Dismissed

Pavuluri Ganesh v. The State of Andhra Pradesh

Telangana HC31 Jul 2013WA/390/2013

Case brief

AI extract

What is this about?

This common judgment dismisses writ appeals challenging a land acquisition declaration under Section 6 of the Land Acquisition Act, 1894. The Court held that the appellants' failure to participate in the Section 5-A enquiry barred late objections and affirmed the Single Judge's order that the canal project serves the public interest by providing assured irrigation, overriding individual claims of

What did the court decide?

Writ appeals dismissed declaring no exception to the impugned order; costs to the State.

Pavuluri Ganesh Vs The State of Andhra Pradesh — Land Acquisition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE N.V. RAMANA

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AND

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THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

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Writ Appeal Nos. 387, 388, 389, 390 and 391 of 2013

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Dated: 31-07-2013

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Writ Appeal No. 387 of 2013

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Between:

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Pothini Varaprasad and 26 others

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… Appellants And

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State of Andhra Pradesh, rep., by the Special Collector (LA), Indra Sagar Project, Rajahmundry, East Godavari District and another

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… Respondents

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THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR

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W.A. Nos. 387, 388, 389, 390 and 391 of 2013

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Common judgment: (per the Hon’ble Sri Justice N.V. Ramana)

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The writ appeals are filed by the appellants/writ petitioners aggrieved by common order dated 24-01-2013, whereby a learned single Judge of this Court dismissed W.P. Nos. 20479, 20509, 20728, 20731 and 20792 of 2011 respectively, filed by them questioning the declaration under Section 6 of the Land Acquisition Act, 1894.

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2. Since the writ appeals raise common issues of law and fact and arise out of the same order, they are being disposed of by this common order.

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3. For the sake of convenience, the parties shall be referred to as they are arrayed in the writ petitions.

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4. The appellants/petitioners filed the writ petitions questioning the declaration issued by respondent No.2, namely the Special Deputy Collector, for acquisition of their land along with other lands, for digging Lift-IV Canal of Tadipudi Lift Irrigation Scheme of Indira Sagar Project. They claim that they are small agriculturists eking out their livelihood by raising horticultural crops like oil palm, coconut, lemon, cashew, onion, banana etc. The water for the said crops, is being provided through bore wells dug by them in their lands with the subsidy provided by the Government. According to them, their horticultural pattern is different from other agricultural crops and that horticultural crops require water throughout the year for which canal system is not suitable to them and, thus, they do not require canal water. When the

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respondents intended to acquire their lands for the purpose of excavation of Lift-IV canal under Tadipudi Lift Irrigation Scheme, they protested such action and submitted representation to the then Revenue Divisional Officer and Executive Engineer of the Irrigation Department, but the said authorities without considering their representation, issued notification dated 09-11-2009 under Section 4(1) of the Land Acquisition Act, 1894 (for short ‘the Act’), proposing to acquire the land of an extent of Acs. 450.00 in various survey numbers of different villages, which was followed by a notice dated 04.07.2010, calling upon them and others to attend enquiry under Section 5-A of the Act on 05-08-2010.

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5. The petitioners further state that they along with other ryots convened a meeting inviting officers and made their stand clear, but the respondents, without considering the same, proceeded further and issued the impugned declaration under Section 6 of the Act, dated 11-10-2010, which they contend is illegal and arbitrary.

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6. Before the learned single Judge, the counsel for the petitioners submitted that since the petitioners did not participate in the enquiry under Section 5-A of the Act, an opportunity may be given to them to file their objections. Considering this submission, the learned single Judge, directed the Engineer-in-Chief, Indira Sagar Polavaram Project, Dhawaleswaram, to examine the grievances of the petitioners, as raised in W.P. No. 20479 of 2011 and permitted the petitioners to submit detailed representations. The Engineer-in-Chief after holding enquiry, submitted his report expressing his opinion as to the utility or otherwise of the proposed sub-canal for Lift No.4 of the Tadipudi Irrigation Scheme for the 21 villages, as directed by the learned single Judge.

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7. The learned single Judge having considered the report of the Engineer-in-Chief and upon hearing both sides, dismissed the writ petitions by common order, holding that the Lift-IV canal scheme envisaged by the respondents, instead of causing harm to the farmers of the area, serves their best interest. Questioning the said common order, the petitioners filed the writ appeals.

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8. The learned counsel for the appellants/petitioners submitted that before and after issuance of the notification under Section 4(1) of the Act, farmers of 21 village objected to the acquisition of their lands on the ground that their lands are not useful for the purpose for which it is sought to be acquired, and the Gram Panchayats have also passed resolution opposing the acquisition, but the respondents without considering the objections raised by them, have proceeded with the acquisition of the lands of the petitioners. He submitted that though pursuant to the interim orders passed in the writ petitions, the Commissioner/Engineer-in-Chief conducted an enquiry, he merely obtained reports from the experts, and without considering the objections raised by the petitioners, submitted his report, and the learned single Judge, merely basing on the said report, without considering the objections raised by the petitioners to the report, passed the order under appeal, which is liable to be set aside. He further submitted that the petitioners are not objecting to the project in its entirety, but only for the Lift-IV canal, and as such, the learned single Judge, ought to have considered the de-linking of Lift-IV canal from the main project. He thus prayed that the order under appeal, passed by the learned single Judge be set aside, the writ appeals and consequently the writ petitions, be allowed.

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9. On the other hand, the learned Government Pleader for Land Acquisition appearing for the respondents supported the order under appeal passed by the learned single Judge. He submitted that even though the appellants did not participate in the enquiry under Section 5-A of the Act, but considering the objections taken by the petitioners, the learned single Judge, directed the Engineer-in-Chief to conduct an enquiry and permitted the petitioners to file their objections. The Engineer-in-Chief considering the objections raised by the petitioners obtained reports from the experts and submitted his report, and basing on the same, the learned single Judge passed the order under appeal, which does not call for any interference by this Court in appeal.

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10. Heard the learned counsel for the appellants/petitioners and the

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learned Government Pleader for Land Acquisition for the respondents and perused the material available on record.

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11. The draft notification under Section 4(1) of the Land Acquisition Act, 1894 for acquisition of an extent of Acs. 450.00 in various survey numbers of different villages, including the lands of the petitioners, was issued on 02.11.2019. Notices in Form-3 were issued to all the farmers on 04.07.2010, calling upon them to attend the enquiry under Section 5-A of the Act on 05.08.2010 and file their objections, if any, to the proposed acquisition. Neither objections were filed nor the petitioners participated in the enquiry. The Special Deputy Collector, having conducted the enquiry, submitted his report to the Special Collector, who accepted the same, and pursuant thereto, issued declaration under Section 6 of the Act, which the petitioners impugned in these writ petitions.

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12. The contention of the petitioners that they were not heard by the respondents with regard to acquisition of their lands cannot be accepted for the reasons that - It is the admitted case of the appellants/petitioners that though they received notices dated 25.05.2010, issued by the Land Acquisition Officer, they did not attend the enquiry under Section 5-A of the Act, which was conducted on 05.08.2010. As they did not attend the enquiry, the Land Acquisition Officer, basing on the material available before him, submitted his report, which the District Collector accepted, and pursuant thereto, issued the impugned declaration under Section 6 of the Act. However, while the writ petitions were pending, the learned single Judge considering the submission advanced on behalf of the petitioners, that excavation of canal is wholly unnecessary and that the same is detrimental to the interests of the farmers of 21 villages, and as the petitioners did not participate in the enquiry under Section 5-A of the Act, felt it appropriate to call for a report from the Engineer-in-Chief, Indira Sagar Polavaram Project, Dhavaleswaram, East Godavari, and directed him to examine the grievances of the petitioners, as raised in W.P. No. 20479 of 2011, and permitted the petitioners to submit their detailed representation, and after conducting enquiry to submit report to the Court on the objections raised by the

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petitioners or otherwise of the proposed sub-canal for Lift No.4 of Tadipudi Irrigation Scheme for the 21 villages. Accordingly, as directed by the Court, the Engineer-in-Chief submitted detailed report dated 16.04.2012, to which the petitioners also filed their objections.

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13. The objections raised by the petitioners to the impugned acquisition is that they are raising horticulture crops, water drawn from the bore well is sufficient to raise the said crops, and as such, there is no need to dig the canal, and that if the canal is dug, the horticulture crops raised by them would suffer from pest attack. The Engineer-in-Chief considering the objections raised by the petitioners, obtained reports from the State Ground Water Department and the Assistant Directors of Horticulture. As regards the objection taken by the petitioners that the horticulture crops grown will suffer pest attack on account of excessive water, the learned single Judge noted that the Engineer-in-Chief in his report opined that that the quantum of water to be released under the canal system of sub-lift-IV can be regulated suitably by operating the gates of the off-take sluices and cross regulators located on the canal system to meet the actual water requirement of horticultural crops. He further noted that if the canal irrigation is made available, water can be utilized during khariff season and during other seasons, the lands can be irrigated through the existing borewells and that many small and marginal farmers are growing under rainfed conditions. The learned single Judge further referred to the report of the Engineer-in-Chief, which referred to the State Ground Water Department, which reported that in most of the areas, the extraction/drawal of ground water is more than 100% extending upto 201% of the actual recharge or input into the ground water, and thus causing depletion of precious ground water resources in that area, and with the result, the ground water level in that area is falling rapidly year after year. The learned single Judge having noticed the report of the Engineer-in-Chief recorded a finding that the Engineer-in-Chief considering the objections of the petitioners opined that the Lift-IV canal scheme is useful for providing assured water supply for meeting both irrigation and drinking needs of the villagers of the common area with more reliability and the petitioners failed to point out any serious flaw in the report of the Engineer-in-Chief except stating that the

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same is given based on opinions of external agencies. Since the Engineerin-Chief, considering the objections taken by the petitioners, felt it necessary and took the assistance of the agencies that are connected with the issue in question and submitted his report, the learned single Judge could not find any fault with the report, particularly when the objections taken by the petitioners thereto, were negatived.

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14. The fact that the petitioners have not filed any objections in response to the notice of enquiry under Section 5-A of the Act is not in dispute. The legal position in this respect is well settled. The Supreme Court in State of Mysore v. Abdul Razak Sahib^[1] has held that even if objections under Section 5-A of the Act are filed beyond the 30 days time prescribed, they need not be considered. Relevant para 3 of the said decision is

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extracted hereunder:

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3. Now, we may turn to Section 5A(1)of the Act which says : 5A. (1) Any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

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Section 5A empowers the interested person to object to the acquisition of any land but his objection should be filed within thirty days from the date of the issue of the notification. Any objection filed thereafter need not be considered as the same is filed after the tune stipulated in Section 5A(1).

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15. The said view is also reiterated in Talson Real Estate (P) Ltd. v.

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State of Maharashtra^[2] . Relevant para 16 is extracted hereunder:

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16. The provisions of Section 5A of the Act are attracted only when a person interested in any land which has been notified under Section 4(1) makes objection in writing to the Collector within 30 days from the date of the publication of the notification. The period of 30 days will have to be counted from the last day of the publication of the notification under Section 4 of the Act which, in the present case, was admittedly published in the Official Gazette on 17.04.1997 and in two daily newspapers on the same day. The substance of such notification was notified on the site on 30.04.1997. The appellant-company did not choose to file objections under Section 5A of the Act against the acquisition of its land bearing Survey No. 23/2/1, admeasuring 1 Hectare 82 ares.

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16. In view of the above, therefore, the contentions of the learned counsel for the appellant cannot be accepted.

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17. The law is well settled that public policy demands individual

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interest should pave way for majority interest. Even when some defect is found in the decision-making process, the Court must exercise its discretionary powers under Article 226 of the Constitution of India with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not and only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. In the case on hand, an extent of Acs.450.00 of land belonging to 251 persons is sought to be acquired for the canal project. About 84 persons, having formed themselves into batches, filed writ petitions questioning the declaration issued under Section 6 of the Act, for acquiring their lands totalling Acs. 133.6000. Out of the 84 persons, 66 are said to be ryots, while 18 are nonryots. The project, it is said, is in the midst of its execution and that out of the total estimated cost of the project of Rs.20.17 crores, an amount of Rs.8.43 crores has already been spent, and if the project is completed, an extent of Acs. 21,037.00 will be irrigated. Thus it is clear that though 251 persons are losing their lands under the project, but nearly about Acs. 21,037.00 of land would be irrigated, which ultimately would benefit the farmers. Since the project is benefiting the farmers rather than causing harm to them, we are of the considered opinion that no exception can be taken to the order of the learned single Judge, dismissing the writ petitions filed by the petitioners questioning the declaration under Section 6 of the Act.

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18. For the foregoing reasons, the writ appeals fail, and they are accordingly dismissed. No costs.

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_____________ N.V. RAMANA, J.

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______________________ VILAS V. AFZULPURKAR, J.

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Dated: 31.07.2013

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KSR

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