HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION Nos. 38476, 39251 and 39317 of 2013 Date: 16.4.2014 W.P.No.38476 of 2013 Between :
P Krishna Venamma W/o Late PVSN Raju R/o Peravali, West Godavari dist and others and Govt of A P Rep by its Principal Secretary- Revenue Secretariat, Hyderabad & others … Petitioners … Respondents W.P.No.39251 of 2013 Between :
J.Satyanarayana s/o. late Chinna Bheemacharyulu, Aged about 48yrs, Occu: Cultivation r/o. Peravali (V) & (M), West Godavari District and others.
and Govt of A P Rep by its Principal Secretary- Land Acquisition Department, Secretariat, Hyderabad & others … Petitioners … Respondents W.P.No.39427 of 2013 Between :
Vedula Adiya Kiran, S/o. V.V.Bhaskar Rao, 42 years, Rep.by his GPA Holder Sri V.v.Bhaskar Rao, R/o.H.No.27-13-6, Hanumantharaopet, Tanuku, W.G.District and others.
and Govt of A P Rep by its Principal Secretary, Revenue Department, Secretariat, Hyderabad & others … Petitioners … Respondents The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION Nos. 38476, 39251 and 39317 of 2013 COMMON ORDER:
In all these three writ petitions, petitioners are residents of Peravali village and mandal, West Godavari district. Petitioners assail orders dated 30.11.2013 under Section 5-A of the Land Acquisition (Repealed) Act and draft notification under Section 4 (1) insofar as acquisition of lands owned by the petitioners in Survey No. 176/2A, 173/1A, 173/2A and 162/1, Peravali village, West Godavari district are concerned. With the consent of the learned counsel for petitioners, learned Government Pleader and Standing Counsel for Tanuku Municipality, the writ petitions are heard and disposed of at the admission stage.
2. On the proposals of Tanuku Municipality in West Godavari district for construction of summer water storage tanks under UIDSSMT scheme, Government accorded administrative sanction vide orders in G.O. Ms.No. 83 Municipal Administration dated 18.1.2008. As a consequence, Commissioner, Tanuku Municipality placed requisition on the Land Acquisition officer for acquisition of the land to an extent of Ac.64.282 cents which included irrigation body. Later revised proposals were submitted restricting acquisition to Ac.63.89 cents in survey Nos. 162 to 176, Peravali village and mandal. Accordingly draft notification was issued under Section 4 (1) on 13.11.2009. This draft notification was subject of challenge before this Court in W P No. 24930, 26462, 23798 of 2009 , 3761 and 11022 of 2010. During the pendency of those writ petitions, no further action was taken. After the disposal of the above writ petitions, the draft notification was published in local newspapers, Sakshi telugu newspaper on 13.2.2013 and Andhra Bhoomi telugu newspaper on 8.3.2013. Locality publication was made on 13.3.2013. At this stage, W P No. 990 of 2013 was instituted by petitioners 2 and 3 in W P No. 38476 of 2013. The said writ petition was disposed of by order dated 3.4.2013 giving liberty to the petitioners to raise all objections during Section 5-A enquiry.
3. Section 5-A enquiry was conducted on 9.5.2013. All the land owners have attended during the enquiry and were afforded personal hearing. They have raised several objections. Considering the objections, a report was submitted to the Collector on 28.11.2013. The Collector considered the report and passed orders on 30.11.2013 rejecting the objections of the petitioners and others. Proposals of draft declaration were submitted on 20.12.2013 and the draft declaration was approved by the District Collector on 21.1.2014.
4. Heard Sri Damodar Mundra, Sri K Suresh Reddy and Sri Vasantha Rayudu for petitioners, learned Government Pleader for Land Acquisition and Sri B.D.Maheshwara Reddy, learned standing counsel f o r Tanuku Municipality.
5. Learned counsel appearing for petitioners in respective writ petitions made the following submissions:
a) Petitioners are the small farmers and are classified as below the poverty line. The land proposed for acquisition is only source of livelihood for them and displacement from the said property would cause immense hardship and suffering. Persons with small holdings cannot be displaced as per the policy of the Government.
b) As the storage tank is proposed for supply of drinking water to Tanuku municipality, there is no justification to acquire the land of the petitioners of Peravali village. Sufficient land is available within the municipal limits of Tanuku and said land ought to have been utilized. It is further contended that alternative land belonging to Government is available and the said land ought to have been utilized without acquiring the land of the petitioners. It is further contended that the land is a fertile land and it is very valuable and said land ought not to have been acquired for the purpose of construction of water storage tank.
c) It is further contended that Tanuku municipality has proposed an alternative plan of bringing drinking water to Tanuku municipality by way of pipe line directly and in view of the said alternative project, there is no justification to acquire the land of the petitioners and construction of water storage tank on the lands proposed for acquisition.
d) It is further contended that as per the provisions contained in Section 4(1) as per A.P. Amendment and Validation Act, 1983, the gazette notification for proposal to acquire land under Section 4 (1) ought to be published in the locality within 40 days from the date of gazette notification. In the instant case, the said provision is violated and therefore entire proceedings get vitiated.
6. Learned Government Pleader contended that Section 4(1) notification was published in the gazette dated 21.11.2009 and no further steps were taken because of institution of batch of writ petitions before this Court. Only after the disposal of the writ petitions, further steps were taken by publication in the newspapers and locality notification. Learned Government Pleader further contended that the provision relied upon by the petitioners was held to be unconstitutional and therefore the newspaper publications and the locality publications in the year 2013 in consequence to the gazette notification on 21.11.2009 is not vitiated on that ground.
7. He further contended that the acquisition of land is for public purpose. Construction of the summer water storage tank is for the purpose of providing potable drinking water to the residents of Tanuku municipality. Tanuku Municipality is a growing municipality and requires adequate provision for drinking water to the residents of the municipality. The procedure as mandated by Land Acquisition Act was followed. The objections of the petitioners were considered. Serious endeavour was made to find out alternate land or alternate location and as it was not possible, the District Collector had no option but to proceed with the acquisition.
8. Learned Government Pleader further contended that Peravali village is adjacent to Tanuku town and the distance is only 2 to 3 Kms and other than the subject land there is no suitable land available where the water storage tank can be located. The Godavari main canal from Nidadavole to Narsapur is located in Peravali village and water is sought to be utilised for the purpose of providing potable drinking water. He further contended that alternative proposals were examined and found to be not suitable. Though there are two water canals passing through Tanuku town, but they were not found to be useful for drinking water as said water is polluted.
9. The contention of the learned counsel for petitioners that petitioners are below the poverty line, is denied. Except for two or three petitioners all the petitioners are above the poverty line. Some of the land owners are actually residing in urban areas like Hyderabad. They have alternate lands and other means of livelihood. Insofar as few small farmers are concerned, the acquisition is inevitable as their lands cannot be separated and excluding their land and acquiring the lands of the others, the project cannot be effectively brought up. Therefore acquisition is inevitable. He contends that Land Acquisition authority is open for consideration of payment of appropriate compensation or package deal wherein the small and marginal farmers can make suitable requests for payment of adequate compensation or alternative provision of land.
10. I have given my anxious consideration to the rival contentions. Technical objection raised by the petitioners was that the newspaper publication and locality notification was not made within 40 days and therefore acquisition proceedings gets vitiated. They placed reliance on judgment of this Court in VALLURI SUBBA RAO AND ANOTHER Vs THE GOVT OF A.P
[1]
, wherein this Court declared the section 4 (1) notification as void, since locality publication was not made within 40 days of gazettee publication. Similar view is taken in another decision in W.P. No.13281 of 1985 dated 11.6.1986. The Full Bench of this Court in case of SHAIK KANNAM SAHEB AND OTHERS Vs THE DISTRICT COLLECTOR,
[2]
KHAMMAM AND OTHERS considered State amendment brought out to section 4 (1) of the Act. The Full bench held that amendment to Section 4 (1) by the State Amendment Act 9 of 1983 is no longer valid after the Central Amendment Act 68 of 1984. The limitation of 40 days for publication in the locality as well as in the newspapers is not valid.
11. Supreme Court also considered the scope of this amendment in SANJEEVANAGAR MEDICAL & HEALTH EMPLOYEES COOPERATIVE HOUSING SOCIETY Vs ABDUL WAHAB AND OTHERS
[3]
. Supreme Court held that requirement of local publication of substance of Section 4(1) notification to be made within 40 days of publication of notification of Section 4 (1) in the gazettee is inconsistent with Amendment Act 68 of 1984 and therefore not valid. In view of the same, the objection of the petitioners that as no locality publication was made within 40 days of gazettee publication of draft notification, is not valid and accordingly the same is rejected. It is also to be noted that locality publication was withheld due to litigation instituted in this Court.
12. The principal ground of challenge of acquisition on merits is that the Tanuku municipality has proposed an alternative scheme for brining drinking water to Tanuku municipality by way of direct pipe line and if that scheme is approved, there is no need to acquiring the land of the petitioners. It is further contended that project drawn up by the Engineering Wing of the municipality was submitted to the Government and without looking into the said proposals, the land acquisition process ought not to have been initiated. This contention is denied by the Land Acquisition Officer as well as Tanuku municipality. It is asserted that the said project is only at the conception stage. The feasibility of that project is not examined and analysed at various level and there is no proposal pending for taking the decision in that regard. Therefore it is not a case where even though an alternative and more feasible project is available, deliberately the same is ignored and lands of the petitioners were proposed for acquisition. The respondents have given sufficient justification for acquisition of the land of the petitioners and the reason for locating the summer water storage tank. No serious endeavour is made by the petitioners to disprove the said assertion of the respondents and the justification for locating the project on the properties of the petitioners. The only assertion made on behalf of the petitioners is that an alternative proposal is made by the Municipality and ought to have been considered.
13. Though few of the petitioners are small and marginal farmers and may be dependant on the land which is now proposed for acquisition, but that itself cannot be a reason to set aside the land acquisition proceedings. Repealed Act did not put any fetters on acquisition and has not made a distinction between a small farmer and a big farmer. Government evolved a policy not to affect small/marginal farmers to the extent possible. As asserted by learned Government Pleader all alternatives were explored before seeking to acquire the lands of petitioners. This land is found to be the most suitable to locate the summer storage tank.
14. I see no error in the proposed notification by the respondent in acquiring the land. There is full compliance of the mandate of Repealed Act for acquiring the land and land acquisition is for public purpose i.e., provision of drinking water to the residents of Tanuku municipality. Thus, there is no illegality or irrationality in acquiring the land of the petitioners warranting interference by this Court. Hence, the writ petitions are dismissed. However, dismissal of these writ petitions do not come in the way of an amicable settlement arrived at by petitioners and respondents regarding payment of appropriate compensation or a mutually agreed package deal. To this extent the respondents have given categorical undertaking in para 9 of the counter filed on behalf of third respondent in W P No. 38476 of 2013. No costs.
Sequel to the same, miscellaneous petitions, if any stand closed.
P.NAVEEN RAO,J DATE: 16-04-2014 TVK HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION Nos. 38476, 39251 and 39317 of 2013 Date: 16.4.2014 tvk
[1] 1985 (1) ALT 53
[2] 1990 (3) ALT 289 (FB)
[3] AIR 1996 SC 3360