Allowed

J. Mohammed Ghouse, S/o Late Jalna Khawja Mian, v. The Govt. of Andhra Pradesh

Telangana HC7 Jul 2014WP/8981/2014

Case brief

AI extract

What is this about?

The Court set aside a Section 5A order of the District Collector in a land acquisition proceeding for affording no personal hearing to the petitioner and lacking reasons for rejecting objections, mandating a fresh inquiry.

What did the court decide?

The order under Section 5A dated 28.01.2014 set aside; declaration under Section 6 and notices under Sections 9(3) and 10 set aside; Section 5A inquiry directed to be held on 24.07.2014.

J. Mohammed Ghouse, S/o Late Jalna Khawja Mian, Vs The… — Land Acquisition | Telangana HC (2014)

¶1

*THE HON’BLE SRI JUSTICE P.NAVEEN RAO

¶2

+ WRIT PETITION No.8981 of 2014

¶3

% Dated : 07.07.2014 # J. Mohammed Ghouse, S/o. Late Jalna Khawja Mian, Aged about 58 years, Occ: Business, H.No.1-5-6/13/1, Krishna Colony, Musheerabad, Hyderabad – 500 028.

¶4

..... Petitioner

¶5

AND

¶6

$The Government of Andhra Pradesh, Rep. by its Principal Secretary to Government, Revenue Department and Land Acquisition, A.P., Secretariat, Hyderabad & 3 others

¶7

..... Respondents

¶8

! Counsel for Petitioner : Sri Wasim Ahmed Khan ^Counsel for Respondents : Government Pleader for

¶9

Land Acquisition for Respondent Nos. 1 to 3

¶10

Smt. A. Deepthi, learned Standing Counsel for Respondent No.4

¶11

<GIST :

¶12

>HEAD NOTE :

¶13

? Cases referred :

¶14

(2013) 8 Supreme Court Cases 99 (1980) 2 SCC 471

¶15

2013 (1) SCC 403

¶16

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

¶17

MONDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND FOURTEEN

¶18

Present

¶19

HON’BLE SRI JUSTICE P.NAVEEN RAO

¶20

WRIT PETITION No.8981 of 2014

¶21

Between:

¶22

J. Mohammed Ghouse, S/o. Late Jalna Khawja Mian, Aged about 58 years, Occ: Business, H.No.1-5-6/13/1, Krishna Colony, Musheerabad, Hyderabad – 500 028.

¶23

.. Petitioner

¶24

AND

¶25

The Government of Andhra Pradesh, Rep. by its Principal Secretary to Government, Revenue Department and Land Acquisition, A.P., Secretariat, Hyderabad & 3 others

¶26

.. Respondents

¶27

The Court made the following:

¶28

HON’BLE SRI JUSTICE P.NAVEEN RAO

¶29

WRIT PETITION No.8981 of 2014

¶30

ORDER:

¶31

Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) was issued on 23.10.2013. This notification also includes property bearing H.No.8-4364/366, admeasuring 189 square yards, situated at St. Mary’s Road, Secunderabad, owned by the petitioner. Notice under Section 5A of the Act was issued on 22.10.2013 calling for objections. The petitioner filed objections on 23.11.2013. On 26.11.2013, notice of personal hearing was issued along with the remarks of the Requisition Department. The petitioner filed further reply on 30.12.2013. Order was passed under Section 5A of the Repealed Act on 28.01.2014. Declaration under Section 6 of the Act was issued and thereafter on 19.03.2014 notice under Section 9(3) and

¶32

Section 10 of the Repealed Act was issued. The petitioner challenges the order under Section 5A of the Act, dated 28.01.2014.

¶33

2. Learned counsel for the petitioner contends that the objections filed by the petitioner under Section 5A enquiry were not considered by the competent authority and the order does not assign reasons as to why the objections filed by the petitioner are not valid except saying that the objections are “overruled”. No personal hearing was given during Section 5A enquiry. Thus, the order is ex facie illegal on account of the actions of the respondents in not affording personal hearing and not assigning the reasons for not considering the objections. The statutory mandate as imposed by Section 5A of the Repealed Act are violated and, therefore, the proceedings are liable to be set aside on that ground alone.

¶34

3. Learned counsel for the petitioner further submits that the objections filed by the petitioner include that the acquisition was not done equally on both sides of the road, whereas the property was sought to be acquired only on one side of the road and the same is illegal. It was specifically alleged that the proposed allotment was intended to favour the properties of Manohar Talkies and Sikh Gurudwara side. He further contended that there is no requirement to acquire the land of the petitioner as the road is sufficiently wide. Widening is done in a haphazard manner. No physical personal inspection was conducted to identify the requirement of acquiring the properties of the petitioner.

¶35

4. Learned Assistant Government Pleader does not dispute the contention urged by the learned counsel for the petitioner that no reasons are assigned for not accepting the objections and that no personal hearing was afforded to the petitioner.

¶36

5. Section 5A of the Act reads as under:

¶37

“5A. Hearing of objections.-

¶38

(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 from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be.

¶39

(2) Every objection under sub- section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard[ in person or by any person authorized by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary,[ either make a report in respect of the land which has been notified under section 4, sub- section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the[ appropriate Government] on the objections shall be final.

¶40

(3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.] Declaration of intended acquisition.”

¶41

6. In Women’s Education Trust and another vs. State of Haryana and other s^[1] , the Supreme Court culled out the principles laid down in several earlier judgments. Relevant principles are as under:

¶42

“ The principles which can be culled out from the above noted judgments are as under:

¶43

The rule of audi alteram partem engrained in the scheme of Section 5-A of the Act ensures that before depriving any person of his land by compulsory acquisition, an effective opportunity must be given to him to contest the decision taken by the State Government/competent authority to acquire the particular parcel of land.

¶44

Any person interested in the land, which has been notified under Section 4(1) of the Act, can file objections under Section 5-A(1) and show that the purpose specified in the notification is really not a public purpose or that in the guise of acquiring the land for a public purpose the appropriate Government wants to confer benefit upon private persons or that the decision of the appropriate Government is arbitrary or is vitiated due to mala fides.

¶45

In response to the notice issued by the Land Acquisition Collector under Section 5-A(2) of the Act, the objector can make all possible endeavours to convince the Land Acquisition Collector that the acquisition is not for a public purpose specified in the notification issued under Section 4(1); that his land is not suitable for the particular purpose; that other more suitable parcels of land are available, which can be utilised for execution of the particular project or scheme.

¶46

The Land Acquisition Officer is duty-bound to objectively consider the arguments advanced by the objector and make recommendations, duly supported by brief reasons, as to why the particular piece of land should or should not be acquired and whether the plea put forward by the objector merits acceptance. In other words, the recommendations

¶47

made by the Land Acquisition Collector should reflect objective application of mind to the entire record including the objections filed by the interested persons.”

¶48

It is further held as under:

¶49

“It is unfortunate that despite repeated judicial pronouncements, the executive authorities entrusted with the task of acquiring private land for any specified public purposes have time and again exhibited total lack of seriousness in the performance of their duties under the statute. Often they do not comply with the mandate of Section 5-A of the Act, which is sine qua non for making a valid declaration under Section 6(1) of the Act. This batch of appeals is illustrative of the malady that has afflicted the State authorities who are keen to acquire private lands in the name of planned development of various urban areas, but do not bother to comply with the relevant statutory provisions and the rules of natural justice.”

¶50

7. The procedure of hearing incorporated in Section 5A of the Act, is a statutory safeguard provided to owner of the property proposed for acquisition and is a substantive provision. It is intended to eliminate arbitrariness and ensure fairness in such acquisitions. In State of Pubjab V. Gurdian

¶51

Sing h^[2] . The Supreme Court held as under:

¶52

“….. it is fundamental that compulsory taking of a man’s property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons.”

¶53

8. As held by the Supreme Court in the case of Surinder

¶54

Singh Brar and others Vs. Union of India and other s^[3] , before seeking to acquire property of a person, there must be strict compliance of statutory provisions and such acquisition should not be made in arbitrary and discriminatory manner. Supreme Court directed strict compliance of the provisions of Land Acquisition Act. It is held that proper enquiry must be held under section 5(A) of the Act by affording due opportunities to the owners of the properties, which were proposed for acquisition and acquisition must be done in fair and proper manner. It is held that Section 5(A) enquiry cannot be an empty formality and full fledged enquiry has to be held.

¶55

9. Admittedly, in this case the petitioner was not afforded personal hearing before concluding Section 5A enquiry. As evident from the order, it has a tabulated statement drawn which lists out the objections of the petitioner, views of the Land Acquisition Officer and the decision of the District Collector is in the lost column which simply says “overruled”. No reasons are assigned by the District Collector as to why the objections submitted by the petitioner are not acceptable. The objections raised by the petitioner are substantive and required consideration and decision. Therefore, the District Collector ought to have considered the said objections before finalizing the proceedings. The order of the District Collector could not have been laconic and bereft of reasons, more particularly when statute mandates the detailed hearing and passing of a reasoned order.

¶56

10. Apart from the flaw from statutory mandate perspective, the order also is liable to be set aside on the ground that it does not contain reasons. Any order of an authority made in exercise of power derived from a statute affecting the rights of citizens must contain reasons in support of the decision.

¶57

11. Therefore, on both grounds, the order passed under Section 5A of the Act on 28.01.2014 is unsustainable and it is, accordingly, set aside insofar as the petitioner is concerned. Consequently, Section 6 declaration as well as notices under Sections 9(3) and 10 of the Act are set aside insofar as the petitioner is concerned.

¶58

12. At this stage, the learned Assistant Government Pleader submits that a time schedule be fixed for conducting Section 5A enquiry insofar as the petitioner is concerned. Learned counsel for the petitioner readily agrees to appear before the Special Grade Deputy Collector as and when a date is fixed for hearing.

¶59

13. In view of the facts of this case and to avoid further delay in conclusion of Land Acquisition proceedings and as agreed by both parties, the Special Grade Deputy Collector shall hold enquiry under Section 5A of the Act on 24.07.2014 in his Office. A notice to this extent be issued to the petitioner well in advance. The petitioner shall appear on the said date and is permitted to raise all objections including filing of documents in support of his contentions, if any. After affording personal hearing to the petitioner, the Special

¶60

Grade Deputy Collector shall pass appropriate orders, as warranted by law, within a period of two (2) weeks thereafter. The petitioner shall co-operate and shall appear on the date fixed with all the relevant material. If necessary, personal inspection may also be conducted in the presence of the petitioner.

¶61

14. Accordingly, this Writ Petition is allowed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.

¶62

_________________ P.NAVEEN RAO, J Date: 7^th July, 2014.

¶63

Note: Issue C.C. by 11.07.2014.

¶64

L.R. copy to be marked : Yes B/o. Kl/kkm

¶65

HON’BLE SRI JUSTICE P.NAVEEN RAO

¶66

WRIT PETITION No.8981 of 2014

¶67

Date: 7^th July, 2014