1. This is an application filed under Article 226 of the Constitution of India for the issuance of an appropriate writ to declare the notification issued under sections 4 and 6 of the Land Acquisition Act published. In the Visakhapatnam District Gezette dated 12-1-1977 and 6-6-1977 respectively relating to the petitioners' land covered by Survey Nos. 310/19, 310/18 part, 310/22 part, 310/23 part and 317/2 to 9 and 11 to 20, Sub-Divisions in the above said survey Nos. 317 comprising an extent of Acs-3-18 cents situate in Anthakapalli Village, Anakapalli Taluk, Vrsakha patnam District as being illegal, unjust, improper and violative of principles of natural justice.
2. The petitioners are ten in number. The 1st petitioner filed arr affidavit in support of the writ petition. The petitioners are all residents of Anthakapalli village, Anakapalli Taluk. The affidavit discloses that they are owning small extents of lands ranging from Acs. 0-40 cents to Acs. 1-40 cents. They have no other source of income excepting the income derived from these lands possessed by them for their livelihood. They have large size families consisting of 6 to 12 members in each family. The 5th petitioner has got Ac. 0-12 cents of wet land in survey No. 317/20. He also possesses an extent of Ac. 0-12 cents of wet land in Survey No. 317/13. He is a Harljan who belongs to scheduled caste working in Defence in the State of Assam. He has no other land excepting the lands stated above and his family consisting of his wife, children, mother, brother, and his children are living in the field for whom the said land is only the livelihood.
3. It is stated in paragraph No. 4 or the affidavit that there are Harijan families in the village and all of them have got their own houses in the said village situate in an extent of Acs. 0-05 cents of land respectively. Apart from the houses owned by them they have got an open land about Acs. 0-05 cents around their houses as matter of fact, there is no need to provide any house sites to those persons since they are owning houses. There are about 150 families belonging to the back ward classes. All these families belonging to the backward classes have also got their own houses and they also did not require house sites. There are Government Poramboke dry lands situate in the village abutting the present Haijanwada comprising, an extent of about Acs. 100 situated on the other side of the village. Apart from that, on the northern side of the village, there is about Acs. 0-80 cents of dry land belonging to the Government. Further, the land belonging to the big land holders in the village are also situate on the northern side of the village which are more convenient and useful for house-sites. It is further submitted that the lands sought to be acquired by the respondents are wet lands wherein paddy, sugar cane, chillies, vegetables, zingir etc., crops are being raised. These lands are low level lands compared to Government Poramboke lands stated above and also lands belonging to the big landholders. The lands belonging to the big landholders Government Poramboke lands are more adaptable for house-sites as they are dry lands and there is no waiter facility to the said land.
4. It is submitted in paragraph No. 5 of the affidavit that all the petitioners belonging to backward community excepting the 5th petitioner who is a Harijan belonging to the scheduled Caste. The petitioners do not have any other lands excepting the lands sought to be acquired which is their only source of livelihood. The acquisition of land results in defeating the right to exist of a person who has small and negligible extent of land leaving out the big landholders.
5. It is stated in paragraph No. 6 of the affidavit that the petitioners signed and submitted a petition to the District Collector, Visakhapatnam the 1st respondent on 24-12-76 under registered post with copies to Honourable Minister for Social Welfare Department, Social Welfare Officer, Visakhapatnam, and the Tahsildar, Anakapalli, having come to know from the village officers that the lands of the petitioners would be brought under land acquisition proceedings. The village officers, according to the petitioners, have developed illfeelings against the Petitioners due to political reasons in the village. The authorities inspite of the fact that having received the petition from the petitioners dt. 24th December, 1976 did not make any enquiries on the said petition before section 4 Notification was published in the District Gazette. It was stated in the said petition that the lands of the petitioners are not at all useful for house sites as they are agricultural lands and low lying compared to other lands in the village. The authorities therein were requested to inspect the village and hold an enquiry before any proceedings were initiated relating to the acquisition of the lands.
6. While so, a notification under Sec. 4 of the Land Acquisition Act was issued which was published in the District Gazette of Visakhapatnam on 12th January, 1977 dispensing with the enquiries under section 5(A) of the said Act. It is said that in the said notification the lands of the petitioners are proposed to be acquired for a public purpose to wit for provision of house sires to the harijans and backward class families. The 1st respondent issued two different notifications published in the District Gazette on 12-1-1977 proposing to acquire the lands of the petitioner for providing the house sites for harijans and also to backward classes families. As a matter of fact, no beat of “Tom-Tom” was effected in the village and no public notice of the said Notification was given in the village as contemplated under Section 4 of the Land Acquisition Act. The petitioners were not aware of these proceedings dt. 12-1-1977 till they received notices under Sec. 9 of the Land Acquisition Act. As there was no response to their petition dt. 24th December, 1976 the petitioners seem to have sent another petition to the Tahasildar, Anakapalli marking a copy to the District Collector, Revenue Divisional Officer and Social Welfare Officer requesting them to considers their grievances relating to the acquisition of their lands. According to the petitioners, there was no response on their second petition much less there was any enquiry held by the authorities concerned. A complaint was made ultimately that the respondents have not at all considered their petitions dated 24-12-1976 and 6-7-1977 before the Notifications under Secs. 4 and 6 of the Land Acquisition Act were published. A complaint was made for dispensing with the enquiry contemplated under Sec. 5-A of the Land Acquisition Act without assigning any reasons contemplated under law to invoke the emergency proceedings. The reason for acquisition of lands for house sites, according to the petitioners, cannot be considered to be a sufficient one to dispense with Sec. 5-A enquiry under section 17(4) of the Land. Acquisition Act. It is under those circumstances the extraordinary jurisdiction of this court was invoked.
7. The Tahsildar, Anakapalli and Land Acquisition Officer for acquisition of lands for house sites filed a counter affidavit denying all the material allegations of the writ petition. It is stated in paragraph No. 3 of the counter affidavit that there were representations from the poor Harijans and backward classes of Anakapaili Village that they are living in the most congested houses and they may be provided with the house sites and that necessary enquiry was held which revealed that there are 43 families of various poor backward class and 39 Harijan families are living in most congested areas and are in need of house sites being provided, it is stated further in the counter affidavit that the District Collecter having satisfied that there is urgency involved in providing house sites to the Harijans and other weaker sections of the society, the emergency provisions contemplated under Sec. 17(4) of the Act have been invoked and the enquiry contemplated under Sec. 5(a) of the Act was dispensed with. A reply affidavit was also filed.
8. the first question that arises for consideration is whether the notifications can be said to be vitiated an account of here being no tom tom in the village with regard to the substance of Sec. 4 Notification. That allegation was denied by the officer in his counter and therefore it is not possible for me to decide such a disputed question of fact. Even otherwise I am satisfied that there is tom-tom in the village with respect to the substance of the Notification.
9. The only question that is proposed to be gone into is whether the petitioners are entitled to have on enquiry held under Sec. 5-A of the Land Acquisition Act.
10. That the petitioners submitted a petition representing their grievances to the effect that they are landless poor people possessing practically negligible extents of land as per their petition submitted on 24th December, 1976 was not denied. As per the petition, request was made to the authorities concerned to make an enquiry. No ennuir was held. It is only subsequent to the submission of the aforesaid ??? dt. 24th December, 1976 that section 4 Notification was given by the authorities concerned.
11. The complaint of Sri Ramachardra Murthy, the learned counsel for the petitioners is that had there been an enquiry under section 5-A held, the authorities could have certain exempted the land from the acquisition proceedings, end having regard to the fact that the ??? proceedings are likely to result in rendering the petitions handlers poor people, this is eminently a fit case where on a consideration of the petition submitted by them on 24th December, 1976 the authorities concerned should not have dispensed with the enquiry under Sec. 5 A of the Land Acquisition Act. It may also be noted in this connection that the 5th petitioner is a Harijan and all the petitioners are poor people having negligible extents of land. Section 4 of the Land Acquisition Act provides for preliminary investigation as per which whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. Section 5-A of the Act provides for hearing of objections and it reads in so far as it is material thus:—
“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 cast may be”
12. As per section 6 of the Act when the appropriate Government is satisfied, alter considering the report, if any, made under section 5-A, sub-section (2), that any particular land is needed for a public purpose, a declaration shall have to be made to that effect. In the present case the declaration under section 6 was given as well as the Notification under section 4. As per sub-section (1) of Sec. 48 of the Act except in the case provided for in section 36, which clause is not applicable to the facts of the present case, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. It is disclosed from the record, and it was not denied in the arguments that the land proposed to be acquired was not yet taken possession of at all. It is therefore, evident that under sub-section (1) of section 48 the Government is at liberty to withdraw from the acquisition of any land, the possession of which has not been taken.
13. Prior to the issuance of the Notification under Sec. 4 of the Act, the case of the petitioners is that they submitted a petition on 24th December, 1976 requesting the authorities concerned to drop the acquisition proceedings on the ground that the persons from whom the lands were proposed to be acquired are all poor people and the acquisition was likely to result in rendering all of them landless poor and the purpose of the acquisition should not, according to the petitioners render their livelihood practically impossible.
14. My attention has been drawn by Sri Ram achandra Murthy the learned counsel for the petitioners, to the factum that there is much delay between section 4 Notification and section 6 Notification. As per section 5-A of the Act, objections to the acquisition are to be filed within 30 days from the date of issuance of Notification Under Sec. 4. Had be enquiry under Sec. 5A been held, according to the learned counsel or the petitioners, the petitioners could have successfully persuaded the authorities concerned to apply section 48 of the Act in their favour and, therefore, this is a circumstance warranting the application of section 5-A of the Act. In the present case a preliminary enquiry was dispensed with by the authorities concerned while exercising powers under sub-section (4) of Section 17 of the Land Acquisition Act. A Notification issued on 12-1-1977 in so far as it is material reads thus:—
“Whereas it appears to the District Collector. Visakhapatnam that the land specified in the Schedule below and situated in Anthakapalli village in Anakapaili Taluk, Visakhapatnam District is needs for a public purpose to wit, provision of house sites to the poor Backward class families, notice to that effect is hereby given to all whom it may concern in accordance with the provisions of section 4(1) of the Land Acquisition Act I of 1894 and Ordinance No. 12 of 1975 and the District Collector, hereby authorises the Tahsildar, Anakapaili, his staff workmen to exercise the powers conferied by Sec. 4(2) of the Act.
Under Sub-section 4 of section 17 of the Act, the District Collector, Visakhapatnam directs that in view of the urgency of the case the provisions of section 5-A of the Act shall not apply to this case. (The rest of it is not material).
15. For dispensing with the enquiry under Sec. 5-A of the Act the reason that was assigned is the urgency of the case. The purpose for which the acquisition is required cannot and in the absence of any other things be equated to such an urgency. More over prior to the issuance of the Notification under section 4 of the Act, the concerned authorities have been confronted with a petition submitted by the petitioners on 24th December, 1976, requesting them to make an enquiry into the contents of that petition (which was adverted to already). The authorities did not choose to move in the matter with respect to that petition. The assertion made in the writ petition to the effect that such a petition was submitted was not denied in the counter. One of the petitioners happened to be a Harijan. From the extents of the lands stated to have been possessed by the petitioners, the petitioners seem to be poor people possessing a merge or negligible extents of lands. They have also state that the lands proposed to be acquired is the main source for their livelihood. Had the enquiry under sec. 5-A been held, the possibility of the petitioners grievances being sympathetically considered by the authorities cannot be ruled out. If the authorities under section 5-A enquiry are to be persuaded to set through the tenability of the objections both legally as well as human especially where the and in question was not taken possession of, the petitioners could have been entitled for the ??? it ??? under section 43 of the Act providing for the withdrawal of the land by the authorities concerned from the acquisition proceedings.
16. There is statement made in the counter-affidavit that an award was passed under the provisions of the Act and the land was already taken delivery. The learned Government Pleader was required to ascertain the correctness of that statement and ultimately it was brought to my notice that no award was passed and the land was not taken possession of. I am, therefore, of the opinion that the authority concerned had the liberty to exercise the powers under sec. 48 of the Act and then only the objections that may be put forward by the petitioners in an enquity under sec. 5-A can meaningfully be enquired into. I am satisfied that it is a fit case where the authorities concerned erred in dispensing with the enquiry under sec. 5-A of the Act in exercise of the powers conferred upon them under sub-section (4) of sec. 17 of the Act. The Notification issued under Sec. 4(1) of the Act, I am not satisfied that it is invalid. I hold that it is valid and the authorities concerned are hereby directed to hold an enquiry under Sec. 5-A of the Act and proceed further. With the aforesaid observations, this writ petition is allowed, but in the circumstances without costs. Advocate's fee Rs. 150/-.