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PETITIONER: THE COLLECTOR, ONGOLE & ANR.

       Vs.

RESPONDENT: NARRA VENKATESWARLU & ORS.

DATE OF JUDGMENT28/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (7) 150        JT 1995 (9)    63  1995 SCALE  (7)246

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      These appeals  by special leave arise from the judgment and order  of the Division Bench of the High Court of Andhra Pradesh, dated  August 8, 1985, made in Writ Appeal Nos.302- 03  of  1985.  A  notification  under  s.4(1)  of  the  Land Acquisition Act  was initially  published on April 15, 1983. The same  was subsequently  withdrawn and fresh notification was published  on June  9, 1983.  The respondents challenged the validity  of the notification in two writ petitions. The learned single  Judge by  his order  dated February  1, 1985 quashed the notification on the ground of colourableexercise of power  by the  authorities. On appeal before the Division Bench, one  of the  learned Judges  upheld the  order of the learned single  Judge on  the ground  of non-application  of mind by  the Collector  himself, since  the acquisition  was made by  the Collector  on the  recommendation made  by  the Government. The  second ground  was that  the administrative instructions  for   obtaining  Prior   permission  from  the Government for  making the  award  when  the  value  exceeds Rs.20,000/- per  acre were  not  obtained.  Another  learned Judge has  affirmed the  order on  the ground that the Prior permission of the Government was not obtained for making the award. Thus these appeals by special leave.      Shri G.  Prabhakar, learned  counsel for  the appellant contended  that  the  notification  validly  issued  by  the Collector  who   is  the   competent  authority   to   issue notification under  s.4(1) of  the Act,  cannot be  whittled down  by   the  non-consideration   of  the   administrative instructions issued  by the  Government nor absence of Prior approval is  a ground  to declare  the valid notification as invalid one.  Shri R.N.  Keshwani, learned  counsel for  the respondents strenuously contended that attempts were made by the Sarpanch  to get  the Property  in  Survey  No.25/10  by successive litigations.  There was no Proposal for acquiring the land for the weaker sections. The Collector in a cryptic

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order has  mentioned that  the land  could be  acquired  for weaker sections  without any Proposal for acquiring the land for weaker sections. Exercise of the Power under s.4(1) is a colorable exercise  of Power  vested in  the Collector.  The learned single  Judge, therefore, rightly has gone into that question.  Accordingly,  he  made  his  valient  efforts  to convince us  to agree  with the  learned single Judge on the colorable exercise  of the  Power and  to uphold  the  order quashing the notification under s.4(1) of the Act.      Having given  careful  consideration,  we  are  of  the opinion that the argument of Shri Prabhakar, learned counsel for the  appellant is acceptable. It is seen that admittedly the notification under s.4(1) was Published by the Collector for  acquiring   the  land  for  the  weaker  sections,  The Collector had  been empowered  to acquire  the land  for the weaker sections,  Scheduled Castes  and Scheduled Tribes. It is true  that initially there was an attempt by the Sarpanch to have  the land  acquired for Housing Cooperative Society. Since the members of the Cooperative Society belonged to the forward sections  of the  society, the  land  could  not  be acquired. The Collector also did not accede to that request. The Tehsildar  suggested to  acquire some  another land  but that was  not accepted  by the Joint Collector. The file had gone to  the Collector  and ultimately  the  Government  had accepted the  Proposal to  acquire the  land in question for the weaker sections. It may be true that some of the persons to whom the allotment was to be made belonged to the forward sections of  the society  but that  does not  take away  the initial exercise  of the  Power by  the Collector. As stated earlier,  the   Collector  is  the  competent  authority  to exercise the Power under s.4(1) of the Act. The notification does indicate that the land was acquired for Public purpose, namely, providing  houses to  the  weaker  sections  of  the society. Even  the recommendations  made by  the  Government after the  protracted litigation were for acquiring the land for weaker sections. Thus the acquisition being only for the weaker sections  of the  society, it  constitutes a  "Public purpose" as  defined under  the Act  by virtue  of the local amendment made to s.17(1) of the Act.      The next  question is whether the learned Judges of the Division Bench  were justified  in upholding the quashing of the notification  on different  grounds. It is seen that the Collector had  formed the opinion that the land was required for public  purpose, namely,  providing houses to the weaker sections of  the society. The question of non-application of mind does  not arise. It is obvious that after consideration of the  material before  the Collector, the Collector formed the opinion  that the  land was required for public purpose. The  direction   of  the  Government  was  after  protracted litigation and  to avoid  further litigation, Government had directed to  acquire the  land. It  would not  mean that the Collector had  abdicated his  Power under s.4(1). It is true that the  Government had  issued instructions  for obtaining Prior permission of the Government, if the value of the land was more  that Rs.20,000/- per acre, the Prior permission of the  Government   in   that   behalf   is   necessary.   The administrative instructions, no doubt, bind the subordinates but the  violation thereof  does not constitute an infirmity in the  acquisition of  the land itself. It is true that the Government  could   take  appropriate   disciplinary  action against the  officials but  it does not constitute infirmity in  the  valid  exercise  of  the  Power  under  s.4(1)  and declaration under s.6 of the Act.      It is  not disputed  that the one of the learned Judges has recorded  the findings that no colorable exercise of the

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Power by  the Collector  was established from record. Though the learned  single Judge  has  held  that  the  acquisition amounts to  colorable exercise of the Power since one of the learned Judges has held that there was no colorable exercise of Power  and there is no disagreement by the another Judge, it must be inferred that the Division Bench has not accepted the finding of the learned single Judge that the acquisition was  vitiated   by  a  colorable  exercise  of  Power.  Even otherwise when we have seen that the Government had directed the  Collector   to  consider  the  acquisition  for  weaker sections and  the Collector  had validly exercised the Power under s.4(1)  of the  Act by  no stretch  of imagination, it could be  said that it is a colorable exercise of the Power. The appeals  are allowed.  The orders  of the High Court are set aside  and the writ Petition stands dismissed but in the circumstances, without costs.      It is  made clear  that if any allotment is made to any person other  than those  belonging to  the weaker sections, the Collector  should take  immediate action  against  these persons  and   cancel  the   allotments.  In   other  words, allotments should  be made  only to the persons belonging to the  weaker  sections  in  terms  of  the  notification  and Government instructions in that behalf.