WP/27030/2006 of Indo-American Super Specialities Limited, Vs The District Collector (Land Acquisition) on 30 December 2009

ORDER :

This writ petition is filed aggrieved by the proceedings initiatedunder the Land Acquisition Act, 1894 for acquisition of the landbelonging to the petitioners to an extent of 6,261.06 sq. yards situatedin Block No.7, NTS, 568/2 in Guntur Town.

The essential facts are as under:

The 1[st] petitioner is a Company registered under the IndianCompanies Act with an objective to provide Super-specialty medicalservices to the general public in Guntur District. For the said purpose,the 1[st] petitioner company acquired an extent of 4,126 Sq. yards ofland situated in TS.Nos.567 and 568, Block No.VI, Ward No.5 ofGuntur belonging to the Endowments Department in a public auction conducted on 2.9.2002 at the rate of Rs.7,500/- per sq. yard under twoRegistered Sale Deeds. Since the said land has no approach road,the 1[st] petitioner company has also purchased another piece of landtogether with dwelling houses bearing Nos.12-29-21, 12-29-49 and 12-29-51 under two separate sale deeds. Having developed the entire site spending about Rs.15 lakhs, the petitioners applied forbuilding permission and also for change of land use by payingthe requisite fees.

While the applications of petitioners are pending with the respondent No.4, the 1[st] respondent - District Collector,Land Acquisition, Guntur - vide notification dated 2.12.2005 published under Section 4(1) of the Land Acquisition Act, 1894 (for short, ‘theAct’) proposed to acquire the 1[st] petitioner’s land to an extent of 6,261sq. yards situated in T.S.No.568/2 for a public purpose viz.,construction of Citizen Service Centre by the 4[th] respondent –Vijayawada – Guntur – Tenali – Mangalagiri Urban DevelopmentAuthority (for short, VGTM UDA). Having invoked the urgency clauseunder Section 17 (4) of the Act, the enquiry under Section 5-A of theAct was also dispensed with. Challenging the said action, the 1[st]petitioner herein filed W.P.No.26071 of 2005. Having taken note ofthe submission made by the learned Advocate General appearing on behalf of the respondents that the Land Acquisition Officer wasadvised to conduct Section-5A enquiry, the said writ petition wasdisposed of by this Court by order dated 30.12.2005 granting liberty to the petitioners to submit their objections for the proposedacquisition of the land.

Thereafter, the 2[nd] respondent by notice dated 16-1-2006invited objections from all the persons interested in the land sought tobe acquired. However, the 1[st] petitioner’s request to providecopies of certain documents to enable them to effectively participate inthe enquiry was rejected on the ground that the document sought bythe 1[st] petitioner related to internal correspondence. Aggrieved by thesame, the petitioners filed W.P.No.4118 of 2006. This Court disposedof the said writ petition by order dated 16.03.2006 directing the 2[nd]respondent to furnish the document in question within a period of oneweek and till then status quo as on that date shall be maintained.

Though the respondents 1 and 2 preferred W.A.No.463 of 2006 thesame was dismissed by judgment dated 27.04.2006.

Pursuant thereto, the 2[nd] respondent – Special DeputyCollector (Land Acquisition), VGTUM UDA – by notice dated 27.09.2006 issued under Section 5-A of the Act called upon thepetitioners to submit their objections and to appear for the personalhearing. Accordingly, objections on behalf of the 1[st] petitioner werefiled on 18.11.2006 before the 2[nd] respondent. Thereafter, the 1[st]respondent – District Collector (Land Acquisition) – by proceedingsdated 6.12.2006 while overruling the objections raised by thepetitioners approved the draft declaration proposals and orderedpublication under Section 6 of the Act. On the very next day i.e.,7.12.2006, the declaration under Section 6 of the Act was published inthe District Gazette followed by notice dated 11.12.2006 issued underSections 9 (3) and 10 of the Act for award enquiry.

Aggrieved by the said action of the respondents, the present writpetition is filed seeking a declaration that the notification underSection 4 (1) of the Act dated 2.12.2005 as well as the proceedingsof the 1[s t ]respondent dated 6.12.2006 and consequential declarationunder Section 6 of the Act dated 7.12.2006 are arbitrary, illegal and vitiated by mala fides apart from being violative of the principles ofnatural justice.

It is primarily contended by the petitioners that the enquiry heldunder Section 5-A of the Act was illegal and in violation of theprinciples of natural justice. It is alleged that the petitioners were notgiven an opportunity of personal hearing and more over the report ofthe 2[nd] respondent dated 1.12.2006 which formed the basis for theproceedings of the 1[st] respondent dated 6.12.2006 was not furnished to them. It is also contended that the 1[st] respondent while approvingthe draft declaration proposals had failed to apply his mind to theobjections raised by the petitioners with regard to the requirement and suitability of the land in question and misdirected himself to the issueand therefore the proceedings dated 6.12.2006 and the consequentialdeclaration dated 7.12.2006 are liable to be declared as illegal. It isfurther contended that the 1[st] respondent’s proceedings dated6.12.2006 were opposed to the material available on record,especially the report of the 2[nd] respondent dated 1.12.2006 wherein itwas found that suitable alternative lands were available.

It is also alleged that the impugned acquisition proceedings arevitiated by mala fides since the proceedings have been initiated out ofpolitical motives in order to deprive the petitioners of their valuablesite purchased for constructing a hospital.

In the counter-affidavit filed on behalf of the respondents

1 to 3, the petitioner’s allegation that no proper opportunity was givenin the enquiry conducted under Section 5-A of the Act has beencategorically denied. The mala fides alleged in the writ petition havealso been specifically denied. While contending that the petitioners were informed every date of hearing in the enquiry under Section 5-Aof the Act and that their Counsel had attended the enquiry, the detailsof the notices served on the petitioners from time to time from12.01.2006 onwards have been furnished in detail in paras-5 & 6 ofthe counter-affidavit. Though the fact that the petitioners submittedtheir objections on 18.11.2006 and thereafter no further enquiry washeld is not disputed, it is explained that the petitioners were informedthat personal hearing was fixed on 18.11.2006 and on that day theadvocate for the petitioners attended the enquiry and filed writtenobjections. Thus, it is contended that the allegation of the petitionersthat no opportunity of personal hearing was given is absolutely falseand without any basis.

A separate counter-affidavit has been filed on behalf of the 4[th]respondent – VGTM UDA – stating that the petitioners applied forpermission to construct a superspeciality hospital by paying thenecessary fee apart from the development charges. It is also stated that their request for change of land use is pending with theGovernment. It is further stated that since the land proposed foracquisition is centrally located and is nearer to Bus-stand and RailwayStation, it is suitable for setting up Citizen Service Centre. Though thefact that the petitioner purchased the land in question in a publicauction conducted by the Endowments Department has not beendisputed, it is contended that since the enquiry under Section 5-A ofthe Act was properly conducted and the declaration under Section 6was made after considering all the objections raised by the petitioners,the interference by this Court is not warranted.

I have heard the learned counsel for both the parties andperused the material on record.

The learned Senior Counsel appearing for the petitioners whilerelying upon the decision in STATE OF GUJARAT & OTHERS v.AMBALAL HAIDERBHAI[[1]]and M.PADMANABHA IYENGAR v. THEGOVERNMENT OF ANDHRA PRADESH AND OTHERS[[2]]contended that since the enquiry under Section 5-A of the Act was notheld in conformity with the principles of natural justice and moreoversince the 1[st] respondent while rejecting the objections of thepetitioners had failed to apply his mind to the availability of thealternative suitable lands for acquisition, the entire decision makingprocess was vitiated.

On the other hand, the learned Special Government Pleaderappearing for the respondents while submitting that the Courts will notsit in judgment over the opinion of the authority with regard to thesuitability/preference of a land, vehemently contended that the 1[st]respondent’s conclusion that no other alternative suitable land isavailable warrants no interference by this Court. The learnedGovernment Pleader further contended that the enquiry under Section5-A of the Act, not being a quasi judicial enquiry, the impugnedproceedings cannot be held to be vitiated in the absence of any plea or

proof of prejudice caused to the petitioners on the ground of violationof principles of natural justice. The learned Government Pleaderalso contended that since the public purpose is not in dispute and thedecision making process under Section 5-A of the Act has alreadyculminated in Section 6 declaration, it is not amenable for judicialreview unless it is established that the 1[st] respondent’s proceedingsdated 06.12.2006 suffered from illegality, irrationality or proceduralimpropriety. In support of his contention, the learned GovernmentPleader relied upon the decision of the Supreme Court inHINDUSTAN PETROLEUM CORPN. LTD. v. DARIUS SHAPURCHENAI[[3]].

At the outset, it is to be noticed that though mala fides werealleged in the writ petition against the 5[th] respondent, during thecourse of arguments the learned counsel for the petitioners submittedthat the petitioners were not pressing the plea of mala fides.

Since the plea of mala fides is given up by the petitioners, thelearned Government Pleader appearing for the respondentscontended that the impugned declaration under Section 6 of the Act,which is the conclusive evidence that the land in question is neededfor a public purpose warrants no interference in exercise of the judicialreview under Article 226 of the Constitution of India.

It is true that Section 6 (3) of the Act renders a declaration to bea conclusive evidence with regard to the public purpose and thejurisdiction of the Court to interfere at that stage is limited. However,having regard to the fact that an opportunity of being heard has beenexpressly conferred under Section 5-A of the Act, the relief cannot berefused to the petitioner where the non-compliance with the provisionsof Section 5-A of the Act is established.

As held in MUNSHI SINGH v. UNION OF INDIA[[4]], Section 5-Aembodies a very just and wholesome principle that a person whoseproperty is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concernedthat acquisition of the property belonging to that person should not bemade. In UNION OF INDIA v. MUKESH HANS[[5]], the Supreme Courtfurther held that the limited right given to an owner/person interestedunder Section 5-A of the Act to object the acquisition proceedings is asubstantive right but not an empty formality.

It is also a well settled principle of law that such an opportunityof being heard provided under Section 5-A of the Act is necessary tobe granted not only to show that the purpose for which the acquisitionproceedings is sought to be made is not a public purpose but also toshow the suitability of the land therefor.

In HINDUSTAN PETROLEUM CORPN. LIMITED’S case (3 supra) while dealing with the scope of enquiry under Section 5-A of the Act, the Supreme Court observed as under :

The conclusiveness contained in Section 6 ofthe Act indisputably is attached to a need as also thepurpose and in this regard ordinarily, the jurisdiction ofthe court is limited but it is equally true that when anopportunity of being heard has expressly beenconferred by a statute, the same must scrupulously becomplied with. For the said purpose, Sections 4, 5-Aand 6 of the Act must be read conjointly. The court in acase, where there has been total non-compliance orsubstantial non-compliance of the provisions ofSection 5-A of the Act, cannot fold its hands and refuseto grant a relief to the writ petitioner. Sub-section (3) ofSection 6 of the Act renders a declaration to be aconclusive evidence. But when the decision makingprocess itself is in question, the power of judicialreview can be exercised by the court in the event theorder impugned suffers from well-known principles,viz., illegality, irrationality and procedural impropriety.Moreover, when a statutory authority exercises suchenormous power it must be done in a fair andreasonable manner.

In the instant case, the impugned acquisition is to construct a Citizen Service Centre to accommodate 26 Government Offices inGuntur town. It is not in dispute that the proceedings were initiated ona request made by VGTM UDA, Vijayawada. The Collector & DistrictMagistrate, Guntur issued the notification dated 2.12.2005 underSection 4 (1) of the Act. The material on record shows that by letterdated 9.1.2006 the 1[st] respondent authorized the 2[nd] respondent -Special Deputy Collector (LA), VGTUM UDA, Vijayawada - to conductenquiry under Section 5-A of the Act. Pursuant thereto, the 2[nd]respondent issued the notice dated 27.9.2006 under Section 5-A ofthe Act inviting all persons interested in the land to lodge a statementin writing of their objections. Such objections on behalf of thepetitioners were filed before the 2[nd] respondent on 18.11.2006through their advocate. Even according to the version of therespondents, no hearing took place on 18.11.2006. However, the 2[nd]respondent submitted his report dated 1.12.2006 and while referring tothe said report, the 1[st] respondent by proceedings dated 6.12.2006overruled the objections raised by the petitioners and orderedpublication of the declaration under Section 6 of the Act. Accordingly, Section 6 declaration was published in the DistrictGazette on 7.12.2006.

Having regard to the rival contentions raised by the parties, thequestion that arises for consideration is whether the impugnedacquisition proceedings are vitiated and liable to be declared asillegal being contrary to the mandatory provisions of the Act.

It is primarily contended by the petitioners that there had been atotal non-application of mind on the part of the 1[st]respondent in initiating the impugned proceedings and particularly while rejecting the objections raised by the petitioners under Section5-A of the Act. It is also contended that the denial of fair andreasonable opportunity of being heard to the petitioners resulted intotal non-compliance with the mandatory provisions of Section 5-A of the Act and therefore it is a fit case to quash the acquisitionproceedings in exercise the power of judicial review.

At the outset, it is necessary to notice that one of the importantobjections raised by the petitioners is that mere suitable alternativelands are available in the vicinity and therefore there is no need toacquire the 1[st] petitioner’s lands.

It would be appropriate to extract the said objection

as under :

“5(a) There have been alternate lands withinhundred meters vicinity of this land admeasuring 14,000 sq. yards belong to Sri Yadavallivari Choultry(Endowment Department) in Sy.No.541 and 542 of Kothapeta, Guntur. The land of Sri YadavallivariChoultry is situated within the same locality, Choultryland is a compact square piece and bounded by 70’road on one site. This land was proposed to beleased out to Kothapeta Cloth Merchants Associationfor construction of commercial complex on 50:50sharing. The part of the proposed commercialcomplex which falls under Endowments Departmentis meant for providing accommodation to theGovernment Offices and other allied bodies.Thereafter the Government accorded permissionvide G.O.Ms.No.327, dated 12.6.2002 to theGovernment for change of land use from Residential to Commercial. In the said proposal, it wasspecifically stated that this land is abutting a 70’ wideroad on West and 15’ wide road on East. There is aproposal to have 60’ road at Western side. The areaadjacent to the land is already developedcommercially. The Government accordedpermission.

5 (b) It is pertinent to mention here that the localMLAs like Mohd. Jani and Sri Jaya Rambabu, R.Srinivasa Rao etc., recommended for construction ofcommercial complex in this premises for Governmentuse and as well as for the use of Cloth MerchantsAssociation. A three member committee constitutedby the Commissioner of Endowments has alsorecommended for such proposal. When there is proposal to construct Commercial Complex meantfor providing accommodation to the Governmentoffices and such land is found suitable in allrespects, there is no necessity to acquire the presentland within the same locality for similar purpose. Inany event, the Government issued G.O.Ms.No.363,dated 23.3.2006 cancelling the permission granted infavour of the Cloth Merchants Association. Now theland of Sri Yadavallivari Choultry is available foracquisition. The reasons assigned for cancellationof permission is that the procedure as contemplated under Section 80 of the Endowments Act had notbeen followed before granting permission and not forother reason.”

The 2[nd] respondent who conducted the enquiry found that thepetitioner’s plea as to the availability of another suitable landadmeasuring 14,345 sq. yards belonging to Endowments Department is correct. It was also found by the 2[nd] respondent that though anextent of 7,945 sq. yards out of the above said land was allotted forconstruction of a shopping complex by Guntur Cloth MerchantsAssociation vide G.O.Ms.No.327, dated 12.6.2002, subsequently thesaid allotment was cancelled vide G.O.Ms.No.363, dated 23.3.2006 on the ground that the allotment was contrary to the provisions ofSection 80 of the A.P. Charitable and Hindu Religious Institutions andEndowments Act, 1987 (for short, ‘the Endowments Act’). However, itwas observed that in view of the prohibition under Section 80 of theEndowments Act, the sale should be only in open auction. It wasfurther observed that an interim order passed by this Court dated7.6.2005 in W.P.No.11812 of 2005 restraining such alienation ofEndowment lands was in operation.

However, without properly appreciating the said report dated01.12.2006, the 1[st] respondent concluded that the objections raisedby the petitioners were baseless and accordingly passed theimpugned proceedings dated 6.12.2006 directing publication of Section 6 declaration. It would be appropriate to extract the operativeportion of the 1[st] respondent’s order dated 6.12.2006 as under :

“The enquiry conducted by the Land AcquisitionOfficer & Special Deputy Collector (L.A.) VGTM UDA U/S. 5-A of the Act together with D.D. Proposalsfurnished thereon have been examined. Theproposals are strictly in accordance with the provisionsof L.A. Act, 1894 and under in accordance with theorders passed by the Hon’ble High Court of A.P. Theland in question is quite suitable for construction ofCitizen Service Centre for the free and fair access tothe public. More over no other alternative suitableland is available in the locality.

In the light of the above circumstances and keeping inview the recent judgment delivered by the Hon’bleHigh Court of A.P. in W.P.No.23060 of 2006, dated29.09.2006 and batch; I am of the view that it is justand proper to acquire the lands in question for purposeof construction of Citizen Service Centre in the interestof public.

Hence, I agree with the observations/report of the LandAcquisition Officer & Special Deputy Collector (L.A.)VGTM UDA in the matter and all objections raised bythe objectioners are hereby overruled as they arebaseless. Accordingly, I hereby approve the proposalsand order for publication of Draft Declaration in thematter.

The Land Acquisition Officer & Special DeputyCollector (L.A.) VGTM UDA, Vijayawada is directed topublish the notification in two daily news papersbefore publishing the substance of the notification atconvenient places in the locality and report the date ofpublication forthwith.”

As could be noticed from the above order, the 1[st]respondent did not take into consideration the specific finding of factrecorded by the 2[nd] respondent as to the availability of alternativesuitable land in the vicinity. It is also clear that the 1[st] respondent’sconclusion that no other alternative suitable land was available in the locality was not supported by any reasons and there was no referenceto any other material which formed the basis for the said conclusion. Since the 2[nd] respondent in his report dated 1.12.2006 found thatalternative suitable lands are available, the 1[st] respondent ought tohave considered whether it is feasible to acquire the said lands. It isalso necessary for him to consider whether the interim order passed bythis Court in W.P.No.11812 of 2005 and the prohibition under Section80 of the Endowments Act would come in the way for acquiring thealternative land. Strangely, the 1[st] respondent did not apply his mindto any of the above aspects and merely jumped at a conclusion that the land in question was quite suitable for construction of CitizenService Centre and that no other alternative suitable land wasavailable in the locality. That apart while concluding that it was justand proper to acquire the lands in question, he had relied upon a totally irrelevant judgment of this Court in W.P.No.23060 of 2006 andbatch dated 29.9.2006.

It is to be noticed that in W.P.No.23060 of 2006 and batch thequestion that fell for consideration before this Court was whether theRevenue Divisional Officer who was authorized under Section 3 (c) ofthe Act to conduct enquiry under Section 5-A of the Act wascompetent to reject the objections. Having considered the scope andobject of Section 5-A of the Act, this Court by common judgment dated29.09.2006 held that the limited power given to the RevenueDivisional Officer under Section 5-A of the Act was to submit a reportto the District Collector and that the District Collector alone wascompetent to take a decision on the objections raised by the owners.

Thus it is clear that the said judgment in W.P.No.23060 of 2006and batch is totally irrelevant for the purpose of deciding the objectionthat in view of the alternative land available in the vicinity, theacquisition of the petitioner’s land is not necessary. Apparently,the 1[st] respondent failed to apply his mind to the relevant factors and misdirected himself to the issue. The very approach of the 1[st]respondent being contrary to the object sought to be achieved byholding the enquiry under Section 5-A of the Act, I find force in thecontention of the petitioners that the entire decision making process culminating in Section 6 declaration is vitiated.

It is true that in a catena of decisions it was declared by theCourts that the declaration under Section 6 of the Act need not containreasons. However, consideration of the objections raised by theowner of the land under Section 5-A of the Act and the order passedthereon by the Government must precede a proper application of mindto the material available on record and when the validity of Section 6is challenged, it is for the State to satisfy the Court that the powerconferred under the Statute has been exercised in a fair andreasonable manner.

Section 5-A of the Act as it is applicable to the State of Andhra Pradesh runs as under:

5-A : Hearing of objections:-

(1) Any person interested in any land which hasbeen notified under Section 4, sub-section (1), asbeing needed or likely to be needed for a publicpurpose or for a Company may, within thirty days ofcausing public notice under the said sub-section,object to the acquisition of the land or of any land inthe locality as the case may be.

(2) Every objection under sub-section (1) shall bemade to the Collector in writing, and the Collectorshall give the objector an opportunity of being heardin person or by any person authorised by him in thisbehalf or by pleader and shall, after hearing all suchobjections and after making such further inquiry, ifany, as he thinks necessary, either make a report inrespect of the land which has been notified underSection 4, sub- section (1), or make different reportsin respect of different parcels of such land, to theappropriate Government, containing hisrecommendations on the objections, together withthe record of the proceedings held by him, for the decision of that Government. The decision of theappropriate Government on the objections shall befinal.

…. … …. …. …. ….

A plain reading of Sub-section (2) of Section 5-A shows that theopportunity of being heard in person shall be given to the personinterested in the land notified under Section 4 (1) after the objectionsare filed under Sub-Section (1) of Section 5-A of the Act. Suchopportunity of being heard is to enable the person interested who filedhis objections to persuade the authorities concerned that theacquisition of his property should not be made ( vide Munshi Singh v.Union of India (1973) 2 SCC 337 ).

Conclusion

In the present case, admittedly the objections were filed onbehalf of the petitioners on 18.11.2006 before the 2[nd] respondent. However, no hearing took place on 18.11.2006 nor on any subsequentdate and the 2[nd] respondent straightaway submitted his report dated1.12.2006 to the 1[st] respondent. Thus there was total non-compliancewith the provisions of Section 5-A of the Act. Even the 1[st] respondentwithout giving any opportunity of hearing to the petitioners proceededto pass the order dated 6.12.2006 overruling the objections raised bythe petitioners which, as noticed above, was erroneous and basedupon incorrect facts.

In the light of the above noticed admitted facts, I am of theopinion that there was total non-compliance with the mandatoryrequirements of Section 5-A of the Act. Consequently, theproceedings of the 1[st] respondent dated 6.12.2006 and Section 6declaration dated 7.12.2006 suffered from illegality which is one of thegrounds for judicial review under Article 226 of the Constitution ofIndia.

The learned Senior Counsel for the petitioner further contendedthat the objection raised by the petitioners that an alternative suitableland is available in the vicinity having been found to be correct by the 2[nd] respondent, there is no need to acquire the land in question andconsequently the notification under Section 4(1) of the Act itself shallbe quashed.

The 2[nd] respondent in his report dated 1.12.2006 recorded afinding as under with regard to the petitioner’s objection that analternative suitable land is available.

“It is a fact that there is another suitable land belonging to Yadavallivari Satram in Sy.Nos.541and 542 of Kothapeta and it belongs to Endowment Department. The total extent ofYadavallivari Choultry is 14,345 sq. yards. Theoccupation details of the lands are as under :

Krishna Picture Palace & Little Krishna 2600 s.yds.Kasu Saiyanna Municipal High School 3300 s.yds. Land encroached by Smt. Nagasuyamma 500 s.yds. Land allotted to Cloth Merchants Assn. 7945 s.yds.

As per inspection report of Vice Chairman,VGTM UDA there are 2 Cinema Halls viz., KrishnaPicture Palace, Little Krishna and School and tworesidences. An extent of 7945 sq. yards site inYadvallivari Satram was allotted in G.O.Ms.No.327,Rev. (Endowments IV) Dept., dated 12.06.2002 forconstruction of shopping complex by Guntur ClothMerchants Association. But the allotment order hasbeen cancelled vide G.O.Ms.No.363, Rev.(Endowments IV) Dept., dated 23.3.2006. Since theallotment was contrary to the provisions of Section80 of A.P. Charitable & Hindu Religious Institutions& Endowments Act, 1987. Since the land of Yadavallivari Choultry belongs to EndowmentDepartment it has to be taken only in open auction. In view of interim orders of Hon’ble High Court, A.P.in W.P.No.11812/2005 dated 7.6.2005 not toalienate / sale of Endowment lands otherwise thanby public auction.”

As could be seen, the 2[nd] respondent found that theYadavallivari Choultry land was suitable for the purpose for which Section 4 (1) Notification was issued. An extent of 7,945 sq. yards out

of the said land though initially was allotted vide G.O.Ms.No.327,dated 12.6.2002 for construction of a shopping complex by GunturCloth Merchants Association, the said allotment was subsequentlycancelled vide G.O.Ms.No.363, dated 23.3.2006. The report showsthat the said land is lying vacant as on today. However, the 2[nd]respondent was under an impression that since the said land belongsto the Endowments Department it cannot be alienated in view of thebar under Section 80 of the Endowments Act and also in view of theinterim orders passed by this Court in W.P.No.11812 of 2005 dated7.6.2005.

Apparently, both the grounds mentioned by the 2[nd]respondent are totally untenable. Firstly, under Section 80 of theEndowments Act there is no absolute bar as such for alienation of theimmovable property belonging to the Endowments Department. As perSection 80 of the Endowments Act, alienation of the immovableproperty belonging to or endowed for the purpose of any charitable orreligious institution or endowment shall not be alienated except withthe prior sanction of the Commissioner. Such alienation can also beotherwise than by public auction if the Government, in the interest ofinstitution or endowment and for reasons to be recorded in writing,permits the same. Admittedly the land which is sought to be acquirednow under the impugned notification originally belonged to theEndowments Department and the same was purchased by the 1[st] petitioner in a public auction held by the Endowments Department after obtaining permission from the Government as provided underSection 80 of the Endowments Act. Even the other ground mentioned by the 2[nd] respondent in his report that as per the interimorder passed by this Court in W.P.No.11812 of 2005 dated 7.6.2005,sale of the endowments land is impermissible is concerned, it is to benoticed that this Court in WPMP.No.15055 of 2005 has only directedthat no sale of endowments land shall be effected without the permission of this Court.

Thus it is clear that both the grounds mentioned in the 2[nd]respondent’s report are non-existing and are not supported by facts orlaw. As there is no absolute prohibition as such for acquiring thealternative lands available in the vicinity, which are also found to besuitable by the 2[nd] respondent, the 1[st] respondent ought to haveupheld the objections raised by the petitioners and ought to havedropped the acquisition proceedings.

1[[st]]

There cannot, therefore, be any doubt that the 1[[st]]respondent who is competent to take a decision after considering theobjections raised by the petitioners did not apply his mind to therelevant facts and circumstances of the case and failed to exercisethe discretion conferred upon him for the purpose of furthering theobject for which such discretion is conferred under Section 5-A of theAct. The 1[st] respondent has not only failed to take into considerationthe relevant factors but on the other hand has taken into considerationirrelevant aspects which are not germane for determining the issue. There can be no dispute about the exercise of power of eminentdomain by the Government for a public purpose, however, this is acase where there has been a total non-application of mind on the partof the 1[st] respondent while initiating the acquisition proceedings andalso while making the declaration under Section 6 of the Act.

As expressed above, not only a fair and reasonable opportunityof hearing was denied to the petitioners in Section 5-A enquiry butalso the entire decision making process culminating in Section 6declaration was vitiated as the 1[st] respondent failed to exercise thediscretion conferred under the Statute in a reasonable manner apartfrom committing a misdirection in law.

For the aforesaid reasons, the 1[st] respondent’s order dated06.12.2006 as well as the declaration dated 07.12.2006 made underSection 6 of the Act are hereby quashed and there shall be a direction to respondents 1 to 4 to take the necessary further steps in the light ofthe observations made above as expeditiously as possible, preferablywithin a period of six weeks from the date of receipt of this order.The Writ Petition is accordingly allowed. No costs.

Dt. 30.12.2009 gbs

______________G. ROHINI, J.

[1]AIR 1976 SC 2002

[2]AIR1990 A.P. 357

[3](2005) 7 SCC 627

[4](1973) 2 SCC 337[5](2004) 8 SCC 14