LAWS(APH)-1968-4-12

MALLAIAH Vs. GOVERNMENT OF ANDHRA PRADESH

Decided On April 10, 1968
MALLAIAH Appellant
V/S
GOVERNMENT OF ANDHRA PRADESH, BY THE SECRETARY, PUBLIC WORKS DEPARTMENT Respondents

JUDGEMENT

(1.) In the heart of the major Panchayat of Macherla and abutting the main road there is a plot of land of the extent of 1 acre 50 cents which is bounded on one side by a cinema theatre and on another by a public choultry. This land of 1 acre 50 cents was originally part of a total extent of 3 acres 1 cent comprised in Survey Nos. 676/B-3 and IO39/A-3/A. The theatre was built on a portion of the land carved out from this land and the other extents have been divided into plots suitable for construction of houses. Some of the plots have also been sold.

(2.) While so, by G.O. Rt. No. 518, Public Works Department, dated 29th March, 1965 the Government notified this land as needed for a public purpose and announced its intention to acquire the same. By the same Government Order the Government, in exercise of the powers under section 17 (4) of the Land Acquisition Act, dispensed with the enquiry under section 5-A. In this application for the issue of a Writ the petitioners, owners of the land question the order under section 17 (4) dispensing with the enquiry under section 5-A. Under section 17 (4) the Government is empowered to dispense with the enquiry contemplated by section 5-A in the case of any land to which the provisions of sub-section (1) or sub-section (2) of section 17 are applicable. Section 17 (1) provides that in cases of urgency, possession of waste or arable land may be taken fifteen days after publication of the notice mentioned in section 9 (1) even though an award under section 11 has not been made. Section 17 (2) provides further that where the land is required for specified purposes the Collector may take possession immediately after the publication of the notice mentioned in section 9 (1) but with the previous sanction of the Government. The specified purposes are: (1) maintenance of Railway Traffic or making of a river side or ghat station, or providing convenient connection with or access to any such station, rendered necessary by reason of any sudden change in the channel of navigable river or other unforeseen emergency, (2) library or educational institution, (3) construction of any building or other structure for the common use of the inhabitants of a village, (4) construction of a godown for any society registered under the Co-operative Societies Act, (5) construction of any dwelling house for the poor, (6) construction of any irrigation tank or irrigation or drainage channel or well, (8) construction of any road. It is clear that the present acquisition which is stated to be for the purpose of constructing a Post Office is not one of the purposes mentioned in section 17 (2) of the Act. The only question, therefore, is whether the land proposed to be acquired falls within the expression of ' arable or waste land.' The Supreme Court in Raja Anand v. State of U. P., (1967) 2 S.C.J. 830 : A.I.R. 1967 S.C. 1081 has construed the words ' waste or arable land' as follows :-

(3.) It is clear that the land propdsed to be acquired in this case, which is situate in the heart of Macherla town bounded by.a cinema theatre on one side and a public choultry on the other and abutting the main road, is a land which is essentially fit for the construction of dwelling houses and is, therefore, land fit for habitation. It cannot, therefore, be within the expression be waste or arable land. The G.O.Rt. No. 518, dated 29th March, 1965 published in the Andhra Pradesh Gazette, Part I, dated 15th April, 1965 is quashed to the extent of the declaration under section 17 (4) of the Land Acquisition Act. I need not add that the Government is at liberty to proceed with the acquisition after making due enquiry under section 5-A of the Act. There will be no order as to costs in the Writ Petition. Writ petition allowed.