Andhra HC (Pre-Telangana)
Chillakuru Rajagopala Reddy S./O ... vs The District Collector, Nellore And ... on 5 November, 2014
Author: A.V.Sesha Sai
Bench: A.V.Sesha Sai
THE HONBLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.8791 of 2006 05-11-2014 Chillakuru Rajagopala Reddy S./o Venkata Krishna Reddy,Aged 60 years and others. Petitioners The District Collector, Nellore and others.Respondents Counsel for the Petitioners: Sri V.Sudhakar Reddy Counsel for the Respondents 1 to 3: G.P for Land Acquisition. Counsel for the Respondent No.4 : Sri P.Roy Reddy <Gist: >Head Note: ? Cases referred: (2005) 7 SCC 627 2 (2013) 4 SCC 210 3 (2012) 2 SCC 25 4 (2012) 1 SCC 792 5 (2013) 8 SCC 99 6 (2002) 3 SCC 533 7 (1996) 10 SCC 721 8 (2013) 9 SCC 338 9 AIR 2012 SC 468 HONBLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.8791 of 2006 O R D E R:
This writ petition, filed under Article 226 of the Constitution of India, challenges the draft notifications vide Rc.G2/651/2006, Rc.G2/652/2006, Rc.G2/655/2006 dated 28.02.2006 and Rc.G2/1034/2006 dated 03.03.2006 under Section 4 (1) of the Land Acquisition Act, 1894 and the draft declaration vide Rc.G2/652/2006, Rc.G2/655/2006, Rc.G2/1034/2006 dated 21.04.2006 and Rc.G2/651/2006 dated 02.05.2006 issued by the District Collector, Nellore, first respondent herein for the purpose of acquiring the lands of the petitioners, admeasuring Acs.11-28 cents situated in Sy.Nos.13 to 20, 24 to 28, 29 and 32 of Akkampeta Village and Ac.55-33 cents situated in Sy.Nos.289 to 293 of Kadaluru village, Tada Mandal, Nellore District as illegal, arbitrary and violative of the provisions of the Land Acquisition Act, 1894 (hereinafter called the Act 1894).
2. The District Collector, Nellore/the first respondent herein pressed into service the provisions of the Act and issued the above mentioned draft notifications and draft declarations for the purpose of acquiring the above referred lands of the petitioners for establishment of industrial park. The said proceedings are being assailed in the present writ petition as illegal, arbitrary and violative of the provisions of the Act.
3. This Court, while issuing Rule Nisi on 18.07.2006, granted interim stay. Responding to the Rule Nisi issued by this Court, counter affidavits have been filed by the respondents, denying the averments made in the affidavit filed in support of the writ petition and in the direction of justifying the impugned proceedings.
4. Heard Sri V.Sudhakar Reddy, learned counsel for the petitioners, learned Government Pleader for Land Acquisition for the respondents 1 to 3 and Sri P.Roy Reddy, learned counsel for the fourth respondent/APIIC apart from perusing the material available on record.
5. Submissions/contentions of Sri V.Sudhakar Reddy, learned counsel for the petitioners:-
1. The authorities did not conduct enquiry as contemplated under Section 5-A of the Act and the Rules framed thereunder.
2. Petitioners are small and marginal farmers and alternative lands are available in the village and except the houses of the petitioners the entire lands in the village are proposed for acquisition.
3. The authorities did not publish the notification under Section 4 (1) of the Act in the locality and also failed to indicate the public purpose clearly in the notification.
4. There is a Bird Sanctuary in Pulicot Lake nearby as such the proposed activity is impermissible.
5. In support of his contentions/submissions the learned counsel for the petitioners relies on the Judgments of the Honble Apex Court in the case of HINDUSTAN PETROLEUM CORPORATION LIMITED v. DARIUS SHAPUR CHENAI AND OTHERS , USHA STUD AND AGRICULTURAL LFARMS PRIVATE LIMITED AND OTHERS v. STATE OF HARYANA AND OTHERS , KAMAL TRADING PRIVATE LIMITED (NOW KNOWN AS MANAV INVESTMENT AND TRADING COMPANY LIMITED v. STATE OF WEST BENGAL AND OTHERS , RAGHBIR SINGH SEHRWAT v.
STATE OF HARYANA AND OTHERS , WOMEN EDUCATION TRUST AND ANOTHER v. STATE OF HARYANA AND OTHERS and PADMA SUNDARA RAO (DEAD) AND OTHERS v. STATE OF TAMIL NADU. AND OTHERS .
6. Submissions/contentions of the learned Government Pleader and the learned Standing Counsel for the fourth respondent:-
1. Respondents are proceeding strictly in accordance with the provisions of the Act and the Rules farmed thereunder and absolutely there is neither illegality nor irregularity nor any arbitrariness in their action and in the absence of the same, the impugned proceedings cannot be interdicted.
2. The authorities strictly adhered to the provisions of Section 5-A the Act and held enquiry as per Section 5-A and disposed of the objections.
3. The authorities specifically and clearly indicated the public purpose for establishment of industrial park as such the contention contra of the petitioners is neither sustainable nor tenable.
4. The contentions of the petitioners that though Government land is available the private land is sought to be acquired without utilizing the Government land in Sy.No.189 is totally misleading and false.
5. Pulicot Lake which has been declared as a Bird Sanctuary is at a distance of 4 kilometers towards East from NH.5 and the lands under acquisition are located towards the West of NH.5 and the pollution treatment plants will be established to preserve the ecosystem.
7. The learned counsel for the respondents places reliance on the judgment of the Honble Apex Court in the case of AJAY KRISHAN SINGHAL AND OTHERS v. UNION OF INDIA AND OTHERS .
8. In the light of the pleadings, submissions and contentions, now the issues which this Court is called upon to answer in the present writ petition are:-
1. Whether the impugned action on the part of the respondent authorities is in accordance with the mandatory provisions of the Act and the Rules framed there under?
2. Whether the respondent authorities adhered to the provisions of Section 5-A of the Act and the Rules framed thereunder and whether their action under the said provisions of law is in accordance with the principles laid down by the Honble Apex Court and this Court?
9. Right to property is a constitutional right as enshrined under Article 300-A of the Constitution of India, which in clear and unequivocal terms, mandates that no citizen of this country shall be deprived of his or her property except in accordance with the procedure established by law. As per the said provision of the Constitution due procedure needs to be adhered to while depriving a citizen of his or her property. The Land Acquisition Act, 1894 is an expropriatory legislation as such the provisions of the said legislation are required to be scrupulously and meticulously followed and adhered to. Deprivation of property by way of compulsory acquisition is a matter of serious consequence. Therefore, the authorities, discharging their statutory functions under this legislation should be highly cautious and meticulous while discharging their functions.
10. One of the principal submissions/contentions in the present writ petition is the respondent authorities grossly erred in failing to adhere to the provisions of Section 5-A of the Act 1894 and that the respondents did not properly conduct the enquiry as such the impugned proceedings are liable to be set aside.
11. A copy of Form-III notice bearing Rc.A.450/2006 dated 01.03.2006 issued by the Revenue Divisional Officer, Gudur is placed on record by the learned counsel for the writ petitioners. A perusal of the said notice dated 01.03.2006 clearly and manifestly shows that the Revenue Divisional Officer, Gudur issued the said notice under Section 5-A of the Act 1894, dispatching the same on 29.03.2006 and calling upon the land owners to file objections/statements before 30.03.2006 while fixing the date of enquiry as 04.04.2006. This, in the considered opinion of this Court, is in total violation and contravention of the provisions of Section 5-A of the Act 1894 and the Rules framed there under. As per the Rules framed under the Act 1894, it is mandatory and obligatory on the part of the Land Acquisition Officer to grant 30 days time to file objections, if any, by the land owners for the proposed acquisition. The said Rules also obligate issuance of notice to the beneficiaries and calling for objections from the beneficiaries. In the instant case, it is categorically pleaded by the petitioners in the writ affidavit that their advocate, with the necessary objections, waited in the office of the Mandal Revenue Officer, Tada Mandal on 04.04.2006 up to 12-00 noon and he was informed that the Revenue Divisional Officer/the second respondent herein who is in the ministers programme and immediately their advocate went to the office of the Revenue Divisional Officer, Gudur and waited till 5-00 p.m where he was informed by one of the employees in the office of the Revenue Divisional Officer that it would not be possible for the Revenue Divisional Officer due to the ministers programme and the objections should be filed on 10.04.2006 and when the counsel for the petitioners offered to file objections on 04.04.2006 the staff refused to receive the same, as such, their advocate sent the said objections by way of D.T.D.C Courier service and the objections were received by the Revenue Divisional Officer on 05.04.2006.
12. It is significant to note at this juncture that the respondents 1 to 3 filed a counter stating that enquiry was conducted as per Section 5-A of the Act 1894 and the objections were disposed of. It is also the case of the petitioners that after publication of the declarations under Section 6 of the Act 1894 the petitioners got issued a legal notice dated 28.04.2006 through their counsel, requesting to furnish all the papers, but the respondent authorities did not furnish the same. It is pertinent to note at this juncture that the Rules framed under the Act 1894 obligate the respondent authorities to fix a date of hearing after the submissions of the objections. The material available on record clearly and categorically shows that the respondent authorities failed to act in accordance with the provisions of Section 5-A of the Act and the Rules framed under the enactment. It is also the complaint of the petitioners that the respondent authorities did not furnish the report of 5-A enquiry also.
13. At this juncture, it may be appropriate to refer to the judgments of the Honble apex Court and this Court. In the case of HINDUSTAN PETROLEUM CORPORATION LIMITED (supra 1), the Honble apex Court at paragraphs 6, 8, 15, 16 and 29, held as under:
6. The main question which fell for its consideration before the High Court was whether the objections raised by the Appellant objecting to the acquisition of land on various grounds have been considered by the Government. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution of India, the State in exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid. Indisputably, the definition of public purpose is of wide amplitude and takes within its sweep the acquisition of land for a corporation owned or controlled by the State, as envisaged under Sub-clause (iv) of Clause (f) of Section 3 of the Act, But the same would not mean that the State is the sole judge therefore and no judicial review shall lie. [See Jilubhai Nanbhai Khachar and Ors. v. State of Gujarat and Anr. :
AIR1995SC142.
8. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regard the public purpose as also suitability thereof must be preceded by application of mind as regard consideration of relevant factors and rejection of irrelevant ones. The State in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions, contained in Article 300A of the Constitution of India has been held to be akin to a fundamental right.
15. However, considerations of the objections by the owner of the land and the acceptance of the recommendations by the Government, it is trite must precede a proper application of mind on the part of the Government. As and when a person aggrieved questions the decision making process, the court in order to satisfy itself as to whether one or more grounds for judicial review exists, may call for the records whereupon such records must be produced. The writ petition was filed in the year 1989. As noticed hereinbefore, the said writ petition was allowed. This Court however, interfered with the said order of the High Court and remitted the matter back to it upon giving an opportunity to the parties to raise additional pleadings.
16. Contention of Mr. Chaudhari to the effect that for long the additional ground relating to non-application of mind on the part of the State had not been raised and, thus, it might not be necessary for the State to file a counter-affidavit does not appeal to us. When a rule nisi was issued the State was required to produce the records and file a counter-affidavit. If it did not file any counter-affidavit, it may, subject to just exceptions, be held to have admitted the allegations made in the writ petition.
29. The Act is an expropriatory legislation. This Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors. :
[1966]3SCR557 observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand and Ors. v. State of Rajasthan and Ors., : [1967]1SCR120 and Collector of Central Excise, Ahmedabad v. Orient Fabrics (P) Ltd.: 2003ECR769(SC). There cannot, therefore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority was imperative.
14. In the case of USHA STUD AND AGRICULTURAL FARMS PRIVATE LIMITED AND OTHERS (supra 2), the Honble apex Court at paragraphs 21 to 23 and 30, held as under:
21. Section 5-A, which embodies the most important dimension of the rules of natural justice, lays down that any person interested in any land notified under Section 4(1) may, within 30 days of publication of the notification, submit objection in writing against the proposed acquisition of land or of any land in the locality to the Collector. The Collector is required to give the objector an opportunity of being heard either in person or by any person authorized by him or by pleader. After hearing the objector(s) and making such further inquiry, as he may think necessary, the Collector has to make a report in respect of land notified under Section 4(1) with his recommendations on the objections and forward the same to the Government along with the record of the proceedings held by him. The Collector can make different reports in respect of different parcels of land proposed to be acquired.
22. Upon receipt of the Collector's report, the appropriate Government is required to take action under Section 6(1) which lays down that if after considering the report, if any, made under Section 5-A(2), the appropriate Government is satisfied that any particular land is needed for a public purpose, then a declaration to that effect is required to be made under the signatures of a Secretary to the Government or of some officer duly authorised to certify its orders. This section also envisages making of different declarations from time to time in respect of different parcels of land covered by the same notification issued under Section 4(1). In terms of Clause (ii) of the proviso to Section 6(1), no declaration in respect of any particular land covered by a notification issued under Section 4(1), which is published after 24.9.1989 can be made after expiry of one year from the date of publication of the notification.
To put it differently, a declaration is required to be made under Section 6(1) within one year from the date of publication of the notification under Section 4(1).
23. In terms of Section 6(2), every declaration made under Section 6(1) is required to be published in the Official Gazette and in two daily newspapers having circulation in the locality in which the land proposed to be acquired is situated. of these, at least one must be in the regional language. The Collector is also required to cause public notice of the substance of such declaration to be given at convenient places in the locality. The declaration to be published under Section 6(2) must contain the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area or a plan is made in respect of land and the place where such plan can be inspected. Section 6(3) lays down that the declaration made under Section 6(1) shall be conclusive evidence of the fact that land is needed for a public purpose.
30. The ratio of the aforesaid judgments is that Section 5-A(2), which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons for not acquiring the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1).
15. In the case of KAMAL TRADING PRIVATE LIMITED (supra 3), the Honble apex Court at paragraphs 13 to 16 held as under:
13. Section 5A(1) of the LA Act gives a right to any person interested in any land which has been notified under Section 4(1) as being needed or likely to be needed for a public purpose to raise objections to the acquisition of the said land. Sub-section (2) of Section 5A requires the Collector to give the objector an opportunity of being heard in person or by any person authorized by him in this behalf. After hearing the objections, the Collector can, if he thinks it necessary, make further inquiry. Thereafter, he has to make a report to the appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him for the decision of the appropriate Government and the decision of the appropriate Government on the objections shall be final.
14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the concerned authority, inter alia, that the important ingredient namely 'public purpose' is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an ex-proprietary legislation, its provisions will have to be strictly construed.
15. Hearing contemplated under Section 5A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector's recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5A(2). As said by this Court in Hindustan Petroleum Limited, the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5A(2) of the LA Act. The recommendations must indicate objective application of mind.
16. In the case of WOMEN EDUCATION TRUST AND ANOTHER (supra 5), the Honble apex Court at paragraphs 5 and 6, held as follows:-
5. The principles which can be culled out from the above-noted judgments are as under:
(i) The rule of audi alteram partem engrained in the scheme of Section 5A of the Act ensures that before depriving any person of his land by compulsory acquisition, an effective opportunity must be given to him to contest the decision taken by the State Government /competent authority to acquire the particular parcel of land.
(ii) Any person interested in the land, which has been notified under Section 4(1) of the Act, can file objections under Section 5A(1) and show that the purpose specified in the notification is really not a public purpose or that in the guise of acquiring the land for a public purpose the appropriate Government wants to confer benefit upon private persons or that the decision of the appropriate Government is arbitrary or is vitiated due to mala fides.
(iii) In response to the notice issued by the Land Acquisition Collector under Section 5A(2) of the Act, the objector can make all possible endeavours to convince the Land Acquisition Collector that the acquisition is not for a public purpose specified in the notification issued under Section 4(1); that his land is not suitable for the particular purpose; that other more suitable parcels of land are available, which can be utilized for execution of the particular project or scheme.
(iv) The Land Acquisition Collector is duty bound to objectively consider the arguments advanced by the objector and make recommendations, duly supported by brief reasons, as to why the particular piece of land should or should not be acquired and whether the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Land Acquisition Collector should reflect objective application of mind to the entire record including the objections filed by the interested persons.
(v) The Land Acquisition Collector is required to submit his report and the recommendations to the State Government along with the record of proceedings to enable the latter to take final call on the desirability, propriety and justification for the acquisition of the particular parcel(s) of land.
(vi) The declaration under Section 6(1) of the Act can be issued only if the appropriate Government, on an objective application of mind to the objections filed by the interested persons including the landowners and the report of the Land Acquisition Collector, is satisfied that the land is needed for the particular purpose specified in the notification issued under Section 4(1) of the Act.
6. It is unfortunate that despite repeated judicial pronouncements, the executive authorities entrusted with the task of acquiring private land for any specified public purposes have time and again exhibited total lack of seriousness in the performance of their duties under the statute. Often they do not comply with the mandate of Section 5A of the Act, which is sine qua non for making a valid declaration under Section 6(1) of the Act.
17. From the above mentioned pronouncements of the Honble apex Court, it would succinctly evident that the right created under Section 5-A of the Act 1894 to an objector of the acquisition is not an empty formality and on the other hand it is the substantial and valuable right which is akin to fundamental and human right having regard to Article 300-A of the Constitution of India. This right is the only right created to the citizens to put forward their difficulties and grievances during the course of enquiry. Therefore, any failure on the part of the authorities in considering the objections in true letter and spirit of the provisions of law would undoubtedly render the consequential proceedings null and void and unsustainable in the eye of law. There is absolutely no evidence on record to show that the respondent authorities objectively considered the objections and adopted a pragmatic approach towards the issue. For the pleading of the petitioners that despite the legal notice got issued by them, requesting the authorities to furnish the material included in the report on 5-A enquiry, no plausible explanation is forthcoming from the respondents. Therefore, the non-adherence and failure to comply with the mandatory provisions of section 5-A of the Act 1894 and the Rules framed there under in the enactment for holding enquiry under Section 5-A are Writ large.
18. Yet another submission advanced by the learned counsel for the petitioners is that the petitioners herein are small and marginal farmers and the only source of their livelihood is the income arising out of the proposed lands. The Courts time and again held that to the extent possible the acquisition of the lands of the small and marginal farmers should not be resorted to by way of compulsory acquisition. It is a well known fact that the farmers are the backbone of our Indian economy and in the process of urbanization the activity of agriculture is getting crippled day by day and the number of farmers growing the food grains is also getting diminished. Therefore, to the extent possible, baring inevitable situation, compulsory acquisition of agricultural lands, thereby creating shortage of food production should be averted and avoided. The indiscriminate acquisition may also lead to unrest in the society and the compulsory acquisition of the lands sometimes result in displacing farmers from their native villages may also lead to severance of their bond from the native habitant, which would undoubtedly disturb the net work and this may eventually result unwarranted and unhealthy excessive urbanization.
19. It is also apt to refer to the judgment of the Honble apex Court reported in the case of RAGHBIR SINGH SEHRWAT (supra 4) wherein the Honble apex Court at paragraphs 3, 4, 41 to 43 held as under:-
3. In 1947, the first Prime Minister of India Pt. Jawahar Lal Nehru said 'everything else can wait, but not agriculture'. In its fifth and final report, the National Commission on Farmers headed by Dr. M.S. Swaminathan observed that prime farmland must be conserved for agriculture and should not be diverted for non-
agricultural purposes, else it would seriously affect availability of food in the country where 60% population still depends on agriculture and people living below poverty line are finding it difficult to survive.
4. Unfortunately, these words of wisdom appear to have become irrelevant for the State apparatus which has used the Land Acquisition Act, 1894 (for short, 'the Act') in last two decades for massive acquisition of the agricultural land in different parts of the country, which has not only adversely impacted the farmers, but also generated huge litigation adjudication consumes substantial time of the Courts. These appeals filed against orders dated 17.5.2010 and 19.11.2010 of the Division Bench of the Punjab and Haryana High Court is one of many such cases which the landowners are compelled to file with the hope that by Court's intervention they will be able to save their land.
41. Before concluding, we deem it necessary to observe that in recent past, various State Governments and their functionaries have adopted very casual approach in dealing with matters relating to the acquisition of land in general and the rural areas in particular and in a large number of cases, the notifications issued under Sections 4(1) and 6(1) with or without the aid of Section 17 and the consequential actions have been nullified by the Courts on the ground of violation of the mandatory procedure and the rules of natural justice. The disposal of cases filed by the landowners and Ors. take some time and the resultant delay has great adverse impact on implementation of the projects of public importance. of course, the delay in deciding such cases may not be of much significance when the State and its agencies want to confer benefit upon private parties by acquiring land in the name of public purpose.
42. It if difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability of food in future. After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide.
43. It also appears that the concerned authorities are totally unmindful of the plight of those sections of the society, who are deprived of their only asset like small house, small industrial unit etc. They do not realise that having one's own house is a lifetime dream of majority of population of this country. Economically affluent class of society can easily afford to have one or more houses at any place or locality in the country but other sections of the society find it extremely difficult to purchase land and construct house. Majority of people spend their lifetime savings for building a small house so that their families may be able to live with a semblance of dignity. Therefore, it is wholly unjust, arbitrary and unreasonable to deprive such persons of their houses by way of the acquisition of land in the name of development of infrastructure or industrialisation. Similarly, some people set up small industrial unit after seeking permission from the competent authority. They do so with the hope of generating additional income for their family. If the land on which small units are established is acquired, their hopes are shattered. Therefore, before acquiring private land the State and/or its agencies/instrumentalities should, as far as possible, use land belonging to the State for the specified public purposes. If the acquisition of private land becomes absolutely necessary, then too, the concerned authorities must strictly comply with the relevant statutory provisions and the rules of natural justice.
20. Therefore, the authorities discharging their functions under this legislation are required to follow the above principles and para-meters while discharging their statutory functions and in the instant case they are completely given go-bye.
21. Apart from the above aspects, it is also contended by the learned counsel for the writ petitioners that the respondent authorities did not publish the draft notification in the locality and in order to substantiate the said contentions the affidavits deposed by Thalari, Sarpanch and Vetty of the concerned villages have been filed. On the other hand, it is the submission of the learned Government Pleader that the same was published in the locality in accordance with law and as stated in the counter affidavit at paragraph 10.
22. As observed supra, the Land Acquisition Act, 1894 is an expropriatory legislation and any deviation or breach of provisions of the said legislation would render the proceedings invalid. As per Section 4 (1) of the Act, it is mandatory on the part of the authorities to publish draft notification in the official gazette and in any two daily news papers having circulation in the locality and out of which one at least shall be in regional language. The said provisions also obligate the publication of the draft notification at convenient places in the locality. In the present case, in order to demonstrate the non-publication of substance of the draft notification in the locality, three affidavits dated 02.06.2006 deposed by Vetti, Thalari and Sarpanch of the Grampanchayat have been filed by the petitioner and the same are neither disputed nor denied by the respondent authorities in their counter affidavits. On the other hand, the respondents are seeking to justify their action by referring to an endorsement on the reverse side of the draft notification signed by the Panchayat Secretary of Gradda Gunta Grampanchayat and the Mandal Revenue Officer (Tahsildar) of Tada dated 03.03.2006 saying that the draft notification was published by way of Dhandora and the same said to have taken place in terms of the proceedings of the Revenue Divisional Officer, Gudur dated Nil.03.2006 addressed to the Mandal Revenue Officer, Tada which this Court finds in the records. The said proceedings of the Revenue Divisional Officer does not bear the date except the month and year. The endorsement dated 03.03.2006 sought to be relied upon by the respondent authorities to contend that the draft notification was published in the locality by way of tom-tom does not bear the signatures of any others except that of the Panchayat Secretary and the Tahsildar. This Court does not find any justification to ignore the affidavits filed by the Vetti, Thalari and Sarpanch of the Grampanchayat which, clearly and unequivocally disprove any such local publication in reality. The publication of the draft notification in the locality is not a mere formality and the same should be inconsonance with the true letter and spirit of the legislative intent. Any actions on the part of the authorities while discharging the statutory functions shall be highly transparent and shall not give any room for ambiguity and hesitation.
23. It is also the contention of the learned counsel for the petitioner that mere Tom-Tom would not satisfy the language employed in Section 4 (1) of the Act and in support of the said contention, the learned counsel places reliance on the judgment of this Court in the case of 1986 (1) APLJ 323 wherein this Court at paragraphs 4 and 5 held as under:-
4. Now, in so far as the case on hand is concerned, the endorsement on the reverse of the Gazette notification runs as under:
TELUGU VERSION Dandora Certificate Thoorpu Godavari Zilla Kakinada taluka Mammillladoddi Gramamuloni Edd diguva nudaharinchina Bhoomulu sweekarinchutaku ganu Land Acquisition Act, 4 (1) Prakaramuga Sri Thoorupu Godavari Zilla Collector varu approve chesiyunnaru. Gana sadharu sangathulu Gramam loni dt. 18-5-1984 va thedina Andariki teliyulaguna Dandora moolamuga prakatinchadamynadi.
S.No. Parim thamu Bhookamandu Peru
Xx xx xx
Xx xx xx
Xx xx xx
(Sd) N.Sivaji Rao
18-5-84
Revenue Inspector
Samalkote
And this endorsement has been made by the Revenue Inspector. The whole file has been scanned through. There is no piece of paper found in the file directing the Revenue Inspector to have the substance of the notification published in the Village either by the Collector directly or through the Revenue Revenue Divisional Officer or the Tahsildar. It is incomprehensible as to on what basis the Revenue Inspector has endorsed saying that the publication has been made in the village by tom tom. There is no additional certificate issued by the village officer or the village assistant. It is in this set of circumstances it will be hard for this Court to accede to the submission made by the learned Government Pleader based on the decision in Hari Singh vs. State of U.P. (4) AIR 1984 SC page 1020 that communication from the superior officer to the Revenue Inspector must be presumed and even in the absence of any certificate by the village officer the stretch of presumption must also reach the construction that it has been duly published. I feel lawfully difficult to persuade myself to be in disagreement with the two learned judges of this Court who have taken the view that publication of this sort cannot be conclusive one nor any presumption of the sort would arise to the effect that publication has been made. So following the same, I too hold that there has been no publication at all of the substance of the notification under section 4 (1) of the Act.
5. The second aspect of the case is whether tom-tom will tantamount to publication within the meaning of even section 4 (1) of the Act. Various decisions have held that there is a distinction between tom-tom and publication by affixture of notice on the Board and even rule 1 though the applicability of the same is in question contemplates that the notice should be published at convenient places in the locality and copies thereof fixed up in the office of the Collector Tahsildar and in the nearest police station.
This positively connotes that publication must be in writing. In fact, Karnataka rules, which are no doubt not applicable to our state conceive of three situation, namely (i) tom-tom to be made in the village, (ii) affixture of the notices at convenient places in the locality and (iii) personal service of the notices on the affected parties. This also lends assistance to the fact that there is a distinction between tom-tom and publication by affixture of notice. Hence, I have no hesitation in holding that the words in section 4 (1) of the Act, namely Public notice of the substance of such notification to be given at convenient places in the said locality mean that the notice must be affixed at some conspicuous places in the locality and mere tom-tom would not satisfy the provisions of the statute. Hence, there is no substance in the contention of the learned Government Pleader and accordingly the same is rejected.
24. In the instant case also except an endorsement that the publication was made by way of Dhandora, there is absolutely no other material available to show that notices were affixed at conspicuous places such as Gram Panchayat Office, Grama Chavidi, Police Station and the Mandal Revenue Office in the locality.
25. In AJAY KRISHAN SINGHAL AND OTHERS (supra 7) also the Honble Apex Court at paragraph 12 held in the facts and circumstances of the said case that the presumption under Section 114 (e) of the Evidence Act was in favour of the publication of 4 (1) notification in the locality. In the said judgment the Honble Apex Court also held that the present presumption is rebuttable. In the instant case, the presumption available to the official authorities as pleaded by the respondent authorities could be successfully rebutted by the petitioners herein by filing the affidavits of the persons concerned in the village and this Court does not find any plausible reason to discard the same in view of non-denial by the respondent authorities. Therefore, the said judgment rendered by the Honble Apex Court, in the facts and circumstances of the present case, would not render any assistance to the respondents herein.
26. At this juncture, it may be appropriate to refer to the decision of the Honble Apex Court in V.K.M. KATTHA INDUSTRIES PVT. LTD. VS. STATE OF HARYANA AND OTHERS wherein the Honble Apex Court at paragraph 18 held that despite noting the specific ground raised by the appellant about the non-publication of the substance of the notification as prescribed under the Act in the locality concerned, neither the State nor the Land Acquisition Collector availed the opportunity of filing reply refuting the same.
27. Coming to the aspect of plea, touching the availability of alternative Government lands, the counter affidavit deposed by the Revenue Divisional Officer, Gudur refers to the said aspect at pages 13 and 14. Even as per the said information furnished by the authorities, the total extent of land is Ac.984.35 gts and the land covered by reserve forest is Ac.332.65 gts and the authorities have handed over Ac.234-14 gts to the APIIC which means still there is an extent of Ac.417-56 gts of Government land available for non utilization of the same there is no plausible explanation forthcoming from the respondent authorities in their counter. In this connection, it may be appropriate to refer to the judgment of the Honble Apex Court in the case of RAGHBIR SINGH SEHRAWAT v. STATE OF HARYANA AND OTHERS wherein the Honble Apex Court at paragraph 26 categorically held that when the Government lands are available the acquisition of private lands is impermissible. The impugned action on the part of the respondent authorities is also liable to be repulsed and rejected and deprecated on this ground also.
28. Taking into consideration the totality of the circumstances and after giving thoughtful consideration to the issue involved in the present writ petition, this Court is of the considered opinion that in the present case there is flagrant violation and patent transgression of the mandatory provisions of the Land Acquisition Act, 1894, as such, the impugned proceedings in the present case are liable to be invalidated.
29. For the aforesaid reasons and having regard to the authoritative pronouncements of the Honble Apex Court, the writ petition is allowed and the draft notifications vide Rc.G2/651/2006, Rc.G2/652/2006, Rc.G2/655/2006 dated 28.02.2006 and Rc.G2/1034/2006 dated 03.03.2006 under Section 4 (1) of the Land Acquisition Act, 1894 and the draft declarations vide Rc.G2/652/2006, Rc.G2/655/2006, Rc.G2/1034/2006 dated 21.04.2006 and Rc.G2/651/2006 dated 02.05.2006 issued by the District Collector, Nellore, first respondent herein, for the purpose of acquiring the lands of the petitioners, admeasuring Acs.11-28 cents situated in Sy.Nos.13 to 20, 24 to 28, 29 and 32 of Akkampeta Village and Ac.55-33 cents situated in Sy.Nos.289 to 293 of Kadaluru village, Tada Mandal, Nellore District are set aside. However, if the lands of the petitioners are still required, it is open for the respondent authorities to acquire the same in accordance with the provisions of the relevant legislation. As a sequel, the miscellaneous petitions, if any, shall stand closed. No order as to costs.
_______________ A.V.SESHA SAI, J Date: .11.2014