By order dated 15.09.2006, the said writ petition was allowed and enquiry under Section 5A of the Act was directed to be conducted. The 2nd respondent by order dated 18.01.2007 rejected the objections of the petitioner and others and issued notification under Section 6 of the Act on 21.02.2007. This was again questioned by some other farmers in W.P.No.5367 of 2007. This Court by order dated 17.12.2007 allowed the said writ petition in part setting aside the declaration under Section 6 of the Act and directing the respondents to hold enquiry under Section 5A of the Act. Subsequently, the respondents again afforded an opportunity under Section 5A of the Act. The petitioner filed his objections during the said enquiry, wherein, he inter-alia contended that the 2nd respondent- Special Collector had no power or authority to issue notification under Section 4(1) of the Act. The objections raised by the petitioner were rejected. Hence, the present writ petition in WP No.6763 of 2008. 3. The averments in the affidavit filed in support of the writ petition in WP No.14900 of 2008 more or less proceed on similar lines as those contained in W.P.No.6763 of 2008, but for the difference in the dates of the notification and numbers of the earlier writ proceedings. Hence, they are not repeated for the sake of brevity. 4. The 3rd respondent-Special Deputy Collector (Land Acquisition) filed a counter-affidavit on behalf of other respondents 1, 2 and 4 also contending inter-alia that by virtue of G.O.Ms.No.1 dated 01.01.1998 as amended by G.O.Ms.No.89 dated 02.06.1998, the Special Collector is also authorized and empowered to issue notification and draft declaration under the Land Acquisition Act and to publish the same in the local newspapers in order to expedite the land acquisition proceedings pertaining to various irrigation projects in the State and therefore, the objection raised by the petitioner regarding the power and authority of the 2nd respondent-Special Collector to issue notification and draft declaration is untenable. 5. The respondents 5 to 15 in W.P.No.6763 of 2008 got themselves impleaded and filed vacate petition i.e., WVMP No.3517 of 2009 to vacate the interim order of stay granted by this Court on 01.05.2008. The respondents 5 to 14 in WP No.14900 of 2008 got themselves impleaded and filed petition i.e., WVMP No.3516 of 2009 for vacating the interim order of stay granted on 11.07.2008. In the affidavit filed in support of the said petitions, it was contended that out of total length of about 22 KMs, digging of the canal was completed to a major extent and only an extent of about 5.7 kms running through the lands of Naguluppalapadu village is held up on account of several rounds of litigation started by one or other land owners of Naguluppalapadu village only to protract the land acquisition proceedings, resulting in abnormal delay in completion of the canal work causing detriment to the interest of the entire ayacutdars, whose lands are to be benefited with the completion of the irrigation project. 6. In the earlier round of litigation in WP No.5367 of 2007, it was contended on behalf of the petitioners therein that the Special Collector [Land Acquisition] who issued notification under Section 4(1) of the Act was not delegated with the power to issue notification and no Gazette publication was made in respect of such delegation, if any. The respondents therein contended that by virtue of G.O.Ms.No.1 dated 01.01.1998, as amended by G.O.Ms.No.89 dated 02.06.1998, the Special Collector was also duly authorised to issue notification under Section 4(1) and declaration under Section 6 of the Act. As the declaration under Section 6 of the Act was set aside and the respondents were directed to hold enquiry under Section 5A of the Act and in the absence of specific pleading regarding the issue pertaining to the delegation of authority in favour of the 2nd respondent, the learned Single Judge, while disposing of W.P.No.5367 of 2007, was not inclined to adjudicate the said issue but, however, left it open to the petitioners to raise the same, if need be in future. The present writ petitions are filed thereafter raising the specific issue regarding the authority of 2nd respondent-Special Collector to issue notification under Section 4(1) and declaration under Section 6 of the Act. 7. These two writ petitions earlier came up for consideration before one of us [Justice P.S.Narayana] and by order dated 27.11.2009, the matters were directed to be placed before a Division Bench in view of the contentions raised. 8. Though, certain other factual aspects were also raised by the parties in their pleadings, the contentions of both sides were confined to the question as to whether or not there was valid and proper delegation of authority in favour of the 2nd respondent-Special Collector for issuing notification under Section 4(1) and declaration under Section 6 of the Act. 9. In W.P.No.6763 of 2008, the notification under Section 4(1) of the Act, was published in the Gazette on 25.07.2006 and in the newspapers on 26.07.2006 and after completion of the 5A of the enquiry, draft declaration under Section 6 of the Act was made on 08.03.2008 and it was published in the District Gazette on 10.03.2008 and in the news papers on 09.03.2008. 10. In WP No.14900 of 2008, the notification under Section 4(1) of the Act was published in the Gazette on 16.04.2008 and in the newspapers on 15.04.2007 and the draft declaration under Section 6 of the Act was made on 10.03.2008. 11. Learned counsel for the petitioner would contend that under Section 3[c] of the Act, the expression ‘Collector’ means only the Collector of a district and includes any officer specially appointed by the appropriate Government and under section 3A of the Act, the State Government may by notification in the Andhra Pradesh Gazette, direct that any power conferred or any duty imposed on the Government, be exercised or discharged by the District Collector; and no such delegation of authority is made on the 2nd respondent-Special Collector nor any such notification published in the Gazette. 12. Learned Government Pleader appearing for the respondents-Government on the other hand would contend that by virtue of G.O.Ms.No.1 dated 01.01.1998 and G.O.Ms.No.89 dated 02.06.1998, the Special Collector is empowered to issue notification and also draft declaration under Section 6 of the Act. 13. Section 3[c] of the Act defines the expression ‘Collector’ as meaning of Collector of a district and includes a Deputy Commissioner and any Officer specially appointed by the [appropriate Government] to perform the functions of a Collector under this Act. Therefore, any Officer specially appointed by the Government to perform the functions of a Collector is also a Collector, within the meaning of Section 3[c]. Section 3[c] does not contemplate that such appointment of any other officer to perform functions of the Collector under this Act shall be notified by way of Gazette Publication. Section 3-A was introduced by way of Amendment Act 22 of 1976 which came into force with effect from 12.09.1975 dealing with delegation of functions by the Government in favour of the District Collector. It states that the State Government may by notification in the Andhra Pradesh Gazette direct that any power conferred or any duty imposed on them by the Act, be exercised or discharged by the District Collector. The circumstance in which and the conditions under which such delegation is made are to be specified in that notification which is required to be made in respect of such delegation, in the Andhra Pradesh Gazette. Thus, the publication of notification in the Andhra Pradesh Gazette is required to be made in the context of Section 3-A, when the State Government delegates its functions in favour of the District Collector. In view of the inclusive definition of the expression ‘Collector’ contained in Section 3[c], which expression includes any Officer specially appointed by the Government to perform the functions of a Collector, the delegation of such power in favour of the said officer is also to be made by way of notification in the A.P. Gazette under Section 3-A of the Act. When once it is shown that the 2nd respondent-Special Collector is such Officer so appointed, he would be entitled to exercise the power or discharge the duty imposed on the State Government only in terms of Section 3-A of the Act. 14. G.O.Ms.No.1 dated 01.01.1998 inter-alia states that in order to expedite land acquisition proceedings, powers are delegated to the Collectors to approve all notifications and draft notifications and to publish the same in local newspapers. The above Government Order was issued in pursuance of the Government’s decision to complete large number of on going medium and minor irrigation projects and schemes expeditiously, and to bring about certain changes in the existing practice to facilitate the same. Subsequently, by G.O.Ms.No.89 dated 02.06.1998 earlier orders issued in the G.O.Ms.No.1 dated 01.01.1998 were amended by adding words “including Special Collector” after the word ‘Collector’ in para 2-C of G.O.Ms.No.1. Thus, when read together G.O.Ms.No.1 as amended by G.O.Ms.No.89 would state that powers are delegated to the Collectors, including Special Collectors, to approve the notification and draft declaration and publish the same under Land Acquisition Act in order to expedite the completion of the irrigation projects. Subsequently, the Government issued G.O.Ms.No.166 Irrigation & CAD (PW: L.A.IV-R&R, dated 07.08.2008, whereunder, in exercise of the powers conferred by Section 3(A) of the Act, the Government directed the Special Collector, Veligonda Project to exercise all the powers conferred and discharge all the duties imposed on the State Government under Sections 4, 5-A, 6 and sub-section (4) of Section 17 and sub-section (1) of Section 48 of the Act and the same was published in A.P. Gazette on 28.08.2008 15. Learned counsel for the petitioner would contend that the said Government Order dated 07.08.2008 having been issued and notified subsequently, the same does not validate the earlier notification issued under Section 4(1) of the Act on 25.07.2006 and draft declaration made under Section 6 of the Act on 08.03.2008 in WP No.6763 of 2008 or the notification dated 14.04.2007 issued under Section 4(1) of the Act and draft declaration dated 10.03.2008 made under Section 6 of the Act in WP No.14900 of 2008 and the defect in issuing the said notification or making draft declaration on account of want of competence or authority as on the respective dates, does not get cured by subsequent act of issuing G.O.Ms.No.166 dated 07.08.2008 or its publication in the A.P. Gazette on 28.08.2008. 16. Learned Government Pleader appearing for the respondents-Government relied on a decision in ‘A.Muralidhar vs. State of A.P.,[1]’wherein the Apex Court held as follows: “It is only matters which are legislative in nature that have to be published. It is axiomatic that every statute or rules having the statutory force ought to be brought to the notice of the people by publication as they are expected to obey the laws. The people who ought to obey laws should be cognizant of them; otherwise, the maxim ‘ignorance of law is no excuse’ is unmeaning. But the same cannot be posited with regard to executive or administrative directions unless there is any obligation cast on the authorities concerned by any statute or the rule made thereunder.” 17. As per the above decision, only the matters which are legislative in nature have to be published but not executive or administrative directions. However, the same is qualified by the words ‘unless there is any obligation cast on the authorities concerned by any statute or the rule made thereunder’. 18. In the present case, there is a statutory obligation contained in Section 3-A of the Act, which requires that notification in A.P. Gazette has to be made. The decision cited does not, therefore, come in aid of the respondents-government’s contention. Section 3-A of the Act was introduced by way of amendment by Amendment Act 22 of 1976 with effect from 12.09.1975, wherein, the delegation of functions was stipulated as follows: “3-A: Delegation of functions:- The State Government may, by notification in the Andhra Pradesh Gazette, direct that any power conferred or any duty imposed on them by this Act, shall in such circumstances and under such conditions, if any, as may be specified in the notification, be exercised or discharged by the District Collector”. 19. A perusal of the above provision would disclose that the very delegation of the power or duty by the State Government on the District Collector is by way of notification in the A.P. Gazette. It further contemplates that the circumstances and conditions, if any, attached to such delegation are also to be specified in the said gazette notification. Thus, the source of authority for the District Collector to exercise the power or discharge the duty, which is delegated to him by the State Government, is the notification in the A.P. Gazette itself. The order of the State Government delegating the authority on the District Collector, thus, takes effect only on being notified in the A.P Gazette. In the absence of such notification in the A.P. Gazette, the delegation of the authority by the State Government in favour of the District Collector is not complete and does not take effect, as the same is not in accordance with Section 3-A of the Act, which contemplates such delegation only by way of notification in the A.P. Gazette. The delegation of powers in favour of the Special Collector (LA) P.S. Velugonda Project, Ongole was made by the State Government only by way of G.O.Ms.No.166 dated 07.08.2008, which was published in the Gazette on 28.08.2008. The said delegation of powers was long subsequent to the dates of notifications under Section 4(1) and the declarations under Section 6 of the Act and their publication, in both the writ petitions. Thus, by the date of making declaration under Section 6 of the Act and its publication in both the writ petitions, the Special Collector was not vested with the authority to issue such notification or make declaration in respect of acquisition of the lands for the subject project. It is only on and from the date of the notification in the A.P. Gazette that the delegation of powers in favour of the Special Collector comes into effect but not from an anterior date. 20. G.O.Ms.No.1 dated 01.01.1998, as amended by G.O.Ms.No.89 dated 02.06.1998, is in the nature of bringing out certain changes in the existing practices as well as the powers of Engineers for expeditious execution of the works while listing out certain steps taken in that regard. Clause (E) of G.O.Ms.No.1 inter alia states that in order to expedite the land acquisition proceedings, powers are delegated to the Collectors to approve draft notification and draft declaration and to publish the same in the local newspapers. By way of amendment, ‘Special Collector’ is also included along side ‘Collector’ in G.O.Ms.No.89. Neither G.O.Ms.Nos.1 nor 89 disclose that the said delegation of authority in favour of the Collector/Special Collector was in exercise of the powers conferred under Section 3-A of the Act. The said delegation of authority to approve the draft notifications and draft declarations in favour of the Collector/Special Collector under G.O.Ms.No.1 read with G.O.Ms.No.89 is not explicitly traceable to the enabling power contained in Section 3-A of the Act, whereas in G.O.Ms.No.166 dated 07- 08-2008, it is specifically stated that the delegation of authority is in exercise of powers conferred under Section 3- A of the Act. Even assuming for a moment that such a delegation of power under G.O.Ms.No.1 read with G.O.Ms.No.89 is only traceable to Section 3-A of the Act, though not specified in the said GOs, still such a delegation not having been notified in the A.P. Gazette as contemplated under Section 3-A, the same does not take effect. The official respondents have not placed before the Court any material to show that either G.O.Ms.Nos.1 or 89 have been published in the A.P. Gazette or any other notification was made in the A.P. Gazette pursuant to the delegation of authority contained in Clause (E) of G.O.Ms.1 read with G.O.Ms.No.89, prior to the dates of notification under Section 4(1) of the Act, in these writ petitions. In fact, it is not the specific plea of the official respondents in their counters that any such notification was published in the A.P. Gazette as contemplated under Section 3-A of the Act by the date of issuing the notifications under Section 4(1) of the Act in respect of subject matter of these writ petitions. When once it is established that by the date of issuing the notifications under Section 4(1) or making declarations under Section 6 of the Act there was no valid and legally effective delegation of authority in favour of the Special Collector who issued or made notifications and declarations, as the case may be, the issuance thereof is clearly without any authority and hence such notifications and declarations cannot legally be sustained. The subsequent delegation of power in favour of the Sub-Collector in G.O.Ms.No.166 dated 07.08.2008 which was published in the A.P. Gazette on 28.08.2008 does not cure the defect, as the same cannot be rolled back to the date of the notifications under Section 4(1) and declarations under Section 6 of the Act. 21. The impugned notification under Section 4(1) of the Act dated 25.07.2006 and declaration dated 08.03.2008 under Section 6 of the Act in W.P.No.6763 of 2008 and the impugned proceedings dated 25.02.2008 and declaration dated 10.03.2008 under Section 6 of the Act in W.P.No.14900 of 2008 are, therefore, held liable to be set aside and they are accordingly set aside, they having been issued by the 2nd respondent-Special Collector without any lawful authority in sofar as it relates to petitioner’s land. It is, however, open to the official respondents to issue notifications under Section 4(1) of the Act afresh and initiate the acquisition proceedings in respect of the subject lands in accordance with law. 22. In the result, both the writ petitions are allowed, as stated above. There shall be no order as to costs. _______________ P.S.NARAYANA, J _____________________ G.V.SEETHAPATHY, J Date: 5TH March 2010. Note: LR copy to be marked (BO) Bss/Lrkm, [1] AIR 1959 AP 437