2. On coming to know that their lands were sponsored for acquisition for home sites to Harijans, the petitioner (Chinthalacheruvu Chenchamma) submitted a representation to the District Collector Nellore on 4th Feb., 1976 against the proposal. The Collector called for report and the Block Development Officer, Indukurpet in his D. O. letter dated 12th February, 1976 informed the collector that there was no proposal to acquire her land. Accordingly, the District Collector by his endorsement dated 1st may, 1976 informed her that there was no proposal to acquire her lands. Again in the middle of 1976, she came to know that the District Social Welfare Officer had sent a proposal afresh for acquisition of her land for provision of house sites for harridans of Jagadevpet. Once again she made a representation to the District collector (1st respondent) on 25th June, 1976. The District Collector forwarded her representation along with the letter of the District Social welfare Officer (Land Acquisition) Nellore (2nd respondent) to the Revenue Divisional Officer, Nellore with instructions to inspect the land and send up his report. The Revenue Divisional Officer, after personal inspection, informed the District Collector in his proceedings dated 16th August 1976, that there was no immediate need for providing house sites to the harijans in the village, that in any case there was sufficient vacant space in the existing Harijanawada itself to provide house sites for another twenty families, that she has no other land except Ac. 2-12 cents, that she had installed filter points and reclaimed the land at huge cent, that the lands are 3 to 4 feet deep from the adjoining road level and unfit for human habitation, and according to the guidelines, the lands served by filter points should not be selected for acquisition and it was not desirable to take up the land for acquisition. Thereupon, the District Collector in the proceedings dated 25th August, 1976 passed an order that the proposal for acquisition of lands was dropped and directed the District Social Welfare Officer (Land Acquisition) Nellore, not to take any further action.
3. Subsequently, on receiving notices under Sections 9(3) and 10 of the Land Acquisition Act from the 2nd respondent calling upon the petitioners to appear before him on 25th November 1978, the petitioners have filed these two writ petitions.
4. In the counter-affidavit filed by the 2nd respondent it is stated that the lands are jointly held by Smt. Saradamba and Smt. Chenchamma who are co-daughters-in-law, that Smt. Chenchamma has no right to enjoyment in the aforesaid lands and that Smt. Saradamba is reported to be paying land revenue and enjoying the lands with absolute ownership, that Smt. Chenchamma is not a resident of the village that the name of Chenchamma had been included in the holding with an intention to show a share and unit in the joint properties, that Sri Radhakrishniah, husband of Smt. Saradamba is working as Assistant Engineer at Thungabhadra Project, and that Smt. Saradamba is owning about Ac. 21-42 cents in Jagadevpet village and also purchased Ac. 1-81 cents of wet land in Gudipallipadu village. It is further stated that the lands are situate very near the main road and the Harijanawada, quite suitable and fit for house sites and the beneficiaries were also willing to construct their houses after some reclamation by levelling the lands. It was denied that Smt. Chenchamma is owning Ac. 2-12 cents only and her livelihood would suffer if the lands were acquired. It is admitted that there are filter points and the extent covered by filter points with the surrounding area was eliminated from acquisition to enable the land owner to cultivate the other lands owned by her. It is stated that there are 80 poor families who are mostly harijans, that there is no vacant land in the present Harijanawada, that there are no other suitable lands in the vicinity and there are no other Government lands available and hence these lands have been proposed for acquisition. It is admitted that the previous District Collector had dropped the proposal on 25th August, 1976 on the basis of the report of the Revenue Divisional Officer dated 16th August, 1976. It is stated that subsequently on a representation made by the harijans, the Joint Collector, Nellore, visited the village on 28th May, 1978 and observed that the Harijanawada was quite congested and there are many adult male married members who are living in congested houses, that the 'poosalas' who had encroached the road side also represented for the provision of house sites, and therefore, the Joint Collector instructed the second respondent to go ahead with the acquisition proceedings. Accordingly, proposals were initiated and the notification under Ss. 4(1) and 6 of the Land Acquisition Act was published in the District Gazette dated 19th September, 1978. Since the lands were urgently needed for providing house sites to poor harijans and de-notified tribes, enquiry under Section 5-A was dispensed with, under Section 17(4) of the Land Acquisition Act. It is also stated that the substance of the notification was published in the village by beat of tom tom on 7th November, 1978 and award enquiry was posted to 25th November, 1978 when this writ petition was filed.
5. On a previous occasion when the two writ petitions came up for hearing before us, after hearing the learned counsel for the petitioners, by our order dated 9th September, 1980, we directed the District Collector, Nellore to submit a report as to why the earlier decision to drop the acquisition was revived. We suggested that the Collector might direct such officer as he thinks appropriate to inspect the village and report whether no other suitable lands are available in the village. We observed that the officer, who visits the village, should gather relevant material in the presence of the harijans of the village as well as the petitioners, and if any other land is selected or pointed out, the owners thereof might also be heard and their objections noted.
6. Pursuant to our orders, the Revenue Divisional Officer, Nellore, inspected the land and conducted detailed enquiry into the matter in the presence of the petitioners and the Harijans of the village. He submitted a copy of his report together with the record of enquiry and a sketch showing the lands under acquisition and the alternate lands proposed by the petitioners. The Revenue Divisional Officer reported that the alternate lands suggested by the petitioners were not acceptable to the Harijans, as they are situated in a different village and different panchayat, although they are situated within a furlong to the 'Harijanavada'. He also reported that there was no vacant land available in the 'Harijanavada' to provide house sites to the harijans as alleged by the petitioners. He reported that Smt. Chenchamma owns 0-35 cents of land and Smt. Saradamba Ac. 7-00 of lands besides the land under acquisition. He finally stated that the land under acquisition, being very close to the existing Harijanawada and the highway road, was well suited for house sites and it was selected accordingly for providing house sites to the Harijans and Poosalas. the Collector submitted that the original proposal was dropped in 1976, as the Revenue Divisional Officer felt that there was not much of congestion in the Harijanawada and the proposal was revived in 1978 as the then Joint Collector, Nellore, who inspected the locality felt that the Harijanawada was quite congested and there are many married members living in congested houses and the lands under acquisition are best suited for providing house sites.
7. The petitioners have filed objections to the report of the Collector.
8. Thereafter, once again, we heard the arguments of the learned counsel for the petitioners and learned Government Pleader. The learned counsel for the petitioners has made the following submissions:
(1) The District Collector did not make the notification under Section 4(1) of the Land Acquisition Act.
(2) There was no need to revive the proposal to acquire the lands of the petitioners in view of the earlier report of the Revenue Divisional Officer, and the order of the District Collector, Nellore. It means that the District Collector did not apply his mind to the facts of the case.
(3) The petitioners are small farmers, who have fixed up filter points in the land and it is contrary to the guidelines issued by the Government to acquire such lands.
(4) There are alternative lands in the village which could be acquired.
(5) The majority of the beneficiaries have houses in the Harijanawada.
(6) There was no urgency and, therefore, dispensing with the enquiry under Sec. 5-A in bad.
(7) Under Section 17(4) the power to dispense with the enquiry under Section 5-A rests only with the Government, but not with the District Collector.
9. The first contention was taken only in the reply affidavit. Therefore, there was no occasion for the respondents to traverse it in their counter-affidavit. Even otherwise, a reading of the notification issued under Section 4(1) shows that it was issued only by the District Collector, Nellore/
10. It is true that the original proposal to acquire the lands was dropped in 1976 by the District Collector, Nellore, on the basis of the report submitted by the Revenue Divisional Officer, Nellore. Subsequently, on a representation made by the Harijans, the Joint Collector, Nellore, visited the village on 28th May, 1978 and found that the Harijanawada was quite congested and there were many adult married member, who were living in congested houses. The road side encroachers the 'Poosalas' also represented for the provision of house sites. Therefore, the Joint Collector instructed the District Social Welfare Officer (Land Acquisition) Nellore to go ahead with the acquisition proposals. Accordingly, acquisition proposals were initiated and draft notification and draft declaration were submitted to the District Collector for approval and publication. Notification under Section 4(1) and 6 of the Land Acquisition Act were published in the District Gazette dated 19th September, 1978. The report which we have called for from the District Collector, during the course of the hearing of the writ petitions, also confirms the need to acquire the lands in question for providing house sites for the Harijans of the village. No doubt, the learned counsel for the petitioners contraverted the facts in the reports adverse to them. He submitted that there are alternate lands in the village, and the majority of the beneficiaries have houses in Harijanawada. But it should not be forgotten that we are not sitting in appeal over the decision of the district collector. Equally, we cannot decide disputed question of fact in petition under Art. 226 of the constitution.
11. The learned counsel for the petitioners invited our attention to the judgement of Amareswari J., in W. P. No. 5516 of 1977, D/- 25th July, 1978. We have seen that judgement. On the facts of that case, the learned Judge came to conclusion that some of the Harijans for whose benefit the land was sought to be acquired were having houses or house-sites and landed properties and it was not necessary to acquired were having house or house-sites and landed properties and it was not necessary to acquire the entire extent of land mentioned in the notification for that purpose. But, as a proposition of law it will not be correct to say that, if a Harijan has a house or a site of his own, no acquisition should be made for his benefit. His house may be small, or insufficient to meet the needs of his family. It may be in a very unhygienic and dirty surroundings. In such a situation it will not be proper to say that he could not be given a site elsewhere to construct a better, neat and healthy house. In this connection we may refer to the judgement of Madhava Reddy, J., ( as he then was) and one of us (Jeevan Reddy, J.) in W. P. No. 5042 of 1978, D/- 22nd March, 1979 : (reported in AIR 1980 NOC 10 (Andh Pra). The learned Judges observed:
'The general allegation that the proposed beneficiaries do own/possess houses does not by itself establish anything. The mere fact that Adi Andhra Harijans are having their houses it does not follow that there is no public purpose. The houses may situated in very unfit for human habitation. A similar contention was rejected by a Bench of this Court in writ Appeal No. 205 of 1978 disposed of on 12-9-1978. The petitioner could not place before us any material to hold that the declaration contained in the notification is coulrable exercise and that no such public purpose really exists.'
12. It is not disputed that the declaration made under sub-section (1) of S. 6 that the land is needed for a public purpose is conclusive evidence under sub-section (3) of that section. The Act makes the Government the sole Judgement whether there is in fact a need and whether that need is a public purpose. Unless it is shown that there is colourable exercise of power, the Court cannot go behind the declaration of the Government and find out in a particular case whether the purpose for which the land is needed was a public purpose or not. (Jage Ram v. State of Haryana, AIR 1971 SC 10343). The onus is on the owner to displace that presumption and it cannot be said to the have been discharges by mere allegation in that behalf, which was denied by the Government land Acquisition Collector v. Durga Pada, : 1SCR573 .
13. This dispose of contentions 4 and 5 also. in Veerinaidu v. State of A. P., (1980) 2 Andh LT 170, the Government issued a notification under S. 48 of the Land Acquisition Act withdrawing from the acquisition proceedings of land that was sought to be acquired for the Agricultural Market Committee of Anakapalli in 1970. Thereafter, once again a proposal was mooted to acquire the same land. It was inspected by the then Minister in-charge, the Director of Marketing and also the then Minister for Agriculture, and they agreed that the land should not be acquired and the proposal was dropped. Once again the proposal was mooted in 1972 and the lands were again notified under S. 4(1) of the Act on 10th July, 1972. Subsequently, in 1978, the Minister for Marketing personally inspected the lands and observed that there was another land more suitable for the purpose and land should be denotified. Thereupon, the Government issued proceedings withdrawing the acquisition proceedings and communication to the District Collector who in turn, issued a draft withdrawal notification and requested the Government to approve it. At that stage, once again a representation was made by the interested parties not to issue the notification withdrawing the acquisition proceedings. Again the concerned Minister inspected the land the opined that the land should not be issue the notification withdrawing the acquisition proceedings. Again the concerned Minister inspected the land and opined that the land should not be acquired. Again representations were made to the Government by some persons not to withdraw from the acquisition proceedings. Thereupon, the Government issued proceedings cancelling their earlier notification to withdraw from the acquisition proceedings. It is those circumstances a Bench of this Court held when four Minister with the departmental authorities after inspecting the land in question came to the conclusion, assigning reasons, that the land was not suitable, the action of the Government in withdrawing its earlier notification was arbitrary and unreasonable. On the facts of the case, we have no hesitation in agreeing with the Bench that action of the Government was arbitrary. But the facts in this case are altogether different. There was no acquisition of the land on prior occasion, much less withdrawal from the acquisition proceedings under Section 48 of the Act. It was only a proposal which was dropped. Therefore, that decision is of no assistance to the petitioners.
14. It is true that the Government have given certain instructions for provision of house sites to the Scheduled Castes and others. On 31st May, 1974 an instruction was issued that persons with meagre land holdings (less than Ac. 2.00 to Ac. 21/2) may generally be not touched, unless otherwise inevitable for the purpose of maintaining the rule of proximity and vicinity to the main village. A similar instruction was issued on 29th Sept., 1977 that lands belonging to poor persons should not be acquired unless it becomes absolutely inevitable to keep up the contiguity and proximity. The instruction that the lands served with filter points should not be selected for acquisition is not placed before us. But, there see s to be such an instruction as is evident from the report of the Revenue Divisional Officer dated 16th Aug., 1976. In the present case, Smt. Chenchamma, the petitioner in writ petition No. 5282 of 1978 claims to be a small farmer on the ground that she owns only Ac. 2.12 cents. She further stated that she had installed a filter point at a cost of Rs.8,000/- and incurred a debt of about Rs.20,000/- in rendering the land fit for cultivation. On the other hand in the counter-affidavit filed by the 2nd respondent it is stated that Smt.Chenchamma has no right or possession of the said land and it is Smt. Saradamba, her co-daughter-inlaw (Petitioner in the other writ petition) that is the real owner of the land and she is in its enjoyment. It is not a matter which we can decide in this writ petition. Assuming for a moment that Smt. Chenchamma owns Ac. 2.12 cents of land, still, in our opinion, that cannot invalidate the acquisition. It is not shown to us that the instructions have been issued under any provision of the Land Acquisition Act. They do not have any statutory force. They cannot override the provisions of the Act. If the action taken is valid under the Act, it does not become invalid because it is opposed to some administrative instructions issued by the Government.
15. In W. P. No. 326 of 1976 etc., dated 24th Feb., 1976 Chinnappa Reddy and Madhava Reddy, JJ. held that acquisition made in disregard of the executive instructions cannot be considered to be arbitrary. The instructions are mere executive instructions. They do not have any statutory force and effect cannot be given to them so as to override the statutory powers if it is found that the authority acting under the statute had acted within the power given to it by the statute.
16. For the general proposition that executive instructions are issued for the guidance of the authorities and they are not in the nature of statutory rules having the force of law and their breach would not justify a writ of certiorari. see R. Abdulla Rowther v. S. T. A. Tribunal, AIR 1959 SC 896; G.J. Fernandez v. Statute of Mysore, : 3SCR636 and Regina v. St. A. H. E. School, : AIR1971SC1920 .
17. In view of these decisions we hold that assuming that the District Collector had not followed the instruction issued by the Government while acquiring the lands it is not a ground to quash the acquisition proceedings.
18. Apart from that, even the instruction issued by the Government says that as fat as possible the lands of poor persons should not be touched, unless otherwise inevitable for the purpose of maintaining the rule of proximity and vicinity to the main village and contiguity of the lands. Thus, the instruction does not place a complete embargo on acquisition of lands of poor persons. The report of the District Collector dated 30th Oct. 1980 which is based on the report of the Revenue Divisional Officer, Nellore shows that the land in question is very close to the existing Harijanawada and the High way road and it is well suited for house sites and, accordingly, it is selected. We have also seen the sketch submitted by the Revenue Divisional Officer. It shows that the land in question abuts the harijanwada and the Nellore-Mypadu road. Besides, the same report shows that the alternate lands suggested by the petitioners are situate in a different village in a different panchayat, although they are situate within a furlong to the Harijanawada and there is no vacant land available in the harijanchery to provide house sites to the Harijans. In the light of these facts we hold that there is no contravention of the instructions issued by the Government.
19. In this connection the learned counsel for the petitioners has invited our attention to following decisions.
20. In B. Venkatapathi Raju v. Govt. of A.P., 1979 APHN 68 W.A. No.381 OF 1978, D/- 12-1979, (sic) it was observed by a Division Bench of this Court that the Harijans cannot insist upon the acquisition of a particular land and the District Collector cannot surrender his judgement to the wishes of harijans. It was also observed that the land which was sought to be acquired in that case was a valuable agricultural lands and the Government issued instructions to the effect that acquisition of good agricultural land should be resorted to only when it was absolutely unavailable. It was further admitted in that case that another land which was pasture land opposite to the land sought to be acquired, was not only available for the purpose of acquisition but also suitable from all points of view. In those circumstances, a Division Bench of this Court set aside the notification issued under Section 4(1) of the Act. But, in our case the facts are altogether different.
21. We have seen N. Ammorayya v. District Social Welfare Officer, : AIR1979AP159 . we do not consider it relevant.
22. In C. Satynarayana v. Dist. Collector, Vizag, (190) 2. APLJ 245, Lakshmaiah, J., held, on the facts of that case, that enquiry under S. 5-A of the Act should not have been dispensed with. In that case, the land was sought to be acquired for providing house sites to the Harijans and backward class families. Notification under Section 4(1) was published in the District Gazette dated 12th Jan., 77. Even before the notification was issued, the petitioners therein submitted a representation on 24th Dec., 1976 stating that they were landless poor persons possessing practically negligible extents of land and requesting the authorities concerned to make an enquiry. The learned Judge held that the authorities should have enquired into their petition which was submitted before the notification under S. 4(1) was published. He also observed that the purpose for which the acquisition was made was not urgent. We find it difficult to agree with him. It is now well settled by the decisions of this Court that acquisition of land for providing house sites to the poor is a matter of urgency. The urgency is also recognised by the Legislature as is evident by the Madras Amendment of Sec. 17(2) of the Land Acquisition Act. We are dealing with this question separately giving our reasons. Apart from that, on the facts also in that case notification under Section 4(1) of the Act was published in the District Gazette dated 12th Jan., 1977. The petitioners submitted a representation on 24th Dec., 1976, that is just a few days before. Even by then, the whole proceedings must have been proceeded and a decision must have been taken by the District Collector. The mere fact that the petitioners therein and a representation, a few days before the notification under S. 4(1) was issued, stating that they were poor persons cannot be a ground to hold that enquiry under S. 5-A should not have been dispensed with.
23. In K. Radhakrishna Reddy v. Dist. Collector, Nellore, (1981) 2 APLJ 93, The lands were sought to be acquired for providing house sites to the harijans. Enuiry under S. 5-A was dispensed with. The petitioners therein contended that they were small farmers. After referring to the instructions issued by the Government our learned brother P.A. Chowdary, J., observed that there are Government poramboke lands available in the village, but the harijan beneficiaries were not willing to go and occupy them and the Government would be acting illegally if it mechanically acts upon the beneficiaries scale of preferences for the lands. He observed that the Government cannot surrender and succumb to the merrier wishes of the harijan beneficiaries. It was not argued in that case that the instructions, issued by the Government had no statutory force. If the learned Judge meant that the lands of small farmers cannot be acquired at all, then we cannot agree with him. We agree with the learned Judge that harijans preferences alone cannot be decisive in a matter like this and the Government cannot mechanically surrender their decision to the preference of the harijans. At the same time, we hold that the preferences of the harijans cannot be completely ignored. Utilimately, it is they that have to construct houses and live in them for generations. If they are not willing to live on a particular land, then there is no point in acquiring it. The learned Judge also held that normally the rule should be to hold an enquiry under Sec. 5-A even in cases where the land is acquired for providing house sites for harijans and the dispensing with the enquiry under Sec. 17(4) should be an exception. We will be dealing with this aspect later on.
24. Next we take up the contention whether the Collector was justified in the present case, in dispensing with the enquiry under S. 5-A of the Act, and whether he had the power to do so under S. 17(4) of the Act?
25. The lands are being acquired for providing house sites for harijans. Section 17(1) of the Land acquisition Act provides, that in the case of urgency whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in S. 9(1) take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances. Sub - section (2) of S. 17, as amended by the Madras Amendment Act, XXX of 1948 reads as follows:-
'(2). In the following cases, that is to say- in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a riverside or ghat station, or of providing a convenient connection with or access to any such station.
(b) Whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land.......................
(I) for the purpose of any library or educational institution, or
(ii) for the construction, extension or improvement of
(iii) any building or other structure in any village for the common use of the inhabitants of such village.
(b) any godown for any society registered or deemed to be registered under the Madras Co-operative Societies Act, 1932,
(c) any dwelling house for the poor,
(d) any irrigation tank, irrigation or drainage channel or any well,
(e) any road.
the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances.'
26. It was further amended by the Andhra Pradesh Legislature by which 'The Andhra Pradesh (Telangana Area) Co-operative Societies Act 1952 (Act XVI of 1952)' of 'for any purpose connected with the Nagarjuna sagar project in the area to which the Nagarjunasagar Project (Acquisition of Land) Act, 1956 extends', or, 'for the execution of any housing scheme under the Andhra Pradesh Housing Board Act, 1956' were also added. By Andhra Pradesh Amendment Act, XXII of 1976 for the words ' the appropriate Government' -- the words 'the appropriate Government or the District Collector, as the case may be' have been substituted.
27. In view of the Madras Amendment, acquisition of land for dwelling houses for the poor is treated as urgent. It is placed on the same footing as other purposes mentioned in that sub-section. It is true that it is left to the opinion of the Collector to decide whether it was necessary to acquire immediate possession of any land for providing dwelling houses for the poor. It is also true that his opinion, though subjective, should be based on some material. If there is some material, it is not for this Court to sit in appeal and substitute its own opinion,. Even otherewise, it cannot also be denied that providing house sites for poor in our country is a matter of urgency and cannot brook and delay. There can be no two opinions that most of the poor, particularly harijans, live in very unhygienic surroundings and their rehabilitation is an immediate necessity. Therefore, acquisition of house sites for harijans cannot be treated on par as acquisition for purposes other than mentioned in sub-section (2) of S. 17.
28. Sub-section (4) of S. 17 provides that, in case of any land to which in the opinion of the appropriate Government the provisions of sub-section (1) or sub-sec. (2) are applicable, the appropriate Government may direct that the provisions of S. 5-A thus, though holding enquiry under S. 5-A is the normal rule, exception is provided by sub-sec. (1) and sub-section 92) of S. 17. Consequently, it cannot be said that even in the cases of acquisition for providing house sites for harijans, holding enquiry under s. 5-A is the normal rule and dispensing with it is the exception, though as stated by us already it cannot be mechanically dispensed with. Even in such cases, if there is some material for the Collector to do so, it is not for this Court to sit in judgement over it.
29. In this connection we will refer to the relevant decisions placed before us by the learned Government pleader.
30. In Kasireddy Papaiah v. Govt. of Andh Pra, : AIR1975AP269 , Chinnappa Reddy, J. (as he then was) observed (at p.269 of AIR):-
'That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which Courts are bound to take judicial notice. History has made it urgent at, among other problems, the problems of housing Harijans should be solved expeditiously. The greater the delay the more urgent becomes the problem. Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the official entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless of course, it can be established that acquisition itself is made with an oblique motive. The urgent pressures of history are not to be undone by the inaction of the bureaucracy. I am not trying to make any bureaucracy. I am not trying to make any pontific pronouncements. But I am at great pains to point out that provision for house sites for Harijans is an urgent and pressing necessity and that the invocation of the emergency provisions of the Land Acquisition Act cannot be said to be improper, in the absence of the mala fides, merely because of the delay on the part of some Government officials. As already observed by me, the greater the delay the greater the urgency. Of course, there may be cases where the very acquisitions mala fide and so too the invocation of the urgency provisions.'
In N. Ramanna v. The collector, west Godavari, (1977) 2 APLJ 289, a Division Bench of this court consisting of A.V.Krishna Rao and Punnayya, JJ., endorsed these observations It was further observed that the opinion of the Government whether there was urgency or not is entitled to great weight if not conclusive.
31. In W. P. No. 5042 of 1978 dated 22nd March, 1979: (AIR 1980 NOC 10) (Andh Pra), Madhava Reddy and Jeeven Reddy, JJ., observed that the only ground on which the conclusive presumption contained in S. 6(3) can be overridden is by establishing that the making of declaration is an instance of colourable exercise of power i.e., by establishing that the purpose said to be the public purpose is really a private one, or that there was no public purpose at all. It was also observed that by virtue of the amendment made by the Madras Legislature to sub-section (2) of S. 17 legislative recognition has been given to the fact that procession of house sites to poor is an inherently urgent one. In such a case the only opinion that has to be formed by the appropriate authority is that it is necessary to take immediate possession of the land and when once that option is formed, the power under Section 17(4) can be invoked and the enquiry under S 5-A dispensed with . It was further observed that this is not an appellate authority and , therefore, it cannot go into the adequacy of the material and it can interfere only in cases where there is no material whatsoever upon which the opinion could be formed, or where the formation of the opinion is vitiated by mala fides. In this connection the learned Judges also explained Narayan v. State of Maharashtra : 1SCR763 which dealt with sub-section (2) of S. 17 as enacted by the Central Legislature, without the Madras Amendment, and held that in case of acquisition of land for providing house sites to poor, invocation of power under S. 17(4) to dispense with the enquiry under S. 5-A would ordinarily be unquestionable.
32. In W. A. No. 370 of 1976 dated 20th Sept., 1976 Sambasiva Rao, J. (as he then was ) and Punayya, J., held that when the Government stated that the poor Scheduled Caste people of the villages were living in congested huts and under most un-hygienic and insanitary conditions injurious to their health and welfare, and there is every urgency to provide house sites to avoid the danger of epidemics and other diseases spreading over in the Harijanwada, that certainly constitutes a grave urgency and renders full justification for dispensing with the enquiry under S. 5-A of the Act. They further observed, that the lethargy on part of the officials in making declaration under Section 6 of the Act, or in taking procession of the land does not mean that there was no urgency for the acquisition.
33. In S. Parathasarathy v. Govt. of Andh Pra, (1981) 2 APLJ 106: (1981 Cri LJ 641). one of us (Jeevan Reddy, J.) had an occasion to consider the Madras Amendment for sub-section (2) of S. 17. He held that the Legislature had treated the purposes mentioned in sub-section (2) as inherently and specifically urgent and not only the requirement of waiting for fifteen days after the publication of the notice under Sec. 9(1) is dispensed with, but the further limitation under sub-section(1) that the land should be waste or arable is also not provided. He also observed that where the purpose of acquisition is one of those mentioned in sub-section (2) the court while scrutinising the validity of the exercise of power under sub-section (4) should keep in mind the fact that the Legislature had recognised those purposes as inherently and specially urgent. To put it differently, not only has the Court to keep in mind that the formation of satisfaction is subjective on the part of the Government, but it must also have regard to the additional circumstances that the purpose of acquisition is one recognised by the Legislature itself as inherently urgent. It was also observed that the formation of the opinion on the par of the Government under sub-section (4) is subjective and so long as it is formed fairly and on relevant material, the court would not interfere.
34. One of us (Gangadhara Rao, J.) had occasion to consider the Madras Amendment in P. Punnaith v. Dist. Collector, Kakinada, : AIR1982AP33 . It was held in that judgement that in view of the amended sub-section (2) of S. 17 acquisition of house sites for poor is a matter of urgency which cannot brook any delay and dispensing with the enquiry under Sec. 5-A in such cases cannot be considered to be improper.
35. The learned counsel for the petitioners has placed strong reliance on the decision of our learned brother P.A. Choudary, J., in K.Radhakrishna Reddy v. Dist. Collector., Nellore, (1981) 2 APLJ 93 (supra). In the view we have taken, we do not agree with our learned brother that the acquisition for providing house sites for harijans does not attract the application of the Madras Amendment and does not empower the collector to dispense with Section 5-A enquiry. Therefore, we reject the contention that there was no urgency in the case so as to dispense with the enquiry under S. 5-A of the Act.
36. Next question for our consideration is whether under S. 17(4) of the Act, the Collector could dispense with the enquiry under S. 5-A of the Act? In this connection it is necessary to refer to the Land Acquisition (Andhra Pradesh Amendment) Act, XXII of 1976. That act was intend to facilitate acquisition of land for the construction, extension or improvement of any dwelling house for the poor by the Collector. That Act came into force on 12th Sept., 1975. Section 3-A which was introduced by that Act says, that the State Government may, by notification in the Andhra Predesh Gazette, direct that any power conferred or any imposed on them by the Act, shall in such circumstances and under such conditions, if any, as may be specified in the notification, be exercised or discharged by the District Collector. In sub-sections (1) and (2) of S. 17, in addition to the words 'appropriate Government' the words 'or the District Collector as the case may be' are introduced. In exercise of the power conferred by S. 3-A, the Government of Andhra Pradesh has issued G. O. Ms. No. 1378 dated 15th Oct., 1975 authorising all the District Collectors to exercise the power vested in the State Government under S. 5-A and sub-section (4) of Sec. 17 of the Act for the purpose of acquisition of land for construction , extension or improvement of any dwelling house for the poor. In view of S.3-A and the notification issued thereunder, now the District collector can dispense with the enquiry under Section 5-A and under S. 17(4) of the Act. A Full Bench of this Court had occasion to consider this Amending Act in W. P. No. 3353 of 1976 and Batch dated 26th Sept., 1978. It was held that S. 3-A was validly enacted and the notification issued thereunder empowering the district Collectors or exercise the powers to dispense with the enquiry under S. 5-A and under S. 17(4) of the Act was valid. Consequently, we hold that the action of the District Collector in dispensing with the enquiry under S. 5-A is valid.
37. In the result, we see no grounds to interfere with the acquisition proceedings and we dismiss these two writ petitions, but in the circumstances of the case, without costs. Advocate's fee Rs.150/- in each.
38. Supreme Court Leave Petition: The learned counsel for the petitioner has made an oral application for leave to appeal to the supreme Court. We do not find any substantial question of law of general importance arising in this case. Hence the application is rejected.
39. Petitions dismissed.