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2011 DIGILAW 579 (AP)

Natti Kondala Rao v. State of Andhra Pradesh

2011-07-28

C.V.NAGARJUNA REDDY

body2011
ORDER :- At the interlocutory stage, the writ petition is taken up for hearing and disposal with the consent of the learned Counsel for the parties. 2. This writ petition is filed for a mandamus to set aside the order vide No.G.1/SW/73/2006, dated 27.4.2007, of respondent No.2 and also the declaration vide Roc.No.73/2007/GI, dated 10.7.2007, issued under Section 6 of the Land Acquisition Act, 1894 (for short 'the Act'). 3. The petitioners are owners of land admeasuring Acs.2-00 cent in Sy.No.261/ 2A2 of Kunchanapalli Village. The said land was notified for acquisition for providing house sites to the people belonging to Scheduled Caste and Backward Class sections. A notification under Section 4(1) of the Act, dated 13.2.2007, was published on 22.2.2007 in the newspapers. Curiously, even before publication of the said notification, respondent No.3 issued notice under Section 5-A of the Act, published on 15.2.2007, fixing the date of personal hearing on 2.3.2007. It is the pleaded case of the petitioners that as they were away from the village they came to know about the initiation of land acquisition proceedings through one of the villagers and that, immediately thereafter, they have sent their objections on 20.3.2007. However, without hearing the petitioners in the enquiry under Section 5-A of the Act, respondent No.2 has passed the impugned order purporting to reject the petitioners' objections. 4. In the counter-affidavit filed by the respondents, the fact that the notice under Section 5-A of the Act preceded the publication of notification under Section 4(1) of the Act is not denied. It is, however, submitted that the notification issued under Section 4(1) of the Act was approved on 13.2.2007 and published on 22.2.2007, by which time, the notice under Section 5-A of the Act was issued on 15.2.2007. 5. At the hearing, Sri S. Subba Reddy, learned Counsel for the petitioners, submitted that the respondents have committed a serious infraction of the mandatory procedure fixed by the Act by causing publication of notification under Section 4(1) of the Act subsequent to the purported notice issued under Section 5-A of the Act. He further submitted that on account of this blatant procedural illegality, the petitioners were deprived of filing their objections in time and consequently, the' a: opportunity of being heard in enquiry said to have been held under Section 5-A of the Act is denied. 6. He further submitted that on account of this blatant procedural illegality, the petitioners were deprived of filing their objections in time and consequently, the' a: opportunity of being heard in enquiry said to have been held under Section 5-A of the Act is denied. 6. Learned Government Pleader for Land Acquisition representing the respondents submitted that even though 'the notice under Section 5-A of the Act was issued prior to the publication of notification under Section 4(1) of the Act, the same may, at best, constitute procedural irregularity which may not vitiate the land acquisition proceedings. 7. Under the scheme of the Act, the process of acquisition of private lands will be set in motion with the issuance of notification under Section 4(1) of the Act and its publication in accordance with the procedure laid down there under. Therefore, the respondents are not expected to issue a notice under Section 5-A of the Act even before the publication of notification under Section 4(1) of the Act. If such a procedure is' violated, the same may not vitiate the acquisition proceedings if it is shown that this procedural violation has not caused prejudice to the land owner. But, in this case, admittedly, the petitioners did not receive the notice under Section 5-A of the Act and it is their plea that they were not in the village when the alleged notice under Section 5-A of the Act was issued. Had notification under Section 4(1) of the Act been published strictly in accordance with the provisions of the Act, such a plea of the petitioners would not have been accepted because it is their responsibility to be aware of the publication, if made in accordance with law, and file their objections. But, in the in start case, since the so-called notice issued under Section 5-A of the Act was not a notice in the eye of law as the same was not preceded by the publication of notification under Section 4(1) of the Act, the petitioners cannot be expected to avail the opportunity said to have been offered by the respondents by issuing the notice under Section 5-A of the Act prior to publication of the notification under Section 4(1) of the Act. By the time, the petitioners came to be aware of the initiation of acquisition proceedings, the date of hearing i.e., 2.3.2007 said to have been fixed by the purported notice issued under Section 5-A of the Act was well past. Thus, the petitioners were denied the opportunity of personal hearing. 8. The power of eminent domain vested in the State deprives the owner of his property against his will. It was, therefore, held by a catena of judgments that the provisions of the Act are ex-propriatory in nature and they need to be strictly construed. (SCC Radhe Shyam v. State of UP., (2011) 5 SCC 553 , and Hindustan Petroleum Corporation Ltd. v. Darius Shapur, Chennai, (2005) 7 SCC 627 ) 9. Hiving regard to the above discussed facts of the case, I have no hesitation to hold that the respondents have not followed the proper procedure under the Act in holding the enquiry under Section 5-A of the Act. Hence, the order, dated 27.4.2007, of respondent No.2 and the declaration, dated 10.7.2007, issued under Section 6 of the Act are quashed. Respondent Nos.2 and 3 are directed to hold enquiry under Section 5-A of the Act afresh, by giving the petitioners an opportunity of filing detailed objections and personal hearing before passing a fresh order. 10. The writ petition is allowed to the extent indicated above. 11. As a sequel, WVMP No.1299 of2008 and WPMP No.20696 of 2007 are disposed of.