Dr. Vinod Chandra and Others vs State of Andhra Pradesh and Anr

P. Ramakrishnam Raju, J.—This writ appeal is filed challenging the order of the learned single Judge made in Writ Petition No. 13766 of 1995 dated 25-3-1997. The petitioners who are the owners of the premises bearing Municipal No. 11-4-660, known as ''Mehar Manzil'', Red Hills, Hyderabad which has been under the leasehold of the second respondent, filed the writ petition seeking for a Writ of Mandamus, or otherwise, for declaring that G.O.Rt. No. 198, dated 3-5-1994, Energy and Forests (PR. 1) Department as illegal. Consequent on the desire expressed by the second respondent, who is the tenant, to have the premises acquired for a public purpose, the first respondent issued a draft notification in G.O.Rl.No.198, dated 3-5-1994 under Section4(1) of the Land Acquisition Act, 1894 -hereinafter called ''the Act'', and published the same on 10-5-1994 stating that 3050 sq. metres of Mehar Manzil with appurtenant land is needed for a public purpose, to wit, for construction of Office Complex, Guests'' House and Staff Quarters by Singareni Collieries Company Limited and that the Special Deputy Collector, Land Acquisition (General) Hyderabad District, shall perform the functions of Collector for purposes of Section 5A of the Act. Enquiry u/s 5A of the Act was accordingly conducted from 7-6-1994 to 7-7-1994. Later, Government of Andhra Pradesh issued a memo No.5359/Pr. 1/2/94 dated 9-5-1995 stating that in the 4(1) notification, published under G.O.Rt.No.198 dated 3-5-1994, as published in the AP. Gazette dated 10-5-1994 in respect of Mehar Manzil, Municipal Door No. 11-4-660, Khairatabad (vg), Golconda Mandal, the area of 3050 sq. metres or 3780 sq. yards shall be read as 3780 sq. metres. The petitioners, therefore, filed the writ petition challenging the said Errata; inasmuch as they have no opportunity to file objections with regard to increased extent of 700 sq. metres which is sought to be included under 4(1) notification by way of Errata, and that the draft notification u/s 4(1) as well as the subsequent draft declaration published later also consequently fail. The learned single Judge, however, dismissed the writ petition, taking the view that if the land is in excess of what was notified earlier in the draft notification, the petitioners would be at liberty to claim compensation for this area also, and they cannot challenge the notification published by way of an Errata, including additional extent. Hence the writ appeal.

Section 4(1) of the Act deals with preparation of preliminary notification and the powers of officers to deal with the land. Accordingly, a notification under this section shall be published in the official Gazette, or District Gazette as the case may be, whenever it appears to the appropriate Government or the District Collector that the land in any locality is needed, or is likely to be needed for any public purpose, or for a Company. Section 5A of the Act contemplates hearing of objections by persons interested in the land which has been notified under sub-section (1) of Section 4 of the Act. Of course, in case of any land, if the appropriate Government feels that in view of urgency, the provisions of sub-section (1) or sub-section (2) of Section 17 apply, enquiry u/s 5A can be dispensed with by making a declaration to that effect, in the draft declaration that may be made u/s 6 of the Act. However, as already seen, enquiry u/s 5A of the Act has not been dispensed with by invoking the powers u/s 17(4) of the Act. In fact, the Special Deputy Collector (General), Hyderabad District was authorised to perform the functions of the Collector u/s 5A of the Act for holding enquiry, and accordingly, enquiry was also held by him by considering the objections put forth by the petitioners. But what is important is that the petitioners were given an opportunity to submit their objections in respect of the building known as ''Mehar Manzil'' with Municipal Door No. 11 -4-660 with appurtenant land in an extent of 3050 sq. metres only and not for the additional extent of 700 sq. metres which is sought to be included. However, learned Standing Counsel for the second respondent-Company, submits that when once an Errata is duly published it relates back to the date of publication, and therefore, enquiry conducted u/s 5A of the Act, should be deemed to be the enquiry for the entire extent of 3750 sq. metres of land. In any event, he submits that 4(1) notification to the extent of 3050 sq. metres as published in the original notification cannot be defective and to that extent the enquiry conducted u/s 5A of the Act and the publication of draft declaration u/s 6 and other proceedings would not become invalid,

The right to raise objections during the enquiry u/s 5 A of the Act is not an empty formality. It is a well-recognised substantive right given to the persons interested in the land to raise objections for the acquisition of the land. Therefore, such right cannot lightly be brushed aside. In this case, enquiry u/s 5A of the Act was conducted in respect of an extent of 3050 sq. metres and not for 3750 sq. metres. There is no enquiry conducted in respect of 700 sq. metres of land. It is also not denied that the enquiry u/s 5A was not dispensed with by invoking urgency clause u/s 17(4) of the Act. Without doing either, first respondent has no authority to proceed with the acquisition of this additional 700 sq. metres of land. Therefore, the writ petition must succeed for quashing of notification and other connected proceedings to this extent.

In any event, learned Standing Counsel for the second respondent submits that draft declaration u/s 6 of the Act to the extent of 3050 sq. metres cannot be challenged by the appellants. In other words, his contention is that draft declaration which is in conformity with the extent notified u/s 4(1) notification need not be disturbed, and accordingly, there is no warrant to set aside the entire draft declaration. In support of his contention, he relies on a decision of the Apex Court in Kandenkutty and others v. State of Kerala and others 1997 (3) ST 337. In the said case, the Supreme Court considered the effect of a notification published u/s 48 of the Act withdrawing the earlier draft notification in respect of a part of the land, and the Apex Court held that Section 48 of the Act enables the Government to withdraw draft notification in its entirety, or in respect of a part of land covered by the said notification. This decision, in our view, does not help the respondents as the instant case is not one of withdrawal of part of the notification u/s 48 of the Act, But on the other hand it is a case of enlarging the scope of draft notification in the draft declaration by adding some more land in respect of which there was no 5A enquiry. Therefore, the draft declaration in respect of 3750 sq. metres of land is bad and illegal.

Section 6 of the Act provides the publication of different declarations from time to time in respect of different parcels of land covered by the same notification u/s 4(1) of the Act Therefore, when a large extent is covered by draft notification u/s 4(1) of the Act, different declarations u/s 6 can be made in respect of different parcels of land covered by 4(1) notification. So, it is clear that declaration cannot be made in respect of land for which there is no valid 4(1) notification. In the instant case, although Errata to 4(1) notification relates back to the date of original notification, still 5A enquiry was conducted giving opportunity to the appellants only in respect of 3050 sq. metres and not in respect of additional extent of 700 sq. metres, and no valid declaration u/s 6 can be made in respect of the entire alnd. What emerges from the above discussion is that declaration can be made only in respect of a part of the land covered by 4(1) notification, or the Government can withdraw a parcel of land covered by 4(1) notification by publishing a notification of withdrawal u/s 48 of the Act, and not a declaration for a larger extent of land and the Court has no power to validate a lesser extent of land covered by the said declaration in the absence of a provision in the Act.

For all the above reasons, the writ appeal has to be allowed. Accordingly, the writ petition and the writ appeal are allowed and the draft declaration u/s 6 of the Act as published in the Gazette on 19-5-1995 is quashed in respect of 3750 sq. metres of land, but in the circumstances, each party is directed to bear their own costs.