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Judgment
Heard the learned Counsel for the petitioner, the learned Government Pleader and Sri V. Raghunatha Reddy, learned Counsel appearing for respondent No.2.
At the stage of vacate stay petition - WV MP No.482 of 1999, all the learned Counsel agreed for final adjudication on merits. Hence this order.
This writ petition is filed questioning the entire proceedings under the Land Acquisition Act (for brevity ''the Act''), for purpose of acquisition of Ac.5-00 cents out of Ac.7-27 cents in S.No.266/2 situated in Parvathapuram Municipality of Adoni Mandal, Kurnool District.
The contention of the petitioner in brief is that the petitioner along with others constitute a Joint Hindu Family owning Ac.7-27 cents in Survey No.266 at Parvathapuram Municipal limits in Adoni Mandal, Kurnool District. While so, the first respondent issued a notice on 3-5-1997 in the name of the father of the petitioner under sub-section (3) of Section 9 of the Act relating to an extent of Ac.5-00 from a total extent of Ac.7-27 cents. Subsequent enquiries reveal that a notification u/s 4(1) of the Act dated 15-9-1995 was published in Andhra Jyothi, Telugu Daily Newspaper, notifying the said acquisition for purpose of Muslim grave yard and that on 30-3-1996 a draft declaration has been issued. Petitioner has filed statement of objections for the said notice under subsection (3) of Section 9 dated 3-5-1997. It was further stated that for the first time only after the notice under sub-section (3) of Section 9 dated 3-5-1997, the petitioner came to know about the earlier proceedings under the Act. Basing on the averments made in the affidavit filed in support of the writ petition, the learned Counsel for the petitioner disputes the acquisition proceeding? on three grounds which are as follows:
(1) The proposed land for acquisition was surrounded by residential colonies and is not useful for public purpose;
(2) Provision u/s 17(4) of the Act was invoked dispensing with enquiry u/s 5A of the Act which is not actually warranted;
(3) Publication u/s 6 of the Act was made on 30-3-1996, but in the Counter-affidavit it was mentioned that the award was passed on 30-6-1997; measurements u/s 11. of the Act were taken on 28-7-1997 and possession was taken on 26-6-1997 and award enquiry was conducted on 19-5-1997 which is not proper.
It is the contention of the learned Counsel for the petitioner that the land proposed for acquisition is situated in the middle of Adoni town and surrounded by residential colonies all around; that only Ac.5-00 cents out of the total extent of Ac.7-27 cents was chosen for acquisition since the remaining extent of Ac.2-27 cents there a well, pump house etc., and as such, it is not useful for the intended purpose.
On the other hand, the learned Government Pleader contends that the allegation that the land acquired is in the middle of Adoni Town, surrounded by residential colonies is not correct. There are no residential colonies near the land acquired and the said land is abutting to the existing Muslim burial ground. It is further stated that Section 4(1) notification was dated 16-10-1995: that draft declaration u/s 6 of the Act has been published inthe Gazette on 30-3-1996 and since the land under acquisition was required for providing land for burial ground to the Muslim community of Adoni Town urgently, provision u/s 17(4) of the Act has been invoked dispensing with the enquiry u/s 5-A of the Act. It is his submission that the land under acquisition could not be taken possession as there was standing crop like paddy and tomoto and subsequently, possession of land was taken on 6-6-1997 and the award was passed on 30-6-1997 after conducting enquiry u/s 11 of the Act. The petitioner did not attend the award enquiry though notice under Sections 9(3) and 10 have been served on him and objections were only filed after passing of the award and after taking over possession of the land. It was finally contended that the family of the petitioner was not totally deprived of the land and the remaining extent of Ac.2-27 cents is sufficient for the family to construct residential houses. It is submitted that the land acquisition proceedings were initiated for providing burial ground to the Muslim community of Adoni Town which is a public purpose after following the formalities under the Act.
The second respondent-in its counter-affidavit states that the Government of Andhra Pradesh sanctioned Rs.10-00 lakhs for acquiring the land from the petitioner in G.O. Ms. No.522 M.A., dated 23-9-1994. Subsequently only Ac.5-00 was acquired and another extent of Ac.3-79 cents was acquired from others. After the acquisition proceedings, possession of land was handed over to the Adoni Municipality on 15-7-1997. The Land Acquisition Officer deposited a sum of Rs.2,27,500/- towards compensation payable to the petitioner. As the petitioner did not turn up to participate in the award enquiry inspite of service of notice under Sections 9(3) and 10 of the Act, award was passed and the petitioner even did not turn up to receive the compensation and hence the compensationamount was kept in Revenue Deposit. It is further denied that there are residential colonies all around and in fact, the land acquired is situated half a Kilometre away from Adoni Town and the same is fit for burial ground.
The learned Government Pleader resists the claim of the petitioner on the following two grounds, via.,
(1) G.O. Ms. No.822, Revenue (K) Department, dated 16-7-1985 provides for acquisition of land for the construction, extension or improvements of any dwelling house to the poor; for the provision of Pathways to Harijanawadas and provision of burial grounds including pathways to burial grounds to Scheduled Castes and other Weaker Sections of Society; and therefore, the Government is justified in acquiring the land for the purpose of providing burial ground to the Muslim community of Adoni Town;
(2) Petitioner made a representation only on 25-8-1997. Therefore, having knowledge of the proceedings from the date of Section 4(1) notification viz., 16-10-1995, the petitioner cannot question the proceedings after lapse of so much time, particularly after passing of the award and taking over of the possession.
The learned Government Pleader, therefore, contended that the writ petition has to fail on the ground of laches, and the same has to be dismissed.
In view of the submissions of both parties, the following points arises for conideration, viz.,
(1) Whether the acquisition in question was for public purpose or not;
(2) Whether invokation of provisions u/s 17(4) of the Actdispensing with enquiry u/s 5-A of the Act is justified or not;
(3) Whether the petitioner is justified in questioning the entire land acquisition proceedings at this point of time or not.
Point No. 1:
It is the contention of the petitioner that the acquired land is surrounded by various residential colonies. The said statement was categorically denied by the respondents saying that there are no residential colonies as averred by the petitioner. Even otherwise, in my view, existence of residential colonies around the acquired land does not vitiate the object of public purpose.
In this context, the second respondent has categorically pointed out that the acquired land is situated half a Kilometre away from Adoni Municipal limits and since there was a representation from the Muslim community to acquire some land for provision of burial ground for the said community, the acquisition proposals have been initiated. The aspect of acquired land being surrounded by residential colonies has not been sufficiently substantiated by the petitioner. The allegation that the acquired land is situated in the midst of Adoni Municipality was categorically denied by the respondents. Further, it was stated by the learned Counsel for the petitioner that the Notification issued by the Government in G.O. Ms. No.822 Revenue (K) Department dated 16-7-1985 authorised the revenue Officials to acquire land for purpose of construction, extension or improvement of any dwelling houses to the poor; for the provision of Pathways to Harijanawadas and provision of burial grounds. In the instant case, the acquisition was made for provision of burial ground to Muslim community of Adoni Town. In the light of the fact that the acquired land was half a Kilometre away from Adoni Municipal limits, it can beinferred that the authorities intended to acquire some land for purpose of burial ground for the said community.
Further, it was contended by the learned Counsel for the petitioner that Muslim community is not a community as prescribed under the said G.O., I cannot accept this contention. What all the said G.O., contemplated was acquisition is permitted for purpose of burial grounds to the Scheduled Castes and other weaker sections of the Society. The expression ''weaker sections of Society'' is not defined anywhere. The perceivable intention of the authorities is that Muslim community of Adoni Town are reletatively few in number and were treated as weaker section for purpose of providing separate burial ground in order to meet their sentiments. Therefore, it can be safely concluded that the acquisition of land for providing burial ground to the Muslim community is for public purpose.
Point No.2:
The learned Counsel for the petitioner contends that the land Acquisition Officer is not justified in invoking the provisions u/s 17(4) of the Act dispensing with the enquiry u/s 5-A of the Act.
The learned Counsel relies on the following decisions: Natwarlal Jerambhai Patel Vs. State of Gujarat and Others, , Union of India and others Vs. Praveen Gupta and others, , Suryanarayana Reddy v. Government of Andhra Pradesh, 1982 (2) ALT 55. In Natwarlal v. State, (supra), it was observed thus:
"Though the satisfaction u/s 17(4) of the Act is subjective one and not open to a challenge before a Court of law, the appropriate Government must be satisfied in respect of an objective fact namely the existence of urgency. Such a satisfaction can only be arrived at by the appropriate Government after applying its mind and taking into accountrelevant consideration regarding the urgency."
.....
"Even though the power of the State Government has been formulated u/s 17(4) of the Act in subjective terms the expression opinion of the State Government can be challenged as ultra vires in Court of law if it could be shown that the State Government misconstrued the provision of the section or never applied its mind to the matter or the State Government did not honestly form that opinion or there are no materials upon which the authority could form the requisite opinion or the action of the State Government is mala fide"
In Satyanarayan Reddy v. Government of Andhra Pradesh, (supra), it was held as follows:
"The power to dispense with the enquiry envisaged by Section 5-A can be exercised only when there is such an urgency to take immediate possession of the land as not to brook the delay of even 30 days notice being issued to enable the persons interested to file objections to the acquisition itself and the determination of such objections, by the Collector, if therefore, after dispensing with the enquiry u/s 5-A under the plea of urgency, possession is not taken even after a lapse of nearly three years, that would certainly be a relevant factor leading to the conclusion that there was no real urgency justifying the dispensing with of the enquiry u/s 5-A and that the acquisition Authorities acted mechanically."
The effect of the above decisions which are relied upon by the learned Counsel for the petitioner is that only in case of absolute urgency which is subjective satisfaction of the Government invokation of provisionsunder Section 17(4) of the Act is permitted and such an action cannot be mechanical. In other words, Section 17(4) has to be invoked for real and justifiable reason and with proper application of mind.
The learned Counsel for the petitioner has also placed reliance on State Industried Promotion Corporation of Tamil Nadu Ltd., Madras Vs. V. Arputharaj and others, . A perusal of the said judgment shows that it has no application to the facts of the present case.
On the other hand/the leaned Government Pleader relies on a judgment of the Supreme Court, reported in A.P. Sareen and others Vs. State of U.P. and others, . The said case arises under the circumstances that the notification u/s 4(1) of the Act was published in the month of July, 1995 and the Government exercised its power u/s 17(1) of the Act to dispense with the enquiry u/s 5 of the Act. Further, after following the procedure and completion of process, proceedings were put up before the Government for publication of declaration u/s 6 which came to be made in the month of April, 1996. The appellant therein filed the writ petition in the month of July, 1996, consequently possession could not be taken and after writ petition was disposed of, possession was taken on December 10, 1996, That was how sufficient time had lapsed after publication of draft notification, to publish declaration u/s 6. In those circumstances, their Lordships held that "the need for urgent possession was dissipated by bureaucratic inadvertancy and the urgency did not cease, urgency continues as long as scheme is not initiated, action taken and process completed."
In Union of India v. Praveen Gupta (supra), it was observed by their Lordships thus:
"It is now settled legal position that decision on urgency is an administrativedecision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the enquiry u/s 5-A in exercise of power u/s 17(4)."
In this context the averments made in the counter-affidavit filed by the Government by way of an explanation with regard to the delay notwithstanding the notification u/s 17(4) of the Act requires consideration. It was stated in the counter-affidavit that the land under acquisition could not be taken possession as there was standing crop like paddy and tomoto. The few dates during the process of acquisition which are relevant to mention are that 4(1) notification was published in A.P. Gazette on 16-10-1995; substance of notification was published in the locality i.e., in Andhra Jyothi Telugu daily newspaper and The Rehnuman E. Deccan Urdu newspaper on 23-11-1995 and 2-5-1996 respectively; approval of draft declaration by the Government in G.O. Rt. No.313 M.A., & U.D. Department (J1), dated 4-3-1996; date of approval of PVS was no 28-4-1997; date of issue of notices under Sections 9(1); 10 and 9(3) and 10 of the Act, fixing the enquiry date as 19-5-1997 and 3-5-1997. It is to be noted at this juncture that no objections were filed at this stage either by the petitioner or any interested person inspite of service of the said notices. Award enquiry as fixed through notice dated 3-5-1997 was conducted on 19-5-1997. Even on that day nobody appeared to participate in the award enquiry, and consequently, award was passed on 30-6-1997 after it was approved as Award No.1 of 1997. Notice issued to the petitioner informing that award was passed u/s 12(2) was dated 18-8-1997 and the date of handing over possession of the land to the MunicipalCommissioner, Adoni was on 6-6-1997. It is also important to note that the writ petition was filed on 17-6-1997 i.e., after the award enquiry conducted on 19-5-1997 and before the date of passing of the award i.e., 30-6-1997.
Yet another important statement made by the petitioner was that in response to the notice u/s 9 dated 3-5-1997 wherein the date of enquiry was indicated as 19-5-1997, the petitioner filed their statements of objection on 22-5-1997. A perusal of the said statement which was annexed as material paper shows that it was dated 22-5-1997 i.e., subsequent to the award enquiry on 19-5-1997. In other words, admittedly, the petitioner had neither participated in the enquiry nor filed any statement of objections before the date of conducting of award enquiry. It is only subsequent to the award enquiry such statement of objections were passed into service.
A further careful reading of such statement of objections shows that there was a grievance expressed with regard to acquisition in the first paragraph of such statement of objections, but in the later part of the statement, the entire concentration was with regard to the value of the land only. The petitioner claims that the value of the land is to be fixed at Rs. 14.00 lakhs per acre on different grounds. That shows that the petitioner was not very particular about acquisition proceedings, but more particular about fixation of the value of the land. In my view, from the language used in second paragraph of the statement of objections dated 22-5-1997 it is very perceptible that the intention and desire of the petitioner was only to get the value fixed at a particular price. Thus, the conduct of the petitioner and the language used in the statement of objections in my view amounts to implied waiving of his claim.
As noted already, possession was handed over to the Adoni Municipality on6-6-1997 itself and the writ petition was filed on 17-6-1997. Therefore, in view of the fact that invokation of Section 17(4) was not raised since the date of 4(1) notification-dated 16-10-1995 till the filing of the writ petition and that too after possession of the land was taken, it is not open to the petitioner to take up such an objection at this stage, more particularly when he did not participate in the award enquiry inspite of service of notice. Even otherwise, as pointed out by their Lordships in the judgments referred to above, the decision as to the urgency is an administrative decision. Therefore, I am of the view that the Government is justified in invoking the provisions u/s 17(4) of the Act.
It has to be seen whether the real urgency was apparent before the Government or not, which has to be taken into account initially and the subsequent procedural aspects and the delay if any caused thereon do not necessarily vitiate the purpose of invokation of the provision u/s 17(4) of the Act. The situation has to be weighed on merits of each case. In other words the bureaucratic inadvertence or the administrative exigencies cannot outweigh the real urgency and the same will not cease as such. Therefore, it has to be held that the Government is justified in invoking the provisions of Section 17(4) of the Act.
Point No.3:
It is now to be seen whether the petitioner had acted in right time aggrieved by the proceedings. As was already discussed in the fore-going paragraphs, the petitioner in his affidavit states that he does not know about the publication u/s 4(1) of the Act till the notices u/s 9 of the Act were issued on 3-5-1997, even by which time publication in the newspapers was made and draft declaration was also approved. Even the publication of thesubstance in the locality was made much earlier. In this context, the learned Government Pleader relies on the decision reported in Hari Singh and Others Vs. State of U.P. and Others, . Their Lordships while dealing with the case where notification under Sections 4, 6 and 7 of the Act after publication of the notification was challenged on the ground of not being aware about the notification till notices u/s 9(1) were issued, held that interference is not warranted, as it would likely to cause serious public prejudice. In the instant case also it is pleaded by the petitioner that he had no knowledge about the earlier notification issued u/s 4(1) of the Act or any other proceedings till he received notices u/s 9(3) of the Act, particularly when it is not the case of the writ petitioner that substance of 4(1) notification was not at all published in the locality.
In The Ramjas Foundation and Others Vs. Union of India and Others, , their Lordships while dealing with the aspect of delay and laches, discussed about the judgment reported in Aflatoon v. Lt. Governor Delhi, AIR 1974 SC 1077, wherein it was observed thus:
"There was apparently no reason why the writ petitioners should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification u/s 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification u/s 4 and the declaration u/s 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification waspublished would be putting a premium on dialatory tactics. The writ petitioners are liable to be dismissed on the ground of laches and delay on the part of the petitioners."
In the present case also, the petitioner after having allowed the procedure under Sections 4(1) and 6 of the Act to be followed and only when notices u/s 9 of the Act were issued comes forward with a plea that he does not know anything about the earlier proceedings, which in my view cannot be accepted. More over, as was already pointed out, the conduct of the writ petitioner in forwarding statement of objections through letter dated 22-5-1997 and the language used therein virtually amounts not only laches but also implied waiving of the claims on the part of the petitioner. Therefore, in my view, the petitioner cannot be permitted to agitate the entire land acquisition proceedings at different levels only after award enquiry was scheduled and completed. In other words, the writ petitioner having knowledge about the notices u/s 9 did not opt to participate in the enquiry, and having failed to do so, he cannot be permitted to resist the proceedings on all possible grounds. The sequence of incidents reveals that much water has flown before and after filing of the writ petition and at this stage particularly in view of the conduct of the petitioner and other circumstances discussed above, I have no hesitation to hold that the writ petition primarily has to fail on grounds of delay and laches, in addition to the other reasons given on point Nos. 1 and 2.
In view of the fore-going reasons, the writ petition is dismissed, No costs.