WP/23126/2007 of Dr.Shiva Kumar Vs The Government of Andhra Pradesh, Revenue Department on 26 December 2007

O R D E R:

This writ petition is filed for a writ of mandamus to declare theaction of the respondents in seeking to dispossess the petitioner fromthe land admeasuring Acs. 49-02 guntas situated in Survey Nos.,152/U, 153/U, 181/U, 182/U, 183/U, 184/U, 185/U, 186/U, 187/U,188/U, 189/U, 190/U, 191/U, 192/U, 193/U and 194/U and Ac. 179.13guntas forming part of Survey Nos. 182, 185 to 193 ofThummaluruVillage, Maheswaram Mandal, Ranga Reddy District as illegal and inviolation of the fundamental rights guaranteed under Articles 14 and 19 and the right guaranteed under Article 300-A of the Constitution ofIndia.

The petitioner is undisputedly the owner of Ac.49.02 guntas ofland comprised in the above-mentioned survey numbers, which ishereinafter referred to as “the land in dispute”. Proceedings underSection 4(1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) wereissued on 21.04.2006, for acquiring the said land for expansion ofindustrial development area (IDA) by respondent No.3. Enquiry underSection 5-A was held on 03.05.2006. Notice under Section 5-A of theAct was said to have been served on one Santhosh Kumar on08.05.2006. The petitioner claims that since he has not received anysuch notice, he has not filed his objections against the proposedacquisition. Declaration under Section 6 of the Act was published inAndhra Pradesh Gazette on 06.07.2006 and local news papers on06.07.2006 and 07.07.2006. Award was passed on 13.11.2006. Thepetitioner filed the present writ petition on 31.10.2007.

The main grievance of the petitioner is that he has not receivedany notice either for enquiry purported to have been held underSection 5-A of the Act or for passing the award. The petitioner,therefore, avers that since he has not received notices under Sections9(3) and 10 of the Act, the award enquiry is vitiated and the award tothe extent of the disputed land is liable to be set aside.

Sri P. Ram Gopala Rao, Special Deputy Collector (LandAcquisition), International Airport, Shamshabad filed counter-affidaviton behalf of respondent Nos. 1 and 2. Shri M. Dasaradharam Reddy,Zonal Manger filed counter affidavit on behalf of Andhra PradeshIndustrial Infrastructure Corporation Limited. In the counter-affidavitfiled on behalf of respondent Nos. 1 and 2, it is claimed that notice forenquiry under Section 5-A of the Act was served on one Santhosh Kumar as the petitioner was not available to receive the notice on08.05.2006. Similarly, it is pleaded that notices under Sections 9(3)and 10 were received by the same Santhosh Kumar on behalf of allthe persons and that the same has been certified by PanchayatSecretary, Thummaluru Village.

At the hearing, Sri S.R. Ashok, learned Senior Counselappearing for the petitioner submitted that his client has nothing to dowith the said Santhosh Kumar and that, therefore, notice served on thesaid Santhosh Kumar cannot be deemed to be served on thepetitioner. The learned Senior Counsel contended that service ofnotice for award enquiry is mandatory under Sections 9(3) and 10(1) ofthe Act and that since the respondents failed to prove that such anotice was served on the petitioner or his authorized agent, the awardis liable to be set aside.

Learned Assistant Government Pleader for Land Acquisitionsubmitted that the record reveals that when the employees ofrespondent Nos. 1 and 2 went to the locality where the lands aresituated, one Santhosh Kumar was available and he received noticeunder Sections 9(3) and 10 and, therefore, it was deemed that therewas proper service of notice.

Sri K.V. Simhadri, learned Standing Counsel for respondentNo.3 submitted that in pursuance of the award passed on 13.11.2006,possession was delivered to respondent No.3 on 16.11.2006 andthereafter, it has already started finalizing plans for utilizing the land forthe purpose for which it was acquired.

Sections 9(3) and 10 of the Act read as under:

“Section 9(3): The Collector shall also serve notice to the sameeffect on the occupier (if any) of such land and on all suchpersons known or believed to be interested therein, or to beentitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenuedistrict in which the land is situate.

Section 10: Power to require and enforce the making of statements as to names and interests:

(1) The Collector may also require any such person to make ordeliver to him of a time and place mentioned (such time not beingearlier than fifteen days after the date of the requisition astatement containing, so far as may be practicable, the name ofevery other person possessing any interest in the land or anypart thereof as co-proprietor, sub-proprietor, mortgagee, tenant orotherwise and of the nature of such interest, and of the rents andprofits (if any) received or receivable on account thereof for threeyears next preceding the date of the statement.

(2) Every person required to make or deliver a statement underthis Section or Section 9 shall be deemed to be legally bound todo so within the meaning of Section 175 of the Indian Penalcode.”

I have perused the record produced by the learned AssistantGovernment Pleader. It is seen from the record that notice issuedunder Sections 9(3) and 10 of the Act is shown to have been receivedby a person with signature “Santhosh”. It is written in Telugu (after thepurported signature “Santhosh Kumar”). The said signature is foundagainst the names of Alopi Shankar, Satyanarayana, Ram Kumar,Krishna Kumar and Shiv Kumar written vertically in English. Anendorsement of Panchayat Secretary, Thummaloor Gram Panchayat,Maheswaram Mandal is also contained on the right side bottom of thenotice by the side of the signature of the person received with thewords written in Telugu “these notices are served on the personshown above”.

In the counter-affidavits filed on behalf of respondent Nos. 1 and2, it is not stated whether the said Santhosh Kumar is authorized bythe petitioner to receive the notice on his behalf. Though it is claimed that he is the family member of the petitioner, no evidence is producedin support of the said averment. The said Santhosh Kumar who isstated to have received the notice has not written on the notice that heis receiving the said notice on behalf of any particular member, muchless the petitioner. I am, therefore, of the view that in the absence ofany evidence to show that the said Santhosh Kumar is the authorizedagent of the petitioner, service on him does not constitute service ofnotice as envisaged in Sections 9(3) and 10 of the Act. Since the saidprovisions are couched in mandatory form, violation of the samevitiates the award.

Therefore, award dated 13.11.2006 to the extent of the disputedland namely Ac.49.02 guntas is set aside. Liberty is given to therespondents to initiate award proceedings afresh to the extent of thesaid land after following due procedure under Sections 9(3) and 10 ofthe Act. Since there are rival claims to the possession by the petitionerand respondent No.3, the parties shall maintain status quo existing ason today.

Subject to the above observations, the writ petition is allowed.As a sequel to disposal of the writ petition, W.P.M.P.No. 30134of 2007 filed by the petitioner for interim relief is disposed of asinfructuous.

26.12.2007

C.V.NAGARJUNA REDDY, J

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