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2012 Supreme(AP) 541
High Court of Andhra Pradesh
NOUSHAD ALI, J.
Seetharama Swamy Temple, Rep. by Managing Trustee & Chairman, P. Venkateswar Rao & Others
Versus
The Revenue Divisional Officer & Land Acquisition Officer, East Godavari District & Others
WRIT PETITION NOS. 19883 OF 2004 & 21803 OF 2004
Decided On : 27-06-2012
For the Petitioner:Smt. N. Indrani, Sitharam Chaparla, Advocates.
For the Respondents: A.G.P. for Land Acquisition
Headnote:
Land Acquisition Act, 1894 – Sections 4(1), 17, 5, 9, 10 – Acquisition of Land – Petitioner in W.P. is a Temple, situated in Suryaraopet locality of Kakinada Town – Petitioners in W.P. claim to be the lessees of said Temple – In both the writ petitions challenge is to the draft notification Ref. published in the East Godavari District Gazette Extraordinary, issued under Section 4(1) of Land Acquisition Act, 1894 proposing to acquire the temple’s land for providing house sites to weaker section people – Held, Assistant Government Pleader however contends that proceedings have gone too far a distance and even if urgency could not be properly explained, acquisition proceedings cannot be upset because land is vested in the Government as possession was taken – It is true that if a person is lawfully dispossessed and possession is validly taken as per law, land would vest in Government – If a person is dispossessed unlawfully and possession is obtained by State contrary to law, such possession has no legal effect – Court is of view that proposal to acquire subject land dispensing with Section 5-A enquiry is untenable – Impugned notification to extent of dispensing with enquiry under Section 17(4) of Act is set aside – Respondents shall be at liberty to proceed from the stage of Section 4 notification and take appropriate action after complying with Section 5-A of the Act – Writ Petitions Allowed (Paras 15, 16, 17)
1. These two writ petitions are connected and are being disposed of by this common order.
2. Heard Smt. N.Indrani, learned counsel appearing for the petitioner in W.P.No.19883 of 2004, Sri Sitharam Chaparla, learned counsel appearing for the petitioners in W.P.No.21803 of 2004 and the learned Assistant Government Pleader for Land Acquisition appearing for the official respondents in both the cases.
3. Petitioner in W.P.No.19883 of 2004 is a Temple, viz., Sri Seetharama Swamy Temple (hereinafter referred to as ‘Temple’) situated in Suryaraopet locality of Kakinada Town, East Godavari District. Petitioners in W.P.No.21803 of 2004 claim to be the lessees of the said Temple. In both the writ petitions challenge is to the draft notification Ref.No.G2/8828/2003 dated 19.01.2004 published in the East Godavari District Gazette Extraordinary, dated 20.01.2004. issued under Section 4(1) of the Land Acquisition Act, 1894 (for brevity ‘the Act’) proposing to acquire the temple’s land for providing house sites to weaker section people.
4. Undisputed facts are that, the Temple is the owner of land measuring Ac.2.30 cents situated in Sy.No.85/3 of Mogilipalem Village, Kajuluru Mandal. The said land was proposed to be acquired in pursuance of the impugned notification dated 19.01.2004 (published in Gazette on 20.01.2004) for providing house sites to the poor. Draft declaration was published in the District Gazette dated 23.01.2004. While proposing to acquire the said land, urgency clause under Section 17(4) was invoked dispensing with the enquiry under Section 5-A of the Act.
5. The impugned notification is assailed on the substantive ground that there is no justification for dispensing with enquiry under Section 5-A of the Act. According to the petitioners, the purpose, viz., provision for house sites, does not involve any urgency warranting invocation of Section 17(4). They plead that the subject land is not fit for house sites since it is a wet land and is far away from the village. They state that there are other Government poramboke lands adjacent to the village, which are more convenient and fit for the notified purpose. They further plead that there is no justification in acquiring the endowment land, which has been endowed for the purpose of maintenance of the Temple, and that the proposal to acquire these lands are contrary to the guidelines issued by the State Government in G.O.Ms.No.456, date 29.09.1995. Thus according to the petitioners the impugned proposal is not sustainable.
6. The Revenue Divisional Officer & Land Acquisition Officer has filed counter affidavit seeking to justify the proposal. The counter states that enquiry under Section 5-A was dispensed with in view of the urgency to provide house sites. It is stated that after due publication of the draft notification and declaration, award enquiry was held on 16.02.2004 after issuing notices on 11-02-2004 under Section 9(1), 9(10), 9(3) and Section 10 of the Act. The Temple authorities did not appear in that enquiry, and therefore market value was tentatively fixed at Rs.1,02,000/-per acre and an amount of Rs.2,43,984/-towards 80% of compensation was tendered to the Temple authorities on 16.02.2004. The Temple authorities have not received the said amount so far and the amount is kept in bank deposits. It is further stated that the land was taken possession on 21.02.2004. Therefore, according to the respondents the impugned acquisition proposal is legal and valid and the same does not warrant interference.
7. In the light of the afore said contentions, the question that falls for consideration is whether there is justification in dispensing with the enquiry under Section 5-A by invoking the urgency clause under Section 17(4) of the Act in a case of acquisition of land for the purpose of providing house sites.
8. Property rights are constitutionally protected. No person shall be deprived of his property except by authority of law. Land Acquisition Act has bee
