HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 28210 & 29571 of 2013 Date :16-12-2014 Between :
Sri Vetti Veeraiah (ST) S/o Bojji aged 45 yrs R/o West Palakunta H/o Reddyganapavaram village, Buttaigudem mandal, W G District … Petitioners and The Govt of AP, Rep by its Principal Secretary, Tribal Welfare Department, Secretariat, Hyd and others … Respondents The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 28210 & 29571 of 2013 COMMON ORDER :
Petitioners claim to be belonging to ‘Koya’ community and residents of Reddyganapavaram village, Buttaigudem mandal, We s t Godavari district which is scheduled area. Petitioners aver that they are landless poor and have been cultivating small extents of land in Survey Nos. 28/1, 29/2B, 3/1, 3/2, 4/2, 4/3, 10/1A, 14/1A, 24, 27/1A, 22/2A, 27/2D, 43/1, 43/7, 171/1 and 171/2 of Reddyganapavaram village to eke-out their living. They claim that they are in possession and cultivating the same. While so, as part of Indira Sagar Project Polavaram Right canal, land to an extent of Ac.178.67 cents of Reddyganapavaram village including the lands claimed by the petitioners in the above survey numbers were proposed for acquisition and accordingly notification under Section 4 (1) of the Land Acquisition Act was issued and Section 6 declaration was issued on 13.10.2011. Above said lands belong to non-tribals in agency area. The owners of the lands have readily agreed for acquisition and accordingly acquisition proceedings were finalized. Having come to know that the lands which they are in possession and enjoyment were proposed for acquisition, petitioners have objected for such acquisition but their objections were not considered. Challenging orders under Section 5 (A) dated 10.10.2011 notified in Gazettee Nos. 51, 52 and 53 dated 13.10.2011 these writ petitions are instituted.
2. Heard Sri Amarendra Kumar learned counsel for petitioners and learned Government Pleader for Land Acquisition. Since the issue in both writ petitions is same, both writ petitions are disposed of by common order with the consent of counsels for respective parties.
3. Learned counsel for petitioners contended that petitioners are land less poor people and have been eking out their living by cultivating small extents of land in above survey numbers. The fact that they are in possession and enjoyment is fortified by the resolution passed by the Gram Sabha dated 28.8.2013 requesting the Revenue authorities to incorporate the names of the petitioners in the revenue records and to issue D-form patta in their favour. Resolution also says that with reference to some persons D-form pattas were issued.
4. Learned counsel further submits that no land acquisition proceedings can be taken in agency area without following the procedure envisaged in Panchayat Raj Extension to Schedule Area (PESA) Act (Central Act 40 of 1986) and Section 242 (F) of A.P. Panchayat Raj Act. As per PESA Act, it is mandatory to obtain resolution from the Gram Sabha before initiating land acquisition proceedings in schedule area. Further more according to Section 242 (F) of the A.P. Panchayat Raj Act, consultation with Mandal Parishad is mandatory. As disclosed from the certificate issued by the Mandal Parishad President dated 4.7.2011 and Mandal Parishad Development Officer proceedings dated 25.8.2012, no such consultation was made and no resolution was passed by the Mandal Parishad. Similarly no resolution was passed by Gram Sabha. Learned counsel further contended that land acquisition proceedings are vitiated and liable to be set aside as there are violations of mandatory statutory provisions. In support of his contentions, learned counsel for petitioners placed reliance on decision of this Court in W.P. No. 31197 of 2013 dated 4.3.2014 and W P No. 2760 of 2013 dated 4.3.2014.
5. Tahsildar, Buttaigudem mandal filed counter affidavit.
6. Learned Assistant Government Pleader placing reliance on the averments made in the counter affidavit submitted that Pydakulamamidi village is one of the habitations in Jangareddigudem division, West Godavari district submerged under Indira Sagar Polavaram project. 93 project families displaced in Pydakulamamidi village on account of construction of the above project. As per the rehabilitation and resettlement scheme, these families are to be provided house sites and also land for their resettlement at their option. The project displaced families of Pydakulamamidi village have selected lands as mentioned above and consented to receive the land. Accordingly process was initiated under Land Acquisition Act. The subject lands belong to non-tribal. As per the revenue records, the non-tribals ryots from the period of their fore-fathers are in possession and enjoyment of the above properties. During the land acquisition proceedings, non tribals have agreed for acquisition and compensation was determined. Accordingly, consent award No. 16 of 2012 was passed on 12.12.2012 and the owners of the lands were paid compensation, possession was taken and land was allotted to project displaced families on 14.3.2013.
7. It is further asserted that petitioners were never in possession and enjoyment of acquired land to an extent of Ac.108.45 cents. No D-form pattas were issued to petitioners. Petitioners never raised objection after section 4 notification, after draft declaration and during the award enquiry. Section 4 notification and draft declaration were displayed in the notice board of Mandal Parishad office of Buttaigudem mandal and Gram Panchayat of Reddyganapavaram village.
8. However, it is admitted that before resorting to acquisition proceedings, consent of Mandal Parishad office was not obtained. However having realized the mistake, the Mandal Parishad was approached and Mandal Parishad has passed resolution No. 45 dated 1.2.2014 expressing no objection for the above said acquisition. Thus, partly statutory violations as pointed out by the petitioners is now complied. Long ago possession was handed over to the project displaced families and they are in possession and enjoyment of the same. The writ petition is instituted after the possession was handed over to the project displaced families.
9. Learned Government Pleader contends that beneficiaries are also tribals, so on account o f rehabilitation and resettlement scheme the project displaced families are accommodated as per their choice. As records would disclose, petitioners were never in possession and enjoyment. They tried to encroach upon the properties mentioned in the writ petition, after possession was handed over to the project displaced families. Learned Government Pleader further contended that as held by this Court in SARAPU CHINNA POTHARAJU DORA AND ANOTHER Vs DISTRICT
[1]
COLLECTOR, EAST GODAVARI DISTRICT, KAKINADA AND OTHERS the initial defect pointed out having been rectified, there is no illegality warranting interference by this Court.
10. As seen from the record, originally challenge in these writ petitions was to the order under Section 5(A) of the Act. By way of amendment Award Nos. 16 and 13 to 15 dated 12.12.2012 are under challenge respectively. The awards were passed on 12.12.2012, compensation determined was paid to the persons whose names are shown in the revenue records and the possession was handed over to the project displaced families. The writ petitions are instituted much later challenging only the order under Section 5A of the Act. As per the amended prayer petitioners are challenging the Award No. 16 of 2012 and Award No.13 to 15 dated 12.12.2012 respectively.
11. There is no material filed on record to show that petitioners were in possession and enjoyment of these lands and on account of their displacement great prejudice is caused. No material to show that they were granted D form patta. The fact that petitioners never objected during the land acquisition proceedings and after passing of award Grama Sabha passed resolution to grant them pattas mitigates against them. Petitioners placed strong reliance on resolution passed by Gram Sabha recommending D-form pattas to the petitioners suggesting to the competent authority that petitioners have been in possession and enjoyment. The very fact that the Gram Sabha has passed resolution on 28.8.2013 requesting the competent authority to grant pattas to the petitioners would show that no such pattas were granted before that date. Further more, the said resolution was passed by the Gram Sabha much after the culmination of the land acquisition proceedings. Except placing reliance on said Gram Sabha resolution, no other material is filed to support their contention that they are in possession and enjoyment of the lands for several years. On the contrary it is categorical assertion of the State that non tribals were owners of the property as disclosed from the revenue records and that the possession and enjoyment remained with them till land was acquired and petitioners were not in possession and enjoyment.
12. Once petitioners failed to prove their possession and as per revenue records the lands stood in the name of non tribals, petitioners have no manner of right to challenge the land acquisition proceedings.
13. 93 scheduled tribe families were displaced on account of submergence of Pydakulamamidi village in the Polavaram project. The displaced tribals have to be provided lands elsewhere under the Rehabilitation and Resettlement scheme. The subject lands were chosen by displaced tribals for the purpose of their residences as well as cultivation. As per their request land belonging to non tribals was acquired and assigned to displaced tribal families. Thus ultimately it is the tribals who have been benefited by virtue of acquisition of these lands belonging to non-tribals.
14. The petitioners contended that there was no consent by the Mandal Parishad in accordance with section 242 (F) of the A.P. Panchayat Raj Act before proposing to acquire the lands in scheduled area and resolution by Gram Sabha. Similar issue has come up for consideration before this Court in SARAPU CHINNA POTHARAJU which was also a case concerning the same Polavaram project and concerning the rehabilitation and resettlement scheme. Though this Court expressed that in the normal course, Court would have interfered in the matter on account of non compliance of the statutory requirement but since work of the project has already commenced and any interference of the Court would result in wastage of public finance already spent and invested by the State, Court declined to interfere. However, Court directed to raise proposals before each of the Gram Sabha for its consent, receive the objections if any and suitably deal with the same for land acquisition for construction of the reservoir; and to place proposals before the Mandal Parishad as required under Section 242 F of the Panchayat Raj Act.
15. The two decision relied upon by the learned counsel for petitioners, do not come to the rescue of the petitioners. In W P No. 31197 of 2013 directions were issued to place the matter before the Gram Sabha to obtain the resolution of the Gram Sabha before proceeding further. In the said case, Mandal Parishad was already consulted. In the said case above directions were issued since acquisition proceedings were not concluded and no award was passed.
16. In W P 2760 of 2013 the award was passed on 29.12.2012, therefore Court declined to interfere to set aside the land acquisition proceedings and to remit the matter to start afresh from the stage of Section 4 ( 1 ) notification . On the undertaking given by the learned Assistant Government Pleader that further process would be completed after obtaining the consent of the Mandal Parishad and the process of consultation was in progress, the writ petition was disposed of directing the authorities to first obtain written consent of the Mandal Parishad before finalizing the land acquisition proceedings.
17. The issue in these cases is akin to SARAPU CHINNA POTHARAJU. In the instant case, the land acquisition proceedings are concluded long ago; the possession was taken and handed over to the project displaced families and formal consent was already obtained from the Mandal Parishad. The beneficiaries of allocation are tribals. Moreover, petitioners are no way concerned with the land acquired. Thus petitioners are not entitled to the relief claimed. However, since obtaining resolution from Gram Sabha is also mandatory as per PESA Act, the respondent authorities shall place the proposals of land acquisition in Survey Nos. 28/1, 29/2B, 3/1, 3/2, 4/2, 4/3, 10/1A, 14/1A, 24, 27/1A, 22/2A, 27/2D, 43/1, 43/7, 171/1 and 171/2 of Reddyganapavaram village before the Reddyganapavaram Grama Sabha for its consent, receive the objections and deal with them suitably. Such consent should be in the form of resolution. Since during pendency of writ petition consent of Mandal Parishad is obtained, there is no need to obtain fresh consent.
18. Learned counsel for the petitioners submits that petitioners have raised crop on the lands. According to the stand of the respondents, possession was handed over on 14.03.2013 and, therefore the question of petitioners raising crop does not arise. Without going into the rival contentions on the issue, the respondents are directed to permit the persons who have raised crops to take the proceeds. However, even assuming that the petitioners have raised crops earlier, they shall not enter into the subject lands hereafter and interfere in any manner.
19. The writ petitions are accordingly disposed of. No costs. Miscellaneous petitions, if any pending, stand dismissed.
P NAVEEN RAO,J DATE: 16-12-2014 TVK HONOURABLE SRI JUSTICE P. NAVEEN RAO WRIT PETITION No. 28210 & 29571 of 2013 Date 12-12-2014
[1] 2002 (2) ALD 218