HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.228 of 2010
Date :01-07-2014
Between:
Smt.Kodali Adi Lakshmi W/o late Ranganayakulu, Aged about 80 years, Residing at D.No.32-6-9A. Ganesh Towers, Moghalrajpuram, Vijayawada, Krishna District.
and The Revenue Divisional Officer-cum-Land Acquisition Officer, Tenali, Guntur District and another.
… Petitioner … Respondents
HON’BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.228 of 2010
O R D E R:
This writ petition, filed under Article 226 of the Constitution of India, challenges the declaration issued under Section 6 of the Land Acquisition Act, 1894 by the District Collector, Guntur, second respondent herein, vide proceedings Rc.No.3639/2006/G2 dated 16.12.2009 published on 02.01.2010 and the endorsement of the second respondent vide Rc.No.3639/2006/G2 dated 16.12.2009.
2. Heard Sri M.Srinivasa Rao, learned counsel for the petitioner and the learned Government Pleader for Land Acquisition for the respondents apart from perusing the material available on record.
3. According to the petitioner, she and her daughter jointly succeeded to an extent of Ac.8-06 cents situated at Kanagala Village, Cherukupalli Mandal, Guntur District and after voluntarily surrendering Ac.0-50 cents as surplus holding, the petitioner relinquished the half right over the property in favour of her daughter as she was the joint owner and the transfer of the same was also recorded in pattedar passbook and after the said transfer she is left with an extent of Ac.3-03 cents of land in Sys.No.367/1A of the said village besides Ac.1-18 cents in Sy.No.378/2A/2.
4. The second respondent District Collector issued a draft notification under sub-Section (1) of Section 4 of the Land Acquisition Act, 1894 (hereinafter called ‘the Act’), proposing to acquire Ac.3-03 cents in Sy.No.367/1A along with the lands of certain others for providing house sites to weaker section people.
5. Subsequently, a notice under Section 5-A in R.C.No.1445/2006-A dated 21.11.2006 and a draft declaration under Section 6 of the Act was issued vide Rc.No.3639/06/G2 dated 12.01.2007. Earlier petitioner herein filed W.P.No.2124/2007, questioning the draft notification and the notice under Section 5-A and this Court by way of an order dated 16.09.2009 allowed the said writ petition. Subsequently, the second respondent, District Collector, by way of endorsement in Rc.No.3639/2006/G2 dated 16.12.2009 rejected the objections and issued Section 6 declaration afresh vide proceedings Rc.No.3639/06/G2 dated 16.12.2009 which was published in Eenadu Daily newspaper on 02.01.2010.
6. Challenging the said endorsement dated 16.12.2009 and the draft declaration dated 16.12.2009 as illegal, invalid and unsustainable, the present writ petition has been filed.
7. This Court, on 12.01.2010 granted status quo order. A counter affidavit is filed by the respondents denying the averments in the writ affidavit while justifying the impugned action.
8. The contentions broadly advanced by the learned counsel for the petitioner are two in number, they are:
1. Since the second respondent/District Collector issued draft declaration under Section 6 of the Act beyond the time stipulated, the entire proceedings are vitiated and lapsed.
2. The second respondent failed to consider the objections of the petitioner from proper perspective.
9. In support of his contentions and submissions, learned counsel for the petitioners places reliance on KYATHAM YADAGIRI AND OTHERS v. SECRETARY TO GOVERNMENT ENERGY (POWER-I)
[1]
DEPARTMENT, SECRETARIAT, HYDERABAD AND OTHERS a n d VIJAY NARAYAN THATTE AND OTHERS v. STATE OF MAHARASHTRA AND OTHERS
[2]
.
9. Per contra, it is contended by the learned Government Pleader for Land Acquisition that strictly adhering to and in accordance with the provisions of the Act, the second respondent/District Collector issued impugned endorsement and the draft declaration under Section 6 of the Act and the proceedings are not hit by the limitation as stipulated under Section 6 of the Act.
10. In support of his case, the learned Government Pleader places reliance upon the judgment of the Hon’ble apex Court in the case of PADMASUNDARA RAO (DEAD) AND OTHERS v. STATE OF TAMILNADU
[3]
.
11, In the light of the above pleadings, submissions and contentions, the issues which this Court is called upon to answer in the present writ petition are:
1. Whether the draft declaration issued by the second respondent/District Collector is within the time stipulated under Section 6 of the Land Acquisition Act, 1894?; and
2. Whether the second respondent conducted enquiry in accordance with the provisions of Section 5-A of the Act?
12. A reading of Section 6 of the Act, makes it manifest that there is a prohibition on publication of draft notification under Section 6 of the Act after one year from the date of draft notification under Section 4 (1) of the Act. Explanation (1) in clear and unambiguous terms stipulates that while computing the said period of one year, the period during which any action or proceeding to be taken in pursuance of the notification issued under section 4 (1) is stayed by an order by a Court, shall be excluded. In the instant case, the draft notification under Section 4 (1) of the Act was published on 15.11.2006 and a declaration under Section 6 was issued initially on 12.01.2007 and the petitioner herein earlier filed W.P.No.2124/2007 before this Court wherein on 01.03.2007 interim order was granted, and eventually the said writ petition No.2124/2007 was allowed on 16.09.2009.
13. Subsequently, the second respondent issued impugned endorsement on 16.12.2009 and also issued Section 6 declaration on the even date.
14. The stay granted by this Court in W.P.No.2124/2007 on 01.03.2007 was in operation till the said writ petition was allowed by this Court on 16.09.2009 and the third respondent herein issued a fresh draft declaration on 16.12.2009. If the said period is excluded as per the explanation to Section 6, the declaration issued on 16.12.2009 would be within time. Therefore, the point No.1 is answered against the petitioner herein.
15. Coming to second point it is to be noted at this juncture that W.P.No.2124/2007 was allowed by this Court by way of an order dated 16.09.2009 and the operative portion of the said order at paragraphs 20 and 21 read as under:
“20. On a careful reading of the stand taken in the counter affidavit, certain contradictory stands in fact had been taken. Be that as it may, it may be that there was no possibility of personal hearing since the petitioner is not residing in the village proper. However, the alleged objections said to have been made by the writ petitioner, a copy of the same is placed before this Court. It is not clear whether any personal hearing as such had been given and whether these objections had been considered and appropriate decision had been taken in this regard. It is needless to say that the enquiry under Section 5-A of the Act is not an empty formality and personal hearing to be given to the writ petitioner. It may be that the writ petitioner is an old lady but atleast a representative of the writ petitioner to be heard in this regard. In the light of the facts and circumstances this Court is of the considered opinion that the notification issued under Section 4(1) of the Act cannot be found fault in any way but however even in the light of the stand taken in the counter affidavit and also a copy of the objections which had been placed before this Court and further in the light of the specific stand taken that the personal service of the notice could not be effected on the writ petitioner because of her absence in the village, this Court is inclined to give one more opportunity and let the writ petitioner file further objections if any and let the respondents conduct enquiry under Section 5-A of the Act fixing a date of receiving such further objections if any to be filed apart from the objections already filed if any and decide the matter in accordance with law. As already aforesaid, the notification under Section 4(1) of the Act as such cannot be found fault, an enquiry under Section 5-A of the Act to be conducted in accordance with law. It is needless to say that the subsequent proceedings are unsustainable, inasmuch as, this Court is giving an opportunity to the petitioner to file additional objections if any apart from the objections already filed at the stage of 5-A enquiry.
21. Accordingly, the writ petition is hereby allowed to the extent indicated above. At this stage, a request had been made to ix some time. The writ petitioner is at liberty to file such additional objections if any in this regard within a period of four weeks from the date of receipt of a copy of this order and let the respondents take appropriate decision in this regard within a period of four weeks thereof. No order as to costs.”
16. It is the categorical case of the petitioner herein that the respondent authorities did not conduct enquiry in accordance with law and without giving any opportunity of personal hearing.
17. It is very much evident from the order in W.P.No.2124/2007 that this Court in the said order directed the respondent authorities to conduct enquiry under Section 5-A of the Act by fixing the dates for receiving further objections if any. It is the stand of the respondents herein in their counter that since the petitioner herein did not submit any further objections in terms of the above said orders by availing the opportunity granted by this Court, the District Collector passed the orders on 16.12.2009 as per the material available on record and issued the impugned endorsement. The said action, in the considered opinion of this Court is contrary and unreasonable and preposterous in view of the reason that this Court in the earlier W.P.No.2124/2007 specifically directed the respondents herein to hold enquiry under Section 5-A of the Act.
18. In the instant case, the defense, as per the counter affidavit of the respondents is that since the petitioners herein did not avail the opportunity of filing further objections, the second respondent issued the impugned endorsement and also issued declaration under Section 6 of the Act. The fact remains that this Court in the W.P.No.2124/2007 specifically directed the respondents herein to hold enquiry as per Section 5-A of the Act. It is not in dispute that the petitioner herein submitted her objections in the form of representation dated 25.01.2007 and as admittedly the same was available with the respondents as on the date of issuance of the impugned endorsement, but the respondent authorities neither considered the same nor issued any notice to the petitioners, asking to appear in person. It is a settled and well established proposition of law that the right conferred to the land owner under Section 5-A of the Act is a right akin to fundamental and human rights and the authorities while dealing with the said provisions of law are required to be more vigilant and such right cannot be brushed aside in a mechanical and routine manner. Since the respondent authorities did neither consider the objections already available on record nor afforded any opportunity of personal hearing at the time of 5-A enquiry to the petitioner, this Court has absolutely no hesitation to hold that the impugned endorsement given by the District Collector and the declaration issued under Section 6 of the Act are neither sustainable nor tenable. Accordingly, point No.2 is answered in favour of the petitioners.
19. For the aforesaid reasons, the writ petition is allowed and the impugned declaration under Section 6 of the Act in Rc.No.3639/2006/G2 dated 16.12.2009 published on 02.01.2010 and endorsement in Rc.No.3639/2006/G2 dated 16.12.2009 of the second respondent are hereby set aside. It is further made clear that the respondent authorities are entitled to proceed in accordance with law. As a sequel, pending miscellaneous petitions, if any, stand closed. No costs.
A.V.SESHA SAI, J Date:01.07.2014 grk
HON’BLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION No.228 of 2010
Date : 01-07-2014
grk
[1] 2006 (3) ALD 403
[2] 2009 (6) ALD 59 (SC)
[3] 2002 (2) ALD 12 (SC)