THE COLLECTOR, ONGOLE AND ANR. v.

NARRA VENKATESWARLU AND ORS.

NOVEMBER 28, 1995

[K. RAMASWAMY AND S.B. MAJMUDAR, JJ.]

Land Acquisition Act, 1896-Section-4( 1)-Public purpose-Acquisition of land only for weaker sections of society-Constitutes a 'public purpose'.

C A notification issued u/s 4(1) of the Land Acquisition Act, was quashed by a Single Judge in writ proceedings on the ground of colourable exercise of power by the authorities. On appeal, the Divison Bench affirmed the order on the ground of non-application of mind by the Collector himself, since the acquisition was made by him on the recommendation made by the Government and further that the administrative instructions D for obtaining prior permission from the Government for making the award when the value exceeds Rs. 20,000 per acre were not obtained. These appeals by special leave had been filed against the judgment of the High Court.

E The appellant contended that the notification validly issued by the Collector who is the competent authority to issue notification u/s 4(1) of the Act, cannot be whittled down by the non-consideration of the administrative instructions issued by the Government nor absence of prior approval is a ground to dclare the valid notification as jnvalid one.

F The respondents contended that attempts were made by the Sarpanch to get the property by successive litigations and that the Collector in a cryptic order had mentioned that the land could be acquired for weaker sections without any proposal for acquiring the land for weaker sections and therefore, exercise of power u/s 4(1) was a colourable exercise G of power vested in the Collector.

Allowing the appeals, this Court

HELD : 1.1. The notification u/s 4(1) of the Land Acquisition act, 1896, was published by the Collector for acquiring the land for the weaker H sections. The Collector bad been empowered to acquire the land for the 764

weaker sections, Scheduled Castes and Scheduled Tribes. Initially there A was an attempt by the Sarpanch to have the land acquired for Housing Cooperative Society. Since the members of the Cooperative society belonged to the forward sections of the society, the land could not be acquired. The

Colletor also did not accede to that request. The Tahsildar suggested to acquire some another land but that was not accepted by the Joint Collector. B The file had gone to the Collector and ultimately the Government had accepted the proposal to acquire the land in question for the weaker sections. Some of the persons to whom the allotment was to be made belonged to the forward sections of the society but that does not take away the initial exercise of the power by the Collector, who is the competent authority to exercise the power under s. 4(1) of the Act. The notification does indicate c that the land was acquired for public purpose, namely, providing houses to the weaker sections of the society . Even the recommendations made by the Government after the protracted litigation were for acquiring the land for weaker sections. Thus the acquisition being only for the weaker sections of the society, it constitutes a "public purpose" as defined under the Act by D virtue of the local amendment made to s. 17(1) of the Act. [767-D-G]

1.2. The collector had formed the opinion that the land was required for public purpose, namely, providing houses to the weaker sections of the society. The question of non-application of mind did not arise. After consideration of the material before the Collector, he formed the opinion E that the land was required for public purpose. The direction of the Government was after protracted litigation and to avoid further litigation, Government had directed to acquire the land. It would not mean that the Collector had abdicated his power under s.4(1). The Government had issued instructions for obtaining prior permission of the. Government, if F the value of the land was more than Rs. 20,000 per acre, the prior permission of the Government in that behalf is necessary. The administrative instructions, no doubt, bind the subordinates but the violation thereof does not contitute an infirmity in the acquisition of the land itself. The Government could take appropriate disciplinary action against the officials but it did not constitute infirmity in the valid exercise of the power G under s.4(1) and declaration under s.6 of the Act. [768-A-D]

1.3. When the Government had directed the Collector to consider the acquisil..on for weaker sections and the Collector had validly exercised the power under s.4(1) of the Act, it could not be said that it was a colourable H ...

A exercise of power. If any allotment was made to any person other than those belonging to the weaker sections, the Collector should take immediate action against these persons and cancel the allotments. Allotments should be made only to the persons belonging to the weaker sections in terms of the notifications and Government instructions in that behalf. [768-F-G]

B CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1135-36 of 1986.

From the Judgment and Order dated 9.8.85 of the Andhra Pradesh High Court in W.P. Nos. 302-303 of 1985.

C T.V.S.N. Chari for the Appellants.

R.N. Keshwani for the Respondents.

The following Order of the Court was delivered :

These appeals by special leave arise from the judgment and order of the Division Bench of the High Court of Andhra Pradesh, dated August 8, 1985, made in Writ Appeal Nos. 302-03of1985. A notification under s.4(1) of the Land Acquisition Act was initially published on April 15, 1983. The same was subsequently withdrawn and fresh notification was published on June 9, 1983. The respondents challenged the validity of the notification in E two writ petitions. The learned single Judge by his order dated February 1, 1985 quashed the notification on the ground of colourable exercise of power by the authorities. On appeal before the Division Bench, one of the learned Judges upheld the order of the learned single Judge on the ground of non-application of mind by the Collector himself, since the acquisition

F was made by the Collector on the recommendation made by the Government. The second ground was that the administrative instructions for obtaining prior permission from the Government for .making the award when the value exceeds Rs. 20,000 per acre were not obtained. Another learned Judge has affirmed the order on the ground that the prior permission of the Government was not obtained for making the award. Thus these G appeals by special leave.

Shri G. Prabhakar, learned counsel for the appellant contended that the notification validly issued by the Collector who is the competent authority to issue notification under s.4(1) of the Act, cannot be whittled down by the non-consideration of the administrative instructions issued by H the Government nor absence of prior approval is a ground to declare the

valid notification as invalid one. Shri R.N. Keshwani, learned counsel for A the respondents strenuously contended that attempts were made by the Sarpanch to get the property in Survey No. 25/10 b;: successive litigations.

There was no proposal for acquiring the land for the weaker sections. The Collector in a cryptic order has mentioned that the land could be acquired for weaker sections without any proposal for acquiring the land for weaker sections. Exercise of the power under s.4 (1) is a colourable exercise of B power vested in the Collector. The learned single Judge, therefore, rightly has gone into that question. Accordingly, he made his valient efforts to convince us to agree with the learned single Judge on the colourable exercise of the power and to uphold the order quashing the notification under s.4(1) of the Act.

Having given careful consideration, we are of the opinion that the argument of Shri Prabhakar, learned counsel for the appellant is acceptable. It is seen that admittedly the notification under s.4(1) was published by the Collector for acquiring the land for the weaker sections. The Collector had been empowered to acquire the land for the weaker sections, D Scheduled Castes and Scheduled Tribes. It is true that initially there was an attempt by the Sarpanch to have the land acquired for Housing Cooperative Society. Since the members of the Cooperative Society belor.ged to the forward sections of the societ)r, the land could not be acquired. The Collector also did not accede to that request. The Tahsildar E suggested to acquire some another land but that was not accepted by the Joint Collector. The file had gone to the Collector and ultimately the Government had accepted the proposal to acquire the land in question for the weaker sections. It may be true that some of the persons to whom that allotment was to be made belonged to the forward sections of the society but that does not take away the initial exercise of the power by the F Collector. As stated earlier, the Collector is the competent authority to exercise the power under s.4(1) of the Act. The notification does indicate that the land was acquired for public purpose, namely, providing houses to the weaker sections of the society. Even the recommendations made by the Government after the protracted litigation were for acquiring the land for weaker sections. Thus the acquisition being only for the weaker sections of G the society, it constitutes a "public purpose" as defined under the Act by virtue of the local amendment made to s.17(1) of the Act.

The next question is whether the learned Judges of the Division Bench were justified in upholding the quashing of the notification on H

A different grounds. It is seen that the Collector had formed the opinion that the land was required for public purpose, namely, providing houses to the weaker sections of the society. The question of non-application of mind does not arise. It is obvious that after consideration of the material before the Collector, the Collector formed the opinion that the land was required for public purpose. The direction of the Government was after protracted B litigation and to avoid further litigation, Government had directed to acquire the land. It would not mean that the Collector had abdicated his power under s.4(1). Jt. is true that the Government had issued instructions for obtaining prior permission of the Government, if the value of the land was more than Rs. 20,000 per acre, the prior permission of the Govern- C ment in that behalf is necessary. The administrative instructions, no doubt, bind the subordinates but the violation thereof does not constitute an infirmity in the acquisition of the land itself. It is true that the Government could take appropriate disciplinary action against the officials but it does not constitute infirmity in the valid exercise of the power under s.4(1) and declaration under s.6 of the Act.

It is not disputed that one of the learned Judges has recorded the findings that no colourable exercise of the power by the Collector was established from record. Though the learned single Judge has held that the . acquisition amounts to colourable exercise of the power since one of the learned Judges has held that there was no colourable exercise of power and there is no disagreement by the another Judge, it must be inferred that the Division bench has not accepted the finding of the learned single Judge that the acquisition was vitiated by a colourable exercise of power.

Even otherwise when we have seen that the Government had directed the Collector to consider the acquisition for weaker sections and the Collector had validly exercised the power under s.4(1) of the Act by no stretch of imagination, it could be said that it is a colourable exercise of the power.

The appeals are allowed. The orders of the High Court are set aside and the writ petition stands dismissed but in the circumstances without costs.

It is made clear that if any allotment is made to any person other G than those belonging to the weaker sections, the Collector should take immediate action against these persons and cancel the allotments. In other words, allotments should be made only to the persons belonging to the weaker sections in terms of the notification and Government instructions in that behalf.

R.A.

Appeal's allowed.