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2002 DIGILAW 848 (AP)

Bandi Srinivasa Rao v. District Collector (Land Acquisition) Krishna District at Machilipatnam

2002-07-09

V.V.S.RAO

body2002
V. V. S. RAO, J. ( 1 ) THE petitioners are, residents of Penuganchiprolu Village and Mandal, krishna District. They filed the instant writ petition praying this Court to issue a writ in the nature of mandamus declaring the action of the first respondent, namely, the district Collector (Land Acquisition) in passing the order in Rc. No. G2/85/2001 dated 13. 3. 2002 as illegal, and also declaring the issuance of the Notification under subsection (1) of Section 4 of the Land acquisition Act, 1894 (for short, the Act) is void and without jurisdiction. The petitioners also seek a consequential relief restraining the respondents from taking any steps pursuant to the impugned Notification. ( 2 ) ACCORDING to the petitioners, the events leading to filing of present writ petition are as follows. The petitioners own certain extents of double crop wet lands. In 1998 a proposal was mooted to acquire the lands for public purpose to wit to lay a road through mango gardens and proposing to acquire petitioners lands for the said purpose a survey was also, conducted. Alleging that if petitioners lands were acquired for laying approach road to causeway on muniyeru river, the value of their lands will be diminished by reason of inevitable separation or division of the land into unviable units, they made a representation to the first respondent on 31. 1. 2000. The petitioners approached this Court by filing a petition under Article 226 of the Constitution of india. The same being WP No. 23150 of 2000 was disposed of at the admission stage by this Court on 28. 12. 2001 directing the district Collector (Land Acquisition) to consider and dispose of the representation made by the petitioners. ( 3 ) THE first respondent issued a notice dated 13. 3. 2002 requiring the petitioners to appear before the Joint Collector in connection with the enquiry ordered by this court. The petitioners and two others attended the meeting and filed their objection petitions. Another meeting was conducted on 26. 2. 2002 in the presence of petitioners and Deputy Executive Engineer (Roads and buildings Department) who was representing the requisitioning Department of Roads and buildings about the feasibility of alignment as suggested by the petitioners, was also discussed. The petitioners and two others attended the meeting and filed their objection petitions. Another meeting was conducted on 26. 2. 2002 in the presence of petitioners and Deputy Executive Engineer (Roads and buildings Department) who was representing the requisitioning Department of Roads and buildings about the feasibility of alignment as suggested by the petitioners, was also discussed. After considering all the aspects and the report of the Joint inspection, the Collector rejected the report observing that the suggestions made by petitioners are uneconomical and not feasible The collector, however, directed the Executive engineer (Roads and Buildings Department) not to disturb any tree falling outside the alignment and not essentially required for execution of work. The District Collector then issued a Notification under Section 4 ( 1) of the Act which was published in the newspapers on 24. 11. 2001. The petitioners assailed the orders passed by the District collector as well as the Notification under section 4 (1) of the Act. ( 4 ) SRI M. R. K. Choudary, learned senior Counsel made the following submissions; (i) there are no circumstances for invoking sub-section (4) of Section 17 of the Act for dispensing with the enquiry under section 5-A of the Act; (ii) the impugned order passed by the District Collector rejecting the application of the petitioners is not in accordance with the directions issued by this Court in Writ Petition No. 23150 of 2000, dated 28. 12. 2001, in that the collector abdicated the functions by delegating the power to conduct enquiry to the Deputy Executive Engineer; (iii) though the proposal was mooted in 1998 the respondents took almost two years for finalizing the proposal to acquire petitioners lands and therefore there was no necessity for invoking the urgency clause; (iv) the petitioners are small farmers and the lands being very costly lands, it would cost heavily to the State exchequer and therefore the respondents ought to have realigned the approach road for the cause-way by utilising the existing 30 wide PWD Road; and (v) the impugned order does-not satisfy the legal requirements in that it does not disclose the reasons for arriving at the opinion. ( 5 ) AFTER hearing the learned senior counsel on the above submissions, 1 am of the considered view that none of the grounds urged would render the impugned order passed by the District Collector, muchless the Notification under Section 4 (1) of the Act illegal or void. ( 6 ) IT must not be forgotten in a case of this nature the High Court is not an appellate authority. Merely because a particular alternative view appeals to the court of judicial review, the same does not render a decision arrived at by the competent authority after conscious consideration of the issue by appreciating all the facts amenable to review. The question would therefore be whether the district "collector (Land Acquisition) has acted in accordance with law while arriving at the decisiqn to acquire the land in question for the public purpose. Further, whether or not the, acquisition is for public purpose ordinarily cannot be gone into in writ proceedings. The Act has provided sufficient remedies and it is always open to the petitioners to approach higher authorities, if they feel that the acquisition is not for public purpose or acquisition is at the instance of some persons, who are bent upon wrecking vengeance against petitioners as alleged. ( 7 ) INSOFAR as the order is not passed in accordance with the orders of this court in W. P. No. 23150 of 2000 is concerned, i am of the considered opinion that the same is without any merit. Be it noted that in the earlier writ petition the District collector as such is not a party, and when the District Collector (Land Acquisition) is made second respondent and this Court directed the District Collector (Land acquisition) to conduct enquiry into the representation made by petitioners on 31. 1. 2000. Be it also noted that Section 3 (c) of the Act defines "collector" as to mean the Collector of a District, and includes a deputy Commissioner and any officer specially appointed by the appropriate government to perform the functions of a Collector under this Act. Under subsection (2) of Section 4 of the Act, after publication of Notification under Section 4 (1) of the, Act, it shall be lawful for any officer authorised by the Government to enter upon land and conduct survey. Under subsection (2) of Section 4 of the Act, after publication of Notification under Section 4 (1) of the, Act, it shall be lawful for any officer authorised by the Government to enter upon land and conduct survey. When the Government or the Collector invokes Section 17 (4) (urgency clause) and dispenses with the enquiry contemplated under Section 5-A of the Act the decision of the authority to dispense with such enquiry is not ordinarily justiciable. By reason of various decisions of the Court, it is now well settled that acquisition of land for public purposes, like construction o houses for weaker sections, construction o roads and implementation of irrigation projects, bridges etc. , inherently have an element of urgency and therefore, it is reasonable to infer that the proposal or project of construction of causeway on Muniyeru river certainly have an element of urgency. The contention that as the respondents spent almost two years for finalizing the proposal there is no urgency for invoking section 17 (4) of the Act cannot be countenanced by this Court. As pointed out earlier, this Court is not an appellate Court to sit over in appeal over the decisions of appropriate authorities. ( 8 ) THE above view is supported by a latest decision of the Supreme Court in first Land Acquisition Collector v. Nirodhi prakash Gangoli, (2002) 4 SCC 160 . After referring to the law laid down in Jage Ram v. State of Haryana, AJR 1971 SC 1033 = (1971) 1 SCC 671 , wherein it was laid down that though the conclusion of the government that there was urgency for acquisition is not final, but is entitled to great weight and that the exercise of power under Section 17 (4) can be interfered only on the ground of mala fides supported by specific material. The Apex Court in Nirodhi prakash Gangoli case (supra) held that the question of urgency of acquisition is a matter subject to satisfaction of the government and ordinarily it is not open to the Court to make scrutiny of the propriety of the satisfaction on an objective appraisal of the facts. The following statement of the law is relevant. The Apex Court in Nirodhi prakash Gangoli case (supra) held that the question of urgency of acquisition is a matter subject to satisfaction of the government and ordinarily it is not open to the Court to make scrutiny of the propriety of the satisfaction on an objective appraisal of the facts. The following statement of the law is relevant. The question of urgency of an acquisition under Sections 17 ( 1) and (4) of the Act is a matter of subjective satisfaction of the government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers Bunder Sections 17 (1) and (4) of the Act and issues notification accordingly, the same should not be interfered with by the Court unless the Court conies to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the authorities concerned. If an order invoking power under Section 17 (4) is assailed, the Courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind. Any post-notification delay subsequent to the decision of the State government dispensing with an enquiry under Section 5-A by invoking powers under section 17 (1) of the Act would not invalidate the decision itself specially when no mala fides on the part of the Government or its officers are alleged. Opinion of the State government can be challenged in a Court of law if it could be shown that the State government never applied its mind to the matter or that action of the State Government is mala fide. Though the satisfaction under section 17 (4) is a subjective one and is not open to challenge before a Court of law, except for the grounds already indicated, but the said satisfaction must be of the appropriate government and that the satisfaction must be, as to the existence of an urgency. Though the satisfaction under section 17 (4) is a subjective one and is not open to challenge before a Court of law, except for the grounds already indicated, but the said satisfaction must be of the appropriate government and that the satisfaction must be, as to the existence of an urgency. ( 9 ) THE authority in Nirodhi Prakash gangoli s case (supra) would also goes against the contention of the learned senior counsel that in spite of mooting the proposal in 1998, the respondents did not take any action and therefore there is urgency. ( 10 ) FURTHER, the petitioners admit that the first respondent issued notice and held meetings on 18. 2. 2002 and 26. 2. 2002 to consider the alternative proposal suggested by petitioners for changing the alignment presumably to save their lands from acquisition. The District Collector directed the Executive Engineer to inspect the lands and send report, who reported that joint inspection was done by the Deputy Executive engineer and the Mandal Revenue Officer on 4. 3. 2002. The Executive Engineer also submitted a report stating that the proposal submitted by the petitioners is not feasible and it would be difficult to change the alignment. The criticism of the learned senior counsel that this amounts to abdication of duty cannot be accepted. It must be remembered that under Section 5-A (2)of the Act the Collector shall have to afford an opportunity after receiving objections from the land owners and other interested parties and send report containing recommendations on the objections The Collector referred to in Section 5-A (2) of the Act is not only the district Collector, but any Officer specially appointed by the Government to perform the functions of the Government. Indeed, the powers of the District Collector have been delegated to Sub-Collector by the impugned notification itself. In that view of the matter, I fail to see any logic, in the submission of the learned Senior Counsel that the District Collector by requesting the executive Engineer (Roads and Buildings department) and the latter by sending remarks based on the joint inspection report by the Deputy Executive Engineer and the mandal Revenue Officer amounts to abdication of duties. The District Collector is certainly not a technical person. He is well within his powers to rely on the report submitted by the technical personnel. The District Collector is certainly not a technical person. He is well within his powers to rely on the report submitted by the technical personnel. Indeed, a reading of the order passed by this Court in W. P. No. 23150 of 2000 dated 28. 12. 2001 does not support the submission of the learned senior Counsel. This Court only directed the District Collector (Land acquisition) to consider and dispose of the representation. It is for the District collector how to consider and whose services have to be availed in considering the representation. Having regard to the suggestions made by petitioners that the existing 30 feet wide P. W. D. road can be availed for causeway the District Collector sought the opinion ofthe technical personnel like Executive Engineer and the same cannot be found fault with. ( 11 ) INSOFAR as the submission that petitioners lands are costly lands and therefore the Government officials should explore the possibilities of utilising the existing 30 feet P. W. D. road instead of suffering huge exchequer is concerned, it is better to refer to the remarks submitted by the Executive Engineer based on the report submitted by the Deputy Executive engineer which are incorporated in the impugned order itself. The same are as follows.